Datasets:

JuDDGES

/

en-court-instruct

like 0

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: [2005] EWCA Crim 706 Case No: 200303166 D4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT TEESSIDE His Honour Judge Fox QC and a Jury Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/03/2005 Before : LORD JUSTICE JUDGE DEPUTY CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE GRIGSON and HIS HONOUR JUDGE RADFORD - - - - - - - - - - - - - - - - - - - - - Between : R - v - FESTON KONZANI - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - T.D. Roberts QC for the appellant F. Muller QC and I. Skelt for the Crown Hearing date: 15th February 2005 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Judge: 1. This is an appeal by Feston Konzani against his conviction on 14th May 2004 in the Crown Court at Teesside, before His Honour Judge Fox QC and a jury, on three counts of inflicting grievous bodily harm on three different women, contrary to s 20 of the Offences Against the Person Act 1861 . On the judge’s direction he was acquitted of a further such count involving a fourth woman. 2. He was sentenced to a total of 10 years’ imprisonment on count 2, 4 years’ imprisonment on count 3, 3 years’ imprisonment, and on count 4, 3 years’ imprisonment, all the sentences to run consecutively. His application for leave to appeal against sentence was referred to the Full Court. 3. The appellant was born in February 1976. In November 2000, the appellant was informed that he was HIV positive. On that occasion, and on subsequent occasions, he was specifically informed of the risks of passing the infection on to any sexual partners, and its dire consequences. Thereafter he had sexual relationships the three complainants. He did not tell any of them that he was HIV positive, and he repeatedly had unprotected sexual intercourse with them, knowing, that by doing so, he might pass the infection on to them. In consequence, each contracted the HIV virus. 4. The appellant did not give evidence at trial. He called no witnesses. There was no evidence to contradict the clear statements by each complainant that he had not told them of his condition. It was however formally admitted on his behalf that he acted recklessly by having a sexual relationship with the complainants without using a condom every time he had sexual intercourse with them. It was also admitted that he infected them with the HIV virus, thus inflicting grievous bodily harm on them. 5. Notwithstanding their evidence that he withheld vital information about his condition from them, and that each complainant expressly denied that she consented to the risk of catching the HIV virus from him, counsel on his behalf addressed the jury on the basis that by consenting to unprotected sexual intercourse with him, they were impliedly consenting to all the risks associated with sexual intercourse. He argued that as infection with the HIV virus may be one possible consequence of unprotected sexual intercourse, the complainants had consented to the risk of contracting the HIV virus from him. Accordingly he should be acquitted. By their verdicts, the jury found that none of the complainants consented to the risk of contracting the HIV virus. 6. The significant aspect of the appeal relates to the accuracy in law of the judge’s direction to the jury on the issue of consent. We must, however, examine the essential facts in a little more detail. DH 7. The first complainant was DH. She met the appellant in 2001, when she was 15 years old, when she bumped into him as she was walking down the street. He invited her and two friends, aged 14 years, to a party given by his sister. At the party, the appellant told her that he liked her because she was the eldest of the 3 girls. 8. She saw him a week later, and he asked her to become his girlfriend. She was a virgin. She had sexual intercourse with him. She moved into a house with him. Sexual intercourse took place regularly. She did not have sexual intercourse with anyone else. When they had sexual intercourse he did not use a condom, and ejaculated inside her. 9. There was no discussion about the potential risks, and to begin with she was not even worried about the danger of pregnancy. After two or four weeks, she returned home to her mother. She climbed out of a kitchen window and did not return. 10. After her relationship with the appellant, she had two sexual partners. Both were later tested for HIV, and both tested negative. Thereafter she saw the appellant on a couple of occasions, but ran away from him when she did. At Christmas 2001, she had a blood test, and discovered that she was HIV positive. The appellant had never told her that he was HIV positive. When she found out about her condition, she started crying. She wanted to die. 11. She said that at the time of the relationship she knew about the risks of pregnancy, and indeed of contracting a disease, but the risk of catching HIV never entered her mind. 12. We must refer to the transcript of her evidence. She was asked: “Q. At any time when you were with Feston or after you were with Feston, did he tell you that he was HIV positive? A. No. … A. Then my doctor came round and told me I was HIV positive. Q. How did that make you feel? A. I wanted to die.” 13. When cross-examined the following exchanges occurred: “Q. Did they tell you anything about HIV? Did you know anything about Aids? A. No. Q. Either from those lessons at school or from what you have heard on the news? A. Erm well, they told us about it at school but I didn’t really get to grips with what it was about … Q. And were you aware that there is an Aids problem in Africa? A. Not really, no. … Q. What did you know about him before you agreed to have sex with him? A. Not much … Q. Did you realise you were taking a risk of becoming pregnant. A. Yeah. Q. Were you prepared to take that risk? A. Yeah. Q. Did you realise you were taking a risk of catching a disease? A. Yeah. Q. And were you prepared to take that risk? … A. Yes, I was, yeah.” 14. In re-examination she was asked: “Q. When you were having sex with Feston did you think at any time there was a risk of you catching a serious sexually transmitted disease? A. No. If I’d have known that I wouldn’t have went with him. Q. You said a little bit about how you feel, having found out that you have HIV. A. Yeah. Q. Have you done anything as a result of it? A. I was self-harming. Q. You were self-harming. What do you mean by that? A. I was cutting my arms. Q. Do you know why you did that? A. Because it took the anger and pain. I couldn’t exactly go down the road and punch Feston.” RW 15. The second complainant was RW. She gave evidence that she was from Kenya. She first met the appellant in December 2002, in church. He told her that he was from Malawi. They talked about the Bible. They planned to meet for a prayer meeting. They became friends. She eventually moved in to live with the appellant, and they became lovers. 16. Sexual intercourse occurred on many occasions, sometimes protected, sometimes not. She said that she was not concerned about having unprotected sex with the appellant because she trusted him. He did not tell her he was HIV positive. 17. Gradually the relationship deteriorated. She became pregnant. They separated. When she went to see the doctor to confirm the positive result of her own home pregnancy test, she was told that she was both pregnant and HIV positive. She was devastated. 18. She was 27 years old, and aware of the Aids problem in Kenya and Malawi. She and the appellant never discussed contraception. Later she gave birth to their child who was HIV negative. She agreed in evidence that she realised that she had taken the risk of catching an infection, including HIV, but said that she had not thought about the risk of having unprotected sex with him at the time. She was not concerned because she trusted him. He did not tell her that he was HIV positive. 19. Again, we must refer to some passages in the transcript of RW’s evidence. “Q. When Feston didn’t wear condoms were you concerned about any risks? A. No. Q. Why weren’t you concerned? A. I trusted him. Q. Did Feston tell you he was HIV positive? A. No.” 20. Cross-examined it was put to her that: “Q. You also realise that by having unprotected sex you risk catching an infection? A. Yes … Q. … That too is a risk that you took. A. Yes. Q. That risk included the risk of contracting HIV didn’t it? A. Yes, but I didn’t think about it at the moment. … Q. That means at the time you had unprotected sex? A. Yes. … Q. But there was no discussion about HIV or tests or anything before you had sex? A. Yes. Q. You agree that there was no discussion? A. Yes.” LH 21. The third complainant was LH. She was a voluntary worker who did community work related to Africa. She had a 4 year old son, who suffered a life-threatening condition which was countered by very high levels of hygiene. Before she met the appellant, she and her child’s father had both had blood tests. They were HIV negative. 22. She met the appellant through her work in January 2003. She was attracted to him. She told him about her ambition to help orphans in Africa. He told her that HIV was not very common in the part of Africa from which he came. He did not tell her that he was HIV positive. Their friendship developed into a sexual relationship. The first time they had sexual intercourse he used a condom. Afterwards she joked, “I hope you haven’t got any disease”, to which he replied, “Don’t be stupid”. She said that she trusted him. 23. As the relationship developed, he stopped using condoms. She said that she did not think that she had a responsibility to ask the appellant whether he had an Aids test. She thought it was his responsibility to tell her. When the relationship came to an end, she took an HIV test which was positive. She was devastated, particularly because of its likely impact on her son. 24. She said that if she had known the appellant was HIV positive, she would have sought medical advice on how best to protect herself and her son. Given his condition she was particularly keen to avoid any serious infection. 25. Her evidence in a little more detail includes the following passages. During her evidence in chief she was asked: “Q. Did you have any conversations with Feston after that [the first occasion of sexual intercourse]? A. Yes. I says to him, joking, joking, I said, ‘I hope you haven’t got any diseases’. Q. And what did he say? A. He said, ‘Don’t be stupid’. … Q. What was the upshot of the conversations you had after he stopped using condoms? A. Just generally like before, about the children in Africa and people living with HIV and Aids, the effect it has on people and how we can help and just general, general discussions.” 26. LH explained how the appellant was arrested after their relationship had come to an end. She was asked her reaction when she heard about the allegations against him. She said that she freaked out. 27. When cross-examined, she was asked: “Q. Did you ask him if he had an HIV test before having unprotected sex with him? A. No. Q. Why was that? A. Because if somebody’s got HIV then as an individual I would expect them to tell me the same way I would tell them. … Q. Did it not occur to you to ask him if he had ever had a test for HIV? A. No. Q. But you were actually on the subject of talking about HIV in Africa. Would it have been easy for you to ask him if he … A. No, it would have been easier for him to tell me. That’s what I think. He had … I didn’t have the responsibility to ask him. He had the responsibility to tell me. … Q. So if you had known that he was HIV positive you would have continued to have a sexual relationship with him. A. No. I would have went to the hospital and got advice before I done anything. That’s what I would have done. I would have seeked medical advice to see what I needed to do to protect myself and what I needed to do to protect him and what I needed to do if anything to protect my son. … Q. Had you had unprotected sexual intercourse after being diagnosed HIV positive? A. No, protected sex.” 28. When re-examined she was asked: “Q. Did you think that when you had unprotected sex … that there was a risk of you catching a serious sexually related disease? A. No, never.” Arrest 29. After his arrest, the appellant was interviewed by the police. Initially, he refused to answer any questions about DH, but eventually asserted that she had never stayed at his house, and that she did not know him by his first name, Feston. When it was suggested to him that DH had lived with him and that they had had a sexual relationship, he replied “I think this entire thing is a complete lie”. When asked about RW, he declined to answer most of the questions. He did however state that he had had sexual intercourse with her without a condom because “The entire sex thing had happened so fast”. He declined to answer any further questions about the relationship. When interviewed about LH, he refused to answer any questions at all. 30. So far as all three complainants was concerned, when he was asked whether any one of them would have had sexual intercourse with him if she had known that he was HIV positive, he refused to comment. He never suggested that he believed that any of the complainants consented to the risk of contracting HIV from him. 31. Complaint was made in the grounds of appeal about the directions given by the judge arising from these interviews, and the appellant’s responses. This ground of appeal was abandoned. We can conveniently deal with a further ground of appeal, a complaint that the judge erred when he directed the jury that they could draw adverse inferences against the appellant from his failure to give evidence. We have examined the judge’s direction. The judge highlighted the reasons why Mr Roberts contended before the jury that adverse inferences should not be drawn against his client, and gave accurate directions appropriate to the factual context. This ground fails. Julian Kotze 32. Evidence was given by Julian Kotze. 33. This witness told the jury that when he learned that he was HIV positive, the appellant had spoken in terms of eradicating women. Objection was taken to the admissibility of the evidence. The judge ruled that it was relevant to the issue of recklessness. It would also have been relevant to the submission that the jury should consider whether the appellant had an honest belief in the complainant’s consent. As we shall see, the judge declined to leave that issue to the jury, and once recklessness was admitted, Kotze’s evidence had no further relevance. No reference was made to it in the summing up, and given the single issue before the jury, which related exclusively to the state of mind of the complainants, rightly so. Consent 34. Referring to HIV, the judge directed the jury that they had to be sure that the complainant in each individual case: “… did not willingly consent to the risk of suffering that infection. Note that I use the phrase ‘to the risk of suffering that infection’ and not merely just ‘to suffering it’. That is an important point which Mr Roberts rightly drew to your attention in his speech to you this morning. He put it this way, it is whether she consented to that risk, not consented to being given the disease which is, as he put it graphically, a mile away from the former. That is right, but note that I use the word ‘willingly’ in the phrase ‘willingly consent’, and I did that to highlight that the sort of consent I am talking about means consciously.” He returned to the clear and important distinction between “running a risk on one hand and consenting to run that risk on the other”, pointing out that the prosecution had to establish that the complainant “did not willingly consent to the risk of suffering the infection in the sense of her having consciously thought about it at the time and decided to run it”. He added that the appellant should be acquitted, if, in relation to any complainant, she had thought of the risk of getting HIV, and nevertheless decided to take the risk. In answer to a question from the jury, he returned to emphasise that before the appellant could be convicted, the prosecution had to prove that she “did not willingly consent to the risk of suffering that infection”, and he repeated that for the purposes of his direction, “willingly” meant “consciously”. He again repeated the distinction between “running a risk on the one hand and consenting to run that risk on the other”, adding that the “willing” consent involved knowing the implications of infection with the HIV virus. 35. In short, the judge explained that before the consent of the complainant could provide the appellant with a defence, it was required to be an informed and willing consent to the risk of contracting HIV. 36. Mr Timothy Roberts QC submitted first, that the judge wrongly declined to leave to the jury the issue whether the appellant may have had an honest, even if unreasonable belief, that the complainant was consenting to the risk of contracting the HIV virus, and second, that he misdirected the jury on the issue of consent as it applied to the present case. Notwithstanding the express and uncontradicted evidence of the complainants, he submitted that as a matter of inference the appellant may have had an honest, even if unreasonable belief, that the complainant was consenting, simply because she had sexual intercourse with him in the circumstances in which she did, and so accepted all possible consequent risks. To support his submission he referred to the decisions of this Court in Jones [1986] 83 CAR 375 and Aitken [1993] 95 CAR 304. In Jones the trial judge declined to direct the jury that the defendants were entitled to be acquitted if the jury decided that they were indulging in “rough” and undisciplined sport or play, not intending to cause harm, and genuinely believing that the injuries which occurred in the course of the horseplay occurred with the victim’s consent. Aitken was another situation involving robust, high-spirited, “horseplay” which resulted in serious injury. We cannot improve on the analysis of these cases by Lord Mustill in his dissenting speech in R v Brown [1994] 1 AC 212, where he said: “… As a matter of policy the courts have decided that the criminal law does not concern itself with these activities, provided that they do not go too far. It also seems plain that as the general social appreciation of the proper role of the state in regulating the lives of individuals changes with the passage of time, so we shall expect to find that the assumptions of the criminal justice system about what types of conduct are properly excluded from its scope, and what is meant by ‘going too far’ will not remain constant.” 37. Mr Roberts developed a linked complaint that the judge’s decision, and his later direction to the jury, in effect deprived the appellant of the jury’s consideration whether he had a guilty mind. For the purpose of establishing the need for mens rea, he drew our attention to R v K [2002] 1 AC 422 . We have no difficulty with the general, indeed obvious, principle that mens rea is an essential ingredient of every statutory offence unless it is expressly excluded, or excluded by absolutely necessary implication. We immediately acknowledge the tautology, but it enables appropriate emphasis to be given to the principle. However for the purposes of s 20 of the 1861 Act , the required mental ingredient of the offence is established if the defendant was reckless in the sense formulated in R v Cunningham [1957] 2 QB 396 , as approved in R v Savage [1992] 1 AC 699 . In short, if he knew or foresaw that the complainant might suffer bodily harm and chose to take the risk that she would, recklessness sufficient for the purposes of the mens rea for s 20 was established. In the result, as we have recorded, recklessness was admitted. 38. To examine Mr Roberts’ submissions, and his criticisms of the directions to the jury, we must turn to R v Dica [2004] EWCA Crim 1103 , where the issue of consent was addressed (a) in the context of the longstanding decision in R v Clarence (1888) 22 QBD 23 that the consent of a wife to sexual intercourse carried with it consent to the risks inherent in sexual intercourse, including the risk of sexually transmitted disease, and (b) the trial judge’s ruling that the consent of the complainants to sexual intercourse with an individual who was known to them to be suffering from the HIV virus could provide no defence. 39. In R v Barnes [2004] EWCA Crim. 3246 , Lord Woolf CJ summarised the effect of the decision in Dica in this way. An HIV positive male defendant who infected a sexual partner with the HIV virus would be guilty of an offence “contrary to s 20 of the 1861 Act if, being aware of his condition, he had sexual intercourse … without disclosing his condition”. On the other hand, he would have a defence if he had made the partner aware of his condition, who “with that knowledge consented to sexual intercourse with him because [she was] still prepared to accept the risks involved.” 40. R v Dica represented what Lord Mustill in R v Brown described as a “new challenge”, and confirmed that in specific circumstances the ambit of the criminal law extended to consensual sexual intercourse between adults which involved a risk of the most extreme kind to the physical health of one participant. In the context of direct physical injury, he pointed out that cases involving the “… consensual infliction of violence are special. They have been in the past, and will continue to be in the future, the subject of special treatment by the law”. In his subsequent detailed examination of the “situations in which the recipient consents or is deemed to consent to the infliction of violence upon him”, activity of the kind currently under consideration did not remotely fall within any of the ten categories which he was able to identify. Brown itself emphatically established the clear principle that the consent of the injured person does not form a kind of all purpose species of defence to an offence of violence contrary to s 20 of the 1861 Act . 41. We are concerned with the risk of and the actual transmission of a potentially fatal disease through or in the course of consensual sexual relations which did not in themselves involve unlawful violence of the kind prohibited in R v Brown . The prosecution did not seek to prove that the disease was deliberately transmitted, with the intention required by s 18 of the 1861 Act . The allegation was that the appellant behaved recklessly on the basis that knowing that he was suffering from the HIV virus, and its consequences, and knowing the risks of its transmission to a sexual partner, he concealed his condition from the complainants, leaving them ignorant of it. When sexual intercourse occurred these complainants were ignorant of his condition. So although they consented to sexual intercourse, they did not consent to the transmission of the HIV virus. Dica analysed two different sets of assumed facts arising from the issue of the complainants’ consent, by distinguishing between the legal consequences if, as they alleged, the truth of his condition was concealed from his sexual partners by Dica, and the case that he would have developed at trial if he had not been prevented from doing so by the judge’s ruling, that far from concealing his condition from the complainants, he expressly informed them of it, and they, knowing of his condition because he had told them of it, consented to unprotected sexual intercourse with him. There is a critical distinction between taking a risk of the various, potentially adverse and possibly problematic consequences of sexual intercourse, and giving an informed consent to the risk of infection with a fatal disease. For the complainant’s consent to the risks of contracting the HIV virus to provide a defence, it is at least implicit from the reasoning in R v Dica , and the observations of Lord Woolf CJ in R v Barnes confirm, that her consent must be an informed consent. If that proposition is in doubt, we take this opportunity to emphasise it. We must therefore examine its implications for this appeal. 42. The recognition in R v Dica of informed consent as a defence was based on but limited by potentially conflicting public policy considerations. In the public interest, so far as possible, the spread of catastrophic illness must be avoided or prevented. On the other hand, the public interest also requires that the principle of personal autonomy in the context of adult non-violent sexual relationships should be maintained. If an individual who knows that he is suffering from the HIV virus conceals this stark fact from his sexual partner, the principle of her personal autonomy is not enhanced if he is exculpated when he recklessly transmits the HIV virus to her through consensual sexual intercourse. On any view, the concealment of this fact from her almost inevitably means that she is deceived. Her consent is not properly informed, and she cannot give an informed consent to something of which she is ignorant. Equally, her personal autonomy is not normally protected by allowing a defendant who knows that he is suffering from the HIV virus which he deliberately conceals, to assert an honest belief in his partner’s informed consent to the risk of the transmission of the HIV virus. Silence in these circumstances is incongruous with honesty, or with a genuine belief that there is an informed consent. Accordingly, in such circumstances the issue either of informed consent, or honest belief in it will only rarely arise: in reality, in most cases, the contention would be wholly artificial. 43. This is not unduly burdensome. The defendant is not to be convicted of this offence unless it is proved that he was reckless. If so, the necessary mens rea will be established. Recklessness is a question of fact, to be proved by the prosecution. Equally the defendant is not to be convicted if there was, or may have been an informed consent by his sexual partner to the risk that he would transfer the HIV virus to her. In many cases, as in Dica itself, provided recklessness is established, the critical factual area of dispute will address what, if anything, was said between the two individuals involved, one of whom knows, and the other of whom does not know, that one of them is suffering the HIV virus. In the final analysis, the question of consent, like the issue of recklessness is fact-specific. 44. In deference to Mr Roberts’ submission, we accept that there may be circumstances in which it would be open to the jury to infer that, notwithstanding that the defendant was reckless and concealed his condition from the complainant, she may nevertheless have given an informed consent to the risk of contracting the HIV virus. By way of example, an individual with HIV may develop a sexual relationship with someone who knew him while he was in hospital, receiving treatment for the condition. If so, her informed consent, if it were indeed informed, would remain a defence, to be disproved by the prosecution, even if the defendant had not personally informed her of his condition. Even if she did not in fact consent, this example would illustrate the basis for an argument that he honestly believed in her informed consent. Alternatively, he may honestly believe that his new sexual partner was told of his condition by someone known to them both. Cases like these, not too remote to be fanciful, may arise. If they do, no doubt they will be explored with the complainant in cross-examination. Her answers may demonstrate an informed consent. Nothing remotely like that was suggested here. In a different case, perhaps supported by the defendant’s own evidence, material like this may provide a basis for suggesting that he honestly believed that she was giving an informed consent. He may provide an account of the incident, or the affair, which leads the jury to conclude that even if she did not give an informed consent, he may honestly have believed that she did. Acknowledging these possibilities in different cases does not, we believe, conflict with the public policy considerations identified in R v Dica . That said, they did not arise in the present case. 45. Why not? In essence because the jury found that the complainants did not give a willing or informed consent to the risks of contracting the HIV virus from the appellant. We recognise that where consent does provide a defence to an offence against the person, it is generally speaking correct that the defendant’s honest belief in the alleged victim’s consent would also provide a defence. However for this purpose, the defendant’s honest belief must be concomitant with the consent which provides a defence. Unless the consent would provide a defence, an honest belief in it would not assist the defendant. This follows logically from R v Brown . For it to do so here, what was required was some evidence of an honest belief that the complainants, or any one of them, were consenting to the risk that they might be infected with the HIV virus by him. There is not the slightest evidence, direct or indirect, from which a jury could begin to infer that the appellant honestly believed that any complainant consented to that specific risk. As there was no such evidence, the judge’s ruling about “honest belief” was correct. In fact, the honest truth was that the appellant deceived them. 46. In our judgment, the judge’s directions to the jury sufficiently explained the proper implications to the case of the consensual participation by each of the complainants to sexual intercourse with the appellant. The jury concluded, in the case of each complainant, that she did not willingly or consciously consent to the risk of suffering the HIV virus. Accordingly the appeal against conviction will be dismissed. Sentence 47. We must consider the sentence. In relation to one of the cases, (we need not identify it specifically), the complainant is extremely compassionate and forgiving, and would support, indeed seeks a reduction of the sentence on the appellant in her case. 48. We have, of course, reflected on her position. It seems to us, however, that while the sentencing court should always take account of the impact of an offence on its victim, the appropriate sentence should not normally be influenced by the wishes of the victim. Otherwise, there would be wild sentencing inconsistency, and the eventual outcome after compassion or mercy. It is elementary that this could not form the basis for a sentencing decision, or for that matter for sentencing policy. 49. The sentences in each of these individual cases, and the total sentence imposed on the appellant were neither manifestly excessive nor wrong in principle.

```yaml citation: '[2005] EWCA Crim 706' date: '2005-03-17' judges: - LORD JUSTICE JUDGE DEPUTY CHIEF JUSTICE OF ENGLAND AND WALES - 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} ======

No: 2004/05804/B2 Neutral Citation Number: [2005] EWCA Crim 396 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday, 15 February 2005 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( The Lord Woolf of Barnes ) MR JUSTICE DAVIS and MR JUSTICE FIELD __________________ R E G I N A - v - HUSSEIN BAHADOR __________________ Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) __________________ MR JOHN COOPER appeared on behalf of THE APPELLANT MR GOPAL A J HOOPER appeared on behalf of THE CROWN ____________________ J U D G M E N T Tuesday, 15 February 2005 THE LORD CHIEF JUSTICE: 1. On 17 September 2004, at the Crown Court at St Albans, before His Honour Judge Gosschalk and a jury, the appellant, Hussein Bahador, was convicted of indecent assault (count 4). He was sentenced to 12 months' imprisonment. On that occasion he was also acquitted on a count of rape (count 2) at the judge's direction, and of attempted rape (count 3) by the jury's verdict. The appellant appeals against conviction by leave of the single judge. 2. The facts leading up to these offences are as follows. On 13 December 2004, the complainant went to Destiny's night club with a friend. The appellant was also present with his friends, including his co-accused Mr Marney. The co-accused was acquitted of an offence of rape relating to the same incident. 3. In the early hours of 14 December the complainant left the club with Mr Marney and got into a motor car. Sexual intercourse then took place. The complainant said that this was without her consent. That led to the count of rape on which Mr Marney was acquitted. 4. Thereafter Mr Marney got out of the car and the appellant got in. The complainant stated that he tried to have sexual intercourse with her against her wishes, but stopped when friends arrived. 5. The appellant's case was that when he had got into the car he believed that the complainant was willing to have sexual contact with him. As soon as it became clear that she was not willing to do so, he got out from the vehicle. He did not attempt to rape her or indecently assault her. 6. The issue in the case with regard to the indecent assault of which the appellant was found guilty was: did he honestly believe that this was conduct to which the complainant would consent? 7. The sole ground of appeal relates to the fact that the judge made two rulings that the complainant should not be cross-examined about her alleged behaviour on the stage in the night club. It was the appellant's contention, Mr Cooper tells us, supported by a signed statement by him, that the complainant had taken part in a competition, which the appellant had seen, which involved her exposing her breasts and simulating oral sex. Other matters of evidence were excluded, but Mr Cooper does not rely on them for the purposes of this appeal. 8. In dealing with the issue the judge had to apply his mind to section 41 of the Youth Justice and Criminal Evidence Act 1999 . Section 41(1) provides: "If at a trial a person is charged with a sexual offence [which this was], then, except with the leave of the court -- (a) no evidence may be adduced, and (b) no question may be asked in cross-examination, by or on behalf of any accused at the trial, about any sexual behaviour of the complainant. (2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied -- (a) that subsection (3) or (5) applies, and (b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case. (3) This subsection applies if the evidence or question relates to a relevant issue in the case and either -- (a) that issue is not an issue of consent; or (b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or (c) is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar -- (i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or (ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event that the similarity cannot be reasonably be explained as a coincidence." Before the judge the appellant relied on section 41(3) (b) and (c). 9. Mr Cooper, in his submissions before us, candidly accepts that the contention of the appellant before the judge was wrong. Reliance should have been made, not on 41(3)(b) or (c), but on 41(3)(a). That is because of the definition section 42, which provides in subsection (1): ".... (b) 'issue of consent' means any issue whether the complainant in fact consented to the conduct constituting the offence with which the accused is charged (and accordingly does not include any issue as to the belief of the accused that the complainant so consented)." 10. As the defence of the appellant was one based on belief, by reason of the provisions of section 42(1)(b), sub sections 41(3) (b) and (c) was not relevant to the application, but section 41(3) (a) could be. Looking at section 42 it is interesting to note that "relevant issue" is interpreted as meaning "any issue falling to be proved by the prosecution or defence in the trial of the accused". As the appellant relied on his honest belief that in relation to what he did the complainant would consent, that becomes a relevant issue in the case. Therefore we have to decide, first of all, whether the conduct which took place on the stage was relevant to an issue in the case within the language of section 41 . 11. In his argument on behalf of the respondent Mr Hooper submits that it was not relevant. He submits that, pushed to its logical conclusion, the argument of the appellant would mean that every stripper who performed at a club would convey the message that by conducting herself in that way she was indicating that she was consenting to sexual attention by someone such as the appellant and consenting in particular to be touched in a sexual manner by a complete stranger. 12. We recognise the force of that argument. However, in looking purely at the question of relevance, we feel compelled to conclude that as the appellant's defence was one based on his honest belief, it is difficult to say that what he contended to have taken place on the stage could not be relevant. We emphasise that at the time of this trial the test was honest belief in consent. Under the law as it is at present as a result of the Sexual Offences Act 2003 , the test now is reasonable belief. Honest belief and reasonable belief are very different things. Without having the opportunity of seeing the appellant cross-examined on his alleged honest belief, it is difficult to say whether or not something such as was alleged to have occurred here could or could not affect his honest belief. Having had the argument presented before us in a different way from that which was presented before the judge, we would accept that Mr Cooper reaches first base. 13. However, we would emphasise that under section 41(2) relevance is clearly not the only matter that the judge has to consider. The section makes it clear that he has a discretion. Even if Mr Cooper can bring himself within subsection (3) and therefore deal with the requirements of section 41(2) (a), he has also to deal with section 41(2) (b), that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case. So the judge must take into account whether or not the refusal of leave might have the result of rendering unsafe a conclusion of the jury on any relevant issue in the case; the relevant issue here being honest belief. 14. Because of the way the case was argued in the court below, the judge did not deal with that requirement in section 41(2) (b). It is therefore necessary for this court to consider section 41(2) (b) in the circumstances of this particular case. Here, there is one piece of evidence that was placed before the jury on behalf of the appellant to which we should refer. He said that after his co-accused had had sexual relations with the complainant in the car, the co-accused got out of the car and spoke to him. He asked his co-accused whether she was "up for it", to which he received a positive response. The fact that he asked that question seems inevitably to lead to the conclusion that if he had received a response in the negative he would not have proceeded to behave in the way that he did. It seems to us inevitable that that conversation immediately before the assault took place would have had much more effect upon the belief of the appellant than anything that may have happened on the stage. 15. In addition to that, the jury had the evidence which the co-accused had given as to the intimate behaviour of the complainant with him. The jury's verdict in favour of the co-accused is the clearest proof that the complainant's conduct was something which made the jury come to the conclusion that she might have consented to sexual intercourse with the co-accused or he might have honestly believed that she did so consent. 16. In addition, in his interview with the police the appellant made no reference to what he alleged had happened on the stage. If he had seen this girl behaving in the way he apparently alleged in his statement, it is of significance that he made no mention of it. 17. This goes to the question as to whether there was anything unsafe about this conviction and whether or not the judge was wrong not to admit the evidence. Under section 41(2) it is clear that the judge has a discretion. It is also clear why section 41(2) (b) is framed in the way that it is. It was framed in that way because it was the policy of that Act to protect women who make complaints about sexual offences committed against them; it protected them from inappropriate and harassing cross-examination. The experience of the legislature leading to the enactment of the 1999 Act was that unless the cross-examination of and the making of accusations against complainants was limited within appropriate bounds, fewer women would come forward to make complaints about sexual assaults upon them. The policy was to protect complainants in proceedings in relation to sexual offences alleged to be committed against them. It seems therefore to us that it can be reasonably said in the context of this case as a whole, albeit that what was alleged to have happened on the stage (and we emphasise alleged to have happened on the stage) was, strictly speaking, relevant to an issue in the case, the judge would have been entitled to exclude the evidence of what is alleged to have occurred on the stage and cross-examination as to it. In our judgment the exclusion of the evidence and cross-examination certainly did not render unsafe the conclusion of the jury that the appellant was guilty of the offence of which he was convicted. The position was after all that, without seeking a by your leave of any sort from the girl -- a girl with whom the appellant had had no dealings with before -- he went into the car and immediately sexually assaulted her. That a jury would be influenced against that background by what was alleged to have happened on the stage we think is not a tenable proposition. In those circumstances we consider that the evidence could properly be excluded under section 41(2) (b). Furthermore, there is nothing unsafe about this conviction. Accordingly the appeal will be dismissed.

```yaml citation: '[2005] EWCA Crim 396' date: '2005-02-15' judges: - MR JUSTICE DAVIS - MR JUSTICE FIELD ```

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 133 Case No: 2011.03448 and 2011/03841/C4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LUTON CROWN COURT HH Judge Mensah T2010 0478 Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/02/2012 Before : LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE HOLMAN and MR JUSTICE OPENSHAW - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - v - Court Appellant And R Respondent - v - Gu Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - G Porter (instructed by CPS ) for the Respondent T Wainwright for the Appellant Court D Keating for the Appellant Gu Hearing date: 25 th January 2012 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: 1. This is an appeal by Bernard Court and Xiufen Gu, a married couple, against their convictions on 27 th May 2011 in the Crown Court at Luton before Her Honour Judge Mensah and a jury of two counts of the ancient common law offence of keeping a disorderly house. The appellant Gu was also convicted of a third count of transferring criminal property, but that conviction depended on her conviction of the first two counts. Suspended sentences of imprisonment were imposed. 2. The facts are very simple. The appellants rented two properties in Hemel Hempstead. A term of the tenancy agreement or lease in each case was that the property should not be used for immoral purposes. This however this not a civil case in the County Court about possible breaches of the terms of the tenancy. The allegation was that between 31st January and 19 th February 2010 each property was kept as a “disorderly house”. 3. To demonstrate that each house was indeed disorderly the prosecution relied on very limited evidence which related to sexual services said to be offered from both addresses. Two commonplace, unremarkable and non-descript advertisements were found by the police, along with other advertisements of a similar nature, in the personal services section of the local newspaper. No addresses were given. However two mobile telephone numbers were advertised. The officers telephoned both numbers and they were, as we understand it, offered sexual services. 4. On 18 th February 2010 the properties were visited by the police. At one house they found a scantily dressed woman and the appellant Gu. Court arrived there during the police search. No one was found at the second house. A large number of condoms were found at both addresses. In one house one vibrator was found. No other mechanical devices and no instruments were discovered. No customers were found at either house. No customers and no woman offering services were observed going to or from either house. 5. The case proceeded on the basis that only one woman was ever offering sexual services at any one time, and that only one customer at a time was ever present at either house, and that the sexual services on offer did not go further than normal sexual intercourse. When we made enquiries of the prosecution we were told that no complaint had been received and no concern expressed by people living in either neighbourhood. 6. The appellants were interviewed by the police. Effectively Court made no comment in interview, but he denied he had seen any girls at one of the properties and said that friends of his wife lived at the other. His wife gave a prepared statement. She denied that she was running a brothel. She agreed that she provided massage services, and the woman with her at the property was a friend who stayed with her from time to time. 7. The appellants were first charged with acting or assisting in the management of a brothel, contrary to section 33A of the Sexual Offences Act 1956 [Arch 20-229]. However the prosecution concluded that they could not establish that the premises constituted a brothel for the purposes of this enactment. The appropriate charge should have been that, as tenants, the appellants were guilty of using the premises for prostitution. This is a summary offence only, and the usual six month limitation period applied. It was therefore too late for this offence to be prosecuted. So the indictment alleging the management of a brothel was amended to the common law offence of keeping a disorderly house. 8. The Sexual Offences Act 2003 is vast and, taking into account a number of provisions from earlier Sexual Offences Acts which were not repealed, apparently comprehensive legislation identifying the vast number of different activities which constitute sexual crime. Counsel reminded us that there are now 35 different statutory provisions which relate to what can loosely be described as the sex trade. Comprehensive as it appears to be, the statute did not abolish the common law offence of keeping a disorderly house. 9. In the context of such detailed statutory provisions relating to sexual crime in its many different manifestations, an ancient common law offence should not normally be expanded beyond well established parameters by judicial decision. The reality is that on the evidence available in this case the conviction of the appellants represented a significant widening of the ambit of the ancient offence. 10. Our attention was focused on R v Tan and others [1983] QB 1053 . Tan and others were accused of keeping a disorderly house. The difference between the facts of that case and the present are encapsulated in the advertisements, of which one example in Tan read: “Humiliation enthusiast, my favourite past time is humiliating and disciplining mature male submissives, in strict bondage, lovely tan coloured mistress invites humble applicants, T.V., C.P., B.D. and rubber wear. …” 11. Services of this kind were indeed provided. According to the judgment, they were “of a particularly revolting and perverted kind … with the aid of a mass of equipment, some manual (such as whips and chains), some mechanical and some electrical, clients were subjected at their own wish and with their full consent, to a variety of forms of humiliation, flagellation, bondage and torture …”. 12. In one of the earlier cases referred to in the judgment, R v Berg and Others [1927] 20 Cr. App. R 38, the activities in the disorderly house involved exhibitions of a perverted nature, and in R v Quinn and Others [1962] 2 QB 245 the premises were used for the performance of acts which were “seriously indecent and, in some respects, revolting”, and the public was invited to resort to the premises for indulging in “perverted and revolting practices”. 13. In R v Tan itself the court indicated that before a defendant could be convicted the jury had to be satisfied that the services provided were open to members of the public who wished to partake of them, and were “of such a character and conducted in such a manner (whether by advertisement or otherwise) that their provision amounts to an outrage of public decency, or is otherwise calculated to injure the public interest to such an extent as to call for condemnation and punishment”. The entire judgment proceeds on the basis that the provision of what was described as “straightforward sexual intercourse” would not be sufficient to constitute this offence. 14. The researches of counsel have not found anything in the old books which suggest any case where, on facts remotely similar to those present in this case, there has ever been a prosecution, let alone a conviction for the offence of keeping a disorderly house. 15. We have reached the unhesitating conclusion that the circumstances described here, taken at their highest, were not capable of falling within the scope of the common law offence. The criminality which should have been alleged was that the appellants allowed the premises of which they were tenants to be used for prostitution. That however cannot be an appropriate basis for upholding the use of the common law charge. 16. At the trial in the Crown Court, the judge should have upheld the submission that there was no case in law for either appellant to answer. The convictions are unsafe, and we indicated at the end of the hearing that they would be quashed. 17. There were appeals against sentence, which no longer arises for consideration, but which we must mention. Both appellants were sentenced to short terms of imprisonment, suspended for 12 months, with a curfew requirement. It was most unfortunate that following the trial and the conviction of the appellants, the judge gave an unequivocal indication to them in open court that when they came to be sentenced, there would be no custodial sentence. The imposition of a suspended sentence was inconsistent with that public indication. When the issue was raised with the judge she suggested that a suspended sentence was not a custodial sentence. That was an error. Any sentence of imprisonment, even when, for particular reasons, suspended, can only be imposed if the custodial threshold is passed and must always be treated for what it is, a custodial sentence. If these convictions had not been quashed, the appeals against sentence would have been allowed on the basis that the sentences imposed were inconsistent with the judge’s unequivocal indication of the eventual outcome.

```yaml citation: '[2012] EWCA Crim 133' date: '2012-02-09' judges: - MR JUSTICE OPENSHAW ```

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

No: 200700727/A3 Neutral Citation Number: [2007] EWCA Crim 1873 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Monday, 25th June 2007 B E F O R E: MR JUSTICE TUGENDHAT HIS HONOUR JUDGE CHAPMAN (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - R E G I N A -v- KEITH ALAN SMITH - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - MISS J OLDFIELD appeared on behalf of the APPELLANT - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE TUGENDHAT: On 27th November 2006 in the Crown Court at Basildon, before His Honour Judge Worsley, the appellant made a late change of plea and pleaded to two counts of exposure, (they are counts 1 and 2) and one count of engaging in sexual activity in the presence of a child (that is count 11). On 11th January 2007, also before His Honour Judge Worsley, the appellant was sentenced on count 11 to 32 months' imprisonment; on count 2 to 12 months' imprisonment concurrent and count 1 to no separate penalty. So the total sentence was 2 years and 8 months' imprisonment. A Sexual Offences Prevention Order, pursuant to sections 105 and 106 of the Sexual Offences Act 2003 was imposed for a period of 10 years. The appellant was disqualified from working with children, and required to comply with the provisions of Part 2 of the 2003 Act indefinitely. 2. He appeals against sentence by leave of the Single Judge. The facts, briefly, are these. The appellant became friendly with a number of single mothers in his area. He spent a lot of time with them and their families. He often looked after the children and took them on outings. The complainant in both the offences in counts 1 and 2 was a 9 year old girl, K. On two occasions between 1st January 2005 and 31st July 2005 she was in a car with the appellant, driving. K was in the back seat and the appellant told her to lean forward as he had something to show her. She leaned forward and saw that the appellant had exposed his penis. It was concluded by the court that the first occasion, that is count 1, occurred before the 4th April, the second, that is count 2, after 4th April 2005. 3. In count 11 the complainant was a 12-year old girl, C. Once again the appellant had befriended her mother and he was trusted to be in the company of C. The offence occurred after 4th April 2005, as the court found. 4. C was in her mother's bedroom, fixing her hair in front of a mirror. She noticed the appellant standing behind her and saw he was masturbating. He then ejaculated onto the mirror. C ran from the room and the appellant called after her, saying he was sorry and he thought that she wanted him to show her. 5. The offences came to light when K became unhappy about the appellant being allowed to look after her younger sister. 6. In interview the appellant denied the offences. 7. There are victim personal statements from the complainant's mothers, which we have read. They demonstrate the serious effect on the two children but, as the judge noticed, there were other charges ordered to lie on the file which were still pending at the time the statements were made. The statements have to be read in that light. 8. In his sentencing remarks the judge said the appellant had committed abhorrent sexual offences against children, having worked his way into a position of trust with the children's families. The victims had been affected emotionally and he bore in mind the statement by the mothers. It was noted that at the age of 50 the appellant had never done anything like this before and had no convictions more recent than 20 years. But these were serious offences, and the judge considered the question of risk. He was of the opinion that there was a risk of further sexual offences but no evidence of serious personal injury. He said: "In all these circumstances, for you, this first time you come before the court for this sort of offending. I do not judge that I am bound to pass the equivalent of a life sentence..." But he said a substantial prison term was needed. He gave credit for the plea of guilty, but not the credit that he would have given had the plea been at the first opportunity. He said that, had the appellant been convicted after a trial, the sentence would have been 36 months. Accordingly he gave a discount of about 10 per cent. 9. The appellant's previous convictions, as long ago as the 1970s and early 80s, are for dishonesty and public order matters which are not material to the sentence to be imposed in this case. 10. The writer of the pre-sentence report noted that the appellant, at first, had difficulty accepting that he had committed the offences although he later acknowledged his guilt. He gave a vague explanation of feeling low at the time, but denied that he had sexual interest in children. He demonstrated difficulty in accepting responsibility. The writer considered that the risk of reconviction was medium and noted that social services had said that he was not allowed to have any unsupervised or face-to-face contact with his own daughter. 11. The appellant used amphetamines on a regular basis which may have been relevant to the offending. He showed poor consequential thinking but was able to recognise the breach of trust. He was reluctant to acknowledge the grooming of families of the victims. He was assessed as posing a high risk of significant harm to children. A specific Sex Offender Treatment Programme was needed to reduce the risk. We have seen the report from the prison which is a good report but, again, is not of significance in sentencing for these types of offences, in these circumstances. 12. The grounds of appeal advanced by Miss Oldfield are that the sentence imposed was manifestly excessive given the seriousness of the offence. She referred us to the definitive guideline of the Sentencing Guidelines Council for sexual offences, under the 2003 Act and noted of course that the guidelines apply to those who are sentenced on or after 14th May 2007. Accordingly they do not apply in terms to this appellant albeit they are helpful to us. 13. The most serious offence, of course, is count 11, the masturbation in the presence of a child. In our judgment, the starting point for this offence, after a trial, and given the aggravating features in particular, the element of breach of trust and persistence, in the light of the other counts, would have been some 21 months' imprisonment. 14. We have not invited submissions on what would have been the appropriate starting point in relation to counts 1 and 2 because, in the circumstances, the sentencing on those counts does not affect the outcome of the appeal. The appellant is entitled to the reduction of one-tenth for his late plea, which the judge accorded him. Applied to this starting point, that leads to a sentence of 18 months. 15. In our judgment, that is the appropriate sentence that should have been imposed in this case and the sentence imposed by the judge was overall too long. Accordingly, we reduce the sentence on count 11, to a sentence of 18 months' imprisonment and we do not disturb the concurrent sentence on count 2, or there being no separate penalty on count 1. 16. In the light of that conclusion, the appropriate period for notification is 10 years. To that extent, we allow the appeal.

```yaml citation: '[2007] EWCA Crim 1873' date: '2007-06-25' judges: - MR JUSTICE TUGENDHAT - HIS HONOUR JUDGE CHAPMAN ```

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 14 Case Nos: 201804881 C3, 201805144 C3, 201805158 C3 I N THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SOUTHWARK HIS HONOUR JUDGE GRIFFITH T20157173, T20157174,T20170313 Royal Courts of Justice Strand, London, WC2A 2LL Date: 13 January 2021 Before : LORD JUSTICE STUART-SMITH MR JUSTICE EDIS and HIS HONOUR JUDGE JAMES BURBIDGE Q.C. HONORARY RECORDER OF WORCESTER - - - - - - - - - - - - - - - - - - - - - Between : TAMIJ UDDIN Appellant KAZI BORKOT ULLAH and ABDUL KALAM MUHAMMAD REZAUL KARIM Applicants - and – THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - MR J M BURTON QC assisted by MR P WOODALL for the Appellant MR J CHRISTOPHER QC assisted by MR N MATHER for the Crown Hearing date : 1 December 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Covid-19 Protocol: This judgment was handed down by the Judge remotely by circulation to the parties’ representatives by email and release to BAILII. The date and time for hand-down is deemed to be 10:30 pm on Wednesday 13 th January 2021 Lord Justice Stuart-Smith: Introduction 1. Mr Uddin appeals against conviction with the permission of the single judge. Mr Ullah and Mr Karim renew their applications for permission to appeal against conviction, their applications having been refused by the same single judge. 2. Their convictions came at the end of a trial that lasted between March and November 2018. There were 7 defendants in all. In addition to the applicant Mr Karim, there were two other defendants whose family name was Karim. We shall refer to them as Mr Enamul Karim and Mrs Sadia Karim. We shall refer to the applicant simply as Mr Karim. The other two defendants were Ms Trivedi and Mr Khan. 3. The first three defendants on the indictment, Mr Karim, Mr Enamul Karim and Mr Ullah all absconded before the close of the prosecution case. The trial continued in their absence. 4. There were four counts to the indictment i) Count 1 was a charge of conspiracy to defraud the Secretary of State for the Home Office by submitting false information in support of Tier 1 immigration applications between the 31 st day of December 2008 and the 27 th day of February 2013. It charged 6 of the 7 defendants. Mr Karim was the first named defendant; Mr Ullah was the third named defendant; Mr Uddin was the sixth; the others were Mr Enamul Karim, Ms Trivedi and Mr Khan, who were second, fourth and fifth named defendants to the charge; ii) Count 2 was a further charge of conspiracy to defraud the Secretary of State in the same way by submitting false information in support of Tier 1 immigration applications between 1 March 2013 and 5 May 2017. It charged Mr Karim, Mr Enamul Karim and Mr Ullah; but not Mr Uddin or the other defendants on the indictment. In substance the allegation was that the three Defendants charged under Count 2 continued to conspire in the same way after they had been arrested and released on bail in relation to the conspiracy charged under Count 1; iii) Count 3 charged the six Defendants from Count 1 and a seventh, Mrs Sadia Karim, with cheating the public revenue between 31 December 2008 and 27 February 2013, i.e. the same period as alleged under Count 1. The allegation was that they conspired to create false documentation giving the illusion of payment of wages and then made false claims for repayment of tax on the basis of that documentation and fictitious employment. Once again, Mr Karim was the first named defendant on the indictment, and Mr Ullah was the third. Mr Uddin was sixth on the indictment but the charge against him was dismissed at half time on a submission that there was no case for him to answer; iv) Count 4 was a charge under the Proceeds of Crime Act 2002 brought against Mrs Sadia Karim only. 5. At the conclusion of the trial: i) Mr Karim was convicted on Counts 1, 2 and 3. He was sentenced to 6 years and 6 months on Count 1, 3 years consecutive on Count 2, and to 12 months imprisonment consecutive on Count 3, making an aggregate sentence of 10 years and 6 months; ii) Mr Ullah was convicted on Counts 1, 2 and 3. He was sentenced to 4 years imprisonment on Count 1, 18 months consecutive on Count 2 and 4 months imprisonment on Count 3, making an aggregate sentence of 5 years and 10 months; iii) Mr Uddin was convicted on Count 1 and sentenced to 2 years and 6 months imprisonment. iv) Of the other Defendants at trial, Mr Enamul Karim was convicted on Counts 1, 2 and 3 and sentenced to a total of 9 years and 4 months imprisonment; Ms Trivedi was convicted of counts 1 and 3 and sentenced to a total of 3 years imprisonment; ; the jury were unable to reach a verdict in relation to Mr Khan (who was subsequently convicted on Count 1 in a retrial and sentenced to 2 years imprisonment suspended for 2 years); and Mrs Sadia Karim was acquitted of Count 1 and, no evidence being offered on Count 4, was acquitted on the direction of the trial judge. Background facts 6. Although the evidence was very extensive and in some respects complicated, the facts underlying Counts 1-3 may be shortly stated. 7. The Defendants, with the exception of Ms Trivedi who was an accountant, were involved in the running of companies that gave immigration advice, Rukaiya and Associates and Immigration4u, in order to carry out an immigration fraud. It was the prosecution case that Mr Karim was in charge of the companies. 8. One of the activities undertaken by the businesses was to assist their clients, who were not British citizens, to lodge visa applications for leave to remain in the United Kingdom. The applications fell into two groups: i) Tier 1 (General) applications which were for highly skilled workers; ii) Tier 1 (Entrepreneur) applications which were for individuals who wished to set up, take over or be involved in running a business in the UK. 9. It was alleged that in each of the Tier 1 (General) applications the claimed employment for the clients was untrue and the applicants would have been aware of this. The alleged offending involved the use of a large number of companies which were supposedly providing well-paid employment to the individuals who were applying for visas. However the wages from this employment were simply paid into the individuals’ bank accounts, so that they could provide their bank statements as evidence of their income, before being paid out again to other entities controlled by the Defendants. In simple terms, the fraudsters established a money loop whereby money appeared briefly in applicants’ accounts but was “repaid” either before or afterwards so that the “income” submitted by the applicant in order to qualify for a visa was fictitious. In total 22 fraudulent applications were submitted between 2010 and 2011. It was a feature of the money loops that they used a number of apparent businesses and companies with similar names. It was another feature of the money loops that many of the names could be traced back to be a reference to a member of Mr Karim’s family. 10. The prosecution also relied upon 5 Tier 1 (Entrepreneur) applications that were made in 2012. It was the prosecution’s case that the appellant and the applicants had assisted individuals applying under that scheme by providing false evidence about the amount of money which they had supposedly invested or had available to invest in business. In doing so, they enlisted the help of Ms Trivedi, who provided apparently official letters in support of the defendants’ Entrepreneur applications. 11. These two forms of application were the basis for the Charge under Count 1. 12. As we have said, the prosecution’s case on Count 2 was that, having been arrested and charged for the criminal activity that formed the basis of Count 1, Mr Karim, Mr Ullah and Mr Enamul Karim continued helping new and existing clients by submitting false information in support of their claims to be high value entrepreneurs. It was the prosecution case that there were five such applications in 2014 and 2 more in 2017. The methods adopted by the conspirators were essentially the same as before. 13. As an offshoot to the conspiracies in counts 1 and 2, the prosecution alleged that the applicants were also involved in a tax fraud. The prosecution case was that the applicant Mr Karim and the co-accused Mr Enamul Karim would provide forms to the co-accused Ms Trivedi with fictitious dates of employment for some of their clients and state that their wages had been subject to a 40% deduction. Claims were then made to HMRC for repayment of the tax. However, the true position was that there had been no employment, no payment of tax to HMRC by the companies in the first place and no deduction of the tax from any wages. The Prosecution case focussed on 33 such claims made in the names of clients. In addition, there were further claims made by Mr Ullah and Mr Karim in their own names. 14. This formed the basis for Count 3. 15. When Mr Uddin was first arrested in 2013, his phone was seized. On examination it was found to contain a large number of texts passing between him, Mr Karim and applicants, which apparently related to the making of loop payments in the manner we have described. The texts referred to applicants making and receiving many payments to and from various of the suspect companies. They discussed the amounts, destination and bank details of the payments made to and by the applicants in terms that were strongly supportive of the prosecution case that those involved in sending the texts knew exactly how the fraud was operating and were participating in it. In the case of three of these applicants - Mr Enamul Huq, Mr Prodip Sarkar and Mr Rahul Saha, Mr Uddin was the named representative for the applicant. He had therefore been responsible for the presentation of their application. 16. We are told by Mr Christopher QC, who represented the Crown before us, and can readily accept that these texts, though not falling within the indicted period, formed the central thrust of the case against Mr Uddin because they provided clear and potent evidence that he, as named representative to the three applicants, was pursuing precisely the same course of conduct as was alleged to be the central core of the conspiracy within the period charged by the indictment. This was reflected by the Judge when drawing the strands of the case for and against Mr Uddin together at p. 215 of the summing up, where he said: “The prosecution case against him, as you know, is that he is an advisor on three of the 22, just three of the 22 [Tier 1 General applications upon which the prosecution relied]. He used the money loops [to inflate] the income and it is suggested on his behalf that he is just the post box and he is doing his part but he isnot a knowing, willing party to what is going on in count 1. And even when it comes down to those emails from [Mr] Haq and [Mr] Sarkar that there, all he is doing is building [?receiving] requests from those people and then passing them on. You will want to look at the [relevant tab of evidence] to see what you make of that and what you find to be the role that you are sure he has and it is put on his behalf, he is a barrister and you will want to consider that.” Here, as elsewhere, the transcript is not immaculate, but the sense is clear. 17. After going through a significant number of the texts when summing up the facts, the Judge drew attention to the fact that they had been sent after the applications for the three applicants had been submitted. He continued at p. 154: “… You are entitled to look at that to see the nature and relationship between Tamij Uddin and someone for whom he was an advisor at a time when the application went in and it contains, if you are satisfied with that, false information. So these messages backwards and forwards are outside the period of the actual applications going in but inside the period of the conspiracy. Its for you to decide if the relationship, if there is any, of a criminal nature between Tamij Uddin and Resa Vai with whom he is communicating there. That’s the purpose of all these messages going backwards and forwards with people like [Mr Sarkar].” 18. After going through a further sequence of texts, the Judge said at p. 156: “Is that Tamij Uddin the post box, or is that Tamij Uddin, something more than that? That is an issue for you to decide when you look at the evidence and you weigh up what is going on in the various conversations and text messages that are being sent here.” 19. In addition, documents were found at his home, which were described as “blank affidavits” from banks and which appeared to be pre-sworn in blank. It was the prosecution’s case that these were to be fraudulently used by persons making entrepreneur applications, though Mr Uddin was not demonstrated to be directly involved in making any of the applications which the prosecution alleged to be fraudulent which used these documents. The search of his home also revealed a bank account showing that he had paid £5,000 into one of the bank accounts alleged to be involved with the fraud. Documents linking his wife, who was not alleged to be a conspirator, to some of the fraudulent companies were relied upon. 20. At trial, the first three and the second three defendants ran mutual “cut-throat” defences, with the first three Defendants saying that it was the second three who were behind the fraud, and vice versa. It is apparent that Mr Karim’s case was that there was no fraud and that, if there was, it wasn’t by him and he was being framed. Ms Trivedi said that her involvement was all at the instigation of Mr Karim and that she did not realise there was a fraud taking place. Mr Khan said that the fraud was the responsibility of Mr Karim and that he had played an unknowing part, as did Mr Uddin. Only Ms Trevidi and Mr Khan of the Defendants gave evidence. For our purposes, there is no doubt that the frauds took place and that they operated generally as set out above. Mr Uddin’s Appeal 21. On this appeal Mr Uddin is represented by Mr Burton QC as he was at trial. 22. When first interviewed, Mr Uddin answered questions denying wrongdoing. He accepted that he had been involved with three of the Tier 1 applications that were advanced as fraudulent by the Prosecution; but he said his involvement was innocent. At trial he did not give evidence. 23. Mr Uddin originally applied for permission to advance two grounds of appeal. Permission was refused on the first ground and that application has not been renewed. We are therefore only directly concerned with the second of the two grounds as a potential reason for finding Mr Uddin’s conviction to be unsafe. The first ground, however, referred to facts that are potentially relevant to our decision. In April 2008 (before the period covered by the indictment) Mr Uddin, when employed by Immigration4U, represented two appellants before the Asylum and Immigration Tribunal. The various documents upon which they relied were so strikingly similar that the Immigration Judge concluded “to a high degree of probability that the application for entry clearance in respect of each appellant [had] been manufactured in the sense that it [was] not a genuine application based on either appellant’s personal circumstances.” Mr Uddin had failed to provide any credible explanation for the similarities. The AIT complained to the OISC about the applications. The Commissioner concluded that Mr Uddin had knowingly, recklessly or negligently misled the AIT and had acted recklessly or negligently. This evidence was put in at the behest of Mr Karim who said it was bad character evidence of substantial probative value in relation to the issue whether it was Mr Uddin or Mr Karim who was responsible for the indicted fraud: it was Mr Karim’s case that Mr Uddin had been acting as a senior and important member of Immigration4U and not, as Mr Uddin said, as a mere go between either in 2008 or in relation to the indicted fraud. 24. The single ground of appeal for which permission has been given is that the trial judge failed to sum up Mr Uddin’s case to the Jury. He identifies 10 criticisms. 25. To put these criticisms in context, the Judge was obliged to sum up a substantial body of evidence, which he did in a summing up that ran to more than 250 pages. He gave appropriate directions of law, including telling the jury that it was for them to decide what they made of both documentary evidence and live witnesses. Furthermore, as Mr Christopher submitted, the prosecution’s case against Mr Uddin was founded on a relatively narrow body of evidence, which we have outlined at [15]-[16] above. 26. First, it is said that the Judge failed to direct the jury that, although he was asked and agreed to provide handwriting samples, there was no expert evidence about Mr Uddin’s handwriting. It is submitted that there was therefore no document that could be linked to him other than those which he had admitted signing when interviewed. There is no substance in this criticism. At p. 162 of the summing up the Judge, expressly referring to Mr Burton’s closing speech, said: “Tamij Uddin … was asked to, as Mr Burton reminds you, he was asked to go and did give a handwriting sample, not that it led to anything, but he was prepared to give it in the first place. That’s the point that’s being made on his behalf. There is no handwriting evidence in his case. ” 27. In our judgment, the submission that the Judge should have gone on and expressly stated that this meant that there was no expert evidence to link Mr Uddin to documents is fanciful. The jury had been immersed in the case for months and had heard the evidence and speeches for months. They had already had the significance of handwriting evidence (or its absence) explained to them by the Judge at p. 18 of the summing up, where he said: “… [D]on’t compare signatures because the handwriting evidence you’ve heard, where it has been put before you, it is agreed. You haven’t heard any other evidence about handwriting apart from witnesses saying, “That’s mine, that’s not mine, that’s mine, that’s not mine” and that’s part of the witness’s evidence that you have to assess when you deal with that person, but you must not compare signatures as part of your exercise in this case.” 28. Second, and following on from the first point, it is submitted that the Judge failed to remind the Jury that Mr Uddin’s passport indicated he was out of the United Kingdom on dates when some documents were signed, purportedly by him. Mr Burton drew our attention to a letter to the OISC dated 28 September 2011, which was purportedly signed by Mr Uddin as the client’s adviser. He submits that the conviction is unsafe because the Judge failed to draw specific attention to this point, particularly in circumstances where the Defendants were running a cut-throat defence. However, the documents to which Mr Burton refers were not relied upon by the Prosecution at trial in support of the case against Mr Uddin; nor did this point undermine the evidence upon which the Prosecution did rely, which we have summarised above. At the highest, they indicated dishonest involvement by others in those particular transactions with which Mr Uddin was not concerned. They do not affect the evidence relating to the three transactions that formed the basis of the Crown’s case against him. We therefore do not accept that this omission can have had any material effect on the safety of Mr Uddin’s conviction. 29. Third, it is submitted that the prosecution had made fundamental errors in bringing a case against Mr Uddin on count 3. Specific reference is also made to the prosecution’s belief that Mr Uddin worked at a location called Grampian House that was alleged to be the centre of the frauds and that some £42,227 had passed through one of his accounts, when the actual figure was some £4,327. Yet the Jury knew and cannot have forgotten that they had been directed to acquit Mr Uddin on Count 3 at the end of the prosecution’s case, a fact of which the Judge reminded them frequently during the summing up. The Judge properly directed the Jury that they were not entitled to assume that Mr Uddin was not guilty as charged under Count 1 simply because he was not guilty on Count 3, but that they should look at the evidence separately for each defendant on each count that they faced. The Judge also expressly referred to the incorrect figure that had originally been asserted by the Crown and the corrected figure which he said “everybody agrees” should be £4,000: see page 229 of the Transcript. Furthermore, we are assured by Mr Christopher that it was no part of the prosecution case at trial that Mr Uddin worked at Grampian House even though there were documents that suggested an association with it on his part. There is no substance in this submission. 30. Fourth, it is suggested that the fact that Mr Uddin was not involved in Count 3 was important and “strong evidence that he was not involved in count 1”. We do not accept the suggested logic that underlies this submission. There is no inherent reason why a person who was involved in count 1 should be involved with count 3; and it was always the prosecution’s case that some who were involved in Count 1 were not involved in Count 3. It was open to counsel to suggest that absence of guilt on count 3 supported Mr Uddin’s case on count 1 and he did so. The judge reminded the jury of that submission; but we see no reason in the evidence or in logic why the Judge should have endorsed it. All that he was required to do was to ensure that the Jury appreciated the need to give separate consideration to separate counts and the fact that Mr Uddin was not involved in count 3. Of that there could have been no reasonable doubt on the basis of this summing up. The Judge referred expressly to Mr Burton’s submission and dealt with it correctly at pp. 34-35 of the summing up, as follows: “And since … Mr Burton was addressing you, since Tamij Uddin was acquitted on Count 3, he must be not guilty on Count 1. You have to consider the evidence for and against him on Count 1 when you reach your decision on Count 1 as to whether he is guilty or not. Whether he’s been acquitted on Count 3 is neither here nor there. It’s a matter of evidence about the absence of evidence on Count 3 that Mr Burton can put forward, but you can’t say well, not guilty on Count 3 equals not guilty on Count 1. You must look at all the people you’re looking at on whichever count you’re looking at and the evidence for and against them on that count.” 31. When coming to summarise the case for and against Mr Uddin at p. 215 of the summing up, the Judge repeated this direction in similar terms. Once again he summarised Mr Burton’s argument that being not guilty on Count 3 meant that Mr Uddin was not guilty on Count 1 on the basis that, if he had been involved in the original Count 1 conspiracy “you would think he would have made an application for a refund too…”. He then correctly directed the jury that they should consider the argument and “assess the evidence as to whether or not you are sure he is party on Count 1 to what was going on.” We can detect no error in the Judge’s approach or directions on this point. There is no substance in this submission. 32. Fifth, it is submitted that it was important that Mr Uddin was not charged under Count 2. We are told, and can readily accept, that this point was made in speeches. The Jury cannot have been unaware of the fact, as they had and were directed to the terms of the indictment. The judge drew their attention to the fact that Count 2 involved “fewer people and different days, starting in effect, when the conspiracy in count 1 finishes…”: see p. 9 of the summing up. There is no reason in logic or the evidence why non-involvement in count 2 should be taken as evidence of innocence under Count 1. There is no substance in this submission. 33. Sixth, it is submitted that there was no evidence that Mr Uddin was aware of the fraudulent documentation before using it before the AIT in 2008. The judge dealt with this episode at p. 198 of the summing up. He pointed out that it occurred before the indictment period and he said that the only purpose for which the crown put the information before the jury was on the basis of “once bitten, twice shy” – or, in other words, that having had this experience he should have been more careful in the future. 34. It is submitted that there was no evidence that he responded to the enquiries from the OISC; and it is said that a phrase that was used in the fraudulent documentation was a pet phrase of Mr Karim’s in both emails and letters. So, it is submitted, the Jury should have been directed that he may not have been responsible for the responses that were sent or, at the least, that Mr Uddin’s case was that he was not involved. 35. In response, Mr Christopher accepts that the point being made below was that the response may not have been drafted or sent by Mr Uddin. However, the letter setting out the OISC’s determination that there had been serious breaches of the relevant code of conduct was addressed to Mr Uddin personally, he being the adviser who had represented the parties before the AIT and against whom the findings of breach were made; and it was sent to the address at which Mr Uddin then worked. So the significance of the episode for the prosecution was that he would have known of the determination and should have been, at the least, on his guard in the future. That then linked in to the evidence about his involvement with the three applicants and transactions on which the prosecution relied to found its case against Mr Uddin on Count 1, where loop payments through suspect companies had been the means of operation. 36. In our judgment the Judge’s treatment of this episode was reasonable and proportionate. He could have done more to highlight the difficulties inherent in Mr Uddin’s position but did not do so. We have summarised the findings of OISC above and do not repeat them: those findings were based upon the fact that Mr Uddin as representative of the two appellants before the AIT was under a duty to scrutinise the documents before submitting them for the appeal. That duty may have rested on his employers, but it also rested on him as the representative taking responsibility for the hearing of the appeal. Having been once bitten, it was reasonable to suggest that he should thereafter have been twice shy. There is no substance in this submission. 37. Seventh, it is submitted that a prosecution witness agreed that analysis of the text messages between Mr Uddin’s phone and the phones of the three applicants with whose fraudulent applications the prosecution alleged that he was involved demonstrated that “for the most part” Mr Uddin was simply forwarding messages on without adding anything to the body of the message. The jury was taken through the communications schedule so that they could assess Mr Uddin’s actions for themselves; and they were expressly reminded on three occasions when dealing with this section of the evidence that Mr Uddin’s case was that he was merely a “post box”: see the passages at pp. 153, 156 and 215, to which we have referred above. The last occasion, which we have set out at [16] above, would have been sufficient on its own. The judge also took various points in Mr Uddin’s favour, including that some of the text messages simply repeated text that had been sent to him and that the texts fell outside the period of the indicted conspiracy. Unsurprisingly, we were told that no defendant put forward a case at trial that money loops, if proved, were not evidence of fraud. The questions were (a) whether the loops were proved and (b) who were knowing participants in the loops. 38. Before us, no challenge to the existence of the loops was or could be mounted. The mere fact that a prosecution witness agreed that Mr Uddin was, for the most part, forwarding messages that he had received from others is virtually immaterial. Having seen a schedule setting out the texts upon which the prosecution relied, it is obvious on a moment’s inspection that some of Mr Uddin’s texts forwarded material sent to him by others and that others of them sent text that was “new”. A further moment’s inspection enables a view to be formed about the pattern of the texts and whether the mix of forwarded and new material supported the prosecution case that, despite some being forwarded, the body of texts as a whole showed Mr Uddin to be a knowing participant with the forwarded texts being part of a wider pattern of knowing participation. The Judge rightly left that question to the jury to decide for themselves. Having reminded the jury that the texts fell outside the indicted period, the Judge did not provide a legal analysis of precisely how they could be relevant to the prosecution case. But he did direct the jury that it was for them to decide whether the texts showed a relationship of a criminal nature between Mr Uddin and those with whom he was communicating. In our view, the relevance of that decision to the question of Mr Uddin’s guilt or innocence on Count 1 was so obvious as not to require further legal analysis or direction. There is no substance in this submission. 39. Eighth, in relation to the so called “blank affidavits” found at Mr Uddin’s home, it is submitted that there was no other evidence that he was involved in fraudulent entrepreneur applications. That said, the blanks were the same type as were used in the fraud and clearly called for an explanation, which Mr Uddin did not provide. It is pointed out that the equivalent documents that were used to support applications were notarised, whereas the ones found in Mr Uddin’s house were not; and it is said that affidavits that were used were dated in December 2012 when Mr Uddin was in Bangladesh. The summing up did not make these points. However, the Judge treated their existence with a very light touch overall, at p. 55 of the summing up, where he said: “If you look at A6-32, there are 20 of those blanks found in an envelope at Mr Tamij Uddin’s address and you know from the evidence that you have heard, [Ms] Trivedi said that [Mr Karim] and Mr Enamul Karim were sending documents in respect of [the first three Entrepreneur applications] to her and requesting accountancy certificates.” 40. There was no other mention in the summing up of the blank affidavits found in Mr Uddin’s house. They were stated to be relevant to Entrepreneur applications; and it was no part of the Prosecution case to suggest that Mr Uddin was involved in fraudulent Entrepreneur applications. We are told that at one point they may have featured in the prosecution’s view of the evidential case against Mr Uddin but that, as may often happen in the course of a long trial, they later “faded from view”. In that context, while it would have been preferable if there had been an additional sentence clarifying that the blank affidavits were no longer relied upon by the prosecution as against Mr Uddin, we are not persuaded that the failure to do so or to refer to the points now identified by Counsel could render his conviction unsafe. 41. Ninth, it is recorded that in interview Mr Uddin was asked about a bank statement for Karan and Associates which showed that he had paid £5,000 into the account, which he explained was a loan to friends at London Denning College, paid via Karan & Associates. He said in interview that there had been “technical problems with paying the money directly, as Mr Uddin did not have the account at the time, although he could not remember why, exactly.” The Jury had that record of his interview. He had not otherwise given any explanation of the payments. There were payments amounting to £5,000 from various accounts referring to Denning College with Mr Uddin’s name as a reference. These matters were not referred to by the Judge in the summing up. However we are quite unable to see how this omission could be said to affect the safety of the conviction. The name of Denning College appeared in various bank statements for suspect companies involved in the fraud. Since Mr Uddin did not give evidence, what he said in interview was the only explanation he had provided. Mr Burton has not persuaded us that it could have been an advantage to Mr Uddin for the Judge to have referred to Mr Uddin’s association with the Denning College. We therefore see no substance in this submission. 42. Tenth, and last, it is said that Mr Uddin’s case that he was an innocent dupe was shown by a file known as the Golamaully file, which was found at Grampian House. Documents in the file implicated Mr Uddin and there was no reference to Mr Karim. But Mrs Golamaully had complained to OISC that it was Mr Karim (and not Mr Uddin) was her immigration adviser. It is submitted that this provides evidence of Mr Karim creating documents without Mr Uddin’s knowledge. It is submitted that this was not dealt with by the Judge, even after the point had been raised by Mr Burton. It appears from the transcript that Mr Burton had made this point during his speech, though we recognise that is not a determining feature. It is also apparent from the transcript that, although there was technically no evidence that Mr Uddin had worked at Grampian House, the position was complicated by the fact that he appeared to have replied to letters that had been sent to him at that address. Mr Uddin’s case was that this showed that Mr Karim was responding in his name. 43. After hearing submissions, the Judge supplemented his summing up by saying that Mrs Golamaully “complained to OISC that her advisor had been [Mr Karim]. There is no record of [Mr Karim] being her advisor on the file.” This did not fully make the point that Mr Burton had made in his speech, to the effect that it was Mr Uddin’s case that Mr Karim had been responding in his name. But we accept that it provided a degree of balance by (a) pointing out that Mrs Golamaully’s complaint had been against Mr Karim rather than Mr Uddin while (b) also pointing out that there was no record on the file of Mr Karim being her advisor. Mr Christopher submits that, in the context of mutual cut-throat defences being run by Mr Karim and Mr Uddin, this solution held the ring where the jury knew that documents had been sent that purported on their face to have come from Mr Uddin. Having reviewed all of the evidence, we think it highly unlikely that the Jury would not have been aware that it was Mr Uddin’s case that documents other than those which he had accepted as his were routinely being created by others, and Mr Karim in particular, in his name. Therefore, although we consider that greater clarification could have been given on this point, we are not satisfied that it renders the conviction unsafe. 44. We have given anxious consideration to whether any of the matters raised by Mr Burton singly or cumulatively cast doubt on the safety of Mr Uddin’s conviction. We accept that the Judge’s summary of the central features of Mr Uddin’s case, which we have set out above, was very short. It would clearly have been better if a longer section had been provided that marshalled and, as necessary, analysed the main points being put forward on Mr Uddin’s behalf. This is what the CrimPD requires, and it is of particular importance where a defendant has not given evidence because the jury does not have the advantage of hearing his case from his own mouth and seeing it tested by opposing parties. The absence of such a passage in this summing up is a defect, and we have therefore had to consider with care the individual points which have been made by Mr. Burton to determine whether individually or collectively they render the conviction unsafe because the judge failed to sum up the defence case more fully. 45. Despite what we consider to be the failure to provide a fully structured marshalling or analysis of Mr Uddin’s case, we are not persuaded that it renders Mr Uddin’s conviction unsafe. As we have set out above, the essence of the case against him was narrowly based and explained by the Judge. Equally, the essence of the case being put forward on his behalf was simple and was clearly before the jury: he was an innocent dupe whose name had been taken in vain. Having read the summing up as a whole, we are not persuaded that the points taken on this appeal, either singly or cumulatively, demonstrate that Mr Uddin’s defence was not placed fairly before the jury so as to render Mr Uddin’s conviction unsafe. 46. Mr Uddin’s appeal against conviction is therefore dismissed. Ullah Renewed Application 47. Mr Ullah renews the three grounds of application identified in the original Grounds settled on his behalf by counsel. It is said that singly or cumulatively the effect of the grounds are that the case against him should have been stayed as an abuse of the process. 48. The first ground is that the prosecution failed to carry out sufficient investigations and that its failure to do so rendered the trial process unfair because the defence were less well able to carry out the investigations than the prosecution would have been. The alleged failure extends to applicants on whose behalf fraudulent claims were made, the applicants’ legal advisers, other advisers, employees or directors of the two immigration firms at the heart of the fraud. 49. It is clear, and was recognised by the Judge in his ruling, that a strategic decision was taken to prosecute those who were identified as being “higher up the scale who provided the false evidence to satisfy the criteria for the grant of visas.” When asked by the Judge why not all applicants whose applications were alleged to be fraudulent had been interviewed, the answer was that it would have involved about 60 people and would have rendered the trial process unwieldy. There is nothing wrong in principle with prosecuting authorities, who will inevitably be subject to finite resources, limiting the scope and extent of their investigations. The question for them is whether, without unfairness, they have accumulated sufficient evidence to charge and, later, secure convictions. 50. As a matter of fact, it is plain that the prosecution carried out extensive investigations in relation to applicants, accountants, lawyers and others, some of whom were charged. Ms Trivedi, the fourth defendant to this indictment, was involved as an accountant. We are told that four named applicants were tried in a severed second trial. We are informed, and there are indications of this in the summing up, that the scope of the prosecution’s investigations extended to employees and directors of both “bogus” and entirely legitimate businesses and honest accountants who were used by the conspirators to further their ends. Proper disclosure was given of all investigations. When the Defence asked the prosecution to do so, a series of applicants were contacted by investigating officers with a view to establishing whether they would be prepared to assist the Defence. Perhaps unsurprisingly, none were: but that is no indication of unfairness. 51. In summing up the case to the Jury the Judge told them that there is a code of practice that investigators should go looking at reasonable lines of investigation and commented that some investigators had not done so. But he was astute to point out that the effect of any such failures was to leave a gap or gaps in the evidence and, as he put it at 57 “if you’re left with a gap in the evidence which leads to you having doubts, well then, you won’t be sure of guilt.” 52. In our judgment the trial judge was best placed to assess the scope and adequacy of what had been done by the prosecuting authorities and whether it had resulted in any possible unfairness to the Defendants. He held that it had not. We agree: the contrary is unarguable. 53. The second ground advanced by Mr Ullah is that the decision to charge him under Count 2 was taken on the basis of evidence that included evidence from a Mr McLanaghan who had at some point was engaged by Mr Karim, Mr Enamul Karim and Mr Ullah. Yet at a later date, the prosecution decided not to rely upon Mr McLanaghan’s evidence. Instead it relied substantially on evidence found in searches after the arrests leading to Count 2 and oral evidence from witnesses who disputed the truthfulness of documents that had been found. This is said to be an abuse of the process. 54. The decision to charge was based upon satisfying the “threshold” test rather than “Full Code” test for prosecutors. Mr Ullah has not shown that the evidence available at the time of charging was inadequate to satisfy the “threshold” test. Furthermore, as the single judge pointed out when refusing leave, there is no rule of law that a prosecution amounts to an abuse of process unless, at the point of charge, there is sufficient evidence to secure a conviction. We would add that there is no general obligation upon the prosecution to continue to rely upon the evidence it had at the time of charging. In the absence of bad faith, of which there is no evidence or reasonable suggestion here, the protection for a defendant comes at various stages where an unmeritorious prosecution can be halted, up to and including during trial. Here there was sufficient evidence to sustain the prosecution at the time of service of the Crown’s case and, later, to take the case against Mr Ullah past half time and ultimately to conviction. There is no merit in this ground. 55. The third ground is based upon a speculation that the prosecution’s engagement with Mr McLanaghan may have led to a failure to respect Mr Ullah’s legal professional privilege. There is no reason to doubt the prosecution’s assertion that full disclosure of its dealings with Mr McLanaghan has been provided. There is no evidence of any breach of legal professional privilege or that the Crown had relied upon or changed its position on the basis of legally privileged materials. There is no rational basis for the speculation on which this third ground is based. 56. For these reasons, which are essentially the same as those given by the single judge, this renewed application is dismissed. Karim Renewed Application 57. Mr Karim renews his application based on 7 grounds. 58. Grounds 1 and 2 are that the judge excluded evidence about the current immigration status of applicants or the results of Immigration Tribunal Hearings for applicants whose applications were alleged by the prosecution to be fraudulent. The defence apparently wanted to argue some form of res judicata if a Tribunal had allowed the application. And it wanted to argue that it was relevant if applicants had been granted extensions on their permissions to remain after Mr Karim’s arrest or even after he had been charged under Count 2. In agreement with the single judge, we consider these grounds to be unarguable. The trial judge was correct to rule that what happened in the Immigration Tribunals was inadmissible. At best those decisions were taken on the basis of the information provided to the Tribunals, including what the prosecution maintained were fraudulent applications. What mattered, as the trial judge correctly held and later directed the jury (at p. 38), was what conclusion the Jury reached on the information that was available to them at the end of the current trial. 59. Ground 3 is that the judge excluded evidence that two documents relating to a company called (in shorthand) BJGP had been found at Mr Uddin’s matrimonial home address. One was a document showing that BJGP was incorporated on 25 July 2008; the second showed that Nahid Dina was appointed company secretary and director on 7 August 2008. The documents also showed that the registered office of BJGP was changed to Olympic House, 28-42 Clements Road Ilford on 24 February 2009 and that Ms Shaheen Akter was appointed a director of BJGP on 4 March 2009. Another letter addressed to Ms Akter was found at the same address. 60. There was and is no evidence that BJGP was used for fraudulent purposes; but the Olympic House address was linked to other companies that were. 61. Ms Dina is Mr Karim’s sister in law. He asserts that her name was linked to various sham companies involved in the frauds. Mr Karim submits that this information was used to link him to the conspiracies. Ms Akter is Mr Uddin’s wife. 62. Mr Karim submitted that the evidence should be admitted because it was in crucial importance in showing that Mr Uddin had a connection with Ms Dina that was independent of Mr Karim and that he (Mr Uddin) was involved in the setting up of companies. The submission was that this would weaken the inference that the prosecution invited the jury to draw, namely that Mr Karim was the person behind the setting up of multiple companies for fraudulent purposes. 63. As we have indicated, there was no evidence that BJGP was involved in any fraudulent activity, let alone with any activity the subject of the conspiracies charged under Counts 1 and 2. Neither Ms Akter nor Ms Dina were defendants in this or any other trial. The documents evidenced links between Ms Akter, Ms Dina and BJGP; but, apart from being found at Ms Akter and Mr Uddin’s matrimonial home, they do not show any connection between Mr Uddin and BJGP, or any connection between Mr Uddin and the setting up of fraudulent companies. Apart from the fact that the registered office was moved to an address which was also used by some companies that were fraudulent, there is nothing in this material that weakens the case against Mr Karim or materially strengthens his cut throat case against Mr Uddin. At best its relevance was peripheral. The Judge was entitled and right to exclude it. 64. Ground 4 is that one of the strands of evidence against Mr Karim was that he transferred substantial sums of money to Bangladesh. He sought to adduce evidence that Mr Uddin had sent £6,000 to Bangladesh which was invested in property, evidently wishing to demonstrate that his own transfers were routine and not suspicious. The judge refused the application. He was right to do so for two reasons. First, Mr Karim’s transfers and Mr Uddin’s were not comparable: his were many times more frequent and of much greater value and were effected using false identities rather than Mr Karim’s. Second, the judge was entitled to take the view that, in absolute terms, Mr Uddin’s transfer was so small as not to be probative of anything that could be of assistance to the jury. 65. Ground 5 asserts that the summing up was biased against Mr Karim. It is acknowledged that the case against Mr Karim was a strong one; but it is submitted that the summing up was “so devoid of balance it runs the risk of creating a trial that is unfair.” This ground concentrates upon a passage fairly early in the summing up during which the Judge said that he was providing an overview. In the following pages he identified the existence of very many companies, often having virtually the same names, with many more bank accounts and either no or no identified genuine employees: and he asked the rhetorical question for the Jury: what are these all for? 66. The prosecution submits that a dispassionate reading of the summing up demonstrates that it was not focused on rebutting a closing speech but rather provided an overview of the evidence and addressed points made in crossexamination and a long closing speech by Mr Karim’s counsel. It points out that there are limits to what can be said about a Defendant’s case when he answers no questions in interview and does not give evidence at his trial and the case against him is acknowledged to be strong. The prosecution rightly identifies numerous places in the course of the summing up where the judge summarised points made by counsel on Mr Karim’s behalf, some more important than others. Most importantly, at pages 208-212 of the summing up, the judge evidently attempted to summarise the main points that had been made on Mr Karim’s behalf in his counsel’s closing submissions; and he did so even handedly and without denigrating the quality of the submissions, so as to place them clearly before the jury. 67. We return to the overall effect of the summing up after considering the next two grounds. 68. Ground 6 concentrates on the judge’s summing up about the use of companies with similar names. He starts by asking, again rhetorically for jury to consider, what is the purpose of the companies. That was, in the circumstances of this case, not merely a reasonable question for the judge to pose and address in his summing up, but an inevitable one. Objection is then taken to a passage where the Judge briefly reminisced about real-life examples of alleged or actual passing off, such as Iceland’s concern about the frozen food supplier of the same name, or a shop he used to pass in the heyday of British Home Stores which called itself British Gnome Stores. He did so by way of introduction and context for evidence that was given in the trial by companies (such as the well-known LBC) and their objection to the existence of other companies with very similar names of which they had known nothing. We do not accept that the judge was giving evidence in any real or detrimental sense of the word. He was, as we have said, reminiscing. Whether it advanced the jury’s understanding significantly may be doubted; but it did no damage to the fairness of the trial either generally or in relation to Mr Karim in particular. In the overall scheme of this trial, any suggestion from the judge that the “real” companies might have taken more active steps if the allegedly fraudulent companies had actually been trading seems to us to be of little consequence since the evidence that the fraudulent companies were not trading in any real sense of the word was overwhelming and evidence that they were trading (other than by shifting money round the loop) was lacking. 69. Mr Karim also characterises the judge’s treatment and description of the money loops as “hostile”. Certainly he reminded the jury concisely about the money flowing into and out of accounts in quick succession. But that was evidence of central importance and it was not unfair to identify evidence that was damaging to the defendants or to do so trenchantly, as the judge undoubtedly did. Given that he had carefully explained to the jury their respective functions, had told them that he would not attempt to mention every piece of evidence that they might consider important and had warned them that neither the speeches of counsel nor his summing up constituted evidence, we consider that he remained on the right side of the line when summarising the evidence about the money loops. Not every trial judge would have adopted quite the same language but, for example, it was not wrong to place before the jury in clear terms the question whether the fact that salary payments running into thousands of pounds were repaid (or “given” back) were genuine or false payments of salary in the first place, which is what the judge did. 70. Under this ground Mr Karim complains that his case, as put to the fifth defendant (Mr Rahman Khan) in the course of their respective cut throat defences was not properly placed before the Jury. The prosecution have answered these complaints in considerable detail in the Respondent’s Notice. In agreement with the Single Judge we do not consider that it is reasonably arguable that this aspect of the summing up renders Mr Karim’s conviction unsafe. 71. Ground 7 relates to Mr Karim’s criticism that the prosecution had not contacted the applicants themselves – the point that had been made in the context of the abuse arguments to which we have referred earlier. As we have said, at the Defendants’ request, a number (but not all) of the applicants had been contacted by the prosecution to ask if they would be prepared to assist the defence by giving evidence. None agreed to do so. When summing up this part of the case, the judge gave a clear indication that, if an applicant had attended to give evidence the judge would have given them a warning against self-incrimination. It is said that this removed a central plank of Mr Karim’s defence. 72. We do not consider that this observation by the judge renders Mr Karim’s conviction unsafe for two main reasons. First, it was balanced by an extensive explanation to the jury of Mr Karim’s central point, which was that the failure to interview or call applicants left gaps in the evidence that may cause the jury to conclude that the case was not proved. Second, in circumstances where the prosecution was making clear its view that the applicant’s would have been knowing participants in the fraud even though reasons of proportionality and trial management meant that they had not been charged, the judge’s observation that he should give them a warning against self-incrimination was justified. 73. Returning to the overall thrust of Grounds 5 to 7, we are not satisfied that it is reasonably arguable that the tone and content of the summing up rendered the trial unfair or Mr Karim’s conviction unsafe. We agree with the submission on behalf of the prosecution that what was being done was to sum up an admittedly powerful case against Mr Karim. If some passages suggested a degree of scepticism about Mr Karim’s case, in circumstances where he had chosen not to give an account in interview or to attend trial and give evidence we consider that degree of scepticism was justified and did not overreach the proper bounds of a reasonably balanced summing up, not least because the judge summarised the main tenets of Mr Karim’s case as they had been advanced by his counsel in his closing speech. 74. For these reasons, Mr Karim’s renewed application is dismissed.

```yaml citation: '[2021] EWCA Crim 14' date: '2021-01-13' judges: - LORD JUSTICE STUART-SMITH - MR JUSTICE EDIS ```

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 568 Case No: 202000623 A2; 20200624 A2; 202001162 A4; 202100096 A3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM HHJ Evans, HHJ Pugh, Mr Rec Benson QC Luton T20187259. Luton T20190517, Cambridge T20207205 Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/04/2021 Before: LORD JUSTICE HOLROYDE MRS JUSTICE CHEEMA GRUBB DBE and MR JUSTICE BOURNE - - - - - - - - - - - - - - - - - - - - - Between: ISUF PLAKU EDUART PLAKU SIMON BOURDON Appellants - and – THE QUEEN Respondent AND IN THE MATTER OF A REFERENCE BY HER MAJESTY’S ATTORNEY-GENERAL pursuant to section 36 of the Criminal Justice Act 1988 THE QUEEN -and- BENJAMIN SMITH - - - - - - - - - - - - - - - - - - - - - Mr Charles Royle (instructed by Saunders Solicitors ) for Isuf Plaku and Eduart Plaku Mr Peter Spary for Simon Bourdon Mr Mark Shelley for Benjamin Smith Mr Tom Little QC (instructed by Crown Prosecution Service, Appeals and Review Unit ) for the Respondent to the appeals and appearing on behalf of HM Attorney-General in the Reference Hearing dates: 30th March 2021 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Covid-19 Protocol: This judgment been 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 has been deemed to be 10:00am on 23rd April 2021. Lord Justice Holroyde: 1. When sentencing an offender who has pleaded guilty, section 73 of the Sentencing Code created by Sentencing Act 2020 (formerly section 144 of Criminal Justice Act 2003) requires a court to take into account “(a) the stage in the proceedings for the offence at which the offender indicated the intention to plead guilty, and (b) the circumstances in which the indication was given.” 2. The Sentencing Council’s definitive guideline on “Reduction in sentence for a guilty plea” (“the guideline”) sets out the principles a court should follow in reducing the punitive aspects of a sentence by reason of a guilty plea. 3. These cases have been listed for hearing together because they all raise issues as to the correct approach to determining the appropriate reduction. Isuf and Eduart Plaku, who admitted conspiracy to supply class A controlled drugs and received long prison sentences, complain that they should have had “credit in the order of 33 per cent” for their guilty pleas, instead of the 25 per cent reduction which the sentencing judge allowed. Simon Bourdon, who admitted stalking and related offences and received an extended determinate sentence (“EDS”), complains that he should have received credit of 30 per cent rather than 25 per cent. Benjamin Smith admitted aggravated burglary and other offences and received an EDS. Her Majesty’s Solicitor General believes the sentence to have been unduly lenient, in part because credit of one-third was given when the offender was not entitled to it, and applies pursuant to section 36 of Criminal Justice Act 1988 for leave to refer the case to this court so that the sentencing may be reviewed. 4. We are grateful to all the advocates for their written and oral submissions, and in particular to Mr Little QC, who appears for the respondent in the appeals and on behalf of the Solicitor General in the Reference, and who has therefore assisted the court with submissions both as to issues of principle and in relation to each of the cases. We shall consider first the issues of general principle, and then turn to the individual cases. 5. The guideline, which has been in effect since 1 June 2017, makes clear that its purpose is to encourage those who are going to plead guilty to do so as early in the court process as possible. The reasons why that encouragement is given are set out, in section B of the guideline, in the following key principles: “Although a guilty person is entitled not to admit the offence and to put the prosecution to proof of its case, an acceptance of guilt: 1. normally reduces the impact of the crime upon victims; 2. saves victims and witnesses from having to testify; and 3. is in the public interest in that it saves public time and money on investigations and trials. A guilty plea produces greater benefits the earlier the plea is indicated. In order to maximise the above benefits and to provide an incentive to those who are guilty to indicate a guilty plea as early as possible, this guideline makes a clear distinction between a reduction in the sentence available at the first stage of the proceedings and a reduction in the sentence available at a later stage of the proceedings. The purpose of reducing the sentence for a guilty plea is to yield the benefits described above. The guilty plea should be considered by the court to be independent of the offender’s personal mitigation.” 6. It appears, from the submissions made in the present cases, that there is still some misunderstanding of the guideline. It is therefore important to emphasise three points. First, by section 59 of the Sentencing Code (formerly section 125 of Coroners and Justice Act 2009) , a court must follow any relevant sentencing guideline unless satisfied that it would be contrary to the interests of justice to do so. Secondly, the guideline, like section 73 of the Sentencing Code, focuses on the time when the guilty plea is indicated , not when it is entered . Thirdly, a clear distinction is deliberately drawn between the reduction in sentence available at the first stage of proceedings and the reduction available at any later stage. That distinction is reinforced in section D of the guideline which, so far as is material for present purposes, states: “ D. Determining the level of reduction The maximum level of reduction in sentence for a guilty plea is one-third D1. Plea indicated at the first stage of the proceedings Where a guilty plea is indicated at the first stage of proceedings a reduction of one-third should be made (subject to the exceptions in section F). The first stage will normally be the first hearing at which a plea or indication of plea is sought and recorded by the court. D2. Plea indicated after the first stage of proceedings – maximum one quarter – sliding scale of reduction thereafter After the first stage of the proceedings the maximum level of reduction is one-quarter (subject to the exceptions in section F). The reduction should be decreased from one-quarter to a maximum of one-tenth on the first day of trial having regard to the time when the guilty plea is first indicated to the court relative to the progress of the case and the trial date (subject to the exceptions in section F). The reduction should normally be decreased further, even to zero, if the guilty plea is entered during the course of the trial.” [emphasis as in the guideline itself] 7. The section F exceptions referred to in that quotation cover a number of situations. The application of any of those exceptions in a particular case will of course be a factspecific decision, and a court making that decision will be careful not to go beyond the limited terms of the exception. Fairness to all defendants, in all courts, requires that the exceptions should not be extended beyond their proper scope. 8. A court will also keep in mind the practical difficulties of defendants accessing legal advice during the Covid-19 emergency, a point noted by the Sentencing Council in a statement published in June 2020 concerning the application of well-established sentencing principles during the emergency. 9. Exception F1 makes provision for cases in which the accused needs further information, assistance or advice before indicating his plea. It states that a reduction of one-third should still be made where the court is satisfied that “… there were particular circumstances which significantly reduced the defendant’s ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done.” Exception F1 goes on to distinguish, in this regard, between “… cases in which it is necessary to receive advice and/or have sight of evidence in order to determine whether the defendant is in fact and law guilty of the offence(s) charged, and cases in which a defendant merely delays guilty plea(s) in order to assess the strength of the prosecution evidence and the prospects of conviction or acquittal.” 10. We emphasise the distinction drawn in the latter part of that quotation. Both the proper application of the guideline, and fairness to those who do indicate a guilty plea at the first stage of the proceedings, demand that the distinction be observed. By way of example, a defendant who knows that he is in fact and law guilty of the offence charged, or can be advised to that effect on the basis of the prosecution case against him, is of course entitled to plead not guilty and to challenge the admissibility of the evidence by which the prosecution seek to prove his guilt. He is entitled to plead not guilty and hope that his representatives will be able to persuade the prosecution to accept a guilty plea to a different, less serious offence. But if the admissibility issue is resolved against him, or the prosecution decline to accept any lesser plea, and the defendant then changes his plea, he cannot expect to be given credit for his guilty plea as if it had been entered at a much earlier stage of the proceedings. In such circumstances, the benefits of a guilty plea, identified in section B of the guideline, have not accrued, or have accrued to only a limited extent. 11. The issues raised by the present cases make it necessary to focus upon the meaning of “the first stage of the proceedings”. Although we are principally concerned with cases in which the defendant is charged with an indictable-only offence, and therefore must be sent for trial to the Crown Court, we consider the phrase also in the context of either-way offences, which may either be heard by a magistrates’ court or be sent to the Crown Court. Appended to the guideline are two flow charts illustrating how the guideline operates in relation to each of those categories of offence. The flow charts are not part of the guideline, and are subject to the exceptions contained in the guideline, but they helpfully summarise what happens when a case first comes before a magistrates’ court. 12. In relation to either-way offences, it is a necessary part of the plea before venue procedure under section 17A of Magistrates’ Courts Act 1980 that a defendant must be asked “whether (if the offence were to proceed to trial) he would plead guilty or not guilty”. The section then sets out the procedure to be followed if the accused indicates that he would plead guilty, or indicates that he would plead not guilty; and subsection (8) states that if the accused fails to indicate how he would plead, he shall be taken to indicate that he would plead not guilty. 13. If the accused indicates he would plead guilty, the illustrative flow chart shows, his sentence will be reduced by one-third, whether the sentence is imposed by a magistrates’ court or, following a committal for sentence, by the Crown Court. If he indicates a not guilty plea, or gives no indication, the magistrates will have to decide whether the case is suitable for summary trial. If he is sent for trial to the Crown Court, and there pleads guilty at the first hearing, he will receive a one-quarter reduction. If his case is listed for trial, whether in a magistrates’ court or the Crown Court, then he will receive a reduction on a sliding scale, decreasing from one-quarter to a maximum one-tenth on the day of trial. 14. In relation to indictable-only offences, rule 9.7(5) of the Criminal Procedure Rules requires that the accused must be asked whether he intends to plead guilty in the Crown Court. If the answer is ‘yes’ the magistrates’ court must make arrangements for the Crown Court to take the accused’s plea as soon as possible. If the answer is ‘no’, or the accused gives no answer, then arrangements must be made for a case management hearing in the Crown Court. 15. The illustrative flow chart accordingly shows that at the first hearing in a magistrates’ court the defendant will be asked to indicate his plea. If he indicates a guilty plea, and enters such a plea at the first hearing before the Crown Court, he will receive a onethird reduction. If he indicates a not guilty plea, or gives no indication, but pleads guilty at his first appearance before the Crown Court, he will receive a one-quarter reduction. If his case is listed for trial in the Crown Court, he will receive a reduction on a sliding scale decreasing from one-quarter to one-tenth. 16. The Criminal Procedure Rule Committee has since 2016 published a Better Case Management (“BCM”) form on which information relevant to the listing and hearing of a case is recorded by the parties and the magistrates’ court. Although the terms of the form have recently been revised, as we indicate later in this judgment, it has always included a box in which to record the defendant’s intention as to plea. Mr Little rightly points to the need for the Crown Court to have a clear record of what indication was given in the lower court. We agree: when a case is sent to the Crown Court, it is essential that the BCM form is uploaded to the Digital Case System (“DCS”). As the Common Platform is rolled out across courts, it will be equally essential that the BCM form is uploaded to the Common Platform. 17. In a number of cases in recent years, this court has made clear that for the purposes of determining the appropriate reduction in sentence, an indication of a guilty plea must be an unequivocal indication. We endorse that principle. An indication of a “likely” or “probable” plea is not enough, as by definition such an indication keeps open the possibility of a not guilty plea and thus negates the advantages referred to in the “key principles” section of the guideline. Words such as “likely” or “probable”, or anything else which places a qualification on the intended plea, should therefore be avoided. We summarise six relevant cases. 18. In R v Davids [2019] EWCA Crim 553 , [2019] 2 Cr App R (S) 33, an indication on the BCM form “Likely to be guilty pleas on a basis” was held to be insufficient to entitle the defendant to full credit: “It was keeping options open, both as to whether a guilty plea would be offered and the basis on which it was offered”. 19. That decision was followed in R v Khan [2019] EWCA Crim 1752 , where the BCM form indicated that the defendant was likely to plead guilty. He subsequently pleaded guilty at a plea and trial preparation hearing (“PTPH”) in the Crown Court. A submission on appeal that full credit should have been given was rejected: the court held at [25] that “the statement that a plea is ‘likely’ is not an indication of a plea of guilty”. 20. In R v Yasin [2019] EWCA Crim 1729 [2020] 1 Cr App R (S) 43 the court emphasised that it was for the parties and their legal representatives, not the magistrates’ court, to complete the relevant part of the BCM form. A defendant who had not completed the appropriate section of the form, but had pleaded guilty to an indictable-only offence on his first appearance before the Crown Court, was therefore not entitled to full credit even if the magistrates’ court had not specifically requested an indication of plea. 21. Conversely, in the case of one of the defendants in R v Bailey and others [2020] EWCA Crim 1719 , the court at [62] held that full credit should have been given where the defendant’s representative had completed the BCM form in terms which indicated an intention to plead guilty to an indictable-only offence, notwithstanding that a court officer had subsequently made a potentially inconsistent entry on another part of the form. 22. In R v Handley [2020] EWCA Crim 361 the defendant’s representative had written “G indication” in the relevant box on the BCM form. The court held that he had given an unequivocal indication that he would plead guilty and was entitled to full credit. Although the judgment does not refer in any detail to the course of proceedings before the magistrates’ court, we infer that the defendant – consistent with that indication – must have answered the court’s oral enquiry by indicating that he would plead guilty. 23. In R v Hodgin [2020] EWCA Crim 1388 , [2020] 4 WLR 147 , where the offence charged was indictable-only , the court reviewed earlier decisions, and concluded at [37] that “in order to receive full credit of one-third pursuant to the guideline, where at the magistrates’ court it is not procedurally possible for a defendant to enter a guilty plea, there must be an unequivocal indication of the defendant’s intention to plead guilty. An indication only that he is likely to plead guilty is not enough.” The court observed that the decision in R v Hewison [2019] EWCA Crim 1278 , where full credit was allowed in circumstances which might appear to contradict that principle, turned on the wording of the form used by the magistrates’ court in that case, which was an unauthorised version in terms which differed from those of the correct BCM form. 24. The revised version of the BCM form, to which we have referred earlier, was drafted after the decision in Hodgin and in the light of recommendations made by a working party. It came into force on 2 November 2020 and therefore post-dates the indications of pleas in the present cases. The section which the parties are now required to complete before the hearing includes a box requiring the following information in relation to each charge: “ Pleas (either way) or indicated pleas (indictable only) or alternatives offered. Warning: this information may affect credit for plea. If there is a limited basis of plea insert details in ‘real issues’.” [emphasis as in the form itself] 25. Use of that form, in its current iteration, is obligatory. Alternative and unauthorised versions, such as was found in Hewison , must not be used. 26. The revised wording is in our view helpful. Subject to the specific exceptions in the guideline, we summarise the position as follows: i) A defendant charged with an either-way offence will be asked, pursuant to section 17A(5) of the 1980 Act , whether, if the offence were to proceed to trial, he would plead guilty or not guilty. If he unequivocally indicates that he would plead guilty, he is treated as having pleaded guilty, and a reduction of one-third should be made. That is so even if an indication that he would plead guilty is given, not at the outset, but following a reconsideration at a slightly later stage of the procedure in accordance with section 20(7) of the Act. ii) A defendant charged with an indictable-only offence cannot enter any plea before the magistrates’ court but will be asked to indicate whether he intends to plead guilty in the Crown Court. If he unequivocally indicates that he does, and enters his guilty plea when he first appears before the Crown Court, a reduction of one-third should be made. 27. We have considered submissions as to whether a reduction “of the order of one-third”, or of somewhere between one-third and one-quarter, should be made where a defendant does not indicate a guilty plea at the first stage of the proceedings but communicates an intention to plead guilty before he next appears in court. We have drawn attention to the clear distinction which the guideline deliberately draws between the first stage of the proceedings and any later stage. We have also referred to the exceptions in the guideline, including the F1 exception for those who genuinely need further advice before knowing whether they are guilty of the offence with which they are charged and who may therefore still receive full credit even after the first stage of the proceedings. In our view, there will be very few occasions when the sentence of a defendant who has not pleaded guilty at the first stage of the proceedings, and who cannot bring himself within one of the exceptions, could properly be reduced by more than one-quarter. It would be wholly inconsistent with the structure of the guideline to introduce an additional sliding scale of reduction between one-third and one-quarter, and we reject the suggestion that such an approach should be routinely, or frequently, adopted. Bearing in mind the infinite variety of situations which come before the criminal courts, and the consequent undesirability of ever saying “never”, we are prepared to accept that there may be exceptional circumstances in which a court might be persuaded that an unequivocal guilty plea notified to the prosecution and to the court very shortly after the first court appearance should be treated as tantamount to a plea at the first stage of proceedings and should receive full, or almost full, credit. But such circumstances will be rare. 28. We have also considered the position where a defendant faces more than one charge and does not at the first stage of proceedings give an unequivocal indication of an intention to plead guilty to all the charges. The circumstances of such cases will vary widely. In some cases it will be appropriate to view the charges separately and give the differing levels of credit which are appropriate in respect of each individually. In others it may be better to take a view across the charges as a whole and make the same reduction in each case. We do not think any guidance can be given which could be of general application. 29. The guideline, at Section D, makes clear that the maximum level of reduction for a guilty plea is one-third. Matters such as early admissions and cooperation with the police investigation might enable a defendant to put forward mitigation which justifies some reduction in the sentence which would otherwise be appropriate before reduction for a guilty plea. So too might the action of a defendant in being the first of a number of co-accused to break ranks and plead guilty: see R v Hodinott [2019] EWCA Crim 1462 at [29] and Bailey and others at [46]. In the same way, a mitigating factor might be found if a defendant pleads guilty when his co-accused are contesting issues which might be resolved in a way favourable to him. But, we emphasise, mitigating factors of this or a similar nature must be considered on a fact-specific basis before the appropriate reduction for a guilty plea is determined, and cannot lead to an increase in the level of that reduction. 30. The correct approach is illustrated by R v Price [2018] EWCA Crim 1784 , [2019] 1 Cr App R (S) 24. The defendant had made admissions when interviewed by the police, but at the magistrates’ court hearing indicated a not guilty plea. He pleaded guilty at the PTPH in the Crown Court, and was allowed a 25 per cent reduction. On appeal, he submitted that in view of the admissions made in interview he should have received credit of one-third. His appeal was dismissed: the plea had not been indicated at the first stage of proceedings; his admissions in interview could be taken into account as part of his personal mitigation, but did not affect the level of reduction. 31. We consider finally the situation in which a defendant who has not indicated a guilty plea at the first stage of the proceedings, and who does not come within any of the exceptions in section F of the guideline, appears before the Crown Court and asks to postpone arraignment to a later hearing. It follows from what we have said that, even if such a request is granted, there can be no question of the defendant “preserving full credit” until the next hearing. He is already too late to receive full credit, even if he pleads guilty at his first appearance before the Crown Court. If there is good reason for arraignment to be postponed, the judge might be persuaded, as an exercise of discretion in the application of the sliding scale, to preserve credit of one-quarter until the next hearing. 32. With those general principles in mind, we turn to the individual cases before us. 33. Isuf Plaku, now aged 41, and his brother Eduart Plaku, now aged 43, appeared before a magistrates’ court on 19 November 2018, and were sent for trial on a charge of conspiracy to supply cocaine. No BCM form was uploaded to the DCS in either of their cases, though information provided by the magistrates’ court to the Criminal Appeal Office indicates that a form would have been completed in each case. No application has been made by either appellant to adduce evidence showing that the normal procedure was not followed. 34. Strong circumstantial evidence linked the appellants to 43kg of cocaine seized by the police on 16 November 2018. The cocaine was of an unusually high level of purity, placing the appellants close to the importation, and had a street value in excess of £4.3 million. Both appellants had previous convictions, and at the time of the drugs conspiracy Eduart Plaku was on licence from a sentence of 6 years’ imprisonment, imposed in 2015 for an offence of conspiracy to acquire criminal property. 35. The case was listed for a PTPH in the Crown Court at Luton on 17 December 2018. Mr Royle, who did not appear below but represents both brothers in this court, tells us that a successful application was made to adjourn the hearing and to preserve credit. The day before that adjourned hearing, the prosecution gave notice of an amendment to the indictment which extended the conspiracy period from 1 day (the day of the arrests) to 11 days. At the hearing, on 29 January 2019, both brothers pleaded guilty. Sentencing did not take place until 3 September 2019. No pre-sentence reports were prepared. None was necessary. 36. At the sentencing hearing, counsel then appearing for Isuf Plaku did not suggest that any written indication of an intention to plead guilty had been given at any stage, though he did say there had been an informal indication of plea before the adjourned PTPH on 29 January 2019. On behalf of Eduart Plaku, counsel then appearing submitted that the appellant had not been asked to indicate a plea in the magistrates’ court, and sought full credit on the basis that the guilty plea was entered at the first opportunity. Counsel accepted that no written indication of a guilty plea had been given before the hearing on 29 January 2019. 37. The sentencing judge, HHJ Evans, found that both appellants had played a leading role in the conspiracy. He gave each of them one-quarter credit for their guilty pleas. He sentenced Isuf Plaku to 15years’ imprisonment and Eduart Plaku to 15 years 9 months’ imprisonment. 38. It is unnecessary to go into further detail about the facts of the offence, because the appellants have leave to argue only a single ground of appeal relating to the level of credit they received for their guilty pleas. An application for leave to appeal on the basis that the judge had wrongly assessed their roles, and so had passed a sentence which was manifestly excessive in length, was refused both by the single judge and by the full court. 39. Mr Royle submits that the guilty pleas were entered at what was the first stage of proceedings, and that therefore credit in the order of 33 per cent should have been given. He refers to what was said by this court in R v Caley and others [2012] EWCA Crim 2821 , [2013] 2 Cr App R (S) 47. 40. Mr Little resists the appeals, relying on the decision in Yasin and emphasising that neither appellant had given any indication of a guilty plea either in the magistrates’ court, or before the first PTPH, or at that PTPH. He submits, in our view correctly, that much of what was said on this subject in Caley must be regarded as out of date: that case was decided with reference to an earlier guideline issued by the Sentencing Guidelines Council, at a time when local practices as to indication of pleas differed, and the court expressly stated that the Sentencing Council was known to have the preparation of a new guideline on its agenda. 41. In the light of the general principles which we have stated, we can express our conclusions briefly. There is a lack of clarity as to precisely what happened in the magistrates’ court; but even if it could be accepted that no oral enquiry was made as to the intended pleas, despite the duty under rule 9.7(5), it seems clear that BCM forms must have been completed. It is not suggested that either appellant indicated a guilty plea on his form. Nor is it suggested that any formal written indication of a guilty plea was given by either appellant in advance of the PTPH. In those circumstances, the judge was correct to reduce their sentences by one-quarter. The submission that the hearing on 29 January 2019 was the first opportunity to enter guilty pleas is, with respect, misconceived. This is in our view a classic example of a case in which the appellants knew that they had been involved in drug dealing, knew or could readily have been advised that they were in fact and law guilty of conspiracy to supply controlled drugs, and therefore could not bring themselves within exception F1. Issues as to the duration of the conspiracy or as to the precise roles played did not prevent an indication of guilty plea being given at the first hearing in the magistrates’ court. The appellants therefore could have indicated their guilty pleas at the first stage of the proceedings, and should have done so if they wished to be given full credit. The later application for adjournment of the PTPH was successful in preserving the level of credit appropriate at that stage, namely one-quarter, but could not increase it to one-third. 42. For those reasons the appeals of the Plaku brothers fail and are dismissed. 43. Simon Bourdon, now aged 59, was charged with an offence of stalking causing serious alarm or distress, four offences of breach of a restraining order, and an offence of disclosing a private photograph with intent to cause distress. The offences were committed between early April and mid-November 2019. The victim was the appellant’s former partner. The appellant had commenced a campaign of harassment against her in 2018 after she broke off their short-lived relationship. The complainant reported him to the police late in 2018, and in February 2019 the appellant was convicted of harassment, sent to prison for 8 weeks and made subject to a restraining order which prohibited him from contacting the complainant. 44. On his release from that short sentence the appellant ignored the restraining order and renewed his campaign, committing the present offences. He repeatedly contacted the complainant, both directly and indirectly, by phone, post, email and on social media. He sent her unwanted gifts. He applied for a credit card in her name. He caused an unknown man to contact her with a view to meeting her for sex. He was arrested and interviewed, but denied all allegations of stalking and breach of the restraining order and was released under investigation. He promptly resumed his stalking, continuing to make contact with the complainant. He applied for a loan in her name. He sent her tickets to a concert. He posted sexual images of the complainant, taken without her knowledge, on a dating website and later on an Instagram account. At the beginning of July 2019 he was arrested again. He again denied all offences and was released. His offending continued until November 2019. 45. When yet again arrested and interviewed in November 2019, the appellant admitted that he had sent gifts to the complainant and had made the credit card application, which he said he had done with a view to putting money into the account as a present. 46. The appellant made his first appearance before a magistrates’ court on 18 November 2019. The court record shows that he either indicated pleas of not guilty or gave no indication of plea. The BCM form, uploaded to the DCS, stated “G pleas anticipated to most of these charges at PTPH. Court does not request PSR given the vagaries over which offences will be G pleas.” We have also been provided with an attendance note by the appellant’s solicitor, from which it is clear that a decision was taken not to give any indication of plea because it was hoped that discussions with the prosecution might reduce the number of charges. 47. At a PTPH on 16 December 2019, in the Crown Court at Ipswich, the appellant pleaded guilty to the offences which we have mentioned. Sentence was adjourned to 17 March 2020, before HHJ Pugh. 48. The complainant had made two victim personal statements, which set out in stark terms the effects of the offending upon her. She has suffered mental and physical ill health as a result of the offences and has had long periods off work. She describes living in a constant state of anxiety, panic and fear. For present purposes, we do not think it necessary to go into greater detail. 49. The appellant had previous convictions including offences of harassment against a different former partner in 2004, 2012 and 2014. A pre-sentence report referred to a pattern of obsessive and compulsive behaviour towards ex-partners. The author of a later addendum report assessed the appellant’s pattern of behaviour as being bolstered by harmful beliefs and attitudes linked to male privilege and a sense of entitlement. He considered that the appellant poses a high risk of serious psychological harm to a future partner who ended their relationship. 50. The judge in his sentencing remarks noted that the appellant, although showing some remorse, lacked insight into the impact of his behaviour. He assessed that impact as very severe. He held that the stalking offence fell into category 1A of the relevant definitive guideline, with a starting point of 5 years’ custody and a range from 3 years 6 months to 8 years. He considered it appropriate to pass a sentence for that offence which would reflect the overall criminality, with concurrent sentences for the other offences. The judge found that the aggravating features were the previous convictions for similar offending, the commencement of the present offences so soon after release from prison, and the fact that some of the offences were committed whilst on postsentence supervision and others whilst released under investigation. He accepted as mitigation the appellant’s health issues, including some mental health issues, his years of military service and a number of favourable references. He allowed 25 per cent credit for the guilty pleas which were entered at PTPH. He found the appellant to be a dangerous offender and regarded an extended determinate sentence as necessary. 51. The sentence for the stalking offence was an EDS of 8 years, comprising a custodial term of 6 years and an extension period of 2 years. Concurrent sentences of 3 years for each of the offences of breach of the restraining order, and one year for the offence relating to the private photograph, were imposed. A further restraining order was made. 52. Mr Spary, representing the appellant in this court as he did below, submits that the judge should have reduced the custodial term by 33 per cent, not 25 per cent, because an intention to plead guilty was advanced at an early stage. He further submits that the judge placed the offence of stalking into too high a category in the relevant guideline and therefore imposed too long a sentence. 53. Mr Spary also challenges the finding of dangerousness. He relies on a psychiatric report, obtained post-sentence, in which a consultant forensic psychiatrist noted the appellant’s history of previous diagnoses of PTSD and previous anti-depressant treatment, but also noted problems related to alcohol. The psychiatrist expressed the opinion that any risk would be significantly reduced by the appellant seeking help with his alcohol abuse and engaging in talking therapies, and that the appellant was not a man whom the court would find dangerous as that term is defined for sentencing purposes. 54. All the grounds of appeal are resisted by Mr Little. 55. We can again express our conclusions briefly. The judge sensibly treated the stalking charge as the lead offence, and reflected the overall criminality in the sentence for that offence. Before the reduction for the guilty pleas, the sentence was at the top of the guideline range. That was a stiff sentence, particularly bearing in mind that the offending did not involve any physical violence. However, the judge was entitled to place the offence into category 1A: as he observed, there were multiple features of high culpability, and there was clear evidence in the victim personal statements that the complainant had suffered severe psychological harm. The offending was greatly aggravated by the context of the former relationship, by the factors which the judge identified and by the number of distinct breaches of the restraining order. The judge took into account the limited personal mitigation. The appellant’s mental health problems did not reduce his culpability. The judge of course had to have careful regard to totality, and to keep in mind that the other offences could to some extent be viewed as overlapping with the stalking offence; but he also had to reflect the seriousness of persistent offending over a long period by a man who regarded himself as above the law and who caused serious harm to his victim. In those circumstances, stiff though the sentence was, we are unable to say that the custodial term was manifestly excessive. 56. As to the reduction in that term for the guilty plea, we are unable to accept Mr Spary’s submission. Applying the general principles expressed earlier in this judgment, we think this is clearly a case in which the appellant failed to give an unequivocal indication of guilty pleas at the first stage of the proceedings. On the contrary, he chose to keep his options open in the hope that he would ultimately be able to plead to fewer offences. The judge was therefore correct to limit the reduction to one-quarter. He could not properly have made any greater reduction. 57. Finally, against the background of the previous convictions and having regard to the persistent nature of the latest offences, the judge was entitled to make the finding of dangerousness. By his repeated offending, including after arrests and interviews in which he had falsely denied his actions, the appellant had shown himself to present a high risk to any woman who entered into a relationship with him but then brought it to an end. As the harm suffered by this unfortunate complainant showed, his conduct carried a significant risk of causing serious psychological harm. We see no basis for challenging the judge’s decision to impose an extended determinate sentence. 58. The appeal of Simon Bourdon therefore fails and is dismissed. 59. We come finally to the Reference relating to Benjamin Smith, now aged 31. 60. In the early hours of 14 September 2020 Smith forced his way into the home of a married couple aged in their seventies, Mr and Mrs Morley. He left his girlfriend, aged just 15, to keep watch outside. He wore a scarf around his face and was armed with a hammer, which he had photographed himself holding some 40 minutes earlier. He was later to admit that he was intoxicated with alcohol and cocaine. 61. Mrs Morley was woken by the sound of Smith breaking a window to gain entry. She went to investigate and was confronted by Smith. She screamed, and her husband came to her assistance. Smith demanded their money, and refused to accept their answer that they had none in the house. He forced them upstairs into the bathroom and took their wedding rings, injuring Mrs Morley’s hand as he did so. He then went to search the bedrooms. The Morleys took the opportunity to bolt the bathroom door, and Mr Morley shouted from the window for help. Hearing this, Smith broke down the bathroom door and dragged his victims into the bedroom. Mr Morley took up the hammer which Smith had left on the bed, but before he could use it Smith took it from him and used it to strike Mr Morley in the face, causing bruising and swelling but fortunately no more serious injury. He then tied up his victims and ransacked the room, taking bank cards and jewellery. He told Mrs Morley that if she gave him the PINs for the cards, he would return the jewellery. She did as he wanted, but he then left with the jewellery. The items which he stole, none of which were recovered, were of the greatest sentimental value to the Morleys, representing their 47 years of married life. 62. When arrested and interviewed, Smith made no comment. He was charged with offences of aggravated burglary, false imprisonment of both his victims and unlawful wounding of Mr Morley. 63. At the first appearance before the magistrates’ court, the “indicated pleas|” section of the BCM form had been completed with the words “potential indicated plea”. The “real issues in the case” section had been completed with the words “none known – possible basis of plea to be mooted”. We are told that the defence advocate indicated that Smith was likely to plead guilty but did not accept either striking Mr Morley with the hammer or tying up Mr and Mrs Morley. The prosecution advocate said, unsurprisingly, that that was unlikely to be accepted as a basis of plea. The court record stated “Plea of not guilty or non indicated”. 64. At a PTPH in the Crown Court at Cambridge on 16 October 2020, Smith pleaded guilty to all charges. No basis of plea was put forward. He was sentenced by Mr Recorder Benson QC on 27 November 2020, when he asked for 6 further offences to be taken into consideration: two offences of house burglary, in one of which he was confronted by the householder; three offences of burglary of non-domestic premises; and one offence of attempted theft. All those offences had been committed in August and September 2020, the latest two in the sequence being committed one day before, and two days after, the aggravated burglary of Mr and Mrs Morley’s home. 65. At the sentencing hearing, the recorder considered victim personal statements in which Mr and Mrs Morley spoke of the fear in which they had lived since the invasion of their home, which now feels like a prison to them. He also considered a PSR, in which the author recorded Smith’s account that he had not been fully aware of his actions, because of the alcohol and cocaine he had consumed, but had committed the aggravated burglary because he needed money to pay a drug debt. The author assessed Smith as being highly likely to commit further serious offences which could cause serious harm to others. 66. Smith had previously been convicted on 12 occasions of a total of 26 offences including burglary and robbery. He had received an extended sentence in 2013 for a sexual offence. At the time of the present offences he was subject to post-sentence supervision following a conviction for failing to comply with his notification requirements. 67. Counsel and the recorder were all agreed that the aggravated burglary offence fell within category 1 of the relevant guideline, with a starting point of 10 years’ custody and a range from 9 to 13 years. The wounding offence also fell into category 1, with the relevant guideline giving a starting point of 3 years’ custody and a range from 2 years 6 months to 4 years. Mr Mark Shelley, then as now representing Smith, realistically accepted that the recorder would be entitled to make a finding of dangerousness. He argued for credit of one-third to reflect the guilty pleas. 68. In the course of the sentencing hearing, there was the following exchange between counsel then appearing for the prosecution and the recorder: “Counsel: Your Honour, I’ve put in my note that credit should be 25 per cent for plea in this court without previous indication, but my learned friend rightly points out there was no opportunity for him to plead [inaudible] and so your Honour … The recorder: If offences are indictable only, can you indicate a plea in the magistrates or not? You can’t, so he hasn’t had an opportunity. So the first opportunity is – there hasn’t been a PTPH. Counsel: Yes, 16 th October. The recorder: There wasn’t – that’s when he pleaded? Right. So, he pleaded at the first opportunity, so he’s entitled to a third.” Counsel in that exchange unfortunately did not give the recorder the assistance to which he was entitled. In fairness to counsel, we note that this hearing took place only four weeks after the court gave its decision in Hodgin . 69. In his sentencing remarks, the recorder did indeed make a finding of dangerousness, and decided to impose an EDS for the aggravated burglary, with concurrent sentences for the other offences. He identified as aggravating features Smith’s previous convictions, the fact that he was subject to post-sentence supervision, his intoxication and his recruitment of a 15 year old girl to act as his lookout. He concluded that those features made it necessary to move upwards from the guideline starting point to a sentence of 12 years 6 months. He reduced that custodial term by one-third to reflect what he described as a plea of guilty “at the first opportunity”. He imposed the following sentences: for aggravated burglary, an EDS of 13 years, comprising a custodial term of 8 years 4 months and an extension period of 4 years 8 months; for each of the false imprisonment offences, a concurrent determinate sentence of 8 years; and for the wounding offence, a concurrent determinate sentence of 3 years. 70. For the Solicitor General, Mr Little submits that the sentencing was unduly lenient. With reference to the aggravated burglary guideline, he submits that four of the six features of greater harm were present: the victims were at home; Smith threatened his victims and attacked Mr Morley with the hammer, causing serious harm; there was ransacking of the bedroom; and there was a significant degree of loss because of the sentimental value of the stolen jewellery. In addition, at least two, and arguably three, of the higher culpability factors were present: Smith was equipped for burglary; he had a weapon with him when he entered the premises; and there was undoubtedly some degree, and arguably a significant degree, of planning. The guideline states that multiple features of harm or culpability can merit an upwards movement from the starting point before considering aggravating and mitigating factors, and Mr Little submits the recorder should have made such a movement in this case. There were then multiple aggravating features, as identified by the recorder, and the guideline states that such factors may make it appropriate to move outside the category range. Moreover, the sentence for this offence had to reflect the overall seriousness of the offending, as the other sentences would run concurrently. Mr Little submits that in the circumstances of this case, a sentence outside the range was necessary. 71. Mr Little submits in addition that the appropriate reduction in sentence was onequarter not one-third, and that the recorder made an error of principle in that regard. However, he very fairly makes clear that he does not contend that the sentence should be increased on that basis alone: he submits that the sentence was unduly lenient because of the cumulative effect of the custodial term being too short, and the reduction for plea being too large. 72. Mr Shelley resists this reference. He submits that the sentence was not unduly lenient. He argues that the recorder went almost to the top of the range before reflecting the guilty plea, and had a discretion to give full credit. 73. This was undoubtedly very serious offending. The features to which Mr Little has drawn attention provided ample reason for the recorder to move upwards to, or near to, the top of the guideline range. We do not think the recorder could have been criticised if he had concluded that a sentence somewhat in excess of the range, before reduction for guilty pleas, was necessary to reflect the overall seriousness of the offending. We are not however persuaded that he was required to reach that conclusion or that a sentence at or near the top of the guideline range was not properly open to him. The custodial term of 12 years 6 months, before credit for the guilty pleas, was lenient, but we are not persuaded that it was in itself unduly so. 74. With respect to the recorder, he was led by counsel, and fell, into clear error of principle in allowing full credit for the guilty pleas. Smith could not have entered a guilty plea in the magistrates’ court, but he could have given an unequivocal indication of his intention to do so. It is, we think, unnecessary to consider any question arising from the suggested basis of plea which was put forward at the first hearing. The simple fact is that at that hearing, Smith did not give an unequivocal indication of an intention to plead guilty. At most, an oral indication was given that he was “likely” to plead guilty. As we have made clear earlier in this judgment, a qualified indication of that kind is not sufficient to attract full credit. Smith’s guilty pleas at PTPH could not attract more than a one-quarter reduction. We cannot accept Mr Shelley’s submission that the recorder was entitled as an exercise of discretion to make a one-third reduction. The making of such a reduction was therefore wrong in principle. 75. In view of the concession properly and fairly made on behalf of the Solicitor General, we do not find that that error of principle in itself causes the sentence to be unduly lenient. Nor are we persuaded that the combination of matters on which the Solicitor General relies leads to that conclusion. Smith’s sentence will therefore remain unchanged. This Reference has however rightly been brought, and has identified an error of principle. In those circumstances we grant leave to refer but we make no order on the Reference.

```yaml citation: '[2021] EWCA Crim 568' date: '2021-04-23' judges: - HHJ Evans, HHJ Pugh, Mr Rec Benson QC - LORD JUSTICE HOLROYDE - MRS JUSTICE CHEEMA GRUBB DBE - MR JUSTICE BOURNE - pursuant to section 36 of 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} ======

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2023] EWCA Crim 1538 No. 202301988 A3 Royal Courts of Justice Wednesday, 1 November 2023 Before: LADY JUSTICE THIRLWALL LORD JUSTICE POPPLEWELL MR JUSTICE JAY REX V PAUL CROFT __________ 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 M. WILSON appeared on behalf of the Appellant. ________ JUDGMENT LORD JUSTICE POPPLEWELL: 1 On 16 May 2023, in the Crown Court at Caernarfon, the appellant (then aged 51) pleaded guilty to being the owner of a dog which caused injury while dangerously out of control in a public place, contrary to s.3(1) and (4) of the Dangerous Dogs Act 1991 . He was sentenced to 17 months' imprisonment suspended for two years, with various ancillary orders. He appeals against the length of the custodial term of the sentence with leave of the single judge. 2 At 5.30 pm on Tuesday 14 June 2022 Mr and Mrs Cunnington were walking their seven-month-old Cockapoo puppy along Lord Street in Blaenau Ffestinoig when they saw the appellant. He appeared intoxicated and was holding a large dog on a lead which barked aggressively towards the Cunningtons' puppy. It was a Belgian Malinois cross-breed. Just under two hours later, the Cunningtons were returning from their walk when they saw the appellant's dog again. It was not on a lead and the appellant was not in sight. The appellant's dog attacked the Cunningtons' puppy. It held the puppy in its mouth and shook it like a puppet. The attack lasted some time, during which Mr Cunningham received a bite to his hand in his unsuccessful attempts to rescue the puppy from the jaws of the larger dog. Eventually a neighbour intervened and grabbed the dog by the neck until it dropped the puppy. The police were called and they found the appellant asleep on the middle of the path some way off. He was snoring loudly and difficult to arouse. Once awake the appellant confirmed that he was the owner of the dog. Another woman had earlier in the afternoon warned the appellant that he should put the dog on a lead. 3 The puppy required surgery and suffered additional puncture wounds. It made a full recovery in due course. Mr Cunnington's hand required a tetanus injection. Mr and Mrs Cunnington felt traumatised by the incident for some time. 4 The appellant had 20 convictions for 64 offences. None involved dogs. The instant offence occurred during the operational period of a suspended sentence of 20 weeks' imprisonment suspended for 18 months, imposed at Merseyside Magistrates' Court for the offences of having a knife in a public place and battery. By the time the appellant came to be sentenced for the dog offence, 16 weeks of that 20-week sentence had been activated by North West Wales Magistrates' Court by an order made on 8 September 2022 when sentencing for another offence, harassment, committed during the operational period. 5 The judge when sentencing had regard to the relevant Sentencing Council Guideline. As agreed by prosecution and defence, he treated the offence as involving culpability category B by reason of the lack of safety and control measures where an incident could reasonably be foreseen; and harm category 2 by reason of the injuries to the puppy and Mr Cunnington. The Guideline gives a starting point for that category of six months with a range of up to 12 months. The judge identified as aggravating features: first, previous convictions; second, the sustained nature of the attack; third, that the reason the dog was out of control was the appellant's ingestion of alcohol; fourth, the injuries to the puppy as well as Mr Cunnington; and fifth, the offence being committed during the operational period of a suspended sentence. He said that those aggravating features took the offending outside the category range and that a sentence after trial would have been 20 months. He applied a discount of 15 per cent for the guilty plea in reaching a sentence of 17 months. No criticism is made of the amount of credit for the guilty plea. 6 The single ground of appeal is that there was no justification for going beyond the 12-month period as the appropriate sentence after a trial, and accordingly the sentence was manifestly excessive. We agree. The suspended sentence had already been activated to the extent considered appropriate by the North West Wales Magistrates, which was all bar four weeks of it, and the commission of this offence during the operational period did not warrant any significant further uplift. The aggravating features identified justified moving to the top of the bracket, but not beyond. Had the judge taken the appropriate sentence after a trial as 12 months, he would have reduced it to 10 months, rounding down slightly, in giving 15 per cent credit for plea. 7 Accordingly, we will quash the custodial term of the sentence of 17 months and replace it with a term of 10 months. In all other respects, including the suspension and ancillary orders, the sentence remains unaffected. To that extent, the appeal is allowed. _______________

```yaml citation: '[2023] EWCA Crim 1538' date: '2023-11-01' judges: - LADY JUSTICE THIRLWALL - LORD JUSTICE POPPLEWELL - 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: [2020] EWCA Crim 10 Case No: 201903603/A2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Crown Court at Norwich HHJ Maureen Bacon QC T20180455 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/01/2020 Before : LORD JUSTICE GREEN MR JUSTICE JULIAN KNOWLES and HER HONOUR JUDGE WENDY JOSEPH QC - - - - - - - - - - - - - - - - - - - - - Between : REGINA - and - M (Transcript of the Handed Down Judgment. Copies of this transcript are available from: WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7414 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) Mr Ian James (instructed by Breydons Solicitors ) for the Appellant The Crown was not represented Hearing date: Wednesday 15th January 2020 Judgment As Approved by the Court Crown copyright © Lord Justice Green : 1. On 12 th July 2019 in the Crown Court at Norwich the appellant was convicted of three counts. First, indecent assault on a male person contrary to Section 15(1) of the Sexual Offences Act 1956 . Second, indecency with a child contrary to Section 1(1) of the Indecency with Child Act 1960 . Third, indecent assault contrary to Section 14(1) of the Sexual Offences Act 1956 . 2. In relation to Count 1 the appellant was sentenced to a term of imprisonment of 5 years. In relation to Count 2, he was sentenced to a term of 1 year imprisonment consecutively. In relation to Count 4 he was sentenced to a term of 1 year imprisonment consecutive. The total sentence was therefore one of 7 years imprisonment. 3. The reporting restrictions in the Sexual Offences (Amendment) Act 1992 apply to these offences and accordingly the normal protection available to the victims applies until and unless waived or lifted in accordance with Section 3 of the Act . 4. The facts may be summarised as follows. The appellant, now 47 years old, was the youngest of six siblings. The victims were the son and step-daughter of his oldest brother. In 2017 the son reported to the police that he had been sexually abused by the appellant whilst a child. Subsequently the daughter also made a statement to the police. The offences were committed between 1993 and 1996 when the appellant was between 21 and 24 years old. The son was, during that period, between 6 and 8 years old and the daughter was 6 years old. The offences were committed when the appellant acted as a babysitter for the children. 5. The facts of Count 1 are as follows. The appellant bought a suitcase of pornography with him which he showed to the son telling him that he wanted to teach him how to be a man. He made the boy undress and touched his penis. He masturbated him for about 30 seconds and encouraged him to look at the pornography. The boy was reluctant to do so. However he was made to touch the appellant’s erect penis before he ejaculated into the pornographic material. The boy did not at the time realise that what had occurred was wrong and he did not tell anyone about it, though he gave evidence that the episode made him feel uncomfortable. 6. Count 2 represented a different occasion when the appellant placed pornography in front of the boy. He gave evidence that he had seen the appellant’s naked penis and had smelt it. The appellant masturbated but there was no touching of the boy. Later, during his teenage years, the boy recalled the offences and confronted the appellant who responded with alarm but did not apologise. These matters were later disclosed to the boy’s father who confronted the appellant. He admitted to his brother that it had been a phase that he had been passing through. 7. Count 4 concerned the niece. Whilst he was babysitting her, he kissed her using his tongue and placed her hand upon his penis over clothing. She recalled that the appellant’s penis had been semi-erect. She sought to avoid the appellant subsequently. Years later, she informed her partner and upon hearing of the allegations made by her brother, she also made a formal complaint to the police. 8. The appellant was interviewed on 8 th February 2018. He agreed that the boy had sent him a Facebook message in January 2017 telling him that he had told his father what had occurred. The appellant admitted contacting his brother in order to apologise but he said that he thought it had related to an isolated episode when the boy inadvertently walked in upon him whilst he was masturbating. He denied any offending against the children. 9. He was convicted by the jury. 10. The nub of the appeal is that the judge imposed too high a sentence in relation to Count 1, of 5 years custody. In submissions the point was advanced in the following way. The historical nature of the offending necessitated the appellant being charged under the SOA 1956 . In the course of a Sentencing Note, counsel for the Crown identified the change to the statutory maximum for offences now indicted under the Sexual Offences Act 2003 , Section 7 and also provided guidance to the judge on the correct approach to be taken to historical offending as set out by this court in R v H [2011] EWCA Crim 2753 . The judge also had placed before her relevant Guidelines on sexual offences. It is acknowledged that there are aggravating features in the case including the disparity in ages between the appellant and the children, and the abuse of trust. 11. In her brief sentencing remarks, the judge recorded of these matters. She observed that had the facts been prosecuted under Section 7 of the SOA 2003 , namely sexual activity with a child under 13 years old, the maximum term of imprisonment would have been one of 14 years. In relation to relevant aggravating factors, had this been a case under Section 7 , the fact that the appellant touched the boy’s naked genitalia, and that there was an abuse of trust made this a Category 2 Culpability A case. The judge observed that the starting point was 4 years imprisonment with a range of 3 – 7 years. 12. The crux of the point raised upon this appeal is that the judge imposed a sentence which was materially above the starting point in the Guidelines. It is acknowledged that the offending is serious but within the context of indecent assaults of its kind this was not towards the upper end of the range. Indeed it is said that it may be towards the lower end of the range considering that this was a single assault that had lasted only “up to” 30 seconds. The child had not appreciated the seriousness of the matter and it had, at worst, made him feel “uncomfortable”. Counsel argues that the judge has failed to identify the aggravating feature which caused her to move above the recommended starting point. When viewed in the context of the fact that the judge imposed consecutive sentences for the other counts, and the appellant’s lack of previous convictions, his good character, and the fact that there was no evidence of any subsequent offending, it is said that, with all respect, that the judge erred. 13. There is some force in the argument. These were serious offences. They were not fleeting and they did exert lasting effects on the victims. However, on our reading of the sentencing remarks there is little reference or weight attached to certain aspects of mitigation. There is no explanation as to why the sentence on count 1 was above the starting point. When we view this case from the perspective of totality, we conclude that a proper sentence giving full weight to relevant mitigation would be one of a total of 6 years custody. We therefore set aside a total sentence of 7 years and we substitute in its place one of 6 years. To achieve this we make the sentence of 12 months on Count 2 concurrent with Count 1 to reflect the totality of the sentencing in relation to the offences concerning the young boy. To this extent the appeal is allowed.

```yaml citation: '[2020] EWCA Crim 10' date: '2020-01-15' judges: - HHJ Maureen Bacon QC - LORD JUSTICE GREEN - MR JUSTICE JULIAN KNOWLES - HER HONOUR JUDGE WENDY JOSEPH QC ```

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2020] EWCA Crim 1775 CASE NO 202002502/A4-202002503/A4-202002504/A4 Royal Courts of Justice Strand London WC2A 2LL Thursday 17 December 2020 Before: LORD JUSTICE FLAUX MRS JUSTICE CHEEMA-GRUBB DBE MR JUSTICE MURRAY REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 REGINA V OTIS WILLIAM BARRETT MATTHEW LAWRENCE BROWN TERRENCE MARK BROWN __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR P JARVIS appeared on behalf of the Attorney General. MR P WEBB appeared on behalf of the Offender Barrett. MR M NICHOLLS appeared on behalf of the Offender M Brown. MR L MUIR appeared on behalf of the Offender T Brown. _________ J U D G M E N T (Approved) LORD JUSTICE FLAUX: 1. Her Majesty's Attorney General, appearing by Mr Jarvis of counsel, seeks to refer sentences passed down on Terrence Brown, Matthew Brown and Otis Barrett on 4 September 2020 pursuant to section 36 of the Criminal Justice Act 1988. We grant leave. 2. On various dates, the offenders pleaded guilty to three counts of conspiracy to burgle, contrary to section 1(1) of the Criminal Law Act 1977 and one count of burglary contrary to section 9(1)(b) of the Theft Act 1968. The second offender, Matthew Brown, also pleaded guilty to one count of criminal damage contrary to section 1(1) of the Criminal Damage Act 1971. It is common ground that the judge was correct to give each of the offenders the full one-third credit for their guilty pleas. 3. The conspiracies to burgle covered three periods of time: 21 January 2020 to 6 February 2020 (series 1); 9 February 2020 to 28 March 2020 (series 2) and 28 March 2020 to 2 May 2020 (series 3). Each conspiracy concerned an agreement to burgle retail premises with intent to steal (principally cigarettes). The particulars of the count of burglary were that on 26 April 2020 the offenders entered a garage at CMG, Mansard Close, Northampton, as trespassers, and stole cigarettes. The particulars of the count of criminal damage were that on 19 April 2020 the second offender unlawfully damaged an automatic number plate recognition camera belonging to the Northamptonshire Police. 4. On 4 September 2020 the offenders were sentenced to the following concurrent terms of imprisonment. Firstly, the first offender, Terrence Brown (aged 26), was sentenced to 6 years' imprisonment for each conspiracy and 4 years' imprisonment for the offence of burglary concurrent, making a total sentence of 6 years' imprisonment. The second offender, Matthew Brown (aged 30), was also sentenced to 6 years' imprisonment for each conspiracy, 4 years' imprisonment for the offence of burglary and 2 months' imprisonment for the offence of criminal damage, all concurrent, making a total sentence of 6 years' imprisonment. The third offender, Otis Barrett (aged 26), was sentenced to 6 years and 4 months' imprisonment for each conspiracy and 4 years' imprisonment concurrent for the offence of burglary, making a total sentence of 6 years and 4 months' imprisonment. The Facts 5. The facts of the offences were as follows. The offenders played a leading role in a group which numbered up to five men who committed a spate of commercial burglaries at night between 2 January 2020 and 1 May 2020. From 23 March onwards these were committed during lockdown at a time of widespread public anxiety and thinly stretched police resources. This spree only ended when the offenders were arrested and remanded into custody on 1 May 2020. Earlier police interventions had included the finding and seizing of getaway vehicles on various dates and the arrest of the first offender on 6 February and his prosecution for handling a stolen car. He was released by magistrates for that offence with a fine on 8 February. These police interventions only served to disrupt the group for short periods of time. New getaway vehicles were found and the offending resumed soon afterwards. 6. The conspirators committed 45 burglaries and attempted burglaries and seven other offences such as theft between 22 January and 1 May 2020. The principal target of the burglaries was cigarettes, which were stolen in bulk and sold by the group for profit. Builders' sacks were used to carry off the stolen haul. On occasions the group targeted other valuable items including two raids (only days apart) on a designer clothing shop in Northampton and the theft of two motorbikes from a garage. 7. The telephone handset seized from the first offender on 6 February included a message from a third party asking if the group "had been out last night" as he wanted to buy some cheap cigarettes. An image on the first offender's phone showed at least £10,000 in cash. The offenders were selling the stolen items for profit. Messages recovered from that handset indicated that they communicated via Snapchat and WhatsApp to discuss potential targets for future raids including screenshots of various designer clothes stores. The group also carried out physical reconnaissance in advance on certain occasions. 8. Messages on the telephone also revealed that the first offender knew to leave the phone behind when going out to commit offences and the preliminary telephone work carried out by the investigators suggested that all three offenders took that precaution. They took a number of other precautions to avoid detection such as sabotaging ANPR cameras, placing cones on the road to delay any police response, throwing cans of antifreeze into the road to deter police pursuit, spraying cleaning fluid or fire extinguishers on surfaces that they touched during a number of the burglaries to eliminate any scientific evidence, using stolen vehicles on recently stolen number plates, storing the stolen cigarettes at remote locations, operating at night and wearing gloves and face coverings. Nonetheless on occasions they were careless: discarded gloves, balaclavas, snoods and builders' sacks were found by the police on several occasions which contained DNA links to each of the offenders. 9. The majority of the burglaries were carried out against supermarkets and convenience stores. Some stores were targeted more than once over a period of days or weeks. The group would also target three or four sites over the course of one night on occasion. Crowbars, sledgehammers and power tools including angle grinders were used to force entry through doors or windows. A lookout often remained outside and on at least two occasions was seen to be wielding a sledgehammer and a golf club respectively, to be used as weapons if necessary. Once inside the offenders would attempt to force the locked cigarette kiosks, would also sometimes target cash tills or take other items such as alcohol. The total value of the goods stolen in 52 incidents was £298,015.86. Very substantial damage was caused as a result of these raids totalling £118,599. 10. The offences took place across Northamptonshire and a number of other counties including Buckinghamshire, Warwickshire, Leicestershire, Bedfordshire and the Thames Valley area. Once the lockdown began on 23 March the group's focus shifted more towards the Northampton area (where they lived) because travel further afield might have carried greater risk of detection in the prevailing circumstances. 11. As to the offence of criminal damage charged against Matthew Brown, over the course of 19 to 21 April several ANPR cameras in the Northampton area were vandalised. The second offender was captured on CCTV committing one of those vandalisms with the other offender standing nearby. The vandalism was committed to facilitate the group offending. 12. As to the single offence of burglary, at nearly midnight on 24 April 2020, the group stole cigarettes from a Tesco Express in Northampton, but unbeknownst to them Tesco had fitted those cigarettes with a tracking device which showed that after the burglary the group drove at speeds of up to 111 miles per hour to a remote location in Malton where they put the cigarettes into a van which was parked there - doubtless intending to return to them once it was felt safe to do so. 13. On 25 April the police followed the tracker to the scene and located and seized the van which still contained the cigarettes in the builder's sack which had been used to carry them away. The van and its contents were recovered to the premises of CMG (a civilian police contractor) to be stored. The premises had a secure outer fence and a secure warehouse in the interior in which police exhibits were stored. The group was sufficiently resourceful to be able to identify CMG's premises within less than 24 hours of the seizure. They mounted a determined effort to break into the compound, beginning just after midnight on 26 April. CCTV showed men attempting to force the outer fence at 12.05 am. They hid when a member of CMG staff walked nearby before resuming their efforts minutes later. Having forced the fence they tried but were unable to break into the warehouse, so they left and returned about an hour later with more suitable tools. They finally forced entry and confronted a member of staff inside. They were brandishing crowbars at him, telling him: "There's three of us here so don't try anything" and "We just want our shit from the van". He complied and no violence was actually used. With the employee under guard the offenders forced entry to the van, recovered the cigarettes which were still in the builder's sack and made off with them in their getaway VW Golf. Before leaving they took the opportunity to spray cleaning fluid around the inside of the van in order to destroy any scientific evidence which might have been recovered. 14. Between 30 April and 1 May the group resumed targeting retail premises pursuant to the series 3 conspiracy carrying out reconnaissance of four stores and the burglary of one on 1 May which led to their red-handed arrest minutes later in the planned operation. 15. Where interviews took place no admissions were made by the offenders. When interviewed in relation to the series 3 conspiracy each offender answered "no comment". The offenders were later charged with a series 1 and 2 conspiracies once the series 3 proceedings were already underway. The first offender on his arrest on 6 February had admitted handling stolen goods in respect of the stolen vehicle, which ultimately proved to be one of the series 1 conspiracy getaway cars, but he denied any wider involvement in the series 1 conspiracy at that stage. The Offenders' Antecedents 16. The first offender, Terrence Brown, had 15 previous convictions for 25 offences including thefts from shops and dwelling and non-dwelling burglaries. He received a sentence of 2 years' detention in 2013 for a dwelling-house burglary. 17. The second offender, Matthew Brown, had six previous convictions for 15 offences including dwelling and non-dwelling burglaries and attempts to steal. In March 2010 he was sentenced to 3 years' detention, and in October 2013 to 3 years' imprisonment for such offences. There were similarities with the present offences in that the 2010 matters included stealing cigarettes from convenience stores at night and the 2013 matters included stealing registration plates to use on a stolen vehicle as a getaway car for commercial burglaries including one burglary where a filling station was targeted and cigarettes were loaded into a builder's sack. 18. The third offender, Otis Barrett, had a more serious criminal record, with 11 convictions for 25 offences including burglary and theft from non-dwellings, conspiracy to commit burglary with intent to steal from dwellings and non-dwellings and burglary and theft from non-dwellings. He was on licence at the time of the index offending. The 2014 matters were almost identical to this offending, using vehicle and stolen number plates to commit high value commercial burglaries targeting cigarettes. The Sentencing Hearing 19. There were no reports in this case. An impact statement was produced on behalf of Tesco dealing with the consequences of the multiple raids on its stores and numerous other store owners had provided statements to the police summarising the value of items stolen and the damage caused to their premises. 20. At the sentencing hearing the judge was referred by counsel for the prosecution to the Sentencing Council's Definitive Guideline for Burglary Offences. The maximum sentence for the conspiracies to burgle and the burglary was 10 years' imprisonment. It was common ground that the conspiracies to burgle and the burglary should be placed in category 1 of the Guideline given that there was greater harm and higher culpability. Thus, for all four offences the starting point was 2 years' custody with a sentencing range of 1 to 5 years. 21. Prosecution counsel submitted that all of the greater harm and higher culpability factors were present, save that the offenders did not use or threaten violence against any person during the course of committing the series 1, 2 and 3 burglaries and the trauma to the victims was not beyond the norm for offences such as this. All these features required a significant uplift from the starting point. 22. Prosecution counsel further submitted that the single burglary involved threats of violence to a contractor who was on the premises. In his submission, that offence was substantially different from the other burglaries carried out by the offenders not only because of the threat of violence but because the offenders targeted civilian contractors who were holding evidence seized by the police in the course of an ongoing criminal investigation. He submitted that a single burglary called for a consecutive sentence, to which the judge responded: "Well, it is either that or it's treated as a grossly aggravating feature of the entire offending". Prosecution counsel agreed that it would either have to be one or the other. 23. In mitigation, defence counsel submitted that the items that the offenders had with them when they committed the burglaries were tools rather than weapons. 24. In his sentencing remarks the judge described all of the offences as part of the same prolific pattern of offending. The offending invariably took place at night and from late March onwards during the lockdown imposed by the Government. On occasions the same premises were targeted repeatedly and the group planned and executed the offences in an efficient and sophisticated way. Sometimes reconnaissance took place. Masks or balaclavas and gloves were worn to try to limit the detection by the police. Tools including power tools were used to effect the burglary and they employed different methods to reduce the risk of detection. Remote locations were used, unconnected to the group, where items that had been stolen were stored in case the police were able to track them down. As their offending progressed they had been able to hone their technique by taking steps to delay police intervention and by removing any of their DNA that could have been left at the crime scene. In the judge's view the offenders were "all organised and very discerning professional criminals of a serious calibre". 25. The burglary on 26 April demonstrated just how bold they had become: they broke into civilian staff premises with crowbars and made off with the stolen cigarettes that the police had earlier taken from them. In addition, they had significant previous convictions. The judge accepted that the offenders had not been seeking to confront anyone in the course of burgling retail premises. He concluded that only a sentence of immediate imprisonment was appropriate. The seriousness of the offending meant the case overall "falls well outside category 1 of the Guidelines". In those circumstances the judge decided to take a starting point "very close to" the statutory maximum sentence of 10 years' imprisonment. He reflected on the prosecution submission that the burglary offence called for a consecutive sentence but decided instead to treat it as "a grossly aggravating feature of your overall criminal conduct". The judge also recognised that he should take into account the fact that conditions in prison are harsher now because of the pandemic. 26. In the case of Terrence Brown the starting point for conspiracies, after trial, taking account of all the aggravating and mitigating factors in his case, would have been 9 years. So, affording him full credit for his guilty plea, the sentence was 6 years' imprisonment. On the single count of burglary the sentence was 4 years' imprisonment concurrent. For Matthew Brown the sentences were the same, 2 months' imprisonment concurrent for the criminal damage offence. For Otis Barrett, taking account of his previous convictions and the fact that he was on licence at the time of these offences, the starting point for the conspiracies would be 9 years and 6 months' imprisonment; with full credit for his guilty pleas that sentence came down to one of 6 years and 4 months with the concurrent sentence of 4 years' imprisonment for the burglary offence. Submissions for the Attorney General 27. On behalf of the Attorney General, Mr Jarvis submitted that these sentences were unduly lenient. He submitted that the sentencing in conspiracy cases is not straightforward because the more offences that have been committed in furtherance of the agreement, the less helpful the relevant Definitive Guideline, which is based on the commission of a single substantial offence. In the context of conspiracies to commit burglary the Court of Appeal has held that the Sentencing Council's Definitive Guideline for Burglary Offences "whilst not binding in any sense upon the judge sentencing a conspiracy, may well provide a valuable and important touchstone" - R v Copeland [2015] EWCA Crim 2250 ; [2016] 1 Cr App R(S) 56 . Mr Jarvis submitted that where a defendant has been convicted of a number of similar offences the court will have to consider what a just and proportionate overall sentence should be and then decide how to structure the individual sentences to reach that figure. This is the approached advocated by the Definitive Guideline on Totality. There was nothing in that Guideline that would prevent a court from imposing a consecutive sentence for multiple conspiracies, even if that would result in an overall sentence in excess of the statutory maximum for a single offence, although Mr Jarvis accepted that historically the view was taken that such a course would not be in accordance with principle, as can be seen from the discussion at page 59 of Thomas' Principles of Sentencing (Second Edition). He accepted that the judge had been entitled to treat the conspiracies as part of a series and pass concurrent sentences. The judge had come to the conclusion that all the features of that offending meant that the sentence had to be close to the statutory maximum of 10 years' imprisonment. 28. Mr Jarvis accepted that his conclusion that the sentences, after trial, on those counts would either be 9 years or 9 years 6 months' imprisonment was not unreasonable. The credit for guilty pleas was appropriate so that the sentences on those counts were not unduly lenient. However, he submitted that the judge had erred in his sentencing on the single count of burglary. The sentence passed was equivalent to 6 years after trial, so it was obviously a very serious offence of its kind. He submitted that the judge should not have passed a concurrent sentence for that offence. It constituted a different species of criminality from the conspiracies to burgle involving targeting of evidence gathered by the police and threats to a civilian worker that he would be harmed unless he let them take the cigarettes that they had come for. 29. In his oral submissions to us this morning he amplified the point that that burglary had an element of public interest because it involved interference with the investigation of crime. He submitted that the seriousness of that offence could not simply be subsumed within the sentence of the conspiracies. Given that the judge proposed to take a starting point for the conspiracy close to the statutory maximum, without taking into account this individual burglary, it is difficult to see how he could have been faithful to his own intentions to grossly aggravate the seriousness of the conspiracies by reference to single burglary, when there was little scope for him to increase those sentences from the starting point given how close it was to the statutory maximum for the offence. Mr Jarvis submitted that the sentence for the burglary should have been consecutive which would have resulted in overall sentences taking account of guilty pleas of 10 or ten-and-a-half years' imprisonment. He accepted in his oral submissions that if a consecutive sentence were passed there would need to be some reduction in the sentence for the burglary, to reflect the issue of totality although that reduction, he submitted, would only need to be a modest one. Submissions on behalf of the Offenders 30. On behalf of Otis Barrett, Mr Webb, in his submissions to us this morning, submitted that the judge did not err in his approach to sentencing. The overall sentence, after trial, of 9 to 10 years' imprisonment was a significant sentence. The prosecution had agreed that it was open to the judge to either pass a consecutive sentence for the burglary or to pass a concurrent sentence on the basis it was a grossly aggravating feature. The judge had given careful consideration to the appropriate starting point and the sentence at which he had arrived was a significant one which had adequately addressed the criminality overall. 31. Similar submissions were made both orally and in writing by Mr Nicholls, on behalf of Matthew Brown, who again referred to the fact that, as prosecution counsel had accepted, the judge had had a choice as to whether to pass a consecutive sentence for the burglary or a concurrent one, treating it as a grossly aggravating feature of the overall offending. He had taken that course and he had indicated that the grossly aggravating feature of the 26 April burglary had been factored into his overall starting point after trial of 9 or nine-and-a-half years. He submitted there was no error on the part of the judge and he had taken proper account of that grossly aggravating feature in sentencing the second offender. 32. In oral submissions to us this morning Mr Muir, on behalf of Terrence Brown, said that the judge's structure of the sentencing was an entirely proper one and it was never suggested to him at the sentencing hearing that passing a concurrent sentence would not give him sufficient statutory powers. Mr Muir also submitted, somewhat optimistically in our view, that his client was still at a relatively young age and this was a proper and fair sentence to reflect that age. The reality is that although he is a relatively young man, as we have indicated and as the judge accepted, he has a serious criminal record. Mr Muir submitted overall that the sentence which had been arrived at had taken account of all relevant aggravating and mitigating features and could not be described as unduly lenient. Discussion 33. In our judgment, Mr Jarvis is right that the 26 April burglary merited a consecutive sentence given that it did involve a different species of criminality from the conspiracies to burgle: the offenders effectively interfered with the gathering of evidence by the police during the course of an investigation, both in stealing back the cigarettes and in endeavouring to destroy any forensic evidence which would implicate them. They also threatened a civilian worker with violence unless he allowed them to engage in that conduct. In any event if, as the judge concluded, the 26 April burglary merited a sentence of 6 years after trial and if, as he said, he was treating the 26 April burglary as a grossly aggravating feature of the overall offending, the sentences, after trial, for that overall offending, of 9 or nine-and-a-half years were unduly lenient. 34. We consider that the overall offending was sufficiently serious to merit sentences which, even after full credit for the guilty plea, are close to the statutory maximum for a single offence of non-domestic burglary. We consider that the sentences passed in respect of the conspiracy counts should stand, namely 6 years' imprisonment in the case of the first two offenders and 6 years 4 months' imprisonment in the case of Barrett (the third offender). The sentences of 4 years' imprisonment imposed for the 26 April burglary should be consecutive to those sentences rather than concurrent, although we will reduce the sentences from 4 years to 3 years to take account of totality. Accordingly, for each offender, we quash the sentence of 4 years' imprisonment concurrent for the 26 April burglary and substitute a sentence of 3 years' imprisonment to run consecutively to the sentences on the conspiracy counts. It follows that the total sentence for the first two offenders, Terrence and Matthew Brown, is now 9 years' imprisonment and for the third offender, Otis Barrett, 9 years 4 months' imprisonment. To that extent this Reference succeeds. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2020] EWCA Crim 1775' date: '2020-12-17' judges: - LORD JUSTICE FLAUX - MRS JUSTICE CHEEMA-GRUBB DBE - 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} ======

No: 200902726/A6 Neutral Citation Number: [2009] EWCA Crim 1821 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 21st July 2009 B e f o r e : SIR ANTHONY MAY (PRESIDENT OF THE QUEEN'S BENCH DIVISION) MR JUSTICE RODERICK EVANS THE JUSTICE CRANSTON - - - - - - - - - - - - - R E G I N A v GIANVITON Z - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - Mr M Orsulik appeared on behalf of the Appellant - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE CRANSTON: On 23rd April 2009 at the Central Criminal Court the appellant was convicted by a 10 to 2 majority of a jury of one count of assault by penetration. He was sentenced by Recorder Farrer QC to 27 months' imprisonment with a direction that 181 days that he had spent on remand would count towards the sentence. 2. The background was this. On the night of 22nd and 23rd October 2008 the complainant spent the night at the home of her boyfriend. She was 27 years old. The property was above a shop. The appellant also resided at the property. He had come from Italy and had little English. He was 21 years old at the time of the offence. The complainant knew him just to greet. 3. At about 3 o'clock in the morning the complainant awoke to the sensation of a finger or thumb being inserted a short distance into her anus, three times, in quick succession. She turned because she thought it was her boyfriend. Instead in the half light she saw the appellant leaving the bedroom. He was fully dressed. The complainant's boyfriend had risen to use the communal bathroom, leaving the bedroom door wide open. 4. When interviewed the appellant gave a prepared statement. He said he had been drunk. He had mistakenly entered the bedroom, where the complainant was sleeping, having mistaken it for his own. When he realised his mistake he left and returned to his own bedroom. He did not touch the complainant's body while he was in the bedroom. Thereafter he made no comment to the questions the police put to him. 5. In his defence statement early this year, he continued to maintain that he entered the room by mistake. He approached the bed and began to feel where he was. But he now conceded that he had touched the complainant's bottom by accident but did not touch her anus. He did not know whom he had touched but he heard a female voice. Realising that he was in the wrong room he apologised and left. The female did not seem distressed. 6. In sentencing him, following his conviction, the learned Recorder said that the offence was a serious one. No doubt under the influence of drink he entered the bedroom that the complainant was sleeping in and performed a degrading and offensive act, quite against her will. In order to commit that offence he must have interfered with her clothing and penetrated her not once, but three times, in quite swift succession. His entry into her room, regardless of the fact the door was open, was a serious breach of the offence. He was a young man who had committed no offences previously. He did not plan this offence but took advantage of the position on the spur of the moment. The learned Recorder said that he did not accept the appellant's description of his complicated manoeuvres before the offence. It was much more likely that he spotted his chance when the complainant's boyfriend was out of the room. The learned Recorder said that the appellant was sentenced on the basis that he caused no physical injury. No doubt the shock and disgust which the complainant felt were very painful experiences to her. The complainant had to relive her experiences in court. A substantial sentence of imprisonment was appropriate. The sentence was reduced because it was likely he would spend most, if not all, the sentence a distance from his family and friends in Italy and in a sense in isolation. 7. In his submissions before us this morning, Mr Orsulik contends that the sentence was manifestly excessive. On his argument, insufficient account was taken of the Sentencing Guidelines Council's Guidelines on the Sexual Offences Act 2003 , in particular the absence of any aggravating features. Moreover, there was the presence of the mitigating feature mentioned in the guidelines, that the penetration was minimal, or for a short duration. Moreover, Mr Orsulik pointed to the mitigating features personal to the appellant. He was only 21 years of age at the time of the offence and had no previous convictions. Moreover, his father had arranged a job for him in local government in his home town in Southern Italy, but that had consequently been lost. The appellant speaks little or no English and so serving a sentence far from home was an additional punishment in itself. Overall, the submission was that the learned Recorder had taken too high a starting point: in the light of the personal mitigation, the Recorder had said he reduced the sentence to two-and-a-quarter years, so he obviously must have started at a much higher point. This was a spur of the moment momentary isolated offence, which caused no physical harm to the complainant. 8. The Sentencing Guidelines Council's Definitive Guideline specifies that where the penetration is with a finger and there is no physical harm to a victim, the starting point is 2 years, with a range of 1 to 4 years. Amongst the factors to be taken into account the guideline identifies whether the offence is planned, or opportunistic or impulsive. The latter should attract a lower sentence. The guideline also says: "Brief penetration with fingers ... may result in a significantly lower sentence where no physical harm is caused to the victim." 9. In our view, this offending was opportunistic and impulsive -- to use that characterisation -- rather than planned. But the fact is that the penetration occurred three times, albeit over a short period. We do not regard whether or not the penetration was through the complainant's clothing as a major consideration in this case. The fact is that the appellant entered the complainant's bedroom when she was sleeping during the brief time that the boyfriend had left temporarily to go to the communal bathroom. It was, as the learned Recorder said, a degrading and offensive act, quite against her will. The appellant was of good character but that is taken into account by the guideline sentences because they apply for first-time offenders convicted after a trial. The learned Recorder took the appellant's personal circumstances into account, that he would have to spend his time in a foreign prison, far from his family and friends, when he had little English. In our view, the sentence was not manifestly excessive and we dismiss the appeal. We also direct that the anonymity of the complainant should continue.

```yaml citation: '[2009] EWCA Crim 1821' date: '2009-07-21' judges: - SIR ANTHONY MAY - MR JUSTICE RODERICK EVANS ```

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 432 Case Nos: 2018/2858/C3, 2018/2860/C3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT KINGSTON UPON THAMES HIS HONOUR JUDGE P DODGSON Royal Courts of Justice Strand, London, WC2A 2LL Date: 25/03/2021 Before : SIR JULIAN FLAUX CHANCELLOR OF THE HIGH COURT MR JUSTICE ANDREW BAKER and MR JUSTICE CALVER - - - - - - - - - - - - - - - - - - - - - Between : JONATHAN BEERE DANIEL PAYNE Applicants - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Joel Bennathan QC and Annabel Timan (instructed by Centre for Criminal Appeals ) for the Applicants Deanna Heer (instructed by Crown Prosecution Service )for the Respondent Hearing dates : 23 to 26 February 2021 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Sir Julian Flaux Chancellor of the High Court: 1. This case concerns applications referred to the Full Court by the Single Judge which are made by two of five defendants convicted in June 2011 of conspiracy to evade the prohibition on importation of a controlled drug, cocaine, contrary to section 1(1) of the Criminal law Act 1977 . The five defendants are known in the media as “the Freshwater Five” for reasons which will become apparent. The applicant Jonathan Beere was sentenced to 24 years imprisonment with 134 days to count towards sentence. The applicant Daniel Payne was sentenced to 18 years imprisonment with 366 days to count towards sentence. Payne also pleaded guilty to counts of producing a controlled drug, possession of ammunition without a certificate and possession of a prohibited weapon, to which he was sentenced to concurrent terms of imprisonment of 2 years, 12 months and 12 months respectively. Of the co-defendants, Jamie Green was sentenced to 24 years imprisonment with 202 days to count towards sentence, Zoran Dresic was sentenced to 24 years imprisonment with 202 days to count towards sentence – he also pleaded guilty to a count of possession of a false identity document to which he was sentenced to a concurrent term of 12 months imprisonment – and Scott Birtwistle was sentenced to 14 years detention in a young offender institution with 66 days to count towards sentence. 2. The two applicants, Beere and Payne, now apply for an extension of time of 2,567 days, for leave to appeal against conviction, and to rely upon fresh evidence pursuant to section 23 of the Criminal Appeal Act 1968 . The facts and the evidence at trial 3. On 31 May 2010, 250kg of cocaine was recovered from the sea in Freshwater Bay on the Isle of Wight. The drugs were wrapped and contained in rucksacks (waterproof camping holdalls) which were joined together by rope and attached to a buoy. It was the prosecution case at trial that the applicants and their co-defendants had been involved in the importation of the cocaine into the UK through ‘coopering’ in the English Channel. The cocaine was said to have been transported from Brazil by a commercial container ship, the MSC Oriane (hereafter, “the Oriane ”). 4. The applicants were said to have collected the cocaine from the sea, into which it had been jettisoned from the Oriane , using the fishing vessel Galwad-Y-Mor (hereafter, “the Galwad ”). The co-defendant Green was a lobster fisherman and the owner and captain of the Galwad . The others on board were Payne and the co-defendants Dresic and Birtwistle. The evidence of a possibility of collection at sea by the Galwad came from the expert called by the prosecution, Paul Davidson, a master mariner and marine consultant, who was then with Brookes Bell, being a firm of marine, scientific and technical consultants and surveyors. His expert evidence was that the track of the Galwad crossed that of the Oriane shortly after the container ship passed by. The tracks of the two vessels and their alleged crossing at about 00.30 GMT on 30 May 2010 were plotted by Mr Davidson on an Admiralty chart which was before the jury. We should say that, throughout this judgment, when we refer to times, we shall use GMT for consistency. 5. The Galwad was said to have positioned herself ahead of the Oriane , allowed her to pass, then proceeded to the vicinity of her wake, where she slowed down and performed a particular, very slow-speed manoeuvre between about 00.32 and 00.35. The prosecution case was that during that time those on board the Galwad had coopered the drugs from the sea, into which they had been jettisoned from the Oriane . 6. The prosecution also relied upon evidence that the satellite phone on board the Galwad made and received repeated calls at critical points during the voyage, including when the Galwad was said to have been manoeuvring in or near the wake of the Oriane . The calls were to and from telephones held by alleged co-conspirators Daniel Dugic (the ‘Dexsa’ phone) and Edward Austin (the 5034 phone). The 5034 phone was also in contact with a Dutch number at significant times during the voyage. Jonathan Beere’s telephone was in contact with Jamie Green’s telephone soon after the Galwad had left Freshwater Bay on its return to the Isle of Wight and was in contact with a phone held by Austin (the ‘John Wilson’ phone) soon after the crew of the Galwad disembarked at Yarmouth and following their arrests. Daniel Dugic was named on the indictment but never arrested. Edward Austin was named on the indictment and convicted at a subsequent separate trial. The phones associated with Dugic and Austin and the 5034 phone stopped being used at the same time on 31 May 2010 in the vicinity of Gatwick Airport soon after Green, Payne and Dresic had been arrested. We refer to the cell-site and telephone evidence in more detail below, as it was and is an important aspect of the prosecution case. 7. The prosecution case was that Beere, who was a friend of Green, had acted as a liaison between Green and the co-conspirators, Austin and Dugic, who were organising the importation. Dresic was a Montenegrin national. He arrived in the UK on 27 May 2010 having travelled on the Eurostar from Brussels on a false passport in the name Veljko Protic. The passport showed he had left Sarajevo on 26 May 2010 and travelled to Brussels via Budapest. The prosecution case was that he was present to oversee the safe collection of and subsequent onward delivery of the cocaine on behalf of Austin and Dugic. 8. On 28 May 2010, Dresic drove from London to Southsea in the company of Austin and Dugic. Police surveillance showed that they met Beere in a restaurant. Before entering the restaurant Beere made a number of apparently unsuccessful attempts to call Green’s mobile phone. At the time Green was on board the Galwad having sailed to Weymouth. The group left the restaurant and boarded a hovercraft bound for the Isle of Wight. Soon afterwards Green made telephone contact with Beere. 9. Later that afternoon two mobile phones were purchased by the group from a phone shop in Newport on the Isle of Wight. One was registered with the false details of John Wilson, 32 New Cross Road, London SE14. The prosecution case was that this phone was retained by Austin. The other phone was registered with the false details of Tony Perelli, 24 Knaresborough Place, London SW5. This phone was recovered from Dresic on his arrest. Upon examination it was found to have been in contact with only one number, listed under “Dexsa” in the contact list. The prosecution case was that the Dexsa phone was in the possession of Dugic. 10. Later that day, 28 May 2010, there was further telephone contact between Green and Beere. At 17.04 Beere received a call from the John Wilson phone and thereafter between 17.13 and 20.59 there were a number of calls between Green and Beere. On Saturday 29 May 2010 at 09.36 and 10.31, Dresic made two calls to Dexsa. At 11.21 Green was in telephone contact with Beere after which between 12.03 and 13.15 there were a number of texts and calls between Dresic and Dexsa. 11. At about 16.44, the Galwad set sail from Yarmouth Harbour and headed south towards the shipping lanes. At trial it was accepted that those on board were Green, Payne, Dresic and Birtwistle. Whilst at sea there were further calls and texts between Dresic and Dexsa from 16.57 to 23.20. 12. The Oriane was travelling eastwards in the English Channel at an average speed of 17 knots. The track of that vessel was plotted by Mr Davidson on the Admiralty chart using AIS data obtained from a Dutch company called QPS. The AIS data was derived from the Oriane ’s external GPS transmitter which was almost certainly located close to the wheelhouse, in accordance with normal on-board practice, although no evidence was ever obtained from the Oriane itself. There was an 11-minute gap in the AIS data from QPS between about 00.26 and 00.38 possibly because the vessel was out of the range of the various shore stations from which the AIS data was collected. Mr Davidson plotted a “course made good” line on the chart between the two positions for which there was AIS data. The Galwad was fitted with an Olex Marine Navigation System (“Olex”) which used GPS technology to plot its position and record its past journeys. Mr Davidson accordingly used the data from the Galwad ’s Olex to plot the track taken by the Galwad , including in the QPS data gap period, on the same Admiralty chart. 13. Mr Davidson calculated from his course made good lines that the Galwad crossed the Oriane ’s track six times between 22.54 on 29 May 2010 and 00.35 on 30 May 2010. The telephone evidence demonstrated that, as the Galwad approached the path of the Oriane , those on board the Galwad were in contact with the Dexsa phone and the 5034 phone. Cell-site evidence co-located the 5034 phone with Austin, Dresic and Dugic (i) on their journey to the Isle of Wight on 28 May 2010; (ii) with the John Wilson and Dexsa phones on the Isle of Wight and (iii) on 30 May 2010, when the telephones travelled together from the Isle of Wight to Essex and south-east London. The 5034 phone had previously been in contact with the Dutch telephone number on 27 and 28 May 2010; it was in contact with that number again between 21.06 and 21.57 on 29 May 2010; it contacted the Galwad satellite phone at 22.10 and 22.27; and eventually made meaningful contact with it at 22.35 and 22.41. The Dexsa phone was in contact with the Dresic phone during the same timeframe. 14. Mr Davidson assessed that, between 22.54 and 23.15, not long after those phone calls, the Galwad crossed ahead of the Oriane ’s track travelling in a south-westerly direction. At 23.32 the fishing vessel turned north and crossed ahead of the Oriane ’s track at about 23.56. At that time a call was made from the satellite phone on board the Galwad to the Dexsa phone and, at 00.03 and 00.05, the satellite phone received two calls from 5034. The Galwad turned south and crossed ahead of the Oriane ’s track between 00.07 and 00.09. It turned north again and crossed ahead of the track of the Oriane at about 00.11. At 00.12 a call was made from the satellite phone to the Dexsa phone. The Galwad then travelled in a north-easterly direction until 00.14, when it turned east and continued until 00.29 travelling ahead of and in the same direction as Oriane , as the container ship approached the Galwad on its starboard side. During that time at 00.18 a call was again made from the satellite phone to the Dexsa phone. 15. By 00.26 the Oriane was approaching the position of the Galwad and was only about one nautical mile away. At 00.29 the Galwad turned south heading for the track of the Oriane and, at the same time, the satellite phone received a call from the 5034 phone. By 00.30 the Oriane had reached and passed the Galwad . The Galwad then navigated as we described in paragraph 5 above, reducing speed from an average of over 5 knots to between 1 and 2 knots and including the 2½ minute period at very slow speed (under 0.6 knots) between 00.32 and 00.35. These low speeds would have been slow enough to put out or retrieve lobster pots, but the total period of these manoeuvres of about 3½ minutes was too short for the vessel to have engaged in any meaningful fishing. The prosecution case was that all this was strongly consistent with the Galwad engaging in a planned rendezvous with the track of the Oriane and during the 2½ minutes of very slow-speed, picking up the rucksacks or holdalls containing the drugs. Mr Davidson’s evidence was that, in his opinion, it was indeed possible for them to have been retrieved during that period of time. The Galwad then turned northwards and at 00.35 it again crossed behind the Oriane increasing speed to 6 or 7 knots and heading back towards the Isle of Wight. 16. None of the defendants disputed at trial the evidence of Mr Davidson as to the route of the Oriane . Beere was not on board and Payne claimed to have been asleep. Green was at the helm at the time and thus in a position to give evidence as to the relative positions of his own vessel and the Oriane . The trial judge summed up his evidence as follows: “ As to the Oriane, I wouldn’t have known what the vessels were as I didn’t have AIS… The radar is on the four mile range. I would have known when I had to change course, so the vessel can pass us. I became aware of the vessel when I was in the area to the left of the plan. It was moving quite quickly so I went northeast to get off track. I then ran parallel to it, and then it overtook us. And yes, I did also have phone calls coming in at that point. And then the vessel moved towards the south and we crossed in the wake of it. And then I was checking out the holes in the seabed and then I headed off northerly. I was not collecting 11 rucksacks .” 17. We will deal with the significance of Green’s evidence for the present applications later in this judgment. Green also called an expert witness Mr Chinery, to provide an opinion on Mr Davidson’s evidence as to the events mid-channel. None of the other defendants called expert evidence, thereby making a tactical decision to leave any challenge to the prosecution case on this aspect to Mr Chinery. They relied upon his evidence. Although Mr Chinery’s opinion was that it was not feasible for the Galwad to have retrieved the drugs in the short time period between 00.32 and 00.35, neither he nor Green suggested that the Galwad did not cross in the wake of the Oriane or was not in sufficiently close proximity with the container ship for coopering to have taken place. Indeed, at a joint experts’ meeting on 9 May 2011, Mr Chinery agreed with the positions of the Galwad and the Oriane as plotted by Mr Davidson and specifically accepted that the Galwad did pass close astern of the Oriane at approximately 00.31 on 30 May 2011. 18. The Oriane was under surveillance by the authorities as she passed through the English Channel, from a UK Border Agency cutter, HMC Vigilant (hereafter, “ Vigilant ”), and a surveillance aircraft. The surveillance operation, known as Operation Disorient , was a Serious Organised Crime Agency operation led by SOCA Silver Commander Miles Bonfield. The Vigilant ’s operational log, together with an Admiralty Chart with plots of the 00.30 position for the Oriane and other positions as noted in the log prepared by Cdr. Tucker on the Vigilant , was disclosed in evidence by the prosecution prior to the trial. The defendants took a tactical decision not to refer to or challenge any of that material because they did not want the jury to learn that the Oriane had been under surveillance by the authorities (although the jury did know that Beere, Austin, Dresic and Dugic had been under police surveillance). When the prosecution prepared a Sequence of Events to go before the jury which included a reference to the position of the Oriane as noted in the Vigilant operational log, Green’s legal team objected to that entry being included, stating: “Row 315 is objected to: the movements of the MSC Oriane are set out by Davidson on the basis of the AIS data, and are not in dispute; there is thus no need for the jury to hear of TUCKER's plotting of its movements, and in the absence of admissible evidence of the basis for the Vigilant's interest in the Oriane any evidence of that interest is objected to.” 19. As already noted above, at about 00.35 on 30 May 2010 the Galwad increased her speed and adjusted course to head back to the Isle of Wight. Her movements as she approached the Isle of Wight were observed by officers attached to the Middle Market Drugs Partnership (“MMDP”) and, in particular, two Hampshire police officers, DC Jeans and DC Dunne, located on the cliff-top overlooking Freshwater Bay. At 16.20 the Galwad was observed sailing in a north-westerly direction towards Tennyson Monument, Freshwater. At 17.09 it stopped about 200 to 300 metres from the shore. Three people were seen on deck, two of whom appeared to be fishing with fishing rods. At 17.28 the vessel continued sailing in a westerly direction towards the Needles, stopping again about 100 metres from the shore at 17.42. At 17.45 it travelled slowly in the opposite direction before resuming its westerly course. 20. At 17.53 items were observed by the officers being jettisoned into the sea. Their observation log recorded 6 or 7 items being thrown overboard at intervals. In their subsequent statements and evidence they embellished this, asserting that they had seen 10 to 12 holdalls on a string being dispatched from the Galwad together with a red buoy. This evidence was the subject of extensive challenge at the trial and the reasons for the discrepancy in their evidence were explored at length. The judge summed up this matter fully over more than 10 pages of transcript in a summing up which runs to 90 pages of transcript. The judge described it as “extraordinary” that, if these officers involved in an operation to detect drug smugglers had registered what they were seeing as a string of holdalls and a buoy, they were prepared to leave the Isle of Wight apparently unaware of the significance of their observation. In other words, the jury were well aware of the issue about the unreliability of this evidence. Furthermore, it was not disputed by the defendants at trial that items had been jettisoned from the vessel in that location. In his evidence, Green claimed that these would have been rubbish bags and a bag used to line a bucket used as a lavatory. 21. The Olex data from the Galwad supported what was recorded in the observation log. At 16.58 the Galwad started a series of erratic manoeuvres close inshore of the southwest coast of the Isle of Wight. During that time, at some point between 17.10 and 17.29 the vessel was stopped. Between 17.50 and 17.54 the vessel was within 155 metres of the location where the rucksacks containing the drugs were found the following day. The prosecution case was that, given that the rope backline connecting the rucksacks was about 175 metres long, the Olex data was consistent with their having been jettisoned from the Galwad . 22. At 17.58 the Galwad proceeded back towards Yarmouth. At 18.00 Green telephoned Beere in a call lasting 1 minute 11 seconds. At 18.39 the Galwad entered Yarmouth Harbour and moored at Fisherman’s Pier. The crew disembarked and left. Between 19.00 and 19.11 there were three calls between the Dresic phone and the Dexsa phone. At 20.09 and 20.12 Beere telephoned the John Wilson phone and at 20.05 Dresic was again in contact with the Dexsa phone. At 20.20 the crew returned to the harbour and at 20.39 the Dexsa phone rang Dresic. 23. At about 20.40 Green and Payne were arrested as they walked along the jetty away from the vessel. At 20.48 Dresic was arrested. Recovered from him were the false passport, €1,935 and £420.43 in cash and the mobile phone purchased on 28 May 2010 in Newport. Birtwistle was not arrested until 15 October 2010 and Beere was not arrested until 18 January 2011. Following the arrests on 30 May 2010, at 21.00 the Dexsa phone made an unsuccessful attempt to contact Dresic. At 21.11 the John Wilson phone rang Beere. The following morning, there was further telephone contact between the John Wilson phone and Beere and further attempts by Beere to contact Green and by Dexsa to contact Dresic. The last call made by the Dexsa phone was at 09.25 when it attempted to ring Dresic and the last call made by the John Wilson phone was at 09.27 when it rang Beere. The last call by the 5034 phone was at 09.33. At the time, all three phones were in the area of Gatwick Airport. None of them was used again. 24. On the morning of 31 May 2010, Simon Hutchinson, a local fisherman, was in the vicinity of Freshwater Bay picking up his crab pots when he noticed a rope tangled around his buoy line. Attached to this rope were what appeared to be bags or life jackets. At one end the rope was attached to an orange buoy which he pulled onto his boat followed by one of the bags. He saw that it was a rucksack or holdall which appeared to have been closed with tape. Upon cutting it open he discovered a number a packages containing white powder. He then contacted the coastguard. When the police attended, they found a number of rucksacks floating in the water which had been tied together in the same configuration as is used in lobster fishing, where lobster pots are linked to a long length of rope (the ‘backline’) via shorter lengths of rope (‘legs’ or ‘stropes’). This configuration suggested that whoever had tied the holdalls together had some experience of lobster fishing. One end of the backline was attached to a buoy, the other end was attached to a makeshift anchor comprising a length of heavy chain and some iron plates. 11 rucksacks were recovered, containing a total of 255 packages, each containing approximately 1kg of cocaine powder, at between 74% and 92% purity. The estimated wholesale value of the cocaine was £13,387,500 and the estimated street value was £53,857,788. 25. Between 31 May and 2 June 2010 the Galwad was searched. No drugs or traces of drugs were found, but equally no lobsters or other fish were found. The equipment on board including the Olex, the satellite phone and the AIS Transceiver were seized. 26. In interview Green told a number of lies. He mentioned only three of them being on board Galwad on the trip, thereby concealing the presence of Birtwistle who had yet to be arrested. He said Dresic was a casual worker he knew as “Vic” who wanted work as a crewman and whom he had met for the first time in Yarmouth shortly before they set sail on 29 May 2010. Although in interview he mentioned the west-bound shipping lanes, he did not mention going down to the southern east-bound shipping lanes. He said that few fish (20-30 crab) had been caught; Vic was seasick, and they needed three people to fish for lobsters. He made no mention of mapping the seabed (his subsequent explanation in evidence for the manoeuvres in or near the wake of the Oriane ), saying that they had just mooched about checking his strings hoping Vic’s condition and the weather would improve. On the way back they had fished for mackerel in Freshwater Bay. He denied that any items were thrown overboard. 27. Beere said in his initial interview that he had first met Dresic in Yarmouth on 28 May 2010, when he was passing through and saw Dresic in the company of Green, who was his friend. After disclosure of the surveillance evidence, he admitted that he had lied and said that he had gone to Southsea at Green’s request to collect a new crew member. In fact there were three people when he got there and he travelled back with them to the Isle of Wight, where he took them to meet Green. Dresic had stayed with Green whilst Beere took the other two men to the ferry at Ryde. When the police told him about the two phones purchased in Newport, he then said that he had in fact dropped all three men in Newport and arranged to collect them an hour later. They had then all gone to a pub where they met Green. When told one of the phones was subsequently in contact with him, he said that having dropped the two men off at the ferry, they had then called to say they had missed it, so he had driven them to another port. He could not remember further calls. 28. Payne, like Green, lied in interview to conceal the fact that Birtwistle had been on board. He said that it had been difficult to fish because of the weather and Dresic’s illness but also said that they had caught hundreds of lobsters and crabs, pulling pots in and out all day long. In a subsequent interview he changed this account, saying the catch was “very very minimal”, about 20 to 30 crabs and a couple of lobsters. In fact, no fish were caught. 29. Dresic said in interview that he had travelled to the UK because a friend had found him a job on a boat. He had met Dugic (“Dexsa”) in London and they had travelled together to the Isle of Wight. He made no mention of Austin. He said Dexsa had bought a phone for him, which he used to call Dexsa whilst on the boat on the way back to the shore when they were near the harbour. He said Dexsa may have called him but he could not remember. He said he had been seasick during the trip and had spent the whole time below deck apart from when he was being sick. 30. Birtwistle accepted that he was a regular crewman on the Galwad but denied being on board on 29 and 30 May 2010. He said he had been at Green’s house all weekend doing odd jobs and helping Green’s wife. 31. In their cases and evidence at trial, all the defendants accepted Birtwistle had been on board for what they said was a normal, if unsuccessful, fishing trip. Green maintained in evidence that Dresic was a casual labourer. During the trip he had been ill, making fishing difficult, so Green said that he had used the Olex to map the seabed, looking for ground which would be attractive to lobsters. He said specifically that the vessel’s movements in the shipping lanes were to do with mapping a ridge and some holes where lobsters might be found. We have already referred to the fact that, in his evidence, he did not deny that the Galwad had crossed in the wake of the container ship and made the particular very slow-speed movements in or near its wake, though he denied collecting the drugs, explaining the reason for these as mapping the seabed. He also denied jettisoning the drugs in Freshwater Bay, saying now that the items thrown overboard were rubbish bags as we have described. His explanation for the telephone calls whilst they were at sea was that Dugic was concerned about Dresic’s condition. 32. We have already referred to the evidence of the expert called by Green, Mr Chinery, that it would not have been possible to collect eleven rucksacks from the shipping lanes in the time available. He said the movements of the Galwad were consistent with mapping the seabed. He also said the string of rucksacks found in Freshwater Bay could have been carried on the tide for up to two miles because the anchor was insufficient to hold it in one place. 33. Beere’s evidence was that he had met Dresic on 28 May 2010 as a favour to Green. He had not expected Dresic to be accompanied by anyone else. He said he had dropped the men in Newport for Dresic to buy some weatherproof clothes then took them to meet Green in a pub. After the meeting, he dropped all three men back at the hoverport at Ryde but later received a call from Dexsa saying they had missed the last boat, so he returned and took them to the catamaran. By this time Dresic was not there. The telephone calls with the ‘John Wilson’ phone were not to do with drugs but were to do with Dresic’s seasickness. 34. Dresic’s evidence was that he had come to the UK for work. He used a false passport because he had previously been deported from Germany. He broadly maintained the account he had given in interview. He could not really recollect the telephone calls whilst he was on board the Galwad but he said that they were nothing to do with drugs. 35. Payne agreed in evidence that he had worked as a crew member on the Galwad but said that he had spent most of the voyage below deck asleep. He agreed that he had thrown rubbish bags overboard on the return to Yarmouth harbour but denied seeing any drugs on the boat. Birtwistle’s evidence was that nothing unusual had happened when the Galwad was in the shipping lanes. He agreed that rubbish would have been thrown overboard on the way back but denied any knowledge of drugs being collected or jettisoned. Procedural history leading up to the present applications 36. Between 1 October 2014 and 31 January 2017, the Centre for Criminal Appeals on behalf of these applicants and the co-defendants made a total of five submissions to the Criminal Cases Review Commission (“CCRC”), asking it to refer the defendants’ case to this Court. In its Final Statement of Reasons, dated 22 November 2017, the CCRC declined to refer the case, concluding that there was no real possibility that the Court of Appeal would quash the convictions based upon the submissions put forward. The CCRC also concluded that there were no further lines of enquiry that it could undertake which could lead to new evidence that could impact upon the safety of the convictions. It is not necessary to look at the detail of the Final Statement of Reasons since (a) many of the issues raised in the submissions are no longer pursued in the present applications and (b) the Final Statement was issued before the ECDIS data from the Vigilant , which forms the primary basis of the present applications, was made available to the applicants. 37. However, it is necessary to consider one of the issues raised in the submissions and the CCRC response on it, to the extent that it forms part of the case being presented by the applicants to this Court. An important aspect of the submissions made concerned alleged police misconduct within Operation Disorient . This focused on the inconsistencies in the evidence associated with the surveillance operation and the observations of DC Jeans and DC Dunne. This included criticism of the SOCA officers involved, DC Breen, the surveillance commander, and DC Parry, the loggist, and their involvement in the embellishment of the observation evidence. Reliance was placed upon the fact that, in an unrelated case R v McGuffie [2015] EWCA Crim 307 , this Court allowed an appeal concerning incriminating observations by a squad which included Breen and Parry which were recorded by them by way of late-added addenda but which were disputed by the accused. That appeal was allowed on the basis that the failure to disclose in that case the difficulties with the Freshwater Bay observation evidence in the present case had deprived Mr McGuffie of a fair trial, by denying him the opportunity to rely upon the striking similarities so as to cast doubt on the honesty of some of the same officers. 38. The CCRC rejected that submission, concluding that, weighing all the evidence, this was a ‘compelling prosecution case of conspiracy to import cocaine’. The safety of the convictions would only be undermined through ‘significant new evidence…of such strength as to undermine a substantial strand of the prosecution's case, or suggest serious bad faith, such that the prosecution would represent an abuse of process.’ This alleged police misconduct is not a separate ground of appeal before this Court, but at least in their written submissions, Mr Bennathan QC and Ms Timan rely upon the same matters to invite the Court to disregard the observation evidence. 39. We can see no reason for doing so. That is because, as we have already recorded, the criticisms of the observation evidence and its embellishment were fully explored at trial and dealt with in detail by the judge in his summing up, and yet, the jury still convicted the defendants. Furthermore, the actual observation evidence as recorded in the observation log, that items were seen by the two officers being jettisoned into the sea, was not disputed by the defendants, who accepted that items were thrown overboard in Freshwater Bay, albeit that they contended that these were rubbish bags. The grounds of appeal 40. The four grounds of appeal advanced by the applicants (“the Grounds”) can be summarised as follows: (1) Ground 1: That the data from the ECDIS system on the Vigilant and specifically the radar data shows that the Galwad never crossed behind the Oriane or came sufficiently close to that vessel to make coopering of the drugs possible. Although a prosecution expert witness William Smith, who gave evidence at the trial, had downloaded the ECDIS data at the time in 2010, that data was not disclosed to the applicants until December 2018 and they were previously unaware of its existence. (2) Ground 2: The ECDIS data discloses the existence of another vessel, other than the Galwad , which is designated as radar target A50 on the data. The memorandum following the experts’ meeting in November 2020 records agreement that this could be a high speed small craft such as a RHIB. The applicants contend that this was either another suspect vessel or a law enforcement RHIB checking Freshwater Bay, after the Galwad had passed through. It is contended that, if the latter, this would substantially undermine the prosecution case that the Galwad deposited the drugs, as a law enforcement vessel in the bay less than an hour after the Galwad had left would inevitably have seen the drugs; and, if the former, the applicants were deprived of the opportunity to put before the jury some concrete evidence of a candidate vessel other than the Galwad as the immediate source of the drugs found in the Bay the next day. (3) Ground 3: The applicants rely upon entries in the “Bonfield Log” kept by SOCA Cdr. Bonfield, with whom the Vigilant was in contact, specifically entries at 00.50 on 30 May 2010 that the Vigilant had sighted a ‘possible ‘daughter vessel’ at the stern of the Oriane’ and at 1.02 that the Vigilant had advised that ‘the possible daughter vessel was a yacht that sailed north to south across the stern of the Oriane during the time this yacht crossed the path there was no activity on the stern of the Oriane.’ The applicants contend that, if the “yacht” was the Galwad , this suggests that the Galwad was observed and disregarded as a vessel of interest because there was no observation of activity on the stern of the Oriane at that time. It is contended that, because of the failure to disclose the ECDIS data, the applicants were deprived of the possibility of arguing that, in effect, this supported their case that the Galwad had not coopered the drugs. (4) Ground 4: The log of the UKBA surveillance aircraft disclosed at trial stated that it took off from Bournemouth Airport at 18.00 and then saw the Galwad near the Needles on its way back to Yarmouth at 18.08. The aircraft camera operator, Mr Whittall, did not mention flying over Freshwater Bay in his statement dated 15 June 2010, but radar records in the ECDIS data showed what was likely to be a single surveillance aircraft flying over the area at 18.02. The applicants’ case on this Ground is that, if this was the UKBA surveillance aircraft, its failure to notice 250kg of cocaine in the Bay, minutes after its alleged deposit by the Galwad , is so implausible as to exclude the possibility of, or at least cast doubt on, this central event alleged by the prosecution. The applicants rely upon a draft further witness statement for Mr Whittall, and what appears to be a final (albeit unsigned) version, dating from 2013 found in the papers for an Independent Police Complaints Commission (“IPCC”) inquiry into the conduct of the investigation. We deal with the detail later in the judgment but, in essence, the applicants argue that the first draft statement suggests the possibility that the plane may have taken off from Bournemouth Airport up to twenty minutes earlier than recorded in the aircraft’s surveillance log. This would make it a distinct possibility, it is said, that this was the aircraft seen on the radar flying over the Bay at 18.02. Expert Evidence 41. As that summary of the Grounds indicates, data from the ECDIS system on board the Vigilant , giving information as to the position of targets observable by the Vigilant ’s systems (including other vessels and aircraft), underpins every aspect of the applications now before the Court. Extracting, interpreting and understanding the implications of that data requires specialist expertise. For that and other reasons, as this matter has proceeded before the CCRC, initially, and this Court, latterly, various experts were engaged on behalf of the applicants to provide expert reports. The respondent in turn engaged experts to provide responsive reports. For the purpose of the hearing before us, the main experts now instructed met to discuss their views and provided a joint memorandum following those discussions. 42. That process generated a substantial measure of agreement on a number of topics, but various differences or apparent differences of view remained. The credibility of the expert evidence relied on by the applicants, where disputed, and, if credible, its possible impact (if any) on the safety of their convictions, must be considered under s.23(2) of the Criminal Appeal Act 1968 . It is a matter for assessment in any given case, but (for example) it is not necessarily enough for the purpose of s.23(2) (a) of the Act (whether evidence appears to the Court to be capable of belief), for an applicant to say that there is a dispute between apparently qualified experts. By way of case management within these applications, therefore, permission was granted for the main experts to be called to give oral evidence at the hearing before us, de bene esse as to whether ultimately we would receive any additional evidence under s.23(1) of the Act . Before turning to consider the Grounds, we now identify those main experts. 43. Mallory Phillips is a retired ship’s radio officer/chief electronics officer with some expertise in marine electronics and radio communication. After a career at sea from 1973 to 1986, Mr Phillips was employed ashore by Marconi in various management roles, including (from 2004 until retirement in 2012) that of Technical Support Coordinator responsible for the technical support and maintenance of marine communications equipment sold by the company. 44. Mr Phillips provided reports expressing views on a range of points, only some of which were within his expertise. The reports upon which we were invited to focus addressed the precision of the data generated by the Galwad ’s Olex system, the Oriane ’s AIS system, the shore-based AIS data for the Oriane , and the ECDIS data. When we refer to the ‘precision’ of the recorded data, we are referring (as were the experts) to matters inherent to the instruments and processing systems involved, assuming them to be functioning correctly and (where relevant) calibrated properly. It may be a separate question whether any given set of positional data is accurate (i.e. reliable, within the limits of that precision, as evidence that a given object was at the given position at the given time). Mr Phillips also provided reports expressing views about collision avoidance and ship-handling, tidal flow, buoyancy, ship stability, hydrodynamics, telemetry and seamanship. 45. Professor David Stupples is a systems engineer with particular expertise in signals intelligence, including radar and satellite positioning systems and data. His expert evidence for these applications focused on the radar-based data from the Vigilant ’s ECDIS system, in particular the discrepancy to which we refer below between that data and the AIS positional data for the Oriane (relevant to Grounds 1 and 3), the tracking of target A50 (relevant to Ground 2), and the tracking of a light aircraft over the Isle of Wight (relevant to Ground 4). 46. Steven Myers had a career at sea as a deck officer on oil and gas tankers from 2003 to 2012 (progressively qualifying from officer cadet to chief officer), since when he has been employed ashore in various marine expert roles. He has particular experience and expertise in offshore transfers of personnel and cargo, small vessel handling and operations, safe navigation and large vessel operations, maritime health and safety, and the investigation of marine accidents. Mr Myers gave opinions on the use at sea of radar-based and AIS-based positions of other vessels, the likelihood of the Vigilant being aware of and able to accommodate a static gyrocompass input error, if there was one, the feasibility of the coopering operation posited by the prosecution, and the consistency of the Galwad ’s movements as recorded by the Olex with various types of posited operation. 47. Mr Davidson, whom we have already mentioned, is a master mariner who had over 16 years at sea, serving on a wide range of different types of vessel, before employment ashore as a Fleet Marine Superintendent (2001-2005), UK Maritime and Coastguard Agency Marine Surveyor (2005-2008) and marine consultant as a partner in Brookes Bell from late 2008 until the end of 2019. Since January 2020 he has been a marine consultant with Minton Treharne & Davies. He is now His expert evidence before us focused principally on the relative movements of the Galwad and the Oriane , but he also gave evidence for these applications, so far as was within his expertise, on what could be gleaned from the ECDIS data recovered from the Vigilant . He also gave evidence of fact about the absence of that data, including his unawareness of it, during the proceedings in the Crown Court. 48. Paul Franks is an expert field service engineer for navigation electronics and data systems, with extensive experience and expertise in ocean-going navigational equipment including gyrocompass, radar, GPS, AIS and ECDIS. His expert evidence concerned the relative reliability of the different data now available, the effects of various conditions or phenomena on data accuracy, and the ECIDS data discrepancy to which we have already referred in paragraph 45 above, in particular. 49. Mr Phillips, Professor Stupples and Mr Myers were instructed on behalf of and called by the applicants. Mr Davidson and Mr Franks were instructed on behalf of and called by the respondent. Mr Davidson was the only one of the five who was involved in the case in the court below. Grounds 1 and 3 Introduction 50. We find it convenient to take Grounds 1 and 3 together. 51. It is important, in considering the substance of the applicants’ contentions under Grounds 1 and 3 and in considering the safety of their convictions in the light of those contentions, to put them into the context of the case at trial and the issue the jury was asked to determine. There was without doubt a conspiracy to import 250 kg of cocaine, as alleged by the prosecution. The discovery of the drugs in shallow water in the Western part of Freshwater Bay, packed into 11 waterproof camping bags strung together on a line, proves that. The question for the jury was whether the applicants were part of the conspiracy. 52. As will often be the case on such a charge, there was no direct evidence of the applicants conspiring with each other or others (e.g. meetings, conversations or telephone calls overheard, or incriminating written correspondence). There was also no forensic evidence unequivocally linking the applicants to the drugs. Nor was there credible eyewitness evidence in terms linking the applicants to the drugs. 53. As we noted above, DC Jeans and DC Dunne testified, in effect, that they had seen the camping bags on their line being dropped over the side of the Galwad . The contemporaneous observation log recorded in an entry timed at 17.53 on 30 May, that they saw crew on the Galwad , “ throw 6 or 7 items overboard at intervals ”. By the time of the trial officers Jeans and Dunne had made witness statements claiming that they had in fact seen items that were “ dark in colour and approximately the size of a large holdall. They were tied together on a line and were dispatched from the boat one after another, totalling 10 to 12. The last item was a red floating buoy .” This account matched very closely the appearance of the drugs as later found in the water. 54. It was this elaboration of their evidence that was not credible. 55. As the judge fairly commented in summing up, in circumstances where the prosecution had not asked the jury to disregard that elaboration, “ If the Crown, as I say, had been able to – if they are, I should say – able to rely upon that evidence, then it would indeed be very strong direct evidence. And it is a matter for you, it is not a matter for me. But it does seem extraordinary, does it not, that if these officers, knowing that they are involved in an operation to detect drug smugglers, see what they have seen the night before [i.e. what, in their elaboration, they claimed to have appreciated at the time that they were seeing] that they are prepared to leave the island? Apparently completely unaware that the significance of what they have seen has been missed by everybody. It is a matter for you, not for me. ” 56. The obvious truth which cannot have escaped the jury is that DC Jeans and DC Dunne did not, at the time of their observation of the Galwad , identify that they were seeing or had seen holdalls being deployed in a line, as they described (and as were in fact found in the Bay the next day). Thus, there was, as we put it above, no credible eyewitness testimony in terms linking the Galwad (and therefore the applicants) to the drugs found on 31 May 2010. 57. It was however common ground, on evidence that remains uncontested on these applications, that the Galwad was in the right area of Freshwater Bay for about an hour from around 16.50 on 30 May 2010 to have dropped the drugs found the next day. It was also the evidence of those on board the Galwad that several dark bags were indeed dropped over the side whilst she was there; and the contemporaneous observation of DC Jeans and DC Dunne, as the jury knew from the cross-examination on their elaborated account, was in fact of seeing what they thought had been 6 or 7 items thrown overboard at intervals. 58. The key prosecution allegation in the case, of which the jury needed to be sure in order to convict, was that what the Galwad dropped over the side on the evening of 30 May had in fact been the drugs found in the Bay the following day. If sure of that, it is not difficult to see how a jury might then be sure of the guilt of those on board the Galwad , although it suffices for our purpose that nothing in the applicants’ proposed appeal seeks to go behind the jury’s decision on that, or provides any arguable basis for doing so. Likewise, if sure that the Galwad was in that way part of the drug smuggling operation, nothing in the applicants’ proposed appeal seeks to go behind, or provides any arguable basis for going behind, the jury’s decision on the whole of the evidence that Beere was part of the plot though not one of the crew. 59. Putting aside the discredited part of the observation evidence of DC Jeans and DC Dunne, the prosecution case, then, so far as material to all four Grounds of Appeal, was an entirely circumstantial case that the Galwad was indeed the immediate source of the drugs found in Freshwater Bay on 31 May 2010, having dropped them the previous day near to where they were then discovered by Mr Hutchinson. The defence case, without assuming any burden of proof, was that the visit to Freshwater Bay at the end of the day on 30 May 2010 was the final part of a rather unsuccessful but entirely innocent overnight fishing trip, and what was dropped over the side in the Bay was refuse and/or latrine contents, not drugs. 60. One element of that circumstantial case, i.e. one circumstance relied on, if proved, as a piece of a puzzle that when put together pointed ineluctably, it was said, to the conclusion that the trip to Freshwater Bay had been the drugs drop, was that the Galwad was steered and manoeuvred in the vicinity of the Oriane in a manner consistent with a coopering operation to pick up one or more packages dropped from the stern of the Oriane as she passed. It was common ground on the expert evidence at trial that she was steered and manoeuvred in the vicinity of the Oriane . It was Green’s evidence that she was so steered and manoeuvred, however he said that she was not engaged in any coopering operation but was mapping the sea bed for the purpose of possible future fishing, an explanation the jury evidently did not believe. 61. There was a major issue at trial whether, on what was the agreed duration and pattern of the encounter with the Oriane in the Channel, a coopering operation could in fact have been undertaken such as would have been required to haul in the quantity of drugs later found in Freshwater Bay. That is a related but different aspect of the matter, i.e. different to the basic pattern on the water of the Galwad ’s movements relative to the Oriane ’s. Evidently, the jury was satisfied on the evidence as a whole that the necessary coopering could have been, and was, undertaken. 62. That then is the context in which Grounds 1 and 3 arise, each concerning the interaction between the Galwad and the path of the Oriane on the night of 29-30 May 2010. Taking them from the applicants’ Perfected Skeleton Argument for the hearing before us, which superseded all previous Grounds of Appeal, Notes and Skeletons submitted on behalf of the applicants, they are as follows: “ The Applicants now seek leave to appeal on the basis of material not before the jury at their trial which, in summary, shows: (1) The Galwad did not, contrary to the evidence at trial, ever get sufficiently close to the path actually travelled by the Oriane to permit the transfer of the drugs. … (3) The Vigilant was monitoring the Oriane and discounted the Galwad as the drugsreceiving vessel at the key time … . ” 63. Ground 1 (the Oriane’s path) is said to be established by the ECDIS data recovered from the Vigiliant which, it is argued, should have found its way to the police investigation team so as to be used by Mr Davidson and disclosed to the defence. We say with confidence that it would have been used by Mr Davidson in 2011 if it had been made available to him. Having read his reports and heard from him in evidence ourselves, we are clear that he only ever sought to present, on the evidence available to him, the best indication he could of the paths taken by the vessels. It is agreed expert evidence before us that Mr Davidson did in fact present as good an indication as was possible on the data he was given, but that data included (as Mr Davidson appreciated) the 11-minute gap in the AIS positional data from QPS to which we have referred, a gap that would have been filled by the ECDIS AIS data. 64. Ground 3 (discounting the Galwad ) is said to be established from evidence generated by Operation Disorient , all of which was available at trial but was not used because of the tactical decision by the defence not to mention the surveillance operation in respect of the Oriane . It is said that when that evidence is put together with the ECDIS AIS data, a materially different picture is painted and a different tactical decision might have been taken. 65. It is convenient to take Grounds 1 and 3 together, therefore, since they concern the same single element of the circumstantial case going to whether the Galwad dropped the drugs in Freshwater Bay on 30 May 2010. Moreover, there is an obvious tension between Grounds 1 and 3, or there may be depending on our assessment of the material relied on for Ground 3, because on the face of things Ground 3 avers, and relies on, the fact that the Galwad was in close proximity to the stern of the Oriane , undermining the idea that there might now be some real room for doubt about that. Thus, Ground 1 cannot be considered properly without considering also the evidence relied on for Ground 3. The Evidence 66. In this section of our judgment, we review the evidence said to bear upon Grounds 1 and 3. The conclusion of that review is that there is nothing for the applicants in Ground 3 unless, first, Ground 1 is arguable; and whether Ground 1 is arguable turns on whether we can accept the respondent’s submission on how the discrepancy between the two sets of data from the Vigilant ’s ECDIS is to be resolved. Positional Data 67. As she was required to, given her size, the Oriane was broadcasting AIS messages relaying her GPS-derived position every 6 seconds. Accounting for the inherent positional precision of the satellite data she was receiving and the impact of the processing of that data within her systems so as to generate the outgoing AIS messages, those broadcast positions were precise to within ±18.5m (latitude) and ±12m (longitude). Our greater interest is in latitude, the applicants’ contention being that the Oriane was always materially further South than the jury was given to understand. 68. Unless there be reason to doubt the accuracy of the Oriane ’s contemporaneous AISreported positions, as a record of the positional data she received from the GPS satellite array, that data reliably shows where she was from time to time to within the precision stated in the previous paragraph. On the basis of these recorded spot positions a course made good can be plotted for her on a chart of the English Channel. 69. A central part of Mr Davidson’s evidence in 2011 was his course made good of that kind plotted for the Oriane , alongside a course made good for the Galwad that he plotted from positional data taken from her Olex. The Olex is a navigation, fishery plotting and ocean seabed mapping system developed by Olex SA in Norway which was used to store GPS positional data received by the Galwad so that it remained, as received, precise to within ±10m. 70. The AIS positional data used by Mr Davidson in 2011 was obtained from QPS in Holland, a commercial data provider that stores AIS message data received from oceangoing ships by fixed onshore equipment. The 11-minute gap in that data between 00.26 and 00.38, as it happens, covered the very time when the Galwad engaged in the manoeuvres that at trial the prosecution said could have been coopering and the defence said was seabed mapping. There is nothing inherently unusual or suspicious about the gap in the data; it did not and does not cast any doubt on the reliability of the data QPS did provide, either side of the gap; but obviously it meant that for the 11-minute period of the gap, Mr Davidson’s course made good was a straight line between two points from which the path actually tracked by the Oriane – her course over the ground – may have deviated somewhat (within the limit that whatever her precise path, she did get from the first point to the second point within that time). 71. We reproduce as Appendix 1 to this judgment three of the diagrams shown to the jury showing Mr Davidson’s plots for the Oriane and the Galwad , each showing the same plots but successively closer up. The Oriane line is red, the Galwad line is blue; and the Galwad positions labelled in green with either “I/C” or “O/C” match the times of incoming or outgoing calls respectively to or from the Galwad ’s satellite phone. 72. Mr Davidson’s plots showed the Galwad crossing what would have been the wake of the Oriane shortly after she had passed, and engaging in the allegedly suspicious manoeuvring (said by the defence to be seabed mapping), something like 100m south of his line for the Oriane (see Appendix 1, third diagram). The applicants criticise Mr Davidson for not explaining to the jury in terms that his plotted lines were courses made good that could not be said necessarily to match exactly the vessels’ actual paths, particularly as regards the Oriane line for the 11-minute data gap period. As to that: (1) That Mr Davidson’s plotted lines are what they are, i.e. a series of individual lines joined together, each of which ‘joined the dots’ with a straight line between two timed chart positions, is perfectly obvious, and was explained by him in his evidence (based on counsel’s note of that evidence, there being no transcript available). (2) It seems likely that Mr Davidson did not spell out to the jury, in terms, that that meant he could not say his plotted lines matched precisely the vessels’ respective exact paths. (3) That is not a material matter, however. If anything, the slight oddity of the prosecution case, so far as Mr Davidson’s plots are concerned, was that if the jury treated them (unrealistically) as precisely accurate vessel tracks, then the only manoeuvring by the Galwad that might have been a drugs pick-up, if there was one, was slightly away from the Oriane ’s path, with no specific evidence explaining why that may have been the case. To highlight more explicitly than may have been done before the jury the imprecision or uncertainty around Mr Davidson’s line for the Oriane would only have highlighted that the allegedly suspicious manoeuvres might in fact have been even closer to the Oriane ’s wake. (4) The supposed criticism of Mr Davidson is immaterial, only the more so, when it is remembered that Mr Chinery agreed Mr Davidson’s plots as being a fair representation of the vessels’ respective paths, and that Green’s evidence (to which we return below) was that he did indeed cross the Oriane ’s path and manoeuvre in the vicinity of her wake, as suggested by those plots. 73. Mr Davidson was also criticised before us for not drawing attention in his expert evidence for trial to a log entry in the Vigilant ’s operational log for 00.30 on 30 May 2010 stating a position for the Oriane that, if accurate, put her off Mr Davidson’s red line, to the south of it. Mr Davidson fairly accepted in his evidence before us that he should have made clear in his original expert report that he had considered that noted position but regarded it as irrelevant or unreliable. In one of Mr Davidson’s expert reports for this application he set out at some length a range of convincing reasons why, at the time, he did not regard that one logged position as reason to reject the course made good line the jury was given – the red line – as a sufficient and fair indication of the Oriane ’s path. 74. The defence had the Vigilant operational log page in question; they also had a chart prepared contemporaneously by Cdr. Tucker with the logged position marked. For the reason given in paragraph 72(3) above, an adjustment to or uncertainty in relation to the red line indicating that at around 00.30 it might have the Oriane slightly north of her actual position would strengthen, not undermine, the prosecution case. In our judgment, fairly though Mr Davidson accepted that he should have explained in his expert report for trial that he had considered but placed no reliance on this 00.30 operational log entry, it is not arguable that his failure to do so had any material impact on the trial or the safety of the applicants’ convictions. We note also that it is agreed in the expert evidence before us that Mr Davidson’s red course made good line was the best indication of the Oriane ’s path that could be presented on the material he was given at the time, and that any marine navigation expert would have done what Mr Davidson did with that material. 75. There is now a richer data set available for investigating the respective paths of the Oriane and the Galwad . It is through no fault at all on the part of the applicants or those who represented them in the Crown Court that that is so, as Ms Heer properly accepted on behalf of the respondent. The data set now available is richer because the Vigiliant ’s ECDIS stored two sets of positional data for the Oriane , and because FleetMon (a shore-based supplier of AIS data, like QPS) has provided its records of the Oriane ’s AIS messages and they include records for the 11-minute period of the gap in the QPS data. 76. Before turning to consider what the richer data set now available shows, and in particular whether it makes any material difference to the case as tried against the applicants, we should record how it came about that the Vigilant ECDIS data was not part of the trial. We do so relatively briefly, in light of the proper concession by the Crown we mentioned in the previous paragraph and the fact that there is no basis for any suggestion of a deliberate attempt to suppress or withhold evidence. It is right to do so nonetheless so that it can be clearly stated by the court, not just by counsel’s concession, that what happened should not have happened. In short: (1) Mr Davidson was aware of the 11-minute gap in the QPS data from which he was working. He was also aware that Mr Smith, an expert marine electronics engineer instructed by the prosecution, had been tasked to visit the Oriane and obtain a copy of her ECDIS data. However, he accepted that he was also aware that Brookes Bell had asked the investigating officer to obtain ECDIS data from the Vigilant , if she had an ECDIS system. (2) We accept Mr Davidson’s evidence that he was not aware until told, years after trial in the context of what became these applications, whether the Vigilant was so equipped, let alone that Mr Smith had in fact downloaded and retained a copy of her relevant ECDIS data. He ought to have asked whether ECDIS data had been obtained from the Vigilant . We think that he should have followed up the query about ECDIS data in any event, but particularly so once he appreciated that the data he was using contained a gap of missing data that spanned the most important few minutes. (3) Mr Smith obviously knew, prior to and at trial, that he had visited the Vigilant , learned that she was equipped with ECDIS, and taken a copy of her relevant ECDIS data. In a written explanation, he has said that he understood the relevant part of his brief to be to take and secure a copy of ECDIS data, if available, to ensure that the data would not be lost to the case should anything happen to the system or its data record as it continued to be put to use on board. He is able, this long after the fact, to say only that since that was the limit of his brief and no one asked him to do so, he did not think to pass on to anyone his copy of the data. His firm invoiced for and was paid for that element of his work, so he assumed people in the case knew of it. (4) No application was made for Mr Smith to give evidence and be cross-examined about this before us, and obviously that was not done at trial either. There can be no question therefore of proceeding other than on the basis that his explanation summarised above has been given honestly. Though it was therefore an honest mistake, we have no doubt it was a serious and surprising mistake for Mr Smith as expert witness to make, in particular not to ensure that Mr Davidson was made aware that ECDIS data had been recovered and not to hand what he had collected over to the investigation team, with an explanation of what it was and who (for example, Mr Davidson) should be made aware of its existence. (5) Finally, there is written evidence from the investigation team (again, honestly given, we take it, since there was no application to challenge it) that they did not understand what the ECDIS data would contain or what might be any significance to the case and they were relying on Mr Smith, as the independent expert retained to assist, to draw any such significance to their attention. In our judgment, there was fault there too. It should have been enough, for the investigation team to make it something to follow up, that Brookes Bell, through Mr Davidson’s then senior partner, had made it clear that such data, if in existence, would be of interest. It was the investigation team’s primary responsibility to join up such investigative dots, whether or not they had any substantial understanding of their own as to why the ECDIS data might be valuable. 77. As we have said, the ECDIS data included two sets of timed positional data for the Oriane , as recorded by the Vigilant on the night. One set of data is taken from the Oriane ’s AIS messages as broadcast by her and received by the Vigilant . That data is stored in the form of offsets calculated by Vigliant ’s systems from her then position as received by from the GPS array. It was agreed expert evidence before us that that introduces an additional imprecision in the data of ±10m, so that the ECDIS version of the Oriane AIS positions is inherently precise for latitude to within ±28.5m rather than to within ±18.5m as would have been the GPS position actually broadcast by the Oriane . That position as broadcast and received by the Vigilant , her direct equivalent of the data stored by QPS or FleetMon, was not contained in and could not be extracted from the available ECDIS data. 78. Either side of the 11-minute data gap in the QPS data, there is a very close correlation between the AIS positional data for the Oriane in the Vigilant ’s ECDIS data, the QPS data, and the FleetMon data. During the 11-minute gap itself, there is very close correlation between the AIS positional data for the Oriane in the Vigilant ’s ECDIS data and the FleetMon data, providing a more granular course made good indication of the Oriane ’s path during that period than is available from the QPS data, as shown in the first diagram in Appendix 2 to this judgment. In that diagram, the Vigilant ’s ECDIS AIS course made good for the Oriane is the black line, the FleetMon AIS course made good line for her is the green line, and the QPS course made good line is the red line. 79. We can be (and we are) sure on that basis that the relevant equipment on board the Vigilant and ashore at QPS and FleetMon was all functioning correctly and that their respective data sets are uncorrupted; and the expert evidence before us was to that effect. There is thus no credible room for doubting that the green and black lines (and the red line, outside the 11-minute gap period) give a good and accurate picture of the course the Oriane was following, according to the AIS messages she was broadcasting to the world at the time. 80. Of course, and this was also apparent from the expert evidence before us, if the GPS positions that the Oriane broadcast were unreliable for some reason, those three sets of AIS-based data (the Vigilant ’s ECDIS, FleetMon and QPS) would be affected equally by the problem. They are all taken from those messages as sent by the Oriane . Their consistency inter se therefore does not itself prove that there was no problem with the reliability of the Oriane ’s AIS positions. 81. In our judgment, the green and black lines are unarguably more favourable for the prosecution case as an indication of the Oriane ’s path, in comparison to the red line used at trial. The point is the simple one made in paragraph 72(3) above, but a fortiori . If the green and black lines are used in preference to the red line, as they obviously should be now – they show the same line except that for the 11-minute QPS data gap period they are derived from the data that was missing for the red line – they (the green and black lines) resolve decisively in favour of the prosecution the one possible oddity that favoured the defence in the picture presented to the jury, an oddity that did not cause the jury to be unsure of guilt. For the ECDIS data to give rise to an arguable issue over the safety of the applicants’ convictions, it would have to be because the other set of positional data from the ECDIS casts some credible doubt on the use of the AISderived positions to indicate the path of the Oriane . 82. For this application, the applicants, in reliance on Mr Myers’ expert evidence, sought to revisit the issue of whether a coopering operation such as would have been required to lift the drugs found in Freshwater Bay, could realistically have been undertaken. But there is no force in the points Mr Myers makes if the green and black lines are now taken to be a fair representation of the path of the Oriane . To be clear, we are not saying that there might not be points to be explored as to whether, on the basis of the green and black lines and how the Galwad steered and manoeuvred relative to them, a jury could be sure that coopering could have been achieved. The point is that that question was fully litigated at trial and unarguably the green and black lines are more favourable for the prosecution as a basis for the question than the red line used at trial, by reference to which the actual jury must have been sure that coopering indeed took place. 83. The other set of positional data for the Oriane in the Vigilant ’s ECDIS data was generated by her ARPA. Without needing to explain all of the detail, since this much was not in issue on the expert evidence before us: (1) A course made good line plotted from the ECDIS ARPA data for the Oriane would be the yellow line on the diagrams in Appendix 2, a line correlating very closely to the green and black AIS-based course made good lines, but displaced c.200m roughly South-South-West. (2) The ARPA data is substantially less precise than the AIS-based data, factoring in the cumulative instrument precisions involved and the additional processing to generate those data. That is illustrated by the diagrams at Appendix 3 to this judgment. The yellow line is, again, a course made good line plotted from the ARPA-based positions for the Oriane . The orange parallel lines above and below it represent the outer bounds of the Gaussian (or Normal) probability distribution of error, treating the recorded point data as the distribution mean, to 3 standard deviations (over 99.5% certainty). The difference between the two diagrams is only that one assumes a slightly smaller range than the other for the inherent imprecision in azimuth bearing measurement by the Vigilant ’s radar. (3) So that the ‘corridor of uncertainty’ presented in the Appendix 3 diagrams is not misunderstood, it does not mean, if the ARPA point data are reliable subject only to the cumulative inherent precisions of the instruments and processing involved in generating them, that there is more than a tiny chance that at any given moment, the Oriane was in fact on the upper orange line. Moreover, whatever the minute chance that that would be so, there would be an equal and opposite minute chance that she was on the lower orange boundary line. For example, Professor Stupples explained that even in the first diagram, with slightly larger assumed radar azimuth measurement error range, the Gaussian distribution calculation gives 95% certainty of being within ±26m of the yellow centre line, i.e. a 95% chance that at any given time the Oriane ’s actual, exact position was between 26m ‘above’ and 26m ‘below’ the yellow centre line. (4) At the material time the Vigilant , creating this ARPA record and also her AISbased record of the Oriane ’s position, was around 7 nautical miles West and a little North of the Oriane , so that the Oriane was approximately East-South-East of the Vigilant . It was agreed expert evidence before us that there is a consistent discrepancy between the ARPA positions and the AIS-based positions for the Oriane over the period of interest that equates to the ARPA positions being ‘out’ relative to the AIS-based positions by 0.9º azimuth, clockwise from the Vigilant , or the AIS-based positions being ‘out’ relative to the ARPA positions by 0.9º azimuth, anti-clockwise from the Vigilant . (5) That is neatly illustrated in Appendix 2 to this judgment by the purple line. The purple line is the ARPA-based course made good line ‘corrected’ for an assumed static 0.9º azimuth error in the ARPA data, clockwise from the Vigilant . That purple line is a very good fit with the green and black lines. (Obviously, therefore, although not shown on the diagrams, if one instead ‘corrected’ the green and black lines for an assumed static 0.9º azimuth error in the AIS data, anti-clockwise from the Vigilant , the ‘corrected’ green and black lines would be a very good fit to the yellow line.) 84. All that now brings us back to Ground 1. As formulated in the Perfected Skeleton (see paragraph 62 above), the argument is that the data which the defence did not have at trial demonstrate that the Galwad never got close enough to the Oriane ’s path (wake) for the posited drugs lift to be credible. 85. That may have been over-enthusiastic drafting on counsel’s part, or it may be that following the oral expert evidence before us it was recognised that we were unlikely to find in the applicants’ favour that the ARPA data established any such thing. Either way, Mr Bennathan QC’s oral argument in support of Ground 1 was more nuanced. He submitted first, and we agree, that informed by the richer data set now available, no one would use the red line that was presented to the jury to illustrate the Oriane ’s path. From there, he submitted, in summary, that: (1) If the court reached the conclusion on all the evidence now available that the green and black lines, beyond any real room for doubt, fairly represent the Oriane ’s path, nonetheless the encounter between the Oriane and the Galwad on the night of 29-30 May 2010 was materially different to that presented to the jury based on the red line. We do not agree, as we explain in paragraph 86 below. (2) If the court concluded that the yellow line was, or might credibly be, a fair and realistic representation of the Oriane ’s path, then it can now be seen that the failure to disclose the ECDIS data deprived the defence of the opportunity to put before the jury a credible case that the Galwad never got close enough for coopering. We agree. (3) If the court concluded that the matter of the Oriane ’s path was just left shrouded in uncertainty by the new evidence, then the applicants were deprived by the failure to disclose the ECDIS data of a material prospect of a jury being left unsure whether the Galwad ever got close enough for coopering, meaning in turn that they were deprived of a real rather than fanciful prospect that the ECDIS data might have resulted in acquittal. We do not agree with that submission, essentially for the reason given in paragraph 72(3) above. 86. We are against the first of these submissions because, again, in our view, the red line used at trial unarguably provided more room for the defence to suggest doubt over whether there had been a sufficient opportunity for coopering than would the green and black lines. We note that trial counsel for Mr Green, having been asked specifically about the black line, realistically accepted that using it rather than the red line would not have materially altered the defence or improved its prospects. Their observation is qualified by a suggestion that adopting the black line would nonetheless have exposed the fact that “ Mr Davidson had made a significant error in relation to the line for the Oriane ”; but that, with respect, is not right. It mischaracterises the impact of the 11minute data gap in the QPS data to say that there was a significant error by Mr Davidson. If, which is the premise, the data had been available to fill in that gap, then the black (or green) line and not the red line would have been put forward, and, as we have said, the case for the prosecution would only have been all the stronger for that than the case in fact put before the jury. 87. Whether considering this application through the lens of s.23 Criminal Appeal Act 1968 , or from the overall perspective of the safety of the applicants’ convictions, Ground 1 thus comes down to whether, on all the evidence now available, the green and black lines fairly represent the Oriane ’s path, without room for any real doubt. 88. So far as that is concerned, the positional data considered above was not and is not the only type of evidence available on how the paths of the Oriane and the Galwad interacted with each other on the night of 29-30 May 2010. We now summarise the other evidence on that aspect. Drift 89. An expert report from Dr Pierre Casenave, Dr Ricardo Torres and Mr Tim Fileman from Plymouth Marine Laboratory (“PML”), commissioned by the applicants some years after the trial, concludes from computer modelling of the Channel and the prevailing conditions that if dropped by the Oriane so as to be capable of being collected by a ‘daughter vessel’, the drugs would have been in a surface current running at 0.09ms -1 76.8ºN, i.e. at c.0.2 knots about half way between East and East-North-East. As we have mentioned, the part of the Galwad ’s movement, accurately recorded by her Olex, that the prosecution said demonstrated the drugs lift, is the 2½ minute period between 00.32.25 and 00.34.57 on 30 May 2010. 90. During that period, the Galwad made an average of under 0.6 knots, in the direction of the current described by PML, in what would have been the wake of the Oriane if the green and black lines reliably indicate her path, parallel to her wake (but c.100m South of it if the red line reliably indicated her path), before turning nearly full circle to starboard at c.2.4-2.5 knots over the next ½-minute and proceeding North-East out of the area at 6.5-7.0 knots (her full ahead speed being c.8.0 knots). This is shown in the third and fourth diagrams in Appendix 2 (for the pattern of movement – the speeds were in Mr Davidson’s original expert evidence for trial and are not in dispute). Jamie Green 91. The applicants gave no evidence concerning the relative movements of the Galwad and the Oriane . Beere was not on board; Payne was on board but claimed to have been asleep throughout. Neither Dresic nor Birtwistle gave evidence on the point or claimed any ability to do so. 92. Green accepted that he was at the helm of the Galwad at the material time. He gave clear and detailed recollection testimony about her movements under his control and how they interacted with the Oriane ’s path. Whether it was honest evidence, as regards what he was doing, viz. mapping the seabed, as he said, and not collecting drugs out of the water, was for the jury to decide, and evidently the jury was sure he was lying about that. That is not the present point, which is that Green’s navigation evidence was by nature first-hand witness testimony of an actual recollection of how he manoeuvred his boat relative to the Oriane . 93. His evidence was that he would not have known at the time the names of the large commercial ships he encountered in the main Channel shipping lanes as he “ didn’t have AIS ”. He told the jury that there was AIS equipment on the Galwad but it was not connected up. That was not challenged at trial, but is challenged before us on the basis of expert evidence we now have that the Galwad ’s equipment was receiving AIS messages. Since this detail was not explored with him at trial, it may not be fair to the applicants to treat that part of Green’s evidence as dishonest for the purpose of the current application. We therefore put that point to one side. 94. Green’s description of what the Galwad did – how he navigated her and why, relative to the large commercial ship (which undoubtedly was the Oriane ) – was his (claimed) actual, clear and detailed recollection. It is true, as Mr Bennathan QC emphasised, that some of what Green said was expressed in terms of what he ‘would have’ known or done, and that by the time he gave evidence he had Mr Davidson’s course made good plotting that Mr Chinery agreed. But in our judgment, that does not detract from the plain fact that Green was giving evidence of his actual recollection, not merely a reconstruction steered by the agreed expert evidence. 95. We have quoted in paragraph 16 above Green’s evidence on the point as summed up by the Trial Judge. We have read the transcript of Green’s evidence so far as material to the point, which confirms the accuracy of the summing up and that Green was giving evidence of recollection, as opposed to reconstruction. 96. Mr Bennathan QC also emphasised that Green gave no account on this topic in interview. His Defence Statement was consistent with his trial evidence in relation to how and why he navigated the Galwad as he did, relative to the Oriane , although there was a partial inconsistency in relation to what fishing activity she was performing because the Defence Statement referred to shooting pots as well as seabed mapping. But the Defence Statement and trial evidence, Mr Bennathan QC noted, came months later, and only after Mr Davidson’s main expert report for trial. We give the applicants the benefit of the doubt on that timing point, though the first of Green’s two Defence Statements appears to have been provided on 25 February 2011 (the copy we were shown is undated, but that date appears from the transcript of Green’s crossexamination), just two days after the date of Mr Davidson’s report (23 February 2011). 97. Green’s failure to give any account in interview, giving indeed a substantially false account of the trip out into the Channel and back, was more generally a significant point against him at trial. But for the immediate purpose, Mr Bennathan QC’s submission was that it rendered it credible, indeed he submitted likely, that Green’s seeming actual recollection of the specifics of the two vessels’ proximity and relative movements, was or may have been honest but unreliable. He suggested further that it was inherently unlikely that those details would have been memorable. This was one of many fishing trips in Channel waters (voyage 70 recorded by the Galwad ’s Olex, and she was not Green’s first fishing boat). 98. We disagree: (1) There is no evidence from Green on this point. An application to call fresh evidence from him in this Court was issued but not pursued. It is thus speculation by the applicants that he does not or might not accept that in 2011 he had the recollection as to the relative movements of his boat and the Oriane that he gave to the jury. (2) The detail of the Galwad ’s manoeuvring near the Oriane was obviously memorable to Green if she was picking up a massive drugs drop, as alleged by the prosecution; and the simplest explanation for his detailed recollection in all the circumstances of this trial was just that, leading him to accept the pattern of movements alleged (because it was materially accurate), but advance an innocent explanation for it (seabed mapping) and an emphasis upon the difficulties of the alleged coopering operation, bearing in mind timing, environmental conditions and the capabilities of the Galwad ’s equipment. (3) In any event, the voyage in question was Green’s last as skipper of the Galwad , immediately after which he was arrested and his boat seized. That in itself ought to have made the voyage a memorable one. Furthermore, were Green innocent of involvement in this massive drugs drop, then remembering that last voyage in as much detail as possible, and giving whenever the time came a good account of it, was the most important matter imaginable for Green, from the moment he became aware of the reason for his arrest. (4) If Green had any reason at all to cast doubt upon the prosecution reconstruction of the relative movements of the two vessels, it is not credible that that might have been driven out of his mind by his being given that reconstruction. Rather, in our judgment his memory would surely have been triggered by that presentation. It was a major plank of the prosecution case that the Galwad crossed the wake of the Oriane , and conducted the allegedly suspect very slow speed manoeuvres near to that wake in the few minutes after the Oriane passed, having first positioned herself ahead of the Oriane to allow her to pass (bearing in mind that the Oriane was making way at a rate of knots far in excess of the Galwad ’s capabilities – she would not have been able to get near to the path of the Oriane promptly to collect a drop if she had started from astern of the Oriane ). We do not regard as credible the notion that the Galwad did not come close enough to the Oriane or her path for coopering ever to have been a possibility, or never crossed the Oriane ’s wake, and yet Green accepted and testified to the jury that she did both. (5) Mr Bennathan QC submitted that the Galwad may have had materially similar close encounters in the Channel shipping lanes before. There is very little evidence for that. The agreed expert evidence is that the speed and steering pattern of the alleged coopering manoeuvre was similar to past seabed mapping patterns, but that is a different point. Green said in cross-examination that “ You do get times when the vessels get very close ”, and that his boat had been hit once. The Oriane was a laden deep sea container ship, nearly 300m in length and around 40m broad. The Galwad was a tiny dot in comparison, just 12m in length. It is not remotely credible that, on this final voyage immediately after which Green was arrested, the Galwad should never have come as close to the leviathan as the prosecution said, and yet Green, if innocent, failed to remember that and therefore failed to challenge the claim. The Bonfield & Vigilant Logs 99. The fact that the Oriane was a surveillance subject of interest to the Vigilant was known to the defence at trial. Some documentary evidence from the Vigilant was served, and one of her officers, Cdr. Tucker, was a witness at trial. The jury was not told, however, that the Oriane was under surveillance by the Vigilant . That was not necessary for an understanding of the evidence that was led at trial, and a tactical decision was made by the defence not to deploy material revealing that the Oriane was a specific surveillance target. The context was that there was no evidence showing the Oriane to have carried and dropped the drugs, other than the same circumstantial evidence relied on to claim that the Galwad picked them up. The defence understandably did not want a jury thinking there was or might be independent reason to suppose that the Oriane was being used as part of any smuggling. 100. For completeness as to that, we add that there was evidence suggesting that the cocaine had been put on board the Oriane in South America, but it was served very close to trial leading the trial judge to exclude it. That will also have been part of the immediate context of the defence decision to keep the trial clear of any notion that the Oriane was an object of suspicion independently of the evidence the jury would receive focusing on the Galwad . 101. It is material to note the carefully conditional observations of trial counsel for Green in relation to that tactical decision: “Our stance was not to adduce evidence before the jury of the Vigilant’s interest in the Oriane, because there was no evidence before them to indicate that the drugs had come from the Oriane, and the Vigilant’s interest might have been taken by the jury to suggest that there was intelligence incriminating the Oriane … . If, however, the gold line [i.e. the yellow line on the Appendix 2 diagrams] were taken to represent the actual route of the Oriane then it would not have mattered if the jury made the assumption that the drugs had indeed come from the Oriane – indeed, we may have encouraged such an assumption – because the Galwad would not have been close enough to the Oriane to have been able to collect them.” “It was because Mr Davidson’s evidence as to the tracks of the Oriane and the Galwad was taken to be correct that it was desirable to exclude evidence that the Vigilant was observing the Oriane. If instead we had been able to establish that at the relevant time the Galwad had neither crossed the wake of the Oriane nor been sufficiently close to the track of the Oriane for collection of items thrown from it to have been possible, then the fact that the Vigilant had been observing the Oriane would have been of minor significance (because even if the drugs had come from the Oriane, they could not have been collected by the Galwad).” 102. We regard those observations as candid and realistic. Any suggestion that the material we are about to mention might be of value to the defence depends on there first being an arguable case at all, and then after taking that material into account, that the Galwad might not have got close enough to the Oriane ’s wake to recover packages dropped from her stern. 103. The Bonfield Log was kept in SOCA Cdr. Bonfield’s command room, noting field observations called in by inter alia those on board the Vigilant as part of Operation Disorient . The Bonfield Log was disclosed part way through trial. The tactical decision to which we have referred drove in turn a decision not to make use at trial of Bonfield Log entries now relied on by the applicants as significant. We should explain that the Bonfield Log was kept in BST, so we have corrected the entries to GMT; and that the log entry times are just that, i.e. the times at which the entries were made, not the times at which the logged observations, as called in, were originally made: “22.40 UKBA Cutter [i.e. the Vigilant] has locked onto MSC the Oriane & is monitoring. 00.41 UKBA Cutter has visual on MSC the Oriane. 00.50 Cutter advises MB [i.e. Cdr. Bonfield] that they have a possible ‘daughter vessel’ at the stern of MSC the Oriane. Cutter is unsure if this is a sailing vessel or fishing vessel at this time. The Cutter is in communication with aircraft [a reference to a UKBA plane, to which we make further reference below, that was part of Operation Disorient]. 00.56 Cutter advises that at this time there is no activity on the stern of MSC the Oriane. 01.02 … Cutter advises MB that the possible daughter vessel was a yacht that sailed north to south across the stern of the MSC the Oriane during the time this yacht crossed the path there was no activity on the stern of the MSC the Oriane. The Cutter will keep monitoring the MSC the Oriane & monitor the yacht on radar. The Cutter and Aircraft are maintaining control of the MSC the Oriane.” 104. We think it clear, and it is also the applicants’ submission, that the “ yacht ” thus identified by the Vigilant on the night as a “ possible ‘daughter vessel’ ”, was the Galwad . No other possible daughter vessel, i.e. small craft steering in close proximity to the Oriane or her path, was identified during the surveillance operation. For Ground 3, the applicants focus on the references to not sighting activity at the stern of the Oriane when the Galwad was in the vicinity. 105. The Perfected Skeleton, quoted in paragraph 62 above, articulates Ground 3 in these terms, namely that when monitoring the Oriane at the key time, the Vigilant “ discounted the Galwad as the drugs-receiving vessel ”. But in fact, far from discounting her, it is plain that the Vigilant , and Operation Disorient as a whole, treated her as a suspect following, and in part because of, those logged observations, and did so notwithstanding that they did not extend to seeing the Oriane drop anything or the Galwad pick anything up. As the operation continued into 30 May 2010, the Galwad was referred to in the Bonfield Log as “ suspect vessel SU116 ” (SU116 being her call sign). 106. The applicants developed their submission, with which we have said we agree, that the possible daughter vessel identified by the Vigilant was the Galwad , in a slightly complex fashion, using inter alia the Vigilant ECDIS records that were not available at trial. In our view, it was plain enough on the evidence available at trial that the Galwad was the possible daughter vessel identified by the Vigilant , although from their McCook responses it seems that at all events Green’s trial counsel did not appreciate that at the time. Trial counsel go on to suggest that they might have used the fact that the Vigilant did not report seeing activity at the stern of the Oriane , if they had appreciated that the possible daughter vessel was the Galwad . However: (1) As we have noted, trial counsel realistically accept that they would not have made a different tactical decision about introducing the Vigilant surveillance operation to the jury at all unless, by reference to what is now Ground 1, they would have been able to cast genuine doubt, in a way that favoured the defence, over what the jury was told about the Oriane ’s path. (2) In giving the response they did about possibly using the ‘no activity at the stern’ evidence, trial counsel did not consider the impact of the Galwad being the possible daughter vessel on the idea that there might be helpful doubt about the Oriane ’s path, which in the questions put to them they were asked to assume. 107. The defence made a tactical decision that the jury should not know that the Oriane was under surveillance by the Vigilant , though well aware that there would be no evidence at trial directly implicating the Oriane in carrying drugs and no eye-witness evidence of coopering, but thinking that the possible daughter vessel identified by the Vigilant was not the Galwad . We regard as fanciful the notion that the defence might have considered even for a moment allowing the jury to know not only that the Oriane was under surveillance as she was, but also that, as part of that surveillance operation, the Galwad was identified as a possible daughter vessel (albeit with no eye-witness observation of any drugs drop or pick-up), unless there were some real room for doubt whether the Galwad got close enough for coopering to be a possibility. 108. In short, there is nothing for the applicants in Ground 3 unless, first, Ground 1 is viable; and when considering whether Ground 1 is viable (and then, if it is, whether there might be leave to appeal on Ground 3 also), all the evidence now available must be considered. Ground 1 cannot be evaluated without reference to the material which the applicants focus upon for Ground 3. Were there an issue at a trial, as there was not in 2011, on whether the Oriane ’s path meant coopering by the Galwad was a possibility, the prosecution would be entitled to adduce the evidence now relied on in the context of Ground 3 as part of dealing with that issue. It was only because the defence did not take issue with the Oriane ’s path that the tactic of not mentioning the surveillance operation to the jury was even an option. 109. Returning to the Bonfield Log, a log entry entered slightly out of sequence as a “ Late entry ” for 02.32 states: “ Aircraft identified sailing vessel believed to have come from France due to direction of travel ”. In entries for 02.42, 02.55 and 02.57, the Bonfield Log notes reports received from the UKBA plane indicating that, prior to going off task to refuel at 02.57, it had spotted a “ possible suspect vessel ” that was a “ small fishing vessel ” fitting the description of the Galwad that we think it clear was not the sailing ship thought to have come from France also spotted by the plane. 110. Before turning to the next source of evidence, that of Mr Whittall from the UKBA plane, we should mention for completeness that we have seen copies of the Vigilant ’s Deck Log and Work Record for 29-30 May 2010 that were not available at trial. In the context of Grounds 1 and 3, one entry is of possible relevance, namely the results of the Vigilant ’s navigational equipment checks “ carried out as per Standing Orders Departure Checks ” prior to departure from Gosport on 29 May 2010, which are recorded in these terms: “GPS 50º 47 48N 001º 06 93W checked to chart 2624, Course/Head 208ºM & 196º G 12º Error satis – Course from chart 195º T” 111. We shall come back to that entry when considering the discrepancy in the ECDIS data between the ARPA and AIS positions for target vessels. UKBA Plane 112. A UKBA Britten Islander plane, with three Border Agency officers on board, was used as part of the Operation Disorient surveillance exercise. The camera operator, Mr Whittall, was a witness at trial. A Disclosure Note dated 27 April 2011 (the first day of the trial) referred to aspects of the surveillance operation, including the observations referred to in paragraph 109 above. Derived, we take it, from the Bonfield Log, the Disclosure Note gave times in BST. 113. The Disclosure Note drew the distinction we drew above between the sailing vessel thought to have come from France (Bonfield Log entry 02.32; Disclosure Note, paragraph 3), and the fishing vessel later confirmed during the course of the surveillance to be ‘SU116’, i.e. the Galwad (Bonfield Log entries from 02.42 onwards). 114. The following evidence from Mr Whittall was served by the prosecution: (1) A statement dated 15 June 2010, which will also be relevant when we come to Ground 4. So far as Grounds 1 and 3 are concerned, this first statement related Mr Whittall’s sighting from the plane at 02.42 on 30 May 2010 of the small fishing vessel, his initial observation of it then, and his reacquiring sight of it from 04.20, when there was daylight, so that he was able to and did identify it as ‘SU116’. (2) A second statement dated 21 April 2011, just under a week before trial. This second statement, to answer two supplementary questions he had been asked, said this: a. “ Further to my statement of 15 June 2010 I have been asked to clarify what occurred when a small vessel started to approach the MSC Oriana [sic] container vessel which was being monitored. I monitored this small vessels course and found it not [to] be of interest due to it not approaching the container vessel on the course the MSC had taken. ” b. “ Further to my statement of 15 June 2010 I have been asked if there were any vessels within the area of my surveillance patrol capable of collecting parcels from the sea – in answer to this question throughout the times I was on patrol I saw no other small vessels that approached the track of the MSC Oriana [sic]. I saw numerous large merchant vessels all in the shipping lanes none of which slowed down or approached the MSC Oriana. ” 115. Against the first of those supplemental answers, Green’s leading counsel at trial added on his copy of the second statement, in manuscript in the margin, “ 3:32 BST ”. That is to say, we think it plain, the defence were given at the time the explanation that this second statement concerned the Bonfield Log entry about the sailing vessel that became paragraph 3 of the Disclosure Note. 116. Mr Bennathan QC submitted that putting Mr Whittall’s statements together now, but as may not have been appreciated by trial counsel, they supported the proposition that the Galwad did not get close enough to the track of the Oriane to have been of interest as a possible coopering vessel. This requires reading “ I saw no other small vessels that approached the track of [the Oriane] ” as meaning ‘other than the sailing vessel’. We do not think it can bear that interpretation. Mr Whittall’s statement was that the sailing vessel was discounted as being of any interest because it did not approach the Oriane ’s track. Taking his statements together, in the context of the Bonfield Log evidence of the Operation Disorient observations that night, Mr Whittall appears to us to have been confirming that he saw no small vessel other than the Galwad (the subject matter of the case) approaching the track of the Oriane , but equally was not saying that he had himself seen the Galwad prior to 02.42 (and therefore was not saying he had seen her near to the Oriane or the Oriane ’s path at the key time just after 00.30). 117. In that regard, we note that the UKBA plane only took off at 00.14 and the plane is noted in the Bonfield Log as not being in radio contact with the Vigilant or Silver Command at the time of the Vigilant ’s observation of the Galwad near to the Oriane , and is first noted as being part of the surveillance ‘control’ of the Oriane only after 01.00. After that (in a Bonfield Log entry for 01.20), the Bonfield Log records the plane as calling in that there was then no daughter vessel in her vicinity. The Oriane was proceeding at c.17 knots, so that by 01.00 and later, she would have been miles away from where the Galwad had manoeuvred near to her path. 118. This material was all available to the defence – late served though the second statement, the Disclosure Note and the Bonfield Log were – and it is no surprise that they did not seek to cross-examine Mr Whittall to confirm that he had not seen the encounter between the Galwad and the Oriane , given the tactical decision about not mentioning the surveillance operation and the fact that there was no dispute about that encounter, the issue being only what the Galwad was doing there. Indeed, it became common ground at trial, and on that basis was at one point clarified to the jury by the judge in response to a question, that the first aerial sighting of the Galwad was at 02.42. As we have sought to explain, that seems to us still to have been the correct reading of Mr Whittall’s evidence and the Bonfield Log. 119. Taken as a whole, Mr Whittall’s statements and the Bonfield Log do not, without something more, provide any arguable support for the submission that the Galwad was ruled out as being of interest because she was seen from the air not to have got close enough to the Oriane for coopering to have been possible. Thus again, both in order for it to be said to arise out of the new evidence, and on its substance, the argument raised by reference to Mr Whittall’s evidence depends first on other evidence raising some real doubt about the Oriane ’s AIS-based path. Indeed, this is how the point is put in the Perfected Skeleton: “ The ECDIS data showing [so it is argued] that the Galwad did not get close enough or follow the Oriane’s course raises the possibility that this reported sighting by Mr Whittall [viz. of a sailing vessel that he ruled out as of interest] is in fact a sighting of the Galwad. ” The Yellow Line 120. This therefore being the Rome to which all roads lead, as regards Grounds 1 and 3, we now consider whether, on all the evidence now available, there is a credible case to put to a jury in favour of the yellow line for the Oriane on the diagrams in Appendix 2, that is to say the course made good line for the Oriane drawn using the ARPA positional data and making no correction to that data. Data Analysis 121. Mr Franks conducted an impressive and comprehensive analysis of the data available. He explained, and we accept for the reasons he gave, that if all relevant equipment is operating and set correctly, vessel positions stated in their AIS messages are inherently reliable and accurate to within a very tight margin of precision (relative to the size of the Oriane or even the Galwad ), and more reliable and accurate than radar-based positions. 122. The applicants relied on guidance to mariners from authoritative sources, for example the IMO, emphasising that reliance exclusively on AIS-based positional data is inappropriate for navigation and collision avoidance, for which purpose of course a vessel’s own ‘eyes and ears’ (including radar) must be paramount. But that is because AIS positions received may not give a complete picture even of other vessels in the vicinity (because not all will be broadcasting or doing so reliably) let alone of all relevant obstacles or dangers. It is also because, in particular, those on board any given vessel should know whether their own equipment is in good working order, properly maintained, and cannot know that of all vessels around them. 123. None of that detracts from Mr Franks’ starting position, which was agreed by Mr Phillips in his written reports, that AIS positional data, if generated from properly received and processed GPS signals, is the most reliable and accurate way of pinpointing the position of a vessel at sea from time to time. 124. The materially exact correlation between the AIS data for the Oriane now retrieved from QPS, FleetMon and the Vigilant demonstrates beyond doubt that they are (individually and collectively) accurate records of the AIS positions the Oriane was broadcasting to the world as she navigated the main southern (West to East) shipping lane in the English Channel on the night of 29-30 May 2010. The expert evidence has identified that the Oriane ’s internal GPS locator was not functioning; but it is only a backup source for the underlying GPS position of the vessel to be used in her AIS messages if for some reason her external GPS receiver failed to receive data from the GPS array. Since there is a full record of AIS messages in fact broadcast with meaningful positional data, it is plain that there was no such issue, i.e. the AIS messages from the Oriane were necessarily generated by her receipt of her position from the GPS array in real time. 125. The only suggested source of possible error or unreliability of the Oriane ’s AIS-based positions, therefore, is if she was sailing with an incorrect chart datum selected for her AIS messages. This spawned a somewhat speculative issue in the expert evidence before us as to whether, if the Oriane was using the incorrect chart datum, no meaningful position would have been broadcast by her AIS and/or the use of the wrong chart datum would have been apparent to recipients of her AIS messages. We do not think we could rule out the possibility that apparently meaningful positional data might be broadcast, though the incorrect chart datum was in use, without revealing that fact. 126. Mr Myers accepted, and we agree, that unless that were the position, in other words, as long as the Oriane was not using the wrong chart datum for the purpose of her AIS messages, then there could be no reason to doubt their material accuracy for the purpose of identifying the Oriane ’s actual position at the time of each message and, therefore, there could be no reason to doubt the material accuracy of the green and black lines. He also agreed, as do we, that it would have been irresponsible and dangerous for the Oriane to be transiting one of the world’s busiest commercial shipping lanes using the wrong chart datum for her navigation and AIS messaging. In the abstract it can be said that mistakes can be made, and from his career at sea Mr Myers remembered one occasion when, briefly, the wrong chart datum had been selected, in that his vessel failed to switch from a local South American chart datum as she commenced her open ocean passage after a call at a South American port. Though theoretically possible, in our judgment it is extremely unlikely indeed that the Oriane , after a trans-Atlantic crossing, was passing through the Channel on the wrong chart datum. 127. Furthermore, if the Oriane ’s AIS positions, as broadcast, were unreliable because the wrong chart datum was in use, the behaviour of her ARPA-based positions stored in the Vigilant ’s ECDIS, relative to her AIS-based positions, should differ from that of other vessels. By definition, her AIS-based positions would then possess a discrepancy unique to her unless, which is utterly preposterous, every other vessel tracked by the Vigilant ’s systems that night was sailing in the Channel with the same dangerous and unexpected chart datum error on board. But there is no such unique discrepancy. 128. Rather, Mr Franks’ investigation, using all the data available, that is to say using 2,088 data pairs (AIS-based and ARPA-based positions) for 32 vessels over a period of c.20 hours from the late afternoon of 29 May to the early afternoon of 30 May, demonstrated that: (1) Allowing for the inherent precision levels in the data, there was a close correlation between AIS and ARPA positions for range (the distance between the Vigilant and target). (2) There was however a distinct discrepancy phenomenon for azimuth (angular bearing from North of a line drawn from the Vigilant to a target). Mr Franks found that “ the azimuth determinations showed a clear trend across all 2088 pairs, with the ARPA record having a mean offset 0.9 degrees clockwise from the corresponding AIS record. This was superimposed with a cyclic variation approximately +/- 2 degrees varying slowly over time. ” This bearing variation “ for all ships tends to be synchronised. In simple terms, all tracked targets generally follow the same pattern and move together toward a maximum or minimum difference at the same time ”, and was “ evenly distributed regardless of azimuth ” (i.e. it was not a phenomenon somehow caused only for, or disproportionately for, vessels at certain bearings from the Vigilant , but was consistent across targets wherever they were relative to her). 129. The azimuth discrepancy pattern was illustrated by Mr Franks by a scatter diagram, his Figure 2, which is reproduced in Appendix 4 to this judgment. To be clear, as Mr Franks explained, he did not show in Figure 2 every one of his 2,088 point results, because there were a few of significantly greater magnitude than the bulk of results shown as spots on the scatter diagram that rendered meaningful presentation of all the results in one diagram on the page problematic. Those ‘outliers’ (for magnitude) were still synchronous with the discrepancy pattern shown, however, Mr Franks explained, and did not change the consistent mean error that suggested a static input error in the gyrocompass. 130. Mr Franks acknowledged that there was no primary science or published research by reference to which he could match the particular pattern of that bearing discrepancy phenomenon against the variables in play for the Vigilant and her targets. We do not think that matters. What matters is that the phenomenon Mr Franks found and described: (1) must originate with the Vigilant , to be in that way a synchronised pattern of error over time across all targets; (2) can be explained, as Mr Franks explained it, by “ a static heading input error of +0.9 degrees ” (to produce the consistent mean error of 0.9º clockwise) and “ a variable component [that] is likely to be a combination of heading input error possibly caused by poor gyrocompass stability, combined with ARPA plot results distorted by vessel manoeuvres ”; (3) can only sensibly come from the ARPA data, because there is no mechanism by which the AIS-based positional data sent to the Vigilant by those 32 different vessels could generate that pattern of error; (4) can indeed, and would, come from the ARPA data, if it were affected by a standing +0.9º azimuth error in the Vigilant ’s gyrocompass, the key item of equipment involved in generating the ARPA data but not the AIS data. 131. We note, though it would not necessarily detract from Mr Franks’ analysis were it otherwise, that Mr Franks completed his data review and reached his conclusions, and specifically concluded that the data discrepancy indicated a static +0.9º azimuth error in the gyrocompass, without any reference to plotted positions or any attempt to see for himself what they would be, an exercise to which he properly said he would defer to qualified navigators. As it is, corrected for that static error, the Oriane ’s ARPA-based course made good line becomes a materially perfect match with her AIS-based course made good line (the yellow line becomes the purple line, which materially exactly matches the green and black lines). 132. We did not regard Mr Phillips as properly qualified to deal with this aspect of the case, and to be fair to him he deferred to Professor Stupples on it. Regrettably, we did not regard Professor Stupples’ evidence on it as credible. He said he was unable to provide any explanation at all for what might generate the azimuth discrepancy pattern identified by Mr Franks. However, we did not understand him to be suggesting that Mr Franks’ explanation for it could not be correct or to be proposing any reason within his expertise why Mr Franks’ explanation might be incorrect. 133. Professor Stupples proposed, in our judgment unscientifically, that the mean azimuth error of +0.9º, if it represented a static component of error in the Vigilant ’s ARPA calculations, did not require the ARPA yellow line to be corrected, because the magnitude of that error was within the bounds of the Gaussian probability distribution for the precision of the ARPA positions. That evidence must be discounted entirely in considering what conclusions to draw from the data analysis. The Gaussian probability distribution, and a posited static input error from the gyrocompass, are wholly distinct. The former, as is clear from Professor Stupples’ own explanation of it in his expert report, does not in any way seek to model or encompass the latter. In our judgment, Professor Stupples should have accepted as much, and we conclude that his failure to do so is attributable to a realisation, but unwillingness to admit, that Mr Franks was correct. 134. For his own part, Professor Stupples carried out a different data comparison, comparing the bearing of the Galwad from the Vigilant as calculated from the Galwad ’s Olex records of her position and Vigilant ’s own position as recorded in her ECDIS, and the bearing for the Galwad given by the ARPA-based positional data for her in the ECDIS data. The Galwad was not required to, and did not, broadcast AIS messages, given her size, so she is not one of the 32 vessels in Mr Franks’ study. Professor Stupples found a variable azimuth error, as had Mr Franks, with a similar mean, 0.7º clockwise compared to Mr Franks’ 0.9º clockwise from a much larger data set. The variable element fits the pattern observed by Mr Franks’ study. 135. Professor Stupples said that he limited his comparison to 11 data pairs (from an available 45 pairs) because (a) it was necessary to limit the comparison to times when the Galwad and the Oriane were both visible to the Vigilant ’s radar and (b) he cut the sample off at 01.00 because after that the Galwad was too far from the Vigilant for reliable radar bearings. However, as to (a) Professor Stupples did not in fact use all available data for when both targets were visible (and we prefer and accept in any event Mr Franks’ opinion that that was no valid basis for limiting the data comparison exercise), and as to (b) the Galwad did not get further from the Vigilant than at the start of Professor Stupples’ review period until considerably later than 01.00. Because of that, we regard Professor Stupples’ Galwad data comparison as less valuable than Mr Franks’ comprehensive study, although the basic result – a variable azimuth error, on average 0.7º clockwise – is consistent with it. We add that since Professor Stupples was comparing ARPA-based ECDIS records with the Galwad Olex data, and it remains common ground that the latter are accurate and reliable, the azimuth error he found must come from the Vigilant ’s ARPA system or the inputs it was using. 136. Professor Stupples also carried out a spot check using just 2 (of 75) data pairs for a target vessel called the Kornati . It so happens that at those two points in time, there was a close bearing match between the Vigilant ’s ECDIS data for the Kornati as between AIS-based and ARPA-based positions. It was not clear to us that the two data pairs had been chosen for any reason other than that they had that characteristic. We consider that the presentation by Professor Stupples of that spot check as if it evidenced or corroborated the accuracy of the ARPA record seriously undermined the credibility of his evidence. Appendix 4 includes Mr Franks’ Figure 6, a scatter diagram like his Figure 2 but for the Kornati only as target vessel. It is immediately apparent that a proper use of the available data should have led Prof Stupples to conclude that it could not be said that the Kornati ARPA record provided a good match with the AIS record, such that the former did not require correction, and indeed should have led him to realise the azimuth discrepancy pattern described and explained by Mr Franks. 137. Considering the data analysis evidence on its own, accepting Mr Franks’ views as impressive, balanced and properly considered, and rejecting Professor Stupples’ evidence as not credible to the extent it was not consistent with Mr Franks’, in our judgment there is a powerful case for the proposition that the yellow line, plotted from the ARPA record in the Vigilant ’s ECDIS, is ‘displaced’ in comparison to the black line, plotted from the ECDIS AIS record, by c.0.9º azimuth, clockwise, because there was a static input error of that nature and magnitude coming from the Vigilant ’s gyrocompass that would affect the ARPA-based positions but not those calculated from the Oriane ’s AIS messages. Other Evidence 138. As for other evidence, first and foremost, there is the evidence of Green, reviewed above. The choice now being between the black, green and purple lines and the yellow line, his evidence strongly supports the material accuracy of the former and the material inaccuracy of the latter. We have rejected the argument that Green’s evidence can sensibly be explained away as having been generated by Mr Davidson’s red line and Mr Chinery’s agreement to it or as no more than reconstruction on Green’s part. 139. Second, Green told significant lies in interview. He was not interviewed by reference to Mr Davidson’s evidence, or his red line for the Oriane in particular, as that evidence was not available when he was interviewed by the police but came later. However, as one would expect, both from the nature of the occasion and from the questions he was asked, it was plainly his opportunity to describe that final overnight voyage of the Galwad before she was boarded and searched and he was arrested. He falsely claimed to have headed directly to one of his established fishing grounds, well away from where he actually took the Galwad , arriving early in the morning on 30 May 2010, and said nothing of the visit to the southern shipping lanes, or of seabed mapping, or of the encounter with the Oriane . 140. Third, there is the Operation Disorient evidence that the Galwad (being, as the applicants themselves submit, the relevant daughter vessel) was sighted near to, and was seen to cross from North to South of, the stern of the Oriane . 141. Fourth, there is the supporting telephone evidence which we have described in paragraphs 13 to 15 above, with the striking correlation between the timing of those telephone calls and the suspicious movements of the Galwad. 142. Fifth, as we noted in our review of the evidence, there is now an expert report on the likely drift effect experienced by packages, were they dropped by the Oriane as the prosecution posited. It suggests that during the Galwad ’s very slow speed 2½ minutes a little after 00.30 on 30 May 2010, she was following exactly such a drift path. 143. Sixth, we agree with the respondent that the Vigilant deck log entry which we have quoted in paragraph 110 above is more consistent than not with the proposition that the Vigilant had a known 1º gyrocompass error. Despite the use of the word ‘Course’, the relevant record appears to us to be of pre-departure checks with the vessel alongside in Gosport. On that reading, she was identified to be aligned 195º true but with gyrocompass showing 196º. Conclusion 144. Principally because of the strength of the respondent’s technical case through Mr Franks’ evidence, as strongly corroborated by Green’s evidence, and the lack of credibility of the appellants’ technical case through Professor Stupples, but further reinforced by the other aspects of the evidence to which we have just referred, our conclusion is that there is no credible case that the yellow line for the Oriane , plotting a course made good from the ARPA data without applying any correction, might be preferred to the congruent course made good lines plotted from the AIS data for the Oriane (the green and black lines, and the red line either side of the 11-minute QPS data gap) and from the ARPA data, corrected for the error that on analysis was we think plainly present (the purple line). 145. On that basis, we agree with the simple, primary submission of Ms Heer for the respondent, namely that nothing has been put before this court, whether by way of new evidence, reconsideration of old evidence, or argument, that makes any material change favourable to the applicants compared to the case against them as presented to the jury. In fact, as we have noted, the ECDIS data, FleetMon data and drift analysis, being the material not available in the court below, both support and substantially improve the prosecution case for the propositions that (a) AIS-based positional data for the Oriane was and is accurate and reliable, and (b) the Galwad therefore can be seen to have put herself in just the right place at just the right time, and to have manoeuvred in just the right way, for coopering items dropped from the stern of the Oriane as she passed. Those propositions are only further supported, on a fair reading of it, by the Operation Disorient material that was not used by the defence at trial for understandable tactical reasons. Disposal 146. Under s.23(1) (c) of the Criminal Appeal Act 1968 , we have power to receive any evidence not adduced in the Crown Court if we think it “ necessary or expedient in the interests of justice ”. The jurisdiction is not confined to evidence the defence reasonably could not have adduced at trial, but extends in principle to evidence available to the defence but which they chose not to use. Whether the interests of justice demand or render it expedient to receive such evidence, i.e. to allow such a choice to be revisited, will require very careful scrutiny, but it does not go to the existence of the power. 147. The principle was stated in these terms by Lord Judge CJ in R v Erskine; Williams [2009] 2 Cr App R 29 at [39]: “ Virtually by definition, the decision whether to admit fresh evidence is case and fact specific. The discretion to receive fresh evidence is a wide one focusing on the interests of justice. The considerations listed in (2)(a)-(d) are neither exhaustive nor conclusive, but they require specific attention. The fact that the issue to which the fresh evidence relates was not raised at trial does not automatically preclude its reception. However, it is well understood that, save exceptionally, if the defendant is allowed to advance on appeal a defence and/or evidence which could and should have been put but were not put before the jury, our trial process would be subverted. Therefore if they were not deployed when they were available to be deployed, or the issues could have been but were not raised at trial, it is clear from the statutory structure, as explained in the authorities, that unless a reasonable and persuasive explanation for one or other of these omissions is offered, it is highly unlikely that the “interests of justice” test will be satisfied. ” 148. The reference to the considerations listed in (2)(a)-(d) is to s.23(2) of the 1968 Act , requiring the court, in considering whether to receive evidence pursuant to s.23(1) , to “ have regard in particular to – (a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing an appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings. ” 149. As regards the ECDIS data, FleetMon data and drift analysis, there is the reasonable explanation for its not being adduced in evidence in the Crown Court that it was not available to the defence ( s.23(2) (d)); and there is no difficulty over its putative admissibility ( s.23(2) (c)) on the issue that, were leave to appeal granted, would be an issue on appeal, namely the track of the Oriane and whether the Galwad was close enough for coopering to be possible. Nor is there any difficulty over whether that evidence, so far as it goes , appears to be capable of belief ( s.23(2) (a)). In that regard, we emphasise for the ECDIS ARPA data that it only purports to be a record of what the Vigilant ’s ARPA system recorded at the time for the position of targets, and there is no reason whatever to doubt its reliability as such. The contentious question has been what the reliable record of what the Vigilant ’s ARPA system recorded tells one as to the actual position of the Oriane from time to time whilst under surveillance by the Vigilant . 150. On that contentious question, we do not regard the evidence of Mr Phillips as properly qualified to be admissible, and we do not regard the evidence of Professor Stupples as credible. We find the evidence of Mr Franks to be properly qualified, credible and persuasive. 151. In the light of our conclusion on the question of the yellow line (paragraph 144-145 above), it does not appear to us that any of the evidence now relied on that was not adduced in the Crown Court affords the applicants any arguable ground of appeal. 152. As regards the material that was available at trial but not used, there is the reasonable explanation for its non-use at trial ( s.23(2) (d)) that it only served to assist the prosecution on a point that was not in issue, and was for other reasons dangerous for the defence to deploy. It is credible evidence that would be admissible on the issue of the Oriane ’s path, were that raised as an issue on appeal. However, it does not appear to us that it affords the applicants any arguable ground of appeal. On the contrary, it would only improve the case against the Galwad , and therefore against the applicants, as compared to the case that was put to the jury, and there is no basis for proposing that justice demands the tactical decision not to deploy the material at trial to be reconsidered. 153. Stepping back, whether by reference to the material that the defence did not have at trial, or by reference to the revisiting of material that was available to the extent that has been proposed, or a combination of the two, there is no arguable basis for the proposition that a better case might be put to a jury now, that the Galwad did not or might not have come close enough to the Oriane at the material time for coopering to be a possibility, than could have been put at trial. No such case was put at trial because the point was not in issue. When subject to critical scrutiny, there is nothing in the submissions advanced on behalf of the applicants amounting to a reason why a credible challenge on that point could now be advanced that was not advanced below. There is no reason in this case why exceptionally it might then be in the interests of justice to receive the new evidence. 154. The applications under s.23 of the 1968 Act , so far as they concern Grounds 1 and 3, are refused; and leave to appeal out of time on Grounds 1 and 3 is also refused. Ground 2 155. Grounds 2 and 4 both concern the issue whether those on board the Galwad were responsible for jettisoning the drugs in Freshwater Bay. Indeed in his reply submissions, Mr Bennathan QC said that Ground 2 was better seen as an aspect of Ground 4. As we have already noted, Ground 2 concerns another vessel disclosed by the Vigilant’s ECDIS data, designated as radar target A50 on the data. The experts agreed that this could be a high speed small craft such as a RHIB. The applicants’ case was that this was either another suspect vessel or a law enforcement RHIB which then went on to check Freshwater Bay after the Galwad had passed through. A50 last appears on the ECDIS data at about 18.59 on 30 May 2010, travelling at about 46.5 knots in the general direction of Freshwater Bay, although it was lost on the radar before it reached the Bay. It is to be noted, therefore, that there is no evidence that A50 went into Freshwater Bay as opposed to moving in that general direction. The Galwad had left the Bay area at about 18.00. 156. The applicants’ argument was that, if this RHIB was a law enforcement vessel checking the Bay after the Galwad had passed through, this would profoundly undermine the suggestion that the Galwad had deposited the drugs. It is submitted that, if a law enforcement vessel was on surveillance in the Bay so soon after the Galwad had allegedly deposited the drugs, those on board would inevitably have seen any drugs which had been deposited. 157. The difficulty with this argument is that, as Ms Heer pointed out, there is absolutely no evidence whatsoever of any law enforcement vessel other than Vigilant being in the vicinity at the relevant time. The Vigilant’s own RHIB was not deployed until much later, at about 21.00 as shown in her deck log entry for that time: “Launch RHIB” . This was borne out by the Bonfield Log where an entry at 20.35 reads: “DR arranges for the RIB [sic] from the cutter to be despatched to Yarmouth harbour” . Mr Bennathan QC suggested that the Court should consider the evidence that there was no other law enforcement vessel in the vicinity with caution because there was some confusion about the presence of law enforcement planes, evidently a reference to the applicants’ case on Ground 4. However, there is nothing in the material before the Court that even begins to suggest that A50 was a law enforcement vessel. 158. The applicants’ alternative case is that this was another suspect vessel. However, that is pure speculation. It does not seem to have been of interest to those on board the Vigilant , despite A50 having passed close to the Vigilant , since the Vigilant did not continue to observe the RHIB, if that is what it was, instead proceeding to Yarmouth. Furthermore, in any event, as Ms Heer submitted, the evidence at trial was that, after the Galwad left Freshwater Bay, the Bay was not kept under surveillance until the drugs were found by Mr Hutchinson the following morning. There was evidence of other vessels being in the vicinity, so that the jury was made aware that during that period when the Bay was not under surveillance, another vessel could have deposited the drugs. This was an argument which was deployed by the defence at trial, so that the issue was fully litigated. The jury must have rejected the suggestion. 159. We consider that, even if the evidence of the high speed small boat shown on the ECDIS data had been available to the jury, it would not have had any material impact on their deliberations. As Ms Heer pointed out, they would have been considering this additional piece of evidence in the context of the other evidence, which although circumstantial, strongly supported the prosecution case that it was the Galwad which deposited the drugs in Freshwater Bay. 160. In particular, as set out at paragraph 21 above the Olex data of the Galwad’s movements in the Bay was consistent with the observation evidence of items being jettisoned from the vessel into the sea and with the Galwad having jettisoned the rucksacks or holdalls close to where they were found the following morning. Furthermore, Green lied about this in interview, denying that anything had been thrown overboard, although he later accepted at trial that items had been thrown overboard as observed by DC Jeans and DC Dunne, whilst contending that these were rubbish and latrine bags, an explanation the jury rejected. There is also the evidence that the rucksacks or holdalls of drugs were tied together in the same manner as lobster pots, supporting the prosecution case that whoever tied them together had some experience of lobster fishing. 161. Overall, we do not consider that the evidence about A50, although not available at trial through no fault of the applicants, affords the applicants with any arguable ground of appeal. Ground 4 162. As we set out in summarising this Ground at paragraph 40(4) above, the applicants rely upon a first draft statement of Mr Whittall in 2013 as suggesting the possibility that the UKBA surveillance aircraft left Bournemouth Airport up to twenty minutes earlier than recorded in the aerial surveillance log, so that this may have been the aircraft seen on the Vigilant radar flying over Freshwater Bay at 18.02, minutes after the Galwad had allegedly deposited the drugs in the Bay. It is submitted that its failure to notice the drugs in the sea casts serious doubt on the prosecution case that the Galwad deposited them. The applicants rely upon the evidence of Professor Stupples that if the aircraft took off at about 17.40 that would allow time for it to be in the location over Freshwater Bay where the radar track starts at 18.02. Professor Stupples also expressed the opinion that those on board the aircraft would have been likely to see the drugs deposited in the sea if they had been by that stage. 163. In our judgment, the starting point in any consideration of the evidence is the aerial surveillance report or log completed by those on board the aircraft, which is contemporaneous evidence. That shows the take-off time from Bournemouth Airport as 18.00. It also contains a record of the weather recorded at 17.45 which it seems to us is likely to have been filled in whilst the aircraft was on the ground before take-off. The other relevant entries are as follows: “17.55 New Flash Card removed from packaging and placed in reorder (No number on card) 18.08 [Position] The Needles Potter SU116” 164. As we have noted at paragraph 105 above, SU 116 is the call-sign of the Galwad and “Potter” seems to be a reference to the vessel being a lobster-fishing boat, but at all events, those entries are consistent with the aircraft crew having been tasked with finding the Galwad which Mr Whittall confirmed in his evidence. There are then entries in the log showing that there were problems with camera recording, but recording seems to have started at about 18.43. There is nothing in the log to suggest that the aircraft flew over Freshwater Bay and Mr Whittall’s original statement of 15 June 2010, some two weeks later, does not mention having done so. 165. What Mr Bennathan QC relies upon is the draft statement of Mr Whittall prepared by the IPCC in 2013. The relevant section reads: “Later that same day we were tasked by UKBA to go to a specific location and identify the same fishing vessel. In my previous statement I stated I unwrapped a new compact card and placed it in the recorder at 17.55. I can say that we took off no more than fifteen minutes prior to this. We could not fly before this due to flying time restrictions. [Andy could you briefly explain the flying time restrictions here] It took us a couple of minutes to find the boat and we flew straight from our base to the location. The boat was not right at the Needles. It was a little further to the East when in spotted it at 18.08. 166. The words in square brackets, evidently a query raised by the drafter of the statement, demonstrate that this was a draft statement and, in any event, it is not signed. There is then a further statement, which, although also unsigned, is clearly later and may be in a final form. The sentences beginning “I can say” and “We could not fly” together with the query in square brackets have been removed so that the relevant section reads: “Later that same day we were tasked by UKBA to go to a specific location and identify the same fishing vessel. In my previous statement I stated I unwrapped a new compact card and placed it in the recorder at 17.55. From getting into the area it only took us a couple of minutes to find the fishing vessel. It was not quite at the Needles, but was a little further to the East when I spotted it at 18.08. 167. As to why the sentences in the earlier draft were deleted, we do not regard this as in any sense a matter of concern, contrary to what was suggested by Mr Bennathan QC and Ms Timan in their Further Note of 29 January 2021. It seems likely that when the issue about flying time restrictions was clarified with Mr Whittall, he was not prepared to say the aircraft had taken off at about 17.40 as the first draft was suggesting, which would in any event have been inconsistent with the contemporaneous entry in the log which gave a take-off time of 18.00. Alternatively, it is possible he could not remember when the aircraft took off, in which case the best evidence as to the time of take-off would remain the contemporaneous evidence in the log. 168. For the applicants’ case that the aircraft spotted on the radar at 18.02 flying over Freshwater Bay to have any force, they would have to be able to say that the aircraft took off sufficiently before 18.00 to get from Bournemouth Airport to Freshwater Bay by 18.02. That would involve establishing that the log had been completed incorrectly. That might well be arguable if Mr Whittall had signed a statement saying that the aircraft took off some 15 minutes before he loaded the new compact flash card, but he did not sign such a statement and the fact that the relevant passages have been removed from the second statement suggests that either he was not prepared to say what had been in the first draft or he could not remember the time. 169. In our judgment, all that the applicants are left with on the material before the Court is that someone who drafted a statement for Mr Whittall thought the aircraft might have left at 17.40, but Mr Whittall was either not prepared to say that or could not remember. Either way, the contemporaneous evidence in the log of a take-off time of 18.00 is the best evidence available. In the circumstances, we do not consider it arguable that the aircraft shown on the radar flying over Freshwater Bay at 18.02 was the UKBA aircraft. The applicants’ case that it was is speculation, unsupported by the contemporaneous evidence of the aircraft log. 170. However, even if it were arguable that this was the aircraft seen on the radar flying over the Bay at 18.02, we do not consider that would cast serious doubt on the prosecution case that it was the Galwad which had deposited the drugs. As Ms Heer pointed out, it is important to remember that the aircraft was tasked with finding the Galwad and keeping her under surveillance. When the aircraft crew located the vessel, she had left the Bay and was near the Needles. Neither Cdr. Bonfield nor those in the aircraft knew that the Galwad had deposited the drugs, the focus was on finding her, and that was the aircraft’s assigned task. In the circumstances, even if the aircraft flew over the Bay, a failure to see the drugs is not particularly surprising. The opinion of Professor Stupples that those on board the aircraft would have been likely to see the drugs deposited in the sea is of little if any value, as we did not regard him as a reliable witness, for the reasons we have given in relation to Grounds 1 and 3, and, in any event, this is not a matter for expert evidence. 171. Yet further, even if it were arguable that the aircraft flew over the Bay minutes after the Galwad left and failed to spot the drugs, that would be only one piece of evidence which the jury would consider in the context of the other evidence. As we summarised at paragraph 160 above, there is strong, albeit circumstantial, evidence supporting the prosecution case that it was the Galwad which deposited the drugs in the Bay. 172. Moreover, the context in which any argument that the UKBA aircraft flew over the Bay and failed to spot the drugs would fall to be considered by the jury would include all the evidence available in relation to the ECDIS data. Ground 4 cannot be considered in isolation. For the reasons we have set out in detail in relation to Grounds 1 and 3, the evidence now available in relation to the course of the Oriane considerably strengthens the prosecution case against these applicants. In all the circumstances, we do not consider that the evidence now available in relation to Ground 4 affords the applicants with any arguable ground of appeal. Overall conclusion 173. Standing back and looking at all the evidence available at trial as well as the evidence now available, whilst the evidence is circumstantial, this was as the CCRC concluded a “compelling prosecution case of conspiracy to import cocaine”. The Grounds of Appeal do not begin individually or collectively to cast doubt on the safety of these applicants’ convictions. The applications for leave to appeal conviction are accordingly refused, as are the applications for an extension of time and to adduce fresh evidence. R v Beere & Payne Appendix 1 R v Beere & Payne Appendix 2 R v Beere & Payne Appendix 3 R v Beere & Payne Appendix 4

```yaml citation: '[2021] EWCA Crim 432' date: '2021-03-25' judges: - HIS HONOUR JUDGE P DODGSON - SIR JULIAN FLAUX - MR JUSTICE ANDREW BAKER - MR JUSTICE CALVER ```

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 Neutral Citation No. [2022] EWCA Crim 381 CASE Nos 202101135/B1 & 202103024/B1 Royal Courts of Justice Strand London WC2A 2LL Wednesday 9 March 2022 Before: LORD JUSTICE WARBY MR JUSTICE JEREMY BAKER THE RECORDER OF RICHMOND UPON THAMES HIS HONOUR JUDGE LODDER QC (Sitting as a Judge of the CACD) REGINA V ADIQANI MAHAMUD __________ 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 GARDINER appeared on behalf of the Applicant _________ A P P R O V E D J U D G M E N T MR JUSTICE JEREMY BAKER : 1. On 23 March 2021 in the Crown Court at Harrow, Abdiqani Mahamud was convicted of two counts of possessing a firearm with intent to endanger life, contrary to section 16 of the Firearms Act 1968, two counts of possessing ammunition with intent to endanger life, one count of possessing a bladed article and a count alleging a conspiracy to rob. 2. On 26 August 2021 the trial judge sentenced Abdiqani Mahamud to concurrent terms of imprisonment of 17 years for the firearms offences, 12 years for the ammunition offences, 16 months for the bladed article and 15 years for the conspiracy to rob. He had previously been convicted on another indictment of two offences of possessing articles for use in fraud in respect of which he was sentenced to concurrent terms of imprisonment of 20 months. He had also pleaded guilty to two conspiracies to supply drugs, one in respect of class A drugs (heroin and cocaine) and the other in respect of class B drugs, in respect of which he was sentenced to terms of imprisonment of five years and four years respectively. Whilst the latter term was ordered to run concurrently, the former term was ordered to run consecutively, resulting in a total sentence for the three indictments of 22 years' imprisonment. 3. There were four co-accused who were also convicted of the same counts on the firearms indictment and who received sentences in respect of those offences totalling 16 years' imprisonment in the case of Abubakar Mohamed, 16 years' imprisonment in the case of Mohammed Abooke, 16 years imprisonment in the case of Mohammed Ali and 11 years' imprisonment in the case of Muthir Nuureyn. 4. Whilst Abubakar Mohamed's application to renew his application for permission to appeal against his sentence following refusal by the single judge has been adjourned, the applications by the remaining accused for permission to appeal against their sentences have not been renewed following refusal by the single judge. 5. Abdiqani Mahamud seeks an extension of time (12 weeks) in which to renew his application for permission to appeal against conviction. He also seeks to renew his applications for permission to appeal against sentence, after refusal by the single judge. The offences 6. The prosecution's case on the firearms indictment was that the applicant, together with his four co-accused, conspired to carry out an armed robbery at a block of flats in North London where it was believed a large stash of class A drugs and cash was located. 7. To this end, a series of reconnaissance trips were made by various members of the conspiracy, who were based in the East End of London, to the block of flats in North London situated at Arthur Court in Edgware. These trips being identified by the police as a result of a combination of ANPR cameras, cell site mapping and CCTV footage. 8. The first trip which was identified was on 31 March 2020 which showed that the applicant and two of his co-accused travel to Edgware where the applicant and one of his co-accused remained for a period of about two hours whilst the third accused Nuureyn (who had driven them) returned from whence they came. 9. On the following day, 1 April 2020, Nuureyn's vehicle was again tracked to Edgware, this in time in convoy with a second vehicle. The applicant was seen to gain entry to the block of flats by following one of the residents through the security doors. The applicant was seen to be wearing overalls, gloves, a hat and a facemask at the time. He remained inside for a period of about an hour and a half. 10. On the next day, 2 April 2020, Nuureyn's vehicle again travelled to Edgware and parked up outside a nearby row of shops. On this occasion all five accused, including the applicant, were present in the vehicle. The applicant together with one of his co-accused alighted the vehicle and was seen to try to gain entry to the block of flats whilst dressed in facemasks, gloves and hooded tops. When their attempts proved unsuccessful, they returned to the waiting vehicle, following which another of the accused sought to gain entry to the flats. When this attempt also proved unsuccessful the vehicle was driven away from the area before being stopped by the police. 11. Inside the vehicle the police found secreted under the bonnet two firearms, namely a Skorpion semi-automatic pistol, and a Baikal self-loading pistol and silencer, together with ammunition compatible with being fired in these weapons and a large knife. Two rolls of duct tape and a Balaclava were also found within the vehicle, whilst all of the accused (including the applicant) were wearing masks and gloves. 12. Following their arrest, the accused were released under investigation and a few days later on 6 April 2020 the applicant was back in Edgware near the block of flats for a period of over an hour. Shortly after he left, a car pulled up outside the block of flats and a male was seen to emerge from the premises carrying a bag and getting into the vehicle which was driven off. However, when the police stopped the vehicle shortly afterwards it was found to contain two individuals, one of whom had recently paid the rent on one of the flats, together with 14 kilos of cocaine and about £191,000 in cash in a bag. 13. Following his re-arrest on 8 April 2020, whilst driving the other motor vehicle which had been seen travelling in convoy on 1 April, the applicant made no comment in the course of his interviews with the police. The trial 14. Although the applicant did not give evidence at his trial, his defence amounted to a denial that there was any conspiracy to rob anyone at the block of flats and a denial of any knowledge of any weaponry in the vehicle in which he and his co-accused were travelling on 2 April. 15. In the course of the trial the prosecution sought to admit evidence of the two conspiracies to supply drugs to which the applicant had previously pleaded guilty on a separate indictment. The prosecution submitted that the evidence was relevant to support the existence of the conspiracy to rob and the applicant's part in it, by reason of the fact that he had knowledge of and dealt in class A drugs, which was contended to be the target of the conspiracy to rob. 16. As such the prosecution submitted that the evidence was admissible either because it was relevant evidence which had to do with the facts of the conspiracy to rob and was therefore not bad character evidence under section 98(a) of the Criminal Justice Act 2003 or, in the alternative, that it was admissible as bad character evidence under section 101(1)(d) as it was relevant to an important matter in issue between the prosecution and the defence. 17. Those representing the applicant argued that the evidence of his pleas to the conspiracies to supply controlled drugs was bad character evidence and objected to its admissibility on the basis that it was not relevant to an important issue in the case. In that regard it was argued that the fact that the applicant had previously conspired to supply controlled drugs was not capable of supporting the allegation that he was involved in a conspiracy to commit an offence of a different nature, namely robbery. It was pointed out that the conspiracy to supply controlled drugs was at a completely different location and involved street dealing with no evidence of violence being deployed. It was submitted that the applicant had not denied being interested in drugs, a matter about which he had not been questioned by the police in his interviews. In any event, even if the evidence was sufficiently relevant, it was submitted that it should be excluded as being unfair under section 101(3). In this regard it was pointed out that previous drug convictions relating to some of the other accused had not been sought to be admitted by the prosecution. 18. In the event, the judge ruled the evidence of the applicant's pleas to the drugs conspiracies to be admissible under section 101(1)(d) and that its admission before the jury was not unfair. Thereafter, in the course of his summing-up, he provided the jury with legal directions on this topic, in the following terms: " Now why have you heard about these other things? Well regarding Mr Mohamud's drugs conviction, the Crown say it is potentially relevant to the current case because it shows an interest in Class A drugs recently before the events in this case because it went up to March 202 and a familiarity with the world of Class A drugs dealing, which, together with the other circumstances in evidence, supports the inference that he was interested in Arthur Court because he wanted to steal Class A drugs, by force if necessary, which he believed to be at that address. The Defence point out or will be pointing out, I suspect - because I have had an opportunity to discuss these directions with counsel - that he pleaded guilty to that drugs matter, whereas he contests these and the Defence say there is a substantial difference between drugs dealing and armed robbery. The Defence also point out that that previous case concerned street supply. You should consider those points too in weighing up the relevance of that conviction." Grounds of appeal against conviction 19. The judge's decision to admit the evidence relating to the applicant's pleas of guilty to the conspiracies to supply controlled drugs is subject to criticism on behalf of the applicant, as are the terms of the consequent legal direction to the jury which forms the basis of the grounds of appeal against his conviction, the details of which largely rehearse the submissions made to the trial judge which sought its exclusion. Discussion 20. It is correct that the circumstances giving rise to the applicant's involvement in the drugs conspiracies did not involve violence, either on his or his co-conspirator's part, and that the type of drugs supply was street dealing in a different area of London, namely Walthamstow. Moreover, it was not in operation at the time when the events surrounding the property in Edgware took place. However, not only had the drugs conspiracies come to an end on 4 March 2020, only four weeks prior to the latter events taking place, but they clearly established that the applicant was not only familiar with controlled drugs but had until very recently been involved in the unlawful supply of class A drugs, which was the alleged target of the conspiracy to rob. 21. That being so, we are satisfied that given the nature of the applicant's defence, which involved a denial of the existence of any agreement to rob those within the block of flats of a large quantity of class A drugs, his recent involvement in a conspiracy to supply the same type of items was relevant and admissible evidence as it provided support for the prosecution's case that the applicant was not present at the block of flats for some innocent purpose but in order to rob those within the property of a large quantity of class A drugs, being the self-same type of items in which he had been dealing only shortly before his visit to the property whilst disguised and in a motor vehicle with firearms and ammunition. Indeed, in helpful oral arguments this morning Mr Gardiner conceded that an individual who had knowledge and experience of the class A drugs trade was more likely to be enabled to know how to dispose of 14 kilos of cocaine than someone without such knowledge and experience. 22. The potential relevance of this coincidence of occurrences is essentially what the judge directed the jury to consider, whilst at the same time pointing out the defence arguments in relation to this issue. In these circumstances, we are satisfied that the judge was correct to deal with the question of the admissibility of the evidence under section 101(1)(d) of the 2003 Act and that not only was it relevant to an important matter between the applicant and the prosecution, namely the existence of the conspiracy and the applicant's involvement within the conspiracy, but that no unfairness arose from its admission in the trial. In this regard the fact that some of his co-accused also had previous convictions for drug offences which the prosecution did not seek to place before the jury was not to the point. Indeed, it has not been pursued this morning in oral argument and in any event it was explained by the fact that their previous convictions were of some comparative age. Conclusion 23. In these circumstances, we agree with the views of the single judge that there are no arguable grounds of appeal affecting the safety of the applicant's convictions on the firearms indictment in relation to which we take the view that the prosecution had a strong evidential case against the applicant and his co-accused, and therefore refuse the extension of time. Sentence 24. In so far as the applicant is concerned, he is 31 years of age, the father of a young child and has previous convictions for offences including assault, burglary and possession of an offensive weapon (albeit the latter offence was of some age). 25. At the conclusion of the trial, the judge determined that the offences of possession of a firearm with intent to endanger life were Category 2A offences within the relevant sentencing guidelines, such that the appropriate starting point was one of 14 years' custody with a category range of between 11 and 17 years. The judge stated that he would take these offences as the lead offences and incorporate within the sentences for these offences the culpability involved in the remaining offences on the firearms indictment, including conspiracy to rob, together with that involved in the fraud indictment which involved the applicant travelling in convoy with another vehicle which contained a total of 195,000 counterfeit Euro bank notes on 8 April 2020. 26. In relation to the drugs conspiracies, the judge agreed with the defence submission that these were Category 2 offences in relation to which the applicant had a significant role such that the class A related offence had an appropriate starting point of eight years' custody with a category range of between six-and-a-half and 10 years. He stated that he would impose a consecutive sentence in relation to these offences but reduced the sentences in relation to them, in order to take into account both the principle of totality and the reduction of 25 per cent to reflect the timing of the applicant's pleas of guilty. Grounds of appeal against sentence 27. On behalf of the applicant, it is submitted that not only is the overall sentence manifestly excessive but that the judge wrongly categorised the firearms offences within the sentencing guidelines and failed to sufficiently take into account the principle of totality in relation to the drugs indictment. Additionally, it is submitted the judge should have assessed the sentence for the conspiracy to rob in accordance with the sentencing guidelines for robberies of dwellings which would have reduced the concurrent sentences imposed in relation to that offence. Discussion 28. In our view, the judge having had the benefit of hearing all the evidence in the trial was in the best position to determine the appropriate level of culpability and harm involved in the firearm offences. In any event, and having considered the position for ourselves, we agree with his determination that these were Category 2A offences; culpability A due to the significant planning which was involved, together with harm 2 due to the high risk of death of severe physical or psychological harm. Moreover, not only was there more than one firearm involved, but as the judge pointed out these offences were clearly part of organised criminal gang activity. In our judgment, these features alone would have justified a period towards the upper end of the category range, to which it was necessary to take into account the additional culpability involved in the conspiracy to rob and the separate fraud offences. 29. To the extent that criticism is made of the judge's imposition of a concurrent term of 15 years in relation to conspiracy to rob, we consider that this is unfounded and remind ourselves that even under the guidelines for robbery in a dwelling this term was justified as this would have been a Category 1A offence with an appropriate starting point of 13 years with a category range of between 10 and 16 years; culpability A due to the intention to produce a firearm to threaten harm and harm 1 because of the very high value goods which were targeted. 30. Finally, in relation to the drugs indictment and despite the applicant's basis of plea which was to the effect that he had not been involved at the inception of the conspiracy and thereafter only played a limited managerial role, in our judgment the judge's determination that a consecutive term of five years' custody was justified in relation to the offence involving class A drugs. In this regard, even if, as submitted on behalf of the applicant, the judge had taken the appropriate starting point of eight years as the notional post-trial sentence for a Category 2A offence, in which the applicant had played a significant role, in our judgment reducing this by 25 per cent to reflect the timing of the applicant's pleas of guilty and still further to achieve a sentence of five years, adequately took into account the principle of totality. Conclusion 31. In these circumstances, we agree with the single judge that there are no arguable grounds that the sentence imposed on the applicant was either manifestly excessive or wrong in principle. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2022] EWCA Crim 381' date: '2022-03-09' judges: - LORD JUSTICE WARBY - MR JUSTICE JEREMY BAKER - HIS HONOUR JUDGE LODDER 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: [2007] EWCA Crim 1249 Case No: 200602233 B4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT His Honour Judge Moss Q.C. T20057511/7362/0086 Royal Courts of Justice Strand, London, WC2A 2LL Date: 25/05/2007 Before : LORD JUSTICE MOORE-BICK MR JUSTICE DAVID CLARKE and MRS JUSTICE SWIFT DBE - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - JERRY STEPHENS and SANDRA MUJURU Appellants - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Ltd A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7421 4040 Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr. G. Ross for Jerry Stephens Mr. Brendan Finucane Q.C. for Sandra Mujuru Mr. David Fisher Q.C. and Mr. Hugh Davies for the Crown Hearing dates : 26 th April 2007 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Moore-Bick : 1. The appellants in this case were charged on an indictment containing 15 counts. Those that are of particular relevance to this appeal related to injuries caused by the appellant Stephens, to a 4½ month old child, Ayesha, the daughter of his then partner, the appellant Sandra Mujuru. Although the child bore the surname Stephens, she was in fact Miss Mujuru’s child by a previous partner and unrelated to Stephens himself. Stephens had a son, Marcus, by a former partner, Miss Susan Muthoni. Marcus lived with his mother, but Stephens had supervised contact with him through the Social Services. Marcus and his mother lived within easy travelling distance of Stephens and Miss Mujuru. 2. Following their separation there were frequent disputes between Stephens and Miss Muthoni over his access to Marcus in which social workers, health visitors, the police and other agencies became involved. At one stage, Marcus was placed on the child protection register. 3. On three occasions between 11 th and 30th November 2002 Stephens assaulted Marcus causing the child minor injuries. On the first of those occasions he deliberately scratched both of the child’s cheeks, later saying that the wounds had been caused by the baby crying and rubbing its face whilst he was fetching its bottle. On the next occasion Stephens deliberately caused a small bruise and a scratch to the child’s face. This time he said that the baby had fallen off a chair when he had left him alone in order to get some milk. On the third occasion he was found holding Marcus in the bedroom. There was blood coming from the child’s mouth and there was blood on the bedding. Stephens said that the boy had fallen down the stairs and injured his mouth, but when Marcus was examined by a doctor a small healing split on the inside of his upper lip was found which, in the doctor’s view, was typical of the injury caused when an adult feeding a baby with a bottle pushes the bottle into the baby’s mouth with some force. It was, therefore, a classic indication of a non-accidental injury of a kind that would have caused temporary pain and distress to the child lasting for some hours. 4. Between February and April, 2005 Stephens committed a serious assault on Ayesha as a result of which she sustained a spiral fracture of the mid-shaft of the left humerus. Neither Stephens nor Miss Mujuru took any steps to obtain treatment for her, although in the view of the doctors it must have been clear that she was suffering considerable pain as a result of the injury. 5. On 9 th May 2005 Stephens was left alone at home to look after Ayesha when Miss Mujuru went to work. During the afternoon following a number of telephone conversations with a social worker concerning access to Marcus, he went off in a rage to the home of Miss Muthoni where he found her in the kitchen. He attacked her, kicking her on the head and striking her on the head with a frying pan and a vase. Miss Muthoni’s boyfriend, Winston Male, who was also in the house called the police. Miss Muthoni was taken to hospital suffering from a laceration to her right eyelid, bruising to her face and head, lacerations to the back of her head and injuries to her hands. 6. Following the attack Stephens went to Kingston Police Station where he told the police that he wanted to be arrested for beating up and trying to kill his partner. He complained that he had not been allowed to see his son. He was arrested at the police station on a charge of causing grievous bodily harm to Miss Muthoni and while on the way to the hospital to obtain treatment for his own injuries, he told the police that he had left a five-month old baby alone at his girlfriend’s flat. He said that he did not know the address of the flat, but gave the police the name and whereabouts of the baby’s mother which enabled them to trace Miss Mujuru at her place of work. They took her back to the flat where they found Ayesha lying on her back in her cot with her eyes closed, tightly wrapped in a blanket and with a dummy in her mouth. Only her head was visible, and it was impossible for her to move her arms. She appeared to be cold. An ambulance was summoned and Ayesha was taken to hospital where she was pronounced dead. While they were waiting for the ambulance to arrive Miss Mujuru told the police that when she had left home for work at 11.45 a.m. that morning the baby had been fit and well and fast asleep. She confirmed that she had arranged with Stephens that he would look after the baby until she finished work at 7 p.m. 7. The findings of a post mortem examination carried out on Ayesha indicated that she was a well-nourished baby of normal size for her age. She had a healed fracture of the mid-shaft of the left humerus which was about six weeks old. One of the expert medical witnesses said that it could have been caused by gripping the child with considerable force in the region of the left elbow and forearm, but would not have resulted from mere heavy-handedness or playful handling. She also had an old head injury demonstrated by a thin, old subdural haematoma and multifocal axonal injury in the brain and spinal cord possibly linked with some older haemorrhage in the eyes. There was also a recent head injury indicated by a fresh bruise under the skin of the scalp and severe bilateral fresh retinal and perineural haemorrhages. 8. The Home Office pathologist concluded that Ayesha’s death had been caused by an injury to the brain resulting from a severe blow to the head. The presence of bruising to the scalp indicated a forceful impact against a hard flat surface, as if she had been picked up and swung against it. Death probably occurred almost immediately. He could not say whether the old injuries to the child’s arm, brain and spinal cord had all been caused at the same time or on different occasions. 9. Stephens and Miss Mujuru were jointly indicted on charges arising out of the various matters to which we have referred. On 7 th March 2006 at the Central Criminal Court before His Honour Judge Moss, Q.C. Stephens pleaded guilty to one count of assault occasioning actual bodily harm arising out of an assault on a friend of Miss Muthoni, Richard Jones, (count 3 in the indictment) and one count of cruelty to a person under 16 by wilful neglect arising out of his failure to obtain treatment for Ayesha’s broken arm (count 10). On 11 th April 2006 he was convicted unanimously on a number of other counts, including another count of cruelty to a person under 16 arising out of the assaults on his son, Marcus (count 1), one count of common assault arising out of an assault on Miss Muthoni (count 2), one count of causing grievous bodily harm with intent arising out of the fracture of Ayesha’s arm (count 6), a count of murder arising out of the death of Ayesha (count 13) and one count of wounding with intent to cause grievous bodily harm arising out of the attack on Miss Muthoni on 9 th May 2005 (count 15). He was sentenced to life imprisonment and ordered to serve a minimum period of 20 years (less the period of 11½ months he had spent in custody) and to various periods of imprisonment in respect of the other offences to be served concurrently with the life sentence. 10. On the same occasion Miss Mujuru was convicted unanimously on one count of cruelty to a person under 16 by wilful neglect arising out of her failure to obtain treatment for Ayesha’s broken arm (count 10) and one count of causing or allowing the death of a child (count 12). She was sentenced on each count to a Community Order for 24 months concurrent with conditions of supervision and residence. 11. Miss Mujuru appeals against conviction on count 12 by leave of the Single Judge who gave leave to argue only one of her grounds of appeal, namely, that concerning the correct interpretation of s.5(1) of the Domestic Violence Crime and Victims Act 2004 . She also renews her application for permission to appeal on a second ground relating to the admission in evidence of certain witness statements in respect of which leave was refused. 12. Stephens appeals against sentence by leave of the Single Judge. Miss Mujuru 13. Count 12 of the indictment charged Miss Mujuru with causing or allowing the death of a child contrary to section 5(1) of the Domestic Violence, Crime and Victims Act 2004 , the material parts of which provide as follows: “A person (“D”) is guilty of an offence if— (a) a child or vulnerable adult (“V”) dies as a result of the unlawful act of a person who– (i) was a member of the same household as V, and (ii) had frequent contact with him, (b) D was such a person at the time of that act, (c) at that time there was a significant risk of serious physical harm being caused to V by the unlawful act of such a person, and (d) . . . . . . . . . . (i) D was, or ought to have been, aware of the risk mentioned in paragraph (c), (ii) D failed to take such steps as he could reasonably have been expected to take to protect V from the risk, and (iii) the act occurred in circumstances of the kind that D foresaw or ought to have foreseen.” 14. It was the prosecution case that Stephens was a violent and emotionally volatile person who in the past had harmed both his own son, Marcus, and Ayesha, whether out of frustration or vindictiveness, and who therefore posed a significant risk of causing serious physical harm to Ayesha if left alone with her for any length of time. The prosecution also contended that Miss Mujuru was aware both that he had been responsible for hurting Marcus and that he had caused the fracture of Ayesha’s arm by a deliberate act of some kind. Accordingly, it was said that she was aware that he posed a significant risk of serious physical harm to Ayesha and had failed to take such steps as she could reasonably have been expected to take to prevent it. 15. On 10 th and 11 th May 2005 Miss Mujuru was interviewed by two Family Liaison Officers as a potential witness. In the course of those interviews she described various meetings and conversations she had had with Miss Muthoni at the beginning of April in which Miss Muthoni had told her that Stephens was “not a nice guy” and was “difficult to live with” and in which she implied that he might be difficult with a baby. Later in the same interview she said that Miss Muthoni had told her that Stephens had hurt Marcus many times and that on one occasion he had made him bleed. Miss Mujuru said that when she had asked Stephens about that he told her that the injury had been caused accidentally when he was feeding Marcus. Nonetheless, she accepted that she had become suspicious, despite his denials, and her answers tended to give the impression that she accepted that what Miss Muthoni had told her might be true. Moreover, in the course of the first interview one of the officers had asked her a direct question about Ayesha’s general state of health, to which she replied that she had always been fit and well. She said nothing about any trouble with her arm, or indeed any other injury. 16. In June 2005 statements were prepared for Miss Mujuru on the basis of those two interviews. They were signed and dated 9 th and 30 th June respectively, but by that time the police had already started to suspect her of involvement in Ayesha’s death and she was interviewed again at length under caution on 7 th and 12 th July. Eventually she was arrested on 30 th August and interviewed again. In the course of those later interviews Miss Mujuru admitted that Ayesha had hurt her arm and explained that Stephens had persuaded her not to take the child to hospital. She realised that if she had taken Ayesha to hospital questions might have been asked that might have led to his being taken into custody. She also said, however, that Stephens had told her that the injury to the child’s arm had been caused when he caught her as she was about to roll off the bed. 17. At the trial the prosecution applied to put in evidence Miss Mujuru’s two statements and the transcripts of the interviews in May on which they were based, together with materials relating to the later interviews, for the purpose of showing that for some time prior to Ayesha’s death she had known that Stephens was liable to cause the child serious harm if he was left alone with her for any length of time. The application was opposed by her counsel on the grounds that at the time she gave those interviews she was a vulnerable person who did not have the benefit of legal advice or the support of a responsible adult and that it would therefore be unfair to admit evidence of what she had said insofar as it tended to incriminate her. He therefore asked the judge to exclude it in the exercise of his discretion under sections 76 or 78 of the Police and Criminal Evidence Act 1984 . 18. In his ruling the judge found that at the time of the two interviews in May the police had no reason to suspect Miss Mujuru of being involved in any way in Ayesha’s death. He found that she had been interviewed as a potential witness in an appropriate way and that there had been nothing unfair about the way in which those interviews had been conducted. He therefore declined to exclude evidence of what had been said in the course of them. However, he found that by the time the witness statements were prepared the position had, or should have, changed in that there were by then grounds for suspecting her of involvement in Ayesha’s death. He considered that it was wrong to invite Miss Mujuru to sign witness statements when she was coming under suspicion in relation to the matters to which they referred. Moreover, the judge was concerned that she had not been provided with any disclosure prior to the interviews in July. He considered that the whole of the process following the interviews in May had been unfair and he therefore excluded the remainder of the evidence in the exercise of his discretion under section 78 of the Police and Criminal Evidence Act. 19. Miss Mujuru’s first ground of appeal is that the judge was wrong to admit evidence of the two interviews that took place in May 2005. The single judge refused leave to appeal on this ground and she therefore renews her application before us. 20. Mr. Finucane Q.C. submitted that the admissions made by Miss Mujuru in the course of those interviews amounted to confessions within the meaning of section 76 of the Police and Criminal Evidence Act 1984 . He submitted that at the time her age, the shock following the very recent death of her baby and her relationship with Stephens made her vulnerable and that she did not receive the degree of support to which she was entitled. It would be unfair, ,therefore to allow her answers to be used against her. 21. The critical questions, it seems to us, are whether Miss Mujuru was mentally vulnerable in any relevant sense at the time of the interviews and whether at that stage the police suspected, or should have suspected, that she had been involved in some way in Ayesha’s death. The judge held a voir dire in the course of which he heard evidence from the interviewing officers and psychiatrists called by the prosecution and the defence. He reached the conclusion that Miss Mujuru’s mental condition was not such as to prevent her understanding the significance of what was said to her or of questions she had been asked. Mr. Finucane accepted that she was not mentally vulnerable in the technical sense, but he submitted that she was mentally vulnerable in the ordinary sense of that expression and should have had the support of a sympathetic and responsible adult who, among other things, could have reminded her of her right to obtain legal advice. Her mother, who was present at the interviews, was not on particularly good terms with her and did not therefore adequately fulfil that role. 22. We have no difficulty in accepting that on 10 th and 11 th May Miss Mujuru must have been suffering from a degree of shock and distress, as was no doubt apparent to the interviewing officers who conducted the interviews in a sympathetic manner. However, it was important for the police to obtain such information as she could provide as early as possible in their investigation and we do not think they can be criticised for taking the course they did. The judge considered that the interviews had been conducted entirely appropriately and we agree. We do not think that the police had any reason to think that Miss Mujuru’s mother was unable to provide the degree of support she needed or that the absence of someone who might have been more sympathetic towards her made the process unfair. Mr. Finucane pointed out that a person interviewed as a witness, unlike a suspect, does not have the protection of being cautioned and thus of being reminded of the danger of withholding relevant information. That is true, but a potential witness can be taken to be aware of the importance of answering questions honestly and of not withholding information that he or she considers potentially important. It does not require a formal caution to alert a person to the risks that may arise as a result of failing to do so. 23. As to whether the police had grounds on 10 th or 11 th May for suspecting Miss Mujuru of involvement in Ayesha’s death, it is important to remember that the death had occurred only the previous day at a time when she had apparently been out at work. There was no reason to think that she had been directly involved (as indeed she had not) and at that stage they knew nothing about the broken arm which was only discovered later as a result of the post mortem. Her answer to the question about Ayesha’s state of health must therefore have appeared perfectly innocuous and can have given no reason to think that she might be hiding something. We are satisfied that at the time of these first two interviews the police did not suspect Miss Mujuru of any involvement in Ayesha’s death, nor did they have any reason to do so. It would have been insensitive and wrong for them to have treated her as a suspect and to have cautioned her. 24. The significance of Miss Mujuru’s answers given on 10 th and 11 th May only became apparent at a later date. Mr. Finucane did not seek to argue that they were not relevant and probative; the only question, therefore, is whether it was unfair in all the circumstances to admit them. In our view it was not and the judge was quite right to allow them to be put before the jury. Although those of her answers which tended to incriminate her amounted to confessions within the meaning of the Police and Criminal Evidence Act, they were not obtained by oppression or as a result of anything that might have tended to render them unreliable. The interview process as a whole was conducted fairly and we are therefore satisfied that the judge was quite right not to exclude the evidence under section 78 of the Act . The renewed application for leave to appeal on this ground is therefore refused. 25. At the end of the prosecution case a submission of ‘No case to answer’ was made on behalf of Miss Mujuru on the grounds that there was no evidence of a significant risk of serious physical harm to Ayesha within the meaning of section 5(1) (c) of the Domestic Violence, Crime and Victims Act and no evidence that she was, or ought to have been, aware of any such risk. Mr. Finucane submitted that “significant” in that context bore its ordinary meaning , but the judge expressed the view that it meant simply “more than minimal” and rejected the submission. 26. Prior to the summing up both counsel addressed the judge on the directions to be given to the jury. Mr. Finucane again submitted that they should be directed that a “significant risk” denoted more than a mere possibility of occurrence and carried with it the idea of something noteworthy or of considerable amount or importance, in accordance with the definition in The Oxford English Dictionary . In support of that proposition he relied on the decision in Lang [2005] EWCA Crim 2864 , [2006] 1 W.L.R. 2509 . The prosecution (then, as now, represented by Mr. Fisher Q.C.) appear to have agreed that the word “significant” should be given its natural meaning and to have supported the suggestion that the jury should be directed in accordance with Lang . However, the judge adhered to the view he had previously expressed and told them that the word “significant” in this context meant “more than minimal”. In due course the jury convicted Miss Mujuru. 27. Mr. Finucane submitted that the judge’s direction was wrong and did not reflect the correct meaning of the Act . By directing the jury that the risk was to be regarded as significant if it was more than minimal he had set the threshold too low, thereby leaving it open to them to convict Miss Mujuru on an improper basis. 28. Although he had supported Mr. Finucane’s submission at the trial that the jury should be directed along the lines indicated in Lang , before us Mr. Fisher Q.C. drew attention to one matter in particular which he suggested the court might wish to take into account when deciding whether the judge’s direction was correct, namely, the different legislative context in which the expression is found in this case. In Lang the court was concerned with the construction of sections 225 -229 of the Criminal Justice Act 2003 which provide for the court to pass sentences of imprisonment for public protection and extended sentences of imprisonment on offenders who pose a significant risk to members of the public of serious harm through further offending. Since a sentence of imprisonment for public protection involves imprisonment for an indefinite period, it was obviously desirable for the court to give guidance to sentencing judges in terms which included a reminder of the ordinary meaning of the word “significant”, since, if the threshold were set too low, many more offenders might be sent to prison for an indeterminate period than Parliament had intended. Section 5 of the Domestic Violence, Crime and Victims Act 2004 , on the other hand, is intended to provide protection to children and vulnerable adults who are at risk of suffering serious physical harm at the hands of those with whom they live. It imposes criminal liability not only on those who cause death, but also on members of the same household who were aware of the risk and have failed to take reasonable steps to protect the deceased from it. It can be argued, therefore, that the purpose of the section would be better served by construing the word “significant” in a broader way. 29. It is worth noticing that the court in Lang did not seek to give the word “significant” a meaning other than that which it ordinarily bears. It merely drew the attention of judges to its presence and to the ordinary meaning of the word as found in one of the most authoritative dictionaries of the English language. The purpose of doing so was simply to ensure that the presence of the word was not overlooked or its force minimised. In our view the word “significant” is an ordinary English word in general use and we see no reason to think that Parliament intended it to bear anything other than its normal meaning in the section now under consideration. In Brutus v Cozens [1973] A.C. 854 a protester interrupted a match at Wimbledon by stepping on to the court, blowing a whistle and throwing leaflets. Others then followed him carrying banners and placards and play was brought to a halt. The main protester was prosecuted under section 5 of the Public Order Act 1936 for using insulting behaviour likely to cause a breach of the peace. The magistrates dismissed the charge on the grounds that his behaviour was not insulting, but the Divisional Court held that any behaviour which affronted others and evidenced a disrespect or contempt for their rights was “insulting” within the meaning of that section. On appeal the House of Lords restored the magistrates’ decision on the grounds that it was a decision of fact as it would have been if a jury were called upon to decide whether a person had used insulting behaviour. Such a decision could only be challenged on the grounds that it was perverse. 30. In his speech Lord Reid observed that the way in which the case had been formulated for the opinion of the court appeared to assume that the meaning of the word “insulting” was a matter of law, but he rejected that view in the following terms at page 861: “In my judgment that is not right. The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the court will determine in other words what that unusual sense is. But here there is in my opinion no question of the word “insulting” being used in any unusual sense. It appears to me, for reasons which I shall give later, to be intended to have its ordinary meaning. It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved. If it is alleged that the tribunal has reached a wrong decision then there can be a question of law but only of a limited character. The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision. Were it otherwise we should reach an impossible position. When considering the meaning of a word one often goes to a dictionary. There one finds other words set out. And if one wants to pursue the matter and find the meaning of those other words the dictionary will give the meaning of those other words in still further words which often include the word for whose meaning one is searching. No doubt the court could act as a dictionary. It could direct the tribunal to take some word or phrase other than the word in the statute and consider whether that word or phrase applied to or covered the facts proved. But we have been warned time and again not to substitute other words for the words of a statute. And there is very good reason for that. Few words have exact synonyms. The overtones are almost always different. Or the court could frame a definition. But then again the tribunal would be left with words to consider. No doubt a statute may contain a definition - which incidentally often creates more problems than it solves - but the purpose of a definition is to limit or modify the ordinary meaning of a word and the court is not entitled to do that. So the question of law in this case must be whether it was unreasonable to hold that the appellant's behavior was not insulting. To that question there could in my view be only one answer - No. ” Similar views were expressed by Lord Morris of Borth-y-Gest, Viscount Dilhorne and Lord Kilbrandon; Lord Diplock agreed. 31. In our view there is nothing in the Domestic Violence, Crime and Victims Act 2004 to suggest that the word “significant” as used in section 5(1) was intended to bear anything other than its ordinary meaning. It is an ordinary English word in common use and we do not think that it is any less intelligible to the average member of a jury than the word “insulting”. There may be room for disagreement in any given case about whether risk of serious physical harm to the deceased was or was not significant and, if it was, whether the defendant was or ought to have been aware of the fact, but the decision remains one of fact for the jury applying their collective understanding of the word “significant”. In our view, therefore, the judge was wrong to tell the jury that it means “more than minimal”; he should not have sought to define it, for the reasons given by Lord Reid in Cozens v Brutus and, if asked, should have told them to give the word its ordinary meaning. 32. However, it does not follow that the conviction must therefore be regarded as unsafe. At the close of the prosecution case there was evidence before the jury capable of supporting a finding that Stephens had killed Ayesha by striking her head against a hard object or surface and that there was a very real risk that he might cause her serious physical harm, either deliberately or as the result of some minor act of violence intended to harm her in a less serious way. There was also evidence before the jury capable of supporting a finding that Miss Mujuru knew that Stephens had broken Ayesha’s arm, or had good reason to think that he might have done so, and that she was, or ought to have been, aware that there was a significant risk that he might deliberately harm Ayesha again. If they made those findings, the jury could go on to find that by leaving Ayesha in his care while she went to work Miss Mujuru failed to take such steps as she could reasonably have been expected to take to protect her. In our view, therefore, the judge was right to reject the submission of ‘No case to answer’ and leave the case to the jury. Moreover, this was not, in our view, a borderline case so far as the nature and magnitude of the risk to Ayesha was concerned. There was powerful evidence that Stephens did represent a considerable risk to the child: not only the broken arm, but also the other injuries discovered at the post mortem and his behaviour towards Marcus. There may have been more room for argument about Miss Mujuru’s awareness of the nature and gravity of that risk, but we do not think that by directing the jury that “significant” meant more than minimal the judge created a real danger of their convicting her when they would not otherwise have done so. We are satisfied in the light of the evidence as a whole that the conviction in this case is safe and that the appeal must be dismissed. Stephens 33. Stephens appeals against the minimum term of 20 years set by the learned judge pursuant to section 269 and Schedule 21 of the Criminal Justice Act 2003 . 34. He is 38 years of age and had no relevant previous convictions. There were psychological and neuropsychological reports before the court indicating that he had mild learning disability and was impulsive and of impaired judgment with poor anger control. He had suffered a head injury in a road traffic accident many years before, following which he had received in-patient psychiatric care. Further neurological examination was recommended. However, the judge proceeded to sentence without further reports and in our view was entitled to do so. It seems to us that nothing in those reports substantially affected the decision on the minimum term to be served. 35. In his sentencing remarks the judge described Stephens as a “self-centred and jealous man with a dangerously short fuse”. He accurately summarised the facts of this series of offences and took the entire history into account in fixing the minimum term. He rightly took a starting-point of 15 years and recognised that the lack of premeditation and the absence of an intention to kill were important mitigating factors. However, he also identified a number of very serious aggravating features and did so in terms which we cannot fault. The most important of these were the very young age of the victim (4½ months) and her consequent vulnerability, the gross breach of trust and the history of violence directed towards her. 36. Mr. Ross submitted that the minimum term of 20 years set by the judge in this case was out of line with sentences passed in other similar cases and he drew our attention in particular to Attorney General’s Reference No. 106 of 2004 (Shahajan Kabir) [2004] EWCA Crim 2751 , [2005] 1 Cr.App.R.(S.) 120 in which a minimum period of 13 years set for the murder of a child aged 10 months was increased to 16 years. He also emphasised the absence of premeditation or of any intention to kill. 37. We recognise that both lack of premeditation and the absence of an intention to kill may often provide considerable mitigation, but, as has been said on many occasions, each case must be considered on its own facts. It is interesting to note that in Kabir the court wondered whether an even higher figure would be appropriate before increasing the minimum term to 16 years in respect of a defendant who, unlike Stephens in this case, did not stand to be sentenced for any related offences. In Peters [2005] EWCA Crim 605 , [2005] 2 Cr.App.R.(S.) 101 this court explained in paragraphs 13-16 of its judgment why an intention to cause grievous bodily harm rather than to kill does not necessarily constitute significant mitigation. It is true that no weapon was used in this case, but the victim was a very young child who was deliberately harmed in a way that caused her death, and in our judgment this element is of little weight in the present case. 38. Schedule 21 of the Criminal Justice Act 2003 , which sets out the general principles to be applied when fixing the minimum period to be served, as well as examples of aggravating and mitigating circumstances, applied to this case by virtue of section 269(5) . The Schedule itself says nothing about the relevance of other offences, but section 269(3) provides that the minimum term is to be set by reference to the seriousness of the offence, or of the combination of the offence and any one or more offences “associated with it”. By virtue of section 305 of the Act the provisions of section 161(1) of the Powers of Criminal Courts (Sentencing) Act 2000 , which defines an “associated offence” as one in respect of which the offender is convicted in the same proceedings or in respect of which he is sentenced at the same time, applied in this case. 39. In the light of the entire sequence of violent offences against Ayesha, Marcus and Miss Muthoni, all of which the judge was required to take into account, we cannot accept the submission that the minimum period set by the judge was manifestly excessive, and the appeal is therefore dismissed.

```yaml citation: '[2007] EWCA Crim 1249' date: '2007-05-25' judges: - LORD JUSTICE MOORE-BICK - MR JUSTICE DAVID CLARKE - 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} ======

Case No: 201304402 B1, 201301935 B1 Neutral Citation Number: [2015] EWCA Crim 1185 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM HHJ John Plumstead, St. Albans Crown Court Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/07/2015 Before : LADY JUSTICE HALLETT DBE Vice President of the Court of Appeal Criminal Division MR JUSTICE HADDON-CAVE and MRS JUSTICE PATTERSON DBE - - - - - - - - - - - - - - - - - - - - - Between : JAMIE McCARTHY Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Ali QC and Mr Rimmer appear privately instructed under the Direct Public Access Procedure for the Appellant Mr S Heptonstall (representing the Crown Prosecution Service ) for the Respondent Hearing dates: 3 and 4 June 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Lady Justice Hallett : Background 1. This is an unusual case in that the applicant pleaded guilty to the offences charged against him, yet the full court has been invited to hear an appeal against both conviction and sentence and to receive evidence from a number of witnesses. 2. The applicant initially pleaded not guilty to offences of wounding with intent to cause grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861 (“ section 18 offence”) and possession of an offensive weapon at a plea and case management hearing (“PCMH”) on 9 July 2012. On the first day of trial, 18 February 2013, before a jury was sworn, he changed his pleas to guilty. A count of affray was added to the Indictment in respect of the co-accused, his mother, and the prosecution indicated that a plea to that count by her would be acceptable. 3. On 15 March 2013 H.H.J. Plumstead sentenced the applicant to a total of 9 years imprisonment: 9 years on the wounding offence and 2 years concurrent on the weapon offence. The co-accused was sentenced to 18 months imprisonment for affray. 4. The applicant was represented throughout by Darryl Ingram solicitors. Apart from instructing counsel (Mr Shaun Wallace), taking a proof of evidence and recording comments on the prosecution witness statements from the applicant, they do not seem to have played much of a part. They claim that the terms of their legal aid certificate did not permit them to attend any Crown Court hearings. If true, this is most unfortunate, for reasons which will become apparent. 5. The applications for extensions of time and leave to appeal sentence have been referred to the Full Court by the single judge. We need not rehearse the reason why the applications were not lodged in time because we are satisfied that, if there is any merit in them, we would grant the necessary extensions. 6. The provisions of s.39 of the Children and Young Persons Act 1933 are engaged in this case because one witness, whom we shall call S, was aged seven at the date of the incident. Nothing should be published which might identify her. Prosecution case 7. On Friday 13 April 2012 the applicant’s mother Tracey McCarthy reported to the police that her house in Borehamwood had been burgled and the contents of the safe, approximately £6,000 in cash and jewellery, stolen. Many of the items were of great sentimental value. The McCarthy family became convinced that they knew who was responsible: Asher Sapsford. 8. The complainant, Lisa Sapsford, is his mother. Over the course of the weekend she became aware from a number of sources that the McCarthys were looking for her son. On the morning of 16 April Mrs McCarthy expressed dismay to the police that they had not yet arrested Asher Sapsford. She referred to the Sapsford family as “scum” and suggested her family would resort to violence. An officer specifically warned her that the family should not take the law into its own hands. The conversation concluded with her saying that the police needed to arrest Asher as soon as possible because if her husband got hold of him there would be trouble. 9. About an hour later the complainant arrived in her car outside the house of a friend. In the back of the car were two young children, S aged 7 and a child of three. The complainant saw Tracey McCarthy knock on the door of her friend’s house and, having heard what was said, wound down the window and asked: “Are you looking for me?” 10. She claims that Mrs McCarthy ran over to the car, with the applicant, shouting “Where’s Asher? Get out of the fucking car.” She leant in through the passenger window and called the complainant a “cunt”. At the same time the applicant was standing behind her and threatening to kill Asher. 11. The applicant pushed his way to the front of the car and lunged through the window. The complainant felt an immediate sharp pain underneath her arm. She looked up and saw the applicant pull back his hand. He was holding a kitchen knife with a twelve inch blade. She shouted out that she had been stabbed. A neighbour saw both the applicant and his mother get into their car. The applicant was angry; he was shouting and waving a knife around in a stabbing motion saying, “You fucking tell Asher that he’s dead”. The car drove off. Police and ambulance attended at 12:30. A knife was found some distance from the scene but it was not established whether or not this was the knife used in the assault. 12. The complainant received injuries that were described by doctors as “superficial”: two lacerations 1 ½ cm long and 3 cm long. The wounds became infected but were treated with antibiotics and healed after eleven days. The psychological consequences were said to be more severe both for the complainant and for S. 13. At 14:30 the co-accused rang the police and told an officer who knew about the incident: “It’s all gone wrong.” She asked: “Where shall I bring him? We need to get out of Borehamwood.” It was agreed that mother and son would attend at Hatfield police station. In expressing concern for the complainant’s welfare Mrs McCarthy said, “I didn’t know he’d go this far.” Both she and her son attended the police station at 17:30 that day. Defence case 14. The proposed defence case, until the change of plea, was that the complainant produced the knife and the applicant acted in protection of his mother. During the ensuing struggle he was able to disarm the complainant. She must have received her injuries as he did so. 15. The applicant signed a Defence Statement on 1 July 2012 and prepared an unsigned Proof of Evidence dated 4 July in which he set out his defence. Mr Wallace had four or five pre-trial conferences with the applicant at the weekend at the home of the applicant’s grandmother (to which he was bailed). Counsel attended casually dressed and without informing his instructing solicitors. No notes were taken and no advices on evidence submitted to solicitors as a result of the conferences. He also conducted re-constructions of the incident without his solicitors being present. The morning of the trial 16. The applicant and his witnesses arrived early at court for a 11.00 hearing, as Mr Wallace had advised them to do. However, they all complain that Mr Wallace himself arrived only minutes before the hearing was due to start. He denies that and insists he arrived in ample time. Whatever time he arrived, it is clear that the judge acceded to defence requests to delay calling the case on until everyone was ready. 17. As to what happened next we have heard the evidence of the applicant, his mother, his aunt Karen Ashton, his grandfather Cecil Ashton and family friend Tracy de Heer. We heard the evidence of Mr Wallace. Somewhat surprisingly no one sought to call Ms Manley who represented the co-accused, but no-one objected to our receiving her advice to her instructing solicitor explaining what happened at trial. Ms Manley’s note 18. Ms Manley’s note is dated 22 February 2014. In it, she explained that counsel for the prosecution approached defence counsel. He indicated he would be unlikely to reduce the charge for the applicant but would advise the Crown Prosecution Service that, if the applicant pleaded guilty to the section 18 offence, they should accept a plea to affray from his mother. 19. A joint conference was then held; present were the accused, their counsel and members of the family. There were about twelve people in a small room. It was thought at the time that a joint conference was possible because there was no conflict between the parties. With the benefit of hindsight, that was unwise given the fate of one defendant might depend on the actions of another. 20. Ms Manley stated “Mr Wallace explained in some detail and at length the state of the evidence in the case. ….I agreed with his objective analysis of the case. …. At all times Mr Wallace emphasised that any decision concerning altering pleas or pursuing the matter to trial was a free decision on the part of the lay clients. They were under no pressure from either him or me and he stated on more than one occasion that as the decision was a momentous one for each of them he did not want them to make any sort of snap decision but wanted them to take time to reflect and think” Ms Manley showed both defendants the Sentencing Council Guidelines. She then saw her lay client alone and advised her fully on the possible defences available to her, on the legal definition of affray and on the fact she may still go to prison. She explained that if Mrs McCarthy pleaded guilty, they would have to proceed on the basis she was guilty. She asked the court for additional time to ensure her lay client understood fully the implications of her decision. When Mrs McCarthy decided to plead guilty to affray Ms Manley ensured her lay client endorsed her brief, in accordance with her professional obligations. Unfortunately, Mr Wallace did not do the same. The applicant’s account 21. The applicant described Mr Wallace’s very relaxed attitude to pre-trial conferences. He would wear casual clothes and pop in sometimes unannounced. He would peck Tracey McCarthy on the cheek and hug the applicant. On occasion he smelled of cannabis and put his legs up on the sofa. At the time the lack of formality left him feeling confident, as did Mr Wallace’s assurances that they had a very good defence. Mr Wallace informed the family that he had had a run of seventeen wins in court and did not intend to end his winning streak. He advised that, if convicted, the applicant would face a sentence of 18-24 months and his mother would not go to prison. There was no suggestion that either of them should plead guilty. 22. The visits included a review of some of the witness statements and attempts at a reconstruction of the incident. Mr Wallace had no papers with him and took no notes. He raised the question of the admissibility of the applicant’s reprimand for affray as a schoolboy and the complainant’s shoplifting convictions. There was also some discussion about S’s evidence. Looking back, the applicant feels that Mr Wallace’s approach failed to prepare him properly for what was to happen at trial. The only time when Mr Wallace suggested there might be problems with the case (namely S’s evidence, his mother’s account to police and his bad character) was on the Saturday morning before trial. 23. On the morning of 18 February Mr Wallace arrived late and gave no explanation. He seemed out of sorts. He told the applicant he needed to see everyone because “it’s not looking good. It’s taken a turn”. By which he explained that S would be giving evidence and she was bound to convince the jury. The chances of getting acquitted were now 30/70. Counsel said that he would not be able to cross-examine the child witness as he would an adult and that the complainant’s bad character would not be admissible as evidence. However, the applicant’s reprimand for an offence of affray would be admissible. He advised that on conviction the applicant would get 6-10 years and his mother 3-6. He informed the applicant there was a deal on the table. He could plead guilty to a lesser offence of section 20 wounding and the prosecution would accept a plea to affray from his mother. He could not recall being advised specifically as to intent and the distinction between section 18 and 20 . He understood he was to plead guilty to a lesser offence and he would not be admitting taking the knife to the scene. If he did not admit taking a knife to the scene he did not admit intending to hurt the complainant. Counsel advised them on the Sentencing Council Definitive Guideline for section 20 offences. If they pleaded, Mrs McCarthy might avoid an immediate prison sentence and his sentence would be in the region of 2-5 years with time deducted for his ‘tag time’ (time on electronically monitored curfew). He was particularly concerned about his mother’s going to prison and the effect upon his young siblings. He asked Mr Wallace if it was one of his relatives affected in this way would he plead guilty and Mr Wallace said he would. 24. Members of the family had differing views as to what he should do. He says he felt rushed, extremely emotional and pressured into changing his plea to guilty to a section 20 offence. He agreed to do so because he trusted his barrister. He was the professional, very intelligent and a television personality. The applicant insisted he never accepted he was guilty or that he had the knife. There was no discussion as to basis of plea, and he did not sign an endorsement of Counsel’s brief. Counsel stood next to him when the pleas were taken. He did as Mr Wallace indicated. When Mr Wallace was asked if the applicant had pleaded to an offence involving intent, he was advised that he had but he was not to worry; the judge and prosecutor knew he did not have the intent. 25. He sent a text message to this effect to his friend Jason. We have a copy. It read: “Took a plea bargain… I took a less charge to Gbh… I’m looking at anything from 2 – 5 years”. 26. Afterwards Mr Wallace told him he would have to accept in his interview with the probation officer that that he had taken the knife with him. This was to show remorse. Mr Wallace provided the whole story of taking the knife with him in case he encountered a hostile reaction from the Sapsford family. 27. The applicant informed the court that had he received a sentence of no more than 5 years as he expected, he would not have appealed. Tracey McCarthy’s account 28. Tracey McCarthy was present at the applicant’s pre-trial meetings with Counsel. She also remarked upon the unusual lack of formality. She raised the possibility with Mr Wallace of obtaining a forensic report on the knife to reveal any fingerprints or DNA but he was not interested and this was not followed up. She also provided background information on her son’s reprimand for affray. His school (where the incident occurred) had accepted subsequently that he had acted in self defence rather than as the aggressor and revoked his expulsion. The school was prepared to co-operate with the defence but no statements were taken from them. 29. She, too, remembers Mr Wallace’s great confidence in the defence and their prospects of success. A guilty plea was never discussed. 30. She gave an account of the conferences on 18 February that is broadly consistent with her son’s account. Mr Wallace was no longer confident of an acquittal and advised there was only a 30: 70 chance of success. He now said the evidence of S was damning and her own account did not help the applicant. The complainant’s character could not be admitted in evidence because she was a victim but the applicant’s reprimand would be admitted because it related to an offence of violence. If convicted of section 18 , the applicant could expect a sentence of 8- 10 years. He wanted the applicant to plead. Mr Wallace advised that if the applicant pleaded guilty to section 20 his sentence would be 2 to 4 years less ‘tag time’ and a reduction for plea. Part of the sentence would be suspended. She had not heard of section 20 before that day. She understood that the distinction between section 18 and 20 came down to whether or not the applicant took the knife to the scene. Section 20 meant he had injured someone but not taken the knife to the scene. 31. She maintained that Mr Wallace would not allow them any additional time to discuss the matter and that he became agitated and defensive as the family became increasingly upset and emotional and debated what the applicant should do. The applicant himself was tearful and stressed. 32. She confirmed with Mr Wallace before her son pleaded guilty that he was pleading to an offence of wounding with no intent and that the applicant was under the impression that he was pleading to an offence involving no intent. When the pleas were taken she and others noticed the reference to intent and having a knife. They asked Mr Wallace what the applicant had pleaded to and he assured them “it was in hand” and not to worry. They, meaning the judge and the prosecutor, knew the applicant had no intent. 33. The family did worry and Karen Ashton rang Mr Wallace a few days later saying the applicant wanted to change his plea. Again Mr Wallace re-assured her. She, too, claims that it was Mr Wallace who told the applicant what to say about taking the knife to the scene. Karen Ashton’s account 34. Karen Ashton suggested instructing Mr Wallace because she grew up with him and was aware of his success at the Bar and on television. She described Mr Wallace arriving at about 11.00 on the morning of the trial. Almost immediately he gathered the whole family and friends present in a small room and began to put immense pressure on her nephew to plead guilty. He said the complainant’s character was not admissible but the applicant’s reprimand was and it would go badly for him. S’s evidence was powerful. Mr Wallace wanted her nephew to admit possessing the knife. Wallace’s advice was that he would get 2 to 4 years rather than 8 to 10 years and his mother would get a suspended sentence rather than 3 to 6 years, if he pleaded guilty to section 20 . She understood this was a lesser offence. None of the family wanted the applicant to plead guilty to anything. Mr Wallace said if he was in the applicant’s shoes he would plead guilty. When he agreed to plead, everyone there understood he was to plead guilty to section 20 . 35. In her written statement to the court she confirmed that Mr Wallace informed the applicant that if he wished to contest the trial he would fight the case for him. After the hearing she asked Wallace if the applicant could change his plea and his advice was that this was not possible. They had to stick to what they had said. Cecil Ashton’s account 36. Cecil Ashton saw Shaun Wallace at one of the pre-court meetings. He, too, remembers assurances that the applicant had a great case and that Mr Wallace intended to make this his eighteenth win in a row. 37. On the day of trial he thought his grandson a nervous wreck before the conference even began. Mr Wallace was late but gave no apology. He wanted the applicant to plead guilty because S’s evidence was likely to convict him. He did not want to cross examine her. The complainant’s character was not admissible and the applicant’s reprimand would make him look bad in the eyes of the jury. He had only a 30 per cent chance of an acquittal. If convicted, the applicant would get 8-10 years and his mother 3-6 years. If he pleaded to section 20 it would be a lesser sentence and his mother would not go to prison. In his written statement, Mr Ashton mentioned that Mr Wallace explained the difference between section 18 and section 20 . Section 20 meant the applicant did not have the necessary intent and did not take the knife. The applicant was guilty to section 20 because she did not stab herself. The applicant and everyone else thought he was being offered a deal to plead guilty to a section 20 offence. He would get 2- 4 years and credit for ‘tag time’. Part of the sentence would be suspended. The pressure for the applicant was unbearable. 38. Afterwards when he asked Mr Wallace about what offences his grandson had pleaded to, Mr Wallace assured him that everything was in hand. Tracey De Heer’s account 39. Tracey de Heer was also at the family conference at court. Mr Wallace said he would not cross examine the child and that Mrs McCarthy’s evidence was not helpful. Things were not looking good. It was 70/30 against Jamie. If he was convicted of section 18 he would get 8-10 years and his mother 4-6. If he pleaded to section 20 he would get a lesser sentence of 2-4 years. The applicant was upset and crying and would have pleaded to any offence to keep his mother out of prison. Both the circumstances and Mr Wallace put pressure on the applicant to plead guilty. Everyone understood he would be pleading to a section 20 offence. She remembered Karen Ashton asking what Mr Wallace would do if it was his mother and his indicating he would accept the deal. 40. Afterwards, Mr Wallace said not to worry about the fact he had pleaded to intent. Other material 41. Other members of the family and friends not called have provided statements as to events at trial that are broadly consistent with the accounts provided by the applicant and the co-accused and broadly consistent with each other. Text message 42. Jason Gillett, a friend of the applicant, has confirmed he received the text from the applicant to which we have referred. Gillett then phoned the applicant who said that whilst he was not happy with the plea bargain it was probably the best outcome for his mother. The applicant expressly told him that he took a plea bargain to a lesser charge. Shaun Wallace’s response 43. In his response, Mr Wallace insists that advices on evidence were not necessary and that his conferences with his lay client enabled him to attend the trial fully prepared for a contested hearing. He met the applicant for the first time at the PCMH where he explained that he would need a number of conferences before trial. He lived not far from the applicant’s bail address and was prepared to travel there to conduct them. He did not inform his instructing solicitors. There were about four conferences on Saturdays during which he took full instructions and explained a number of difficulties with the defence. These included the contents of the co-accused’s interview, the fact the defendants admitted they wanted to speak to Asher Sapsford about the burglary and the fact that the applicant changed his clothes after the incident. 44. He rejected the allegations of unprofessionalism, undue informality and association with cannabis. He insists he always had his case papers with him and went through every aspect of the case with his lay client in proper form. They had in depth discussions and conducted a re-construction. He advised that the applicant had a good defence. 45. He dismissed the suggestion that expert evidence on the knife found nearby was required. It would have been irrelevant. First, the knife found may not have been the knife used in the incident. Second, even if it was the same knife, it had undoubtedly caused injury to the victim and her DNA might well be on it. 46. On the day of hearing, Mr Wallace informed us that he arrived in good time but spoke first to his opponent and counsel for the co-accused, Miss Manley. Prosecuting counsel announced he had no intention of accepting a plea to a lesser offence. 47. He insists that he explained the elements of section 20 only because the family were asking whether the prosecution would accept a plea to a lesser offence. In so doing, he made it clear a plea to section 20 was not on offer. He also explained the offence of possession of an offensive weapon. He accepted that the applicant always insisted he did not take the knife with him to the scene and that, in his later advice on sentence, he appeared to have equated taking the knife to the scene with intending to cause really serious bodily harm. He said that he had phrased his advice badly. 48. He had begun to have reservations about the strength of the defence on the Saturday before trial. On the Monday he advised the applicant his chances of acquittal were 30 per cent if the complainant and S came up to proof. He explained about the difficulties in applying to adduce evidence of the bad character of the complainant. She had previous convictions for dishonesty but not violence and these went only to her credibility whereas the applicant’s reprimand was for violence. If his character was admitted, as was likely, this might be considered more relevant to the offence charged. 49. He denies that he said he could not or would not cross-examine the witnesses particularly the child witness. The point he was making was how effective her evidence was likely to be and how hard it would be to undermine it. 50. He admits that, when asked by the family whether he would plead guilty in this situation, he told them he probably would, if he did not want his co-accused to go to prison. Asked about sentence, he said the applicant would still get credit (he did not say how much) and would probably get 5-6 years. 51. He advised the applicant this was a momentous decision and he wanted to discuss it further after they had had a chance to discuss it. He emphasised he would support any decision the applicant made. 52. He saw the applicant separately in the presence of his step father by which time the applicant had decided to plead guilty. Mr Wallace said that he advised the applicant that if he pleaded it would have to be on the basis of the prosecution full facts, namely, that he had the knife not the complainant. He denied he put pressure on the applicant and maintained that the applicant and his family understood he would be pleading guilty to the section 18 and the offensive weapon offences. 53. He agreed that, despite professional rules, he did not obtain his lay client’s endorsement of his brief when the applicant changed his plea and he made no written record of that or any conference. Advice to solicitors on plea 54. After sentence, there was an email exchange dated February 2013 with his instructing solicitors in which he set out the conferences he had held at the bail address, the prosecution case, the defendant’s instructions and his advice. He did not address the issue of intention to cause really serious bodily harm. He described the issues for the jury to determine in the event of a trial as being whether James armed with a knife unlawfully attacked the complainant or was James acting in self defence because he was instinctively reacting to the knife that was produced by the complainant. In relation to the events of 18 February, he stated: “James asked me if he pleaded guilty to either s18 or a lesser charge, would that mean he would have to accept that he had the knife and used it in the manner suggested by the prosecution and I told him that they wouldn’t accept anything less. I told him that if he was going to plead guilty, it would be on the basis that he had the knife for protection because of the reputation for handling stolen goods and its potential for violence.” I advised him that if he decided to change his plea, then the Crown would drop the s18 charge against Tracey…” Advice on sentence 55. In his written advice on sentence to the lay client and the solicitors he set out everything again in some detail including the fact that he advised the applicant on the Definitive Guideline. He asserted that he had explained fully the applicant’s options and given him ample time to consider whether he wished to contest the trial (for which he was fully prepared) or plead guilty to the offences as charged. The advantages of doing the latter were that the prosecution would accept a plea to affray from the co-accused and the applicant would get some credit for his plea of guilty. 56. He stated: “Counsel makes it clear that the Appellant pleaded guilty to s.18 GBH with intent and does not seek to go behind that fact and the ‘intent’ in terms of bring (sic) a knife out in a public place with the initial aim for protective purposes and his deliberate intention to frighten or scare a seated vulnerable victim with two young children present demonstrates and is another example, it is submitted, of the Appellant’s failure to show any clear thinking of the risks and the consequences of his actions”. GROUNDS OF APPEAL Conviction 1. The applicant’s case was inadequately and / or incompetently prepared by his trial representatives in that: a. Counsel failed to comply with the Bar Standards Board’s Written Standards of Professional Conduct; b. Counsel failed to conduct conferences in a professional manner; c. Counsel failed to instruct an expert to inspect the knife for forensic links to the complainant. d. Counsel failed to record in writing the reason for the plea and the fact the lay client had been given the opportunity to endorse a declaration stating that he had given instructions, of his own free will, to plead guilty; e. Counsel failed to make a contemporaneous note of his advice as to plea at trial. 57. Many of the breaches of the BSB’s Written Standards are effectively admitted. Mr Ali went further: he invited the court to find that the quality of pre-trial conferences was poor, informal and unprofessional; that Mr Wallace never attended with the case papers; never took notes; never arranged conferences in the presence of solicitors; and failed to give adequate advice on the strength of the evidence and the evidence generally in pre-trial conferences. 58. Mr Ali insisted that any competent counsel would have asked for a forensic examination of the knife. Mr Wallace’s instructions were that “the complainant…produced in her right hand, which she quickly transferred into her left hand, a kitchen knife”. He maintained that if the knife found nearby had been examined it might have revealed a link to the incident. Mr Wallace has failed to consider the fact that if Lisa Sapsford’s fingerprints or DNA, were found on the knife handle, it would support the applicant’s contention that she (not he) produced the knife. 59. Mr Ali also claims that Mr Wallace gave inadequate or inaccurate Legal Advice in that: a. he failed to explain sufficiently or at all the differences between section 18 and section 20 apart from the fact one was a lesser offence. In particular he failed to spell out that to plead guilty to a section 18 offence one would have to admit an intention to cause really serious bodily harm. Those present at the conference on the morning of trial, in particular the applicant, were clearly confused about the advice given. b. he advised that even if Mrs Sapsford produced the knife, the Applicant was guilty of the section 20 offence because he accepted he stabbed her. c. his advice on the prospect of the judge’s agreeing to admit the complainant’s bad character and on the likelihood of the applicant’s bad character being admitted was unduly pessimistic. d. he failed to explain that the applicant had the option to plead on a written basis, which could accept and reject specific facts (if necessary to be litigated at a Newton hearing); 60. Mr Ali invited the court to bear in mind the cumulative effect of all the circumstances on the applicant. He arrived at court to receive advice, for the first time, that he had little or no prospect of success. If he pleaded guilty (which his barrister said he would do) his mother might avoid prison. Both of them would be allowed to plead guilty to a less serious offence and receive a reduced sentence. This all combined to amount to improper pressure on the applicant and his freedom of choice was thereby narrowed. The legal principles 61. There are two essential principles which govern the present situation where a defendant pleads guilty and subsequently attempts to appeal against his conviction. Boal 62. The first principle is derived from R v. Boal [1992] 95 Cr App R. 272 . The Court will only take the exceptional course of intervening if a defendant has been deprived of a defence which it believes would probably have succeeded. Boal pleaded guilty to an offence under the Fire Precautions Act 1971 following legal advice that he was incontestably a ‘manager’ within the meaning of section 23 of the Act. This advice was wrong. The Court of Appeal accepted that, through no fault of his own, the defendant had been deprived of a good defence and quashed the conviction. The Court of Appeal added the following word of warning (at p. 278): “This decision must not be taken as a licence to appeal by anyone who discovers that following conviction (still less where there has been a plea of guilty) some possible line of defence has been overlooked. Only most exceptionally will this Court be prepared to intervene in such a situation. Only, in short, where it believes the defence would quite probably have succeeded and concludes, therefore, that a clear injustice has been done. That is this case. It will not happen very often.” Nightingale 63. The second principle is that a defendant charged with an offence is personally responsible for entering his plea, and that, in exercising his personal responsibility, he must be free to choose whether to plead guilty or not guilty. In R v Nightingale [2013] EWCA Crim 405 ; [2013] 2 Cr. App. R. 7 the court was concerned not with alleged incompetence of counsel but with the effect of inappropriate judicial intervention on the appellant’s freedom of choice to enter his plea. 10. …….. It is axiomatic in our criminal justice system that a defendant charged with an offence is personally responsible for entering his plea, and that in exercising his personal responsibility he must be free to choose whether to plead guilty or not guilty. Ample authority, from R v Turner [1970] 2 QB 321 to R v Goodyear [2005] 1 WLR 2532 , which amends and brings Turner up to date, underlines this immutable principle. The principle applies whether or not the court or counsel on either side think that the case against the defendant is a weak one or even if it is apparently unanswerable. In view of the conclusion that we have reached, we shall express no opinion whatever of our view of the strength of the case against the appellant. 11. What the principle does not mean and cannot mean is that the defendant making his decision must be free from the pressure of the circumstances in which he is forced to make his choice. He has, after all, been charged with a criminal offence. There will be evidence to support the contention that he is guilty. If he is convicted, whether he has pleaded guilty or found guilty at the conclusion of a trial in which he has denied his guilt, he will face the consequences. The very fact of his conviction may have significant impact on his life and indeed for the lives of members of his family. He will be sentenced -- often to a term of imprisonment. Those are all circumstances which always apply for every defendant facing a criminal charge. 12. In addition to the inevitable pressure created by considerations like these, the defendant will also be advised by his lawyers about his prospects of successfully contesting the charge and the implications for the sentencing decision if the contest is unsuccessful. It is the duty of the advocate at the Crown Court or the Magistrates' Court to point out to the defendant the possible advantages in sentencing terms of tendering a guilty plea to the charge. So even if the defendant has indicated or instructed his lawyers that he intends to plead not guilty, in his own interests he is entitled to be given, and should receive, realistic, forthright advice on these and similar questions. These necessary forensic pressures add to the pressures which arise from the circumstances in which the defendant inevitably finds himself. Such forensic pressures and clear and unequivocal advice from his lawyers do not deprive the defendant of his freedom to choose whether to plead guilty or not guilty; rather, the provision of realistic advice about his prospects helps to inform his choice. ……. 16. In the final analysis, the question is not whether the Judge Advocate here contravened the principles which govern the giving of sentence indications. Of itself that would not be decisive. The question is whether the uninvited indication given by the judge, and its consequent impact on the defendant after considering the advice given to him by his legal advisers on the basis of their professional understanding of the effect of what the judge has said, had created inappropriate additional pressures on the defendant and narrowed the proper ambit of his freedom of choice. 17. Having reflected on the facts in this case, we conclude that the appellant’s freedom of choice was indeed improperly narrowed. Accordingly, the plea of guilty is in effect a nullity. It will be set aside. The conviction based on the plea will be quashed. Conclusions 64. The grounds of appeal provide two principal issues for this court to determine: namely was there i) undue pressure and ii) inadequate representation that, individually or cumulatively, improperly narrowed the applicant’s freedom of choice. Undue pressure 65. The undue pressure is said to stem from the events at court on 18 February. The accounts from the applicant’s family as to what happened and from Ms Manley and Mr Wallace differ. That is hardly surprising in that no one (save possibly Ms Manley) was taking a note and the applicant and his supporters became distressed and confused. They had come to court bolstered by Mr Wallace’s earlier advice as to the applicant’s ‘good chances’ and suddenly they were met with advice that he should plead guilty. 66. The applicant and his witnesses called before us gave remarkably similar accounts in some respects; for example that the applicant was advised to plead guilty to a lesser section 20 offence and would receive a sentence of 2-4 years; in other significant respects they have clearly got things wrong. We give one example: namely Mr Wallace’s attitude to the examination of S. The applicant is clear, as is Mr Wallace. The applicant was advised that Mr Wallace said he could not cross examine S in the way he would an adult. Other members of the family remember Mr Wallace refusing to cross examine her and/or saying he could not cross examine her. In the light of Ms Manley’s note we are confident the applicant and Mr Wallace are correct. 67. Mr Heptonstall for the Crown suggested, in as polite a way as possible, that the similarities between accounts suggested that members of the family had got their heads together to produce a story. However, some of what they said was confirmed by Mr Wallace himself and we did not get the impression the witnesses were deliberately trying to mislead the court. In our view, it was more likely that where their accounts differed from Ms Manley’s note (for example as to the extent of the pressure put on the applicant) they had unwittingly allowed their emotions, and possibly ‘group recall’, to cloud their memory. 68. There was undoubtedly pressure on the applicant. He was under pressure in two particular respects: from his desire to keep his mother out of prison and from the advice that his chances of an acquittal were no more than 30 per cent. However, this kind of pressure is perfectly normal just before a trial commences. As the Lord Chief Justice explained in Nightingale at paragraphs 11 to 12 the pressures stem from the fact that the applicant was charged with a serious criminal offence. It is also far from uncommon for members of the same family to be charged on the same indictment and for negotiations to take place in which the prosecution offer or the defence invite the prosecution to accept a lesser plea from one member of the family if the other pleads guilty as charged. 69. We note that the applicant was a grown man with no identified vulnerability who was perfectly capable of asking questions. If he did not do so, his family did. His text message to his friend reveals a man who had understood that as a result of agreeing to plead guilty to an offence he might get as much as five years. That does not suggest a man under pressure to plead guilty to a stabbing of which he was not guilty. 70. Further, we do not accept that the applicant, whom we found to be an articulate and relatively robust young man, misunderstood the impact of what Mr Wallace was saying. His understanding was that if he pleaded guilty to taking the knife to the scene and stabbing the complainant unlawfully, he would be sentenced on that basis and would receive a reduced sentence. The serious charge against his mother would be dropped and she might not then go to prison. 71. It was on that basis he pleaded guilty to both offences and made no attempt to change his plea until after he was sentenced. As he told us, he would not have appealed had he received a sentence of 5 years. 72. Importantly, we have Ms Manley’s clear note. Her account is a nearly contemporaneous explanation of events and it comes from an independent, legally trained and objective source. She described how Mr Wallace provided a detailed and lengthy exposition of the state of the evidence. She agreed with his analysis. Mr Wallace emphasised the decision to plead guilty was a serious one and one the applicant had to make. She makes no reference to any undue pressure being applied to the applicant from counsel or indeed from the court. On the contrary when she wanted more time from the court, she was given it. 73. Mr Wallace’s advice could have come a bit sooner but it was a proper reflection of the state of the evidence. The case against the applicant was strong. The defence of self-defence was hardly likely to succeed. The McCarthy family was incensed by the burglary and looking for the culprit. The applicant and his mother came across the alleged culprit’s mother. She was enjoying a pleasant family outing with small children in the back of her car. She was sitting in the driver’s seat. Even if a jury could be persuaded that she might suddenly have produced a knife, she posed no threat whatsoever to either the applicant or his mother. Further, eye witnesses described the applicant behaving aggressively. 74. Thus, we do not accept that Mr Wallace put improper pressure on the applicant or that the cumulative effect of the circumstances did so. In this respect, his freedom of choice was not narrowed. Inadequate representation 75. There are a number of aspects in which Mr Wallace’s conduct of the case is open to possible criticism. These include: a. Holding conferences with his lay client at his home without a solicitor present and without keeping the solicitor informed of what he was doing and advice he was giving; b. Failing to keep notes of his conferences; c. Failing to explain the obvious strengths of the prosecution case until fairly late in the day; d. Failing to consider whether a joint family conference in the circumstances was appropriate; e Failing to ensure that the applicant endorsed his brief to indicate that he knew what has doing and the consequences of what he was doing and that he had made the decision to plead guilty of his own free will; f. Failing to explore the basis of plea and record the same; g. Failing to record his advice at court and client’s agreement with it leading to change of plea; h. Adopting far too informal an approach throughout which either exceeded or came close to exceeding the boundaries of the client and advocate relationship. 76. This case is a paradigm example of why some formality and distance is required between advocates and their lay clients and lessons should be learned by those who seek to blur the boundaries. The advocate should remain an independent and objective adviser. 77. However, even accepting that all these criticisms of Mr Wallace are justified, it does not follow that the applicant should be allowed to vacate his plea. The answer to that question turns on the nature and extent of the legal advice he was given. Inadequate legal advice 78. We have been careful to explain that we are satisfied that the applicant understood he was admitting and was prepared to plead guilty to taking a knife to the scene and stabbing the complainant unlawfully. However, those admissions would only make him guilty of wounding and possession of an offensive weapon. Before the applicant could properly and freely plead guilty to an offence of wounding with intent contrary to section 18 , his advocate had to explain all the elements of the offence to him and the applicant had to understand that he was thereby accepting that when he stabbed the complainant he intended to cause her really serious bodily harm. 79. We have analysed carefully Ms Manley’s note, Mr Wallace’s account of his advice generally, his advice on the day of trial, his advice by email and in his written advice on sentence. We have compared them all with the evidence from the applicant and his witnesses. We can find no reference to Mr Wallace’s ever explaining to the applicant in appropriate terms the nature of the intent necessary to constitute a section 18 offence; not even in Mr Wallace’s own account. Mr Wallace’s advice on sentence and his email to his instructing solicitors both seem to equate taking the knife to the scene with the necessary intent for a section 18 offence. A plea of guilty on the “full facts” was said to be on the basis that the applicant, rather than the complainant, was in possession of the knife. No mention is made of the applicant’s intending to cause really serious bodily harm when he stabbed Mrs Sapsford. 80. On the one hand, therefore, we have a possible and significant lacuna in the advice given by Counsel and, on the other, we have an applicant who clearly understood he was pleading guilty to a lesser offence of wounding. His text messages to his friend, Jason Gillett, almost immediately after he entered his plea make that plain. It is also the common refrain of every one of the defence witnesses called that the applicant intended to plead guilty to a lesser offence. 81. In our view, this is one of those exceptional cases where we should intervene. We are far from confident that when the applicant pleaded guilty to the offence of wounding with intent he had a proper understanding of the elements of the offence. In that sense, his freedom of choice was improperly narrowed. It cannot be argued that he had no defence on a charge of wounding with intent. The prosecution case on wounding and offensive weapon may have been strong, but the applicant may have persuaded a jury his appalling behaviour did not extend to intending to cause Mrs Sapsford really serious bodily harm. 82. For the reasons we have already given, these arguments do not apply to the offensive weapon count and his plea of guilty to that must stand. Substitution 83. The question now arises as to whether we should simply quash the conviction for the section 18 offence and order a re-trial as Mr Heptonstall invited us to do, or whether we substitute a conviction for a section 20 offence of wounding as Mr Ali suggested. It was common ground that the latter is a course open to us pursuant to 3A(2) of the Criminal Appeal Act 1968 . The applicant could have pleaded guilty to, or been convicted of, an offence of section 20 wounding on the indictment. If we are satisfied that his plea of guilty indicated an admission of facts which prove him guilty of wounding, we may substitute for the applicant’s plea of guilty to section 18 , a plea of guilty to section 20 rather than dismiss or allow the appeal. 84. It appears to us that the applicant intended to plead guilty to a section 20 wounding. He has told us in terms he would have pleaded guilty to a section 20 offence. As we have indicated, subject to the issue of intent, it also appears to us that his pleas were entered freely and his freedom of choice was not improperly narrowed. His guilty pleas to a section 18 wounding and possession of an offensive weapon indicate an admission of facts which prove him guilty of section 20 wounding. 85. In all the circumstances of this case, we are prepared to accept Mr Ali’s submission that the most sensible course is to use our powers of substitution. We give leave and substitute a plea of guilty to the wounding offence. The records will be amended accordingly. Sentence 86. We proceed to sentence on that basis. We bear in mind the grounds of appeal but do not address them specifically, aimed as they were at a different set of circumstances. We give leave to appeal against sentence. 87. The material before the sentencing judge, and now us, included a pre sentence report. To the author of that report, the appellant (as he now is) denied any intent to cause harm but accepted responsibility for his actions. He expressed remorse and regret. However, he was not prepared to admit to premeditation nor to any sense of grievance which had prompted an attack. He was assessed as presenting a low risk of re-offending. There were grounds for concluding that the behaviour was uncharacteristic of him. 88. There were two character references on behalf of the appellant with the papers. There was also a statement from the complainant and a report from her doctor explaining her pre-existing difficulties and the impact the incident had had upon her and upon S. Conclusions 89. This was a serious offence of section 20 wounding. The appellant and his mother went out, he armed with a large knife, seeking to take the law into their own hands. Their offence was clearly premeditated. Lisa Sapsford’s only ‘crime’, as they saw it, was to be the mother of the man who may have burgled their house. They found Mrs Sapsford inside a motor car with two children in the back and, effectively, unable to escape. She was particularly vulnerable. Within a very short time of confronting her, the appellant had stabbed her with the knife for no obvious reason. She posed no threat to him or to his mother. After the stabbing the appellant tried to dispose of the weapon and cover his tracks. 90. Although the complainant’s physical injuries were limited, this was merely fortuitous. They could have been worse. In any event, Mrs Sapsford also suffered from an infection to her wound that caused a lack of sensation requiring further neurological investigation and, more significantly, she sustained psychological injury for some time after the incident. 91. We are conscious of criticisms made of the judge's description of her injuries as “catastrophic” and “life changing”. We have the benefit of an up to date message from the complainant herself. It may well be that had the material before us been available to the judge he may not have used those precise words. However, the fact remains that this offence caused both physical and psychological harm to the complainant and harm to the other occupants of the car. There has been a distressing and protracted effect upon S. Her distress has exacerbated the complainant’s suffering. 92. In the circumstances, and applying the Sentencing Guidelines, we find that there was greater harm, in the context of an offence of section 20 wounding, and there was greater culpability. The most appropriate category into which to place this offence would be category 1 with a starting point of 3 years and a category range of 2 years 6 months to 4 years custody, but the circumstances of this case, in our view, take it outside the category range. 93. The factors which reduce the seriousness of the offence are the lack of previous convictions, the fact it was an isolated incident, the appellant’s youth and remorse and the fact he was under the influence of his mother. In addition, there must be a ten per cent reduction for what would have been a plea of guilty on the day of the trial. 94. Carrying out the sentencing exercise on section 20 results, in our view, in a sentence of 4 years imprisonment. 95. The appellant pleaded guilty also to an offence of possession of an offensive weapon. He was sentenced to 2 years imprisonment for that offence to be served concurrently to the sentence on the section 18 offence. Having settled on a sentence of 9 years for the more serious offence, the judge no doubt took account of the principle of totality in so ordering. In our view the carrying of the knife is a particularly aggravating factor of the crime. Had he not taken the knife to the scene, it would not have been to hand to use when tempers flared. The appellant must have been well aware that was a distinct possibility. The offence of possession of an offensive weapon is a separate and serious offence which should be reflected in the overall sentencing structure. For the seriousness of knife crime generally: see t he decision in Povey [2008] EWCA Crim 1261 ; [2009] 1 Cr.App.R.(S.) 42 at paragraph 4 which guidance has been recently repeated by Lord Thomas CJ in Gomes-Monteiro [2014] EWCA Crim 747 at [4]). 96. In all the circumstances, we are satisfied that the sentence for possession of an offensive weapon should be ordered to run consecutively to the sentence of 4 years on the section 20 offence. That means that the total sentence of imprisonment to be served is now 6 years. To that extent this appeal succeeds.

```yaml citation: '[2015] EWCA Crim 1185' date: '2015-07-09' 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: [2008] EWCA Crim 2565 Case No: 2008/01114/C2, 2008/02014/C2, 2008/04771/C2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL 19 November 2008 Before : LORD JUSTICE MAURICE KAY MR JUSTICE TEARE and HIS HONOUR JUDGE PATIENCE (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : Regina - v - Mohammed Ishaq Shiraz Ali Mohammed Sultan - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Tom Bayliss QC for Ishaq Mr Peter Martin for Ali Mr Nadim Bashir for Sultan Mr Ieuan Bennett for the Crown Hearing date : 29 October 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Maurice Kay : 1. On 3 August 2007 in the Crown Court at Cardiff Mohammed Ishaq, Shiraz Ali and Mohammed Sultan were convicted of two offences of causing grievous bodily harm with intent. Ishaq is the uncle of Ali and Sultan. The first offence named Martin Roberts as the victim and intended victim. The second offence named Suzanne Shepherd as the victim but on the basis that the intended victim was Martin Roberts. Ishaq and Ali now appeal against conviction by leave of the Single Judge who also granted an extension of time. Following those grants of leave Sultan applied for an extension of time in which to apply for leave to appeal against conviction. At the commencement of the hearing we extended the time and granted him leave. 2. The events giving rise to these appeals occurred in the early evening of 7 October 2006. Martin Roberts and Suzanne Shepherd were arguing in the area of Richards Terrace in Cardiff. In the course of the argument, Roberts walked into the road in front of an oncoming Mercedes car which was being driven by Ishaq. He was thereby forced to stop. The case for the prosecution was that, rather than apologising, Roberts was abusive towards Ishaq and damaged his car. Ishaq was angry and upset. He drove to the nearby shop of Ali and Sultan. Having picked them up, he drove them back to Richards Terrace. Sultan and Ali were armed with a metal bar and a broom. Having located Roberts and Shepherd in the street close to the original incident, Sultan and Ali then carried out a revenge attack upon Roberts at the direction of Ishaq. Roberts sustained numerous injuries including a fractured jaw, a fractured cheek bone and a fractured skull. Shepherd sustained fractures to several of her fingers as a result of a blow or blows which were actually directed at Roberts. 3. The case for Ishaq was that in the initial incident he had been racially abused by Roberts. He then drove to the nearby shop and collected Ali and Sultan. However they returned to Richards Terrace not in order to carry out an attack but to await the arrival of the police. Ishaq said that he did not see his co-accused carrying weapons nor did he see them hit anyone. He did not know who caused the injuries to Roberts and Shepherd. The case for Ali and Sultan was to like effect. They too denied that there was a plan to assault Roberts. They denied emerging from the Mercedes bearing weapons although Ali admitted inadvertently carrying a broom from the shop into the car. He maintained that it remained in the car at all times. Both men denied causing the serious injuries to Roberts and Shepherd. They said that any force used by them had been in lawful self defence and that, to the extent that they had deployed sticks as weapons, they had obtained them by disarming their assailants or by finding them on the ground at the scene. 4. The allegation of an armed revenge attack was based on the evidence of a number of witnesses. Suzanne Shepherd said that two Asian men, plainly referring to Ali and Sultan, had approached carrying wood and a metal bar. Rebecca Shepherd, her 16 year old daughter, described two men jumping out of the car, one carrying a metal bar and the other a wooden pole like a brush handle. Terrianne Purse, who was not part of the complainant’s group but was going to meet her sister who was part of that group, described the two younger men emerging from the car with a broom and a metal stick. Two wholly independent witnesses saw parts of the incident but did not see the appellants emerge from the car. One of these witnesses, Doughty, called the police when she witnessed a degree of aggression but it was only after she had made that call that she saw one of the two younger Asian men hitting a white man repeatedly with some sort of pole. 5. When the Single Judge granted leave to appeal, he did so principally by reference to the fresh evidence of a new witness, Arif Khan. We have received the evidence of Arif Khan pursuant to section 23 of the Criminal Appeals Act 1968. We consider it to be capable of belief and there is a reasonable explanation for the failure to adduce it at trial. In addition to the live evidence of Arif Khan, we also heard evidence from Sarah Saleem, Ishaq’s daughter, who was a law student at the time of the incident. She was actively involved in instructing solicitors on behalf of her father. We also heard evidence from Roger Lewis, the experienced legal executive who had conduct of the case on behalf of all three of the appellants at trial. Miss Saleem was actively involved in instructing Mr Lewis in pre-trial meetings and discussions, not least because of her father’s limited English. There are several points at which the evidence of Miss Saleem and Mr Lewis diverge. Suffice it to say that we are persuaded that she is right when she says that she informed Mr Lewis of the existence of a potential witness before 1 May 2007. There is an internal office e-mail of that date sent by a receptionist to Mr Lewis’ secretary referring to a telephone call from Miss Saleem. The e-mail states: “She said the name of the witness is Arif and he can be contacted on 07791-481884.” 6. That, in itself, points to the probability that when Miss Saleem telephoned on 1 May, she was providing the details – name and telephone number – of a person whose existence she had previously mentioned but not named. 7. In the event, there was no contact between Mr Lewis and Arif Khan until after the trial. Mr Lewis maintains that he did not see the e-mail of 1 May in the months before or indeed during the trial. We find that surprising. It is common ground that there were a number of conversations between Miss Saleem and Mr Lewis between 1 May and the commencement of the trial in July although there is some dispute about the exact number. Although Mr Lewis denies that any mention was made of Arif Khan in his conversations with Miss Saleem, we do not consider that his recollection about that is accurate. We found Miss Saleem to be an impressive witness and, as we have said, her evidence surrounding 1 May is, in our view, supported by the terms of the e-mail. 8. We do know that following the verdicts of the jury, Miss Saleem continued to communicate with Mr Lewis. Arif Khan was mentioned and on 17 August 2007 he attended Mr Lewis’ office in order to make a statement. A draft statement was prepared but never signed. It referred to Mr Khan’s presence in Richards Terrace at the time of the incident when he was in the company of his pregnant wife and young child. He described a man, by inference Ishaq, standing at the driver’s side of his car and shouting “Call the police” or “Somebody call the police”. He was shouting in English and also in his own language which Mr Khan did not recognise. The draft statement made no reference to weapons. Mr Khan referred to seeing a man lying in the road. However, the police arrived and he assumed that “everything was alright”. He then went about his own business. He did not contact the police or anyone else. Three weeks later he travelled to Hong Kong where most of his family live and he remained there for three weeks. When he returned he was working a seven day week for three to four months. Eventually, and by chance, he saw the man who had been calling for the police at the mosque. He approached the man (Ishaq) and asked him what had happened in the incident. Ishaq told him that the case might go to the Crown Court. Arif Khan said that if he needed help he could get in touch and he left his telephone number with Ishaq. He did not discuss the details of what he had seen in Richards Terrace. Miss Saleem states that she made no attempt to approach or to discuss the case with Arif Khan because she thought that that would be inappropriate and was content to leave such discussion to the solicitors. 9. On 23 August 2007 Arif Khan again attended the solicitors’ office with a view to signing the witness statement. He attended without an appointment. He said that on the occasion in Richards Terrace he had seen another man with a weapon with which he had attacked the Asian man. The view was taken that the draft witness statement would need to be retyped to include the new information. Mr Khan was asked to return at a later date to sign it but he did not do so, nor did he respond to a letter asking him to attend. 10. In due course, new solicitors were instructed and they obtained an affidavit from Arif Khan. It included these passages: “I then saw a white male come from somewhere down Richards Terrace and cross the road towards the Mercedes. I thought it was an iron stick or a wooden rod but it was something like that which he had in his hand. I saw the white male hit an Asian male with a stick. As the white man went to hit him with the stick the Asian male put his arm up to protect himself and the stick made contact with the Asian male’s arm … When the Asian male was hit with the stick, the fight had started. [Ishaq] was shouting in English and Punjabi for someone to call the police and stop fighting … I heard the police sirens and turned towards my father-in-law’s house and saw one of the younger Asian males holding a stick the white male was holding earlier. It was around the same time I saw the white male holding his head.” 11. We have seen and heard Arif Khan give evidence along those lines and he has been cross-examined by Mr Bennett on behalf of the prosecution. His explanation for the omission of the central part from the first witness statement is that his command of English is poor and there was no interpreter present. His evidence in this court was given through an interpreter. Mr Lewis maintains that Arif Khan’s English is not that bad although significantly, he volunteered that Arif Khan had seemed to run into language difficulties when talking about weapons. We do not feel able to say that Arif Khan’s explanation for the omission or his evidence in general is incapable of belief. 12. In considering this fresh evidence and the history of its emergence, our first task is to assess its credibility, always remembering that, ultimately, the question is what a jury might have made of it if it had been adduced at trial: see Pendleton [2001] UKHL 66 . Lord Bingham has recently returned to the subject when delivering the judgment of the Privy Council in Bain [2007] UKPC 33 . There the ultimate test in the New Zealand legislation was one of “miscarriage of justice” rather than the “unsafety” of the conviction but it seems to us that the relevant principles are the same. They derive from the right to and primacy of trial by jury. Lord Bingham stated (at paragraph 115): “First, the issue of guilt is one for a properly informed and directed jury, not for an appellate court. Secondly, the issue is not whether there is or was evidence on which a jury could reasonably convict but whether there is or was evidence on which it might reasonably decline to do so. And, thirdly, a fair trial ordinarily requires that the jury hears the evidence it ought to hear before returning its verdict, and should not act on evidence which is, or may be, false or misleading. Even a guilty defendant is entitled to such a trial.” 13. In an earlier passage, he stated (at paragraph 103): “A substantial miscarriage of justice will actually occur if fresh, admissible and apparently credible evidence is admitted which the jury convicting a defendant had no opportunity to consider but which might have led it, acting reasonably, to reach a different verdict if it had had the opportunity to consider it.” 14. If we substitute “unsafe conviction” for “substantial miscarriage of justice”, that approach also governs the approach in this jurisdiction. 15. We must now apply this approach to the present appeals. Although the evidence at trial established that none of the appellants ever called the police on the day of the incident, it has always been Ishaq’s case that he returned to the scene in the expectation of seeing the police rather than as part of a revenge attack. The case against him was put on a joint enterprise basis, the allegation being that he directed and encouraged the attack. In our judgment, credible evidence from a non-participant in the incident that Ishaq was actually asking for the police to be called is potentially supportive of his case and adverse to the prosecution case. He and the other appellants were of good character. Roberts and Shepherd were not, Roberts having a particularly lamentable record. There was independent evidence at trial supporting the utterance of racial abuse in the earlier incident with the car which Roberts denied. We have come to the conclusion that, if the evidence of Arif Khan had been adduced at the trial (and we consider that Ishaq was not to blame for the fact that it was not), the jury might reasonably have come to acquit Ishaq. In these circumstances, we find his conviction to be unsafe. 16. The next question is whether the same must follow in relation to Ali and Sultan. It seems to us that, although they derive some benefit from our conclusion about Ishaq, the case against them turned significantly on those witnesses at trial who described them emerging from the car armed with a wooden stick and a metal bar. Would the evidence of Arif Khan have had the potential to undermine that evidence? We cannot discount the reasonable possibility that it might have. Their accounts, however implausible on the question of a lack of responsibility for the grievous bodily harm, are centred upon their spontaneous acquisition of makeshift weapons by disarming or finding when they themselves were under attack. If Arif Khan were to be believed on the issue of another man apparently introducing such a weapon to the conflict, it seems to us that a jury might take a more favourable view of Ali and Sultan, at least on the issue of self-defence. Although this turns on the part of Arif Khan’s evidence that was not present in the first draft witness statement, we do not consider the explanation for its absence to be inherently incredible. As with the case of Ishaq, we consider that these matters lie properly within the province of the jury. Accordingly, we also find the convictions of Ali and Sultan to be unsafe. 17. We should add that, in addition to the appeals on the ground of fresh evidence, all these appellants have leave to appeal (hesitantly granted) by reference to alleged shortcomings in the summing up. Whilst there may have been some rough edges in the summing up, we would not have allowed the appeals on these grounds. They do not seem to us to impact on the safety of the convictions. We allow the appeals against conviction solely by reference to the fresh evidence of Arif Khan. 18. In this judgment we have set out the reasons for allowing the appeals and quashing the convictions as we announced at the conclusion of the hearing on 29 October. On that occasion, having heard submissions on behalf of all parties, we ordered a retrial and gave appropriate directions. We did so because of the seriousness of the alleged offences, notwithstanding the previous good character of the appellants and the fact that they have either been released or would soon have been entitled to be released from their sentences of three years’ imprisonment. We are also mindful that there is still a cogent case against them.

```yaml citation: '[2008] EWCA Crim 2565' date: '2008-11-19' judges: - LORD JUSTICE MAURICE KAY - MR JUSTICE TEARE - HIS HONOUR JUDGE PATIENCE (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) ```

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

No: 04/807/A2 Neutral Citation Number: [2004] EWCA Crim 1530 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 29 April 2004 B E F O R E: LORD JUSTICE KAY MR JUSTICE RODERICK EVANS MR JUSTICE PITCHERS - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 10 OF 2004 SIMON WALKER TEESDALE - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR S DENISON appeared on behalf of the ATTORNEY GENERAL MR RP JOHNSON appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. LORD JUSTICE KAY: Her Majesty's Attorney General seeks the leave of the court to refer to it a sentence which he considers to be unduly lenient pursuant to section 36 of the Criminal Justice Act 1988 . We grant leave. 2. The offender is aged 33. On 1st December 2003 he pleaded guilty to an offence of causing death by dangerous driving. On 9th January 2004 he was sentenced by His Honour Judge King, sitting at the Reading Crown Court, to eighteen months' imprisonment and he was disqualified from holding a driving licence for four years. 3. In summary, the offender is a diabetic who drove after having taken drugs which, whilst not necessarily affecting his ability to drive a vehicle, may have affected his ability to manage his diabetes at a time when he knew that his daily insulin requirement was unstable. He was driving his new car for the first time. He had no driving licence and he was not insured. He had his 10-week-old child in the front passenger seat. He suffered hypoglycaemia and collided with a pedestrian, causing the death of that unfortunate person. 4. In more detail the facts were these. The deceased was a 16-year-old. The offender has been an insulin-dependent diabetic since he was 8 years old. In early March 2003 he had suffered an infection to his arm which required surgery and was treated with antibiotics. That was having an effect on his insulin requirement at the time of the incident. The offender has also been addicted to heroin since May 2002 and he had voluntarily attended a course for his addiction. He has not held a driving licence since January 1998. A few days before this incident he bought a Toyota Hilux 4x4 vehicle, but he did not obtain insurance in order to drive it. 5. On 20th March 2003 he left his home in Langley, Slough, at about 9 am. He drove his new car with his 10-week-old daughter in a baby seat in the front passenger seat. He had told his wife that he was going to see his mother. He phoned her at 9.30 am to say that his mother was not home and that he would see her later. 6. His movements until about 12.15 pm are not known. At about 12.15 pm he visited Mothercare at a retail park on the A4 near Slough. He left at 12.35 pm. Shortly thereafter he was driving on the dual carriageway which is a part of the A4. He stopped at a traffic light at a roundabout. When the light turned to green his car did not move. It rolled a few feet forward on to the junction, then stopped again and the light turned back to red. The car was blocking the junction. When the light again turned to green the offender's car shot forward, almost hitting the back of the vehicle in front. It then swerved across the two lanes of a dual carriageway, bouncing off the kerb and the central reservation. As it approached Langley Road on its left, it almost passed the junction, before swerving round into Langley Road. The driver of the vehicle behind was sufficiently concerned at the offender's driving to divert from his own route and follow the offender. 7. Langley Road is a two carriageway road with a 30 mph speed limit. The unfortunate Usman Akhtar was walking on the pavement in the same direction as the offender on the offender's nearside. As the car proceeded down Langley Road at about 35 to 40 mph it swerved out into the path of the on-coming traffic, then back into its own lane. It then mounted the pavement and struck Mr Akhtar and a low wall to the left of the pavement. There was no sign of the offender having applied the brakes. 8. Mr Akhtar was propelled beyond the wall into a hedge. He suffered severe head injuries and died on 26th March 2003. The offender's car did not stop, but continued along Langley Road in the same manner. As it approached Langley High Street it swerved into the path of an on-coming vehicle, then back again and mounted the pavement. It hit a brick wall and a signpost, badly damaging the front of the vehicle. The offender reversed it off the signpost and back into the road, and then continued on into Langley High Street. It then turned left into Common Road. The front nearside wheel was by then at an angle and making a screeching noise as it drove. The car broke down in Common Road and stopped, with smoke and steam coming out of the bonnet. The offender remained in the driver's seat for a few minutes, leaning over to the baby seat in the front passenger seat. He then went round to the passenger door and leant in towards the baby seat. He was unable to unbuckle the seat belt. His behaviour seemed strange to passers-by who saw him, and he then slumped against the car. When the police arrived he collapsed to the ground. There was a small amount of frothy saliva on his lips and his eyes were staring and fixed. His blood sugar level was found to be very low. He was treated at the scene and was then taken to hospital, where the level was found still to be very low. After further treatment there he was discharged into police custody. 9. When he was seen by a doctor at Amersham Police Station that evening. He said that he was on antibiotics for an infection to his right upper arm which affected his diabetic control. He admitted using opiates but had only taken dihydrocodeine that day. He said that he had not taken any heroin for two days, but he had smoked cannabis in the previous 24 hours. Although his memory of the incident was poor, he did remember driving to his doctor's surgery in the morning to seek help with his diabetic control as he knew he was not well. 10. A sample of his blood taken that day was found to contain amphetamine at the level of 0.11 micrograms per millilitre of blood, and diazempam and its major breakdown product, desmethyldiazepam, at concentrations of 0.14 and 0.13 micrograms per millilitre of blood respectively. The effect of these drugs can be incompatible with driving. 11. In interview on 21st March 2003 the offender said that the only thing he remembered of the previous day was being in Mothercare in the morning and drinking a bottle of Lucozade and knowing that he had to get to his doctor's surgery. He said that he had been intending to get insurance for the car that morning. That day was the first time he had driven the car. He said that he had held a full driving licence since he was aged 17 and had never had it taken away. He claimed to be unaware that his licence had expired in 1998. He said that the accident happened because he had suffered a hypoglycaemic attack. He went on to say that he had been waiting for fourteen months to get help for his drug addiction. He did not know when he had last taken drugs. 12. When he was interviewed on 10th May 2003 he was asked about the findings from the analysis of his blood. He denied that he had taken amphetamine and could not explain how it came to be in his blood. He said that he was prescribed diazempam by his doctor and remembered taking one tablet two days before the accident. 13. In summary, the offender drove having taken drugs which, whilst not necessarily affecting his ability to drive a vehicle, may have had an effect on his ability to manage his diabetes at a time when he knew that because of the antibiotics he was taking for his infection in his arm that his daily insulin requirement was unstable. 14. Against that factual background Mr Denison on behalf of the Attorney General submits that there were a number of aggravating features. He submits that the offender drove at a time when he knew that his diabetic control requirement was unstable because of the antibiotics that he was taking. Secondly, he contends that it is a further aggravating feature that he drove and killed a person after having taken drugs which may have affected his judgment at a time when he knew that his diabetic control requirement was unstable because of the antibiotics that he was taking. Thirdly, the offender must have known that he was unfit to drive that morning as he felt sufficiently unwell before the hypoglycaemic attack to feel it necessary to attend his doctor's surgery. Fourthly, he drove and killed without having insurance and without having a driving licence since January 1998. Finally, in the circumstances to which we have already referred, it is submitted that the offender endangered not only the life of others but also the life of his 10-week-old child by driving with her as a passenger in the front seat of the car. 15. On the other hand it is recognised that there were a number of mitigating features. The first is that the offender had pleaded guilty: it was not at the first possible opportunity, but the judge thought it right nonetheless to give him full credit in the particular circumstances for his plea of guilty. Secondly, it was accepted that he had shown remorse and that that remorse was genuine. Thirdly, he had no previous convictions for driving offences. Fourthly, he had always in the past successfully controlled his diabetes. 16. Against those aggravating and mitigating factors it is submitted that the sentence of eighteen months' imprisonment with the four-year disqualification from driving was unduly lenient, in that it did not adequately reflect the gravity of the offence in view of the aggravating features and in consequence it failed to provide the necessary levels of punishment and deterrence required for offences of this type. 17. We have had our attention drawn to two cases. The first, unsurprisingly, is the guidance given by this court in the case of Cooksley and others and the Attorney-General's Reference No 152 of 2002 [2003] 2 Cr App R 18 at page 275. There the court sought to lay down, consequent upon advice given to it by the Sentencing Advisory Panel, the appropriate level of sentencing for offences of causing death by dangerous driving. In its advice to the court the Sentencing Advisory Panel had set out a number of aggravating factors, splitting them into a first category of those which it described as "highly culpable standards of driving at time of the offence". They included, at paragraph (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'". Further, at paragraph (g), it included "driving when knowingly suffering from a medical condition which significantly impairs the offender's driving skills". The second category of aggravating features was "driving habitually below acceptable standard," in relation to which paragraph (j) read: "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." It is submitted to us that paragraphs (a) and paragraph (g) have a relevance to this case -- and we will return to them shortly -- and also that the absence of the licence and the absence of insurance brought the matter to be considered under paragraph (j) as well. 18. The guidance given by the court as to the level of sentencing was to split the possible offending into three categories of seriousness: firstly, those with no aggravating circumstances, secondly, those described as intermediate culpability, and, thirdly, those of higher culpability. So far as higher culpability was concerned, the Panel had recommended that the approach should be that a case came into that category: "When the standard of the offender's 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." The court accepted in principle that there should be a category of the kind suggested, but came to the conclusion that the band of two to five years was simply too wide and that the starting point ought to be to consider a much narrower band of four to five years in relation to a contested case of this type. That was to be contrasted with the acceptance by the court of a range of two to three years, where there was intermediate culpability. 19. It is submitted on behalf of the Attorney General that this case came into the higher culpability bracket so that the starting point on a contested matter ought to have been within the range of four to five years and that if one started from a point such as that, even having regard to the mitigating features in this case and particularly the guilty plea, it was not possible for a judge properly to end at a figure of eighteen months' imprisonment. It is for that reason that it is submitted that the sentence has to be viewed as being unduly lenient. 20. The other case, which was drawn to our attention really by way of illustration of the problems that arise where the dangerous driving results from a diabetic condition, is the case of Davies [2002] 1 Cr App R (S) 135 at page 579. That was a case in which a lorry driver caused the death of three persons. He had driven at a time when he had a history of diabetes and he suffered a hypoglycaemic attack whilst driving. That was because he had failed to take proper precautions to ensure that he would not suffer such an attack. It had an aggravating feature that it was not the first time that he had driven and suffered such an attack so that he was particularly aware of the dangers. He had been sentenced to three years' imprisonment and the court concluded that that sentence was not manifestly excessive. 21. It is not suggested that that case factually can be equated to this case one way or the other because there are different factors that militate in one direction in respect of some matters and in the other direction in respect of others, but it indicates, so it is submitted, the broad approach of the court to cases of this kind. 22. The submissions made on behalf of the offender by Mr Johnson in his helpful skeleton argument and in his useful address to the court are that the sentence was one within the proper range that was open to the judge. He accepts that it may be viewed as being a lenient sentence, but he submits that it cannot be characterised as being unduly lenient. 23. The first point that he makes is one with which we wholeheartedly agree: the sentencing exercise for the judge was a particularly difficult one. We think that this was a case where there was little guidance for the judge over and above the matters to which we have already referred and that the particular circumstances of this case really have not been replicated in other cases. We think it is right that the judge in those circumstances was, as is suggested, dealing with a matter which was peculiarly difficult. 24. It is submitted that, notwithstanding those problems, the sentencing judge very carefully considered all the factors, properly took into account the guidance given by this court in Cooksley and reached his conclusion, giving considerable weight to the mitigation that there had been in this case. It is submitted in those circumstances that a sentence of eighteen months can be seen as a proper sentence within the range, even if it was at the lenient end of the range. 25. If at the end of the day the court reaches a conclusion that it was unduly lenient, Mr Johnson rightly invites the court to bear in mind that this is the second occasion on which the offender's sentence has to be considered and to make the normal allowance that is to be made for what has come to be known as double jeopardy. 26. We have anxiously considered this case for the reasons that we have already made clear as to the difficulty that it represents. At the end of the day we have reached a conclusion that this sentence was unduly lenient. We make clear though that we are not over-critical of the judge in reaching that difficult decision. The driving on this occasion was, on any view of it, appalling. That in itself would be a very serious matter were it not for the factor of diabetes. The factor of diabetes explained why driving of this dreadful standard in fact took place and to that extent it mitigates the serious nature of the way in which the driving occurred. However, where such bad driving results from a failure properly to manage the offender's own condition that, as Cooksley makes clear, is a seriously aggravating feature of an offence of this kind. In the light of the guidance given by this court in Cooksley , we think this has to be viewed as being a case that does come in that top category, where the appropriate starting point would be, if the matter was contested, a sentence of the order of four to five years. The offender had driven at a time when he knew that there were problems with his diabetes and his control of it, and he had exhibited a failure to take proper care to make sure that that would not represent a substantial risk to others if he drove his vehicle. The taking of the drugs was not in this case a factor which in itself ought to have called for a longer sentence, in that the level of drugs was not such as to be likely to cause a greater risk of harm. But they also have to be seen in the separate context of his management of his condition. He must have known that the taking of drugs would make it considerably more difficult for him to manage his diabetes and that any failure to manage his diabetes coupled with driving represented a serious risk for other road users. We debated with counsel during the course of the hearing whether this is properly to be seen as a case with two aggravating features, both (a) and (g) on the list to which we have referred, or whether it really is simply a case in which one looks at (g). It seems to us unnecessary to resolve that matter. Clearly it is a matter of relevance that there were the drugs, but it is not relevant in the way that it normally is because they did not in themselves represent the danger, they only represented the danger when they were coupled with the condition. 27. Nonetheless it seems to us that this is a case in which the proper sentence on a contested matter would have been a sentence of the order of four to four-and-a-half years' imprisonment. Making every allowance that one can for the mitigation that there was and certainly discounting the sentence for the guilty pleas, which the judge thought attracted a full discount, it seems to us that the judge could properly conclude that the sentence could be reduced to a sentence of the order of two-and-a-half to three years but that it could not further be discounted below that level. Accordingly, we view that as being the appropriate level of sentencing in the circumstances of this case and if we had been passing sentence at first instance a sentence in that bracket would have seemed appropriate to us. 28. We now have to consider what should be done following our conclusion that this sentence is unduly lenient. It is clearly right that we should follow the normal practice of discounting the sentence we otherwise would have deemed to be appropriate. Having considered the matter carefully, we think that this is a case in which we are obliged to interfere with the sentence passed by the judge but that it should not be a great interference because of the element of double jeopardy. For those reasons we have concluded that we should set aside the sentence of eighteen months' imprisonment and substitute for it a sentence of two years' imprisonment. We make clear that that is not the sentence we would have deemed appropriate if the matter had been heard at first instance. 29. There is no consequential order because he is in custody? 30. MR DENISON: No, my Lord. Do your Lordships confirm the four-year disqualification period? 31. LORD JUSTICE KAY: Yes. We have not been invited to consider any aspect in relation to that, so that remains unaffected. 32. Thank you very much. We meant it when we said we were grateful for the help you have given us.

```yaml citation: '[2004] EWCA Crim 1530' date: '2004-04-29' judges: - LORD JUSTICE KAY - MR JUSTICE RODERICK EVANS - MR JUSTICE PITCHERS ```

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

Neutral Citation Number: [2007] EWCA Crim 1701 Case No: 200701793 A2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT IN CARDIFF HIS HONOUR JUDGE DENYER QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 13 July 2007 Before : LORD JUSTICE THOMAS MR. JUSTICE KEITH and MR. JUSTICE LLOYD JONES - - - - - - - - - - - - - - - - - - - - - Between : Regina Appellant - and - Mustafa Nour Kulah Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Francis FitzGibbon for the Appellant Mr. Michael Jones for the Respondant Hearing dates: 9 th and 11 th May 2007. - - - - - - - - - - - - - - - - - - - - - Judgment MR. JUSTICE LLOYD JONES: 1. On 16 December 2005 at the Crown Court at Cardiff the applicant pleaded guilty on re-arraignment to attempted robbery. On 23 December 2005 he was sentenced by H.H. Judge Denyer QC to a term of imprisonment for public protection. A minimum term of 18 months less the 122 days spent on remand was specified under section 82 A Powers of Criminal Courts (Sentencing) Act 2000 . The Applicant also admitted being in breach of a Community Punishment Order previously imposed by Judge Denyer. That order was revoked and he was sentenced to a term of 12 months imprisonment for an offence of affray and a term of 3 months imprisonment for an offence of criminal damage, those terms to be concurrent with each other and with the term of imprisonment for public protection. 2. The Registrar of Criminal Appeals has referred to the Full Court his application for an extension of time (14 months and 2 weeks) and for leave to appeal against sentence. 3. This application first came before us on 9 May 2007. On that occasion we adjourned the application to enable the Crown to be represented and to permit further enquiries to be made as to precisely what occurred in the course of the proceedings in the Crown Court. The matter came before us once again on 11 May when the Crown was represented by Mr. Michael Jones. We are grateful to him and to Mr. Fitzgibbon who appears on behalf of the applicant, but who did not appear below, for the assistance they have provided to the court. At the conclusion of the hearing on 11 May we announced our decision. This judgment sets out our reasons. 4. At about 11.30 a.m. on 21 August 2005 the complainant, who was aged 17, was walking home after playing football when he came across the Applicant, whom he did not know. The applicant called out to him but even though the complainant ignored him the applicant continued to call out aggressively. He then went up to the complainant and asked to use his mobile phone. The complainant refused and walked away. The applicant followed him, continued to threaten him, stopped in front of him, grabbed hold of his shirt and punched him in the face. He made it clear that he wanted the complainant’s phone. The complainant, fearing for his safety, punched the applicant who fell over. The group the applicant had been with then confronted the complainant who ran as fast as he could to the nearest police station to report the offence. He then toured the area with officers and was able to identify the applicant. The applicant was arrested but when interviewed said that the complainant had attacked him. 5. The applicant was born on 5 May 1980. He has a total of 13 convictions for 20 offences. These include a conviction for assault occasioning actual bodily harm in 1999 for which he was sentenced to 6 months detention in a Young Offenders Institution, an offence of assault on the police in 2002 for which he was sentenced to 5 months imprisonment and an offence of common assault in 2003 for which he was sentenced to a Community Rehabilitation Order for 12 months. I have already referred to the further offences of affray and criminal damage dealt with by Judge Denyer on 16 December 2005. 6. The offence of attempted robbery is a specified serious offence within Schedule 15, Criminal Justice Act, 2003. 7. On 9 November 2005 a Plea and Case Management Hearing took place before the Recorder of Cardiff, H.H. Judge Griffith Williams QC, as he then was. The Applicant was represented by Mr. Karl Williams. Mr. Williams sought an indication of sentence in accordance with the procedure established by this court in Goodyear [2005] EWCA Crim. 88; [2005] 1 WLR 2532 . The Recorder declined to give an indication. He stated that the Applicant was charged with a specified offence within Schedule 15, Criminal Justice Act 2003 . There was no pre-sentence report before the court and accordingly he considered that he was not in a position to give the indication sought. After a brief adjournment the applicant was arraigned and pleaded not guilty. 8. On 12 December 2005 the matter came before H.H. Judge Wynn Morgan. It was listed for a “violence mention”, a pre-trial hearing held in Cardiff in cases involving violence. The Applicant was again represented by Mr. Karl Williams who asked the judge to give a Goodyear indication. It appears that the Judge Wynn Morgan was not told that such an application had previously been made to the Recorder of Cardiff. Judge Wynn Morgan indicated that he would give a Goodyear indication on 16 December 2005. Judge Wynn Morgan also vacated the trial date, fixed to start the following week, owing to revised time estimates. 9. On 16 December 2005 the matter came back before Judge Wynn Morgan. There was no pre-sentence report available at that hearing. The judge, having confirmed the accuracy of his understanding as to the Applicant’s previous convictions and having referred to the decisions of this court in Attorney General’s References Nos. 4 and 7 of 2002 ( Lobban) [2002] EWCA Crim. 127; [2002] 2 Cr. App. R. (S.) 77 and Greenland [2002] EWCA Crim. 1748, [2003] 1 Cr. App. R. (S.) 74, gave an indication of sentence. He is reported in the transcript as having stated: “This defendant is 25. He has previous convictions but none approaching this quality. This is, of course, a specified serious offence, by virtue of it being an attempt it is a specified serious offence. It is not a case in which the court is of the opinion that there is significant risk to members of the public of serious harm, even by the commission by the defendant of further specified offences. The court does not consider that the case is such as to justify the imposition of a sentence of imprisonment for life. This means, by virtue of section 225(3), that the court will have to impose a sentence of imprisonment for public protection, an indeterminate sentence, the custodial portion of which has to be fixed and which, in my judgement, would, on a plea of guilty to the full facts of this case, be one of 3 years. So, Mr. Karl Williams, you can do the maths. It would be a case of dividing that by two and subtracting any time spent in custody. It seems to me, on a first offence for an offence of this nature, on a guilty plea, in the absence of a weapon, bearing all that in mind, 3 years is the appropriate term.” Mr. Karl Williams then stated: “So that would be 18 months and I think he has served 3 months and 3 weeks. Thank you very much.” For reasons that we set out at paragraph 34, we consider that the observations of the judge should be read without the word “not” in the fourth line. 10. Later that day, on re-arraignment, the Applicant pleaded guilty to the offence of attempted robbery. There was no basis of plea. 11. Mr. Michael Jones appeared on behalf of the prosecution at the hearing on 16 December. He had not appeared before the Recorder of Cardiff on 9 November 2005. Mr. Jones has told us that following the hearing on 16 December 2005 he endorsed on his brief that the indication of sentence given by Judge Wynn Morgan was one of imprisonment for public protection with a notional determinate sentence of 3 years imprisonment. 12. Mr. Fitzgibbon has shown us a copy of a letter dated 16 December 2005 from Gooden &Co., the solicitors then acting for the Applicant, to the Applicant purportedly confirming that Judge Wynn Morgan had indicated that if the Applicant entered a guilty plea to attempted robbery based on the prosecution facts the judge would impose a custodial sentence of 18 months imprisonment from which would be deducted the time served upon remand. 13. At our request Mr. Karl Williams prepared a note of his recollection of the proceedings below. He states with regard to the hearing on 16 December 2005: “Looking back it was my understanding that a determinate sentence of 3 years imprisonment less time spent on remand was the term indicated.” 14. Judge Wynn Morgan did not proceed to sentence the applicant on 16 December because HHJ Denyer QC had reserved to himself any breaches of the Community Punishment Order which he had imposed in respect of the offences of affray and criminal damage. 15. Accordingly, on 23 December 2005 the case came before Judge Denyer for sentence. On this occasion Mr. H. Hughes appeared for the prosecution and Mr. Karl Williams for the Defendant. In opening the facts Mr. Hughes stated that the Applicant had pleaded guilty on 16 December before Judge Wynn Morgan following a Goodyear indication as to sentence. 16. The transcript records Judge Denyer’s sentencing remarks as follows: “You fall to be sentenced today for the offence of attempted robbery and for breach of the Community Punishment Order that I imposed in February of this year for affray and criminal damage. You appeared in front of HHJ Wynn Morgan a couple of weeks ago, in fact about a week ago, and he gave an indication (a) that clearly this was not a case for life imprisonment – I agree – but (b) because this was a serious specified offence and you have a previous conviction for a specified offence it was a case for imprisonment for public protection. He further indicated that the appropriate sentence was three years, of which you would serve half, less time spent. It seems to me that that is binding on me and that it would be quite wrong of me to upset that suggestion. Accordingly, for the offence of attempted robbery I do impose a sentence of imprisonment for public protection. The appropriate determinate period is three years’ imprisonment, of which you will serve half, which is 18 months, less 122 days that you have spent in custody. I revoke the Community Punishment Order and for the affray on 17 October last year, twelve months’ imprisonment concurrent with the attempted robbery sentence, and three months’ imprisonment for the damage, likewise concurrent with the attempted robbery. So that is the sentence, all right. I have done that which Judge Wynn Morgan said he would do. Thank you.” 17. It is the recollection of Mr. Karl Williams in the note he prepared for this court that there was no pre-sentence report at the hearing on 23 December 2005. However he added that he could not discount the possibility that there may have been a “breach” report relating to the Community Punishment Order, although he thought that unlikely. The Probation Service has since confirmed that no pre-sentence report on the Applicant was prepared for the purposes of sentencing for the offence of attempted robbery. There was in existence a breach report dated 8 August 2005 which merely recounted the applicant’s failure to attend appointments with the probation service and asked that the Community Punishment Order be revoked and that the applicant be re-sentenced. It contained no risk assessment or recommendation. 18. On 4 January 2006 Gooden & Co. wrote a letter to the applicant informing him that at Cardiff Crown Court on 23 December 2005 he had been sentenced to a period of custody of three years for the offence of attempted robbery and that the period of 122 days spent on remand was to be deducted from that sentence. 19. On 7 March 2006, the National Offender Manager Service wrote to the Applicant to inform him that the Parole Board would meet to consider whether he could be released at the end of the minimum period of imprisonment he was required to serve, i.e. thirteen months and 29 days, which was due to expire on 21 February 2007. Mr. Fitzgibbon tells us that it was not until this time that the applicant or Gooden & Co. began to think that the sentence he was serving might be a sentence of imprisonment for public protection and not a determinate sentence of three years. In July 2006 Gooden & Co. sent the Applicant a copy of the sentencing remarks. The Applicant contacted different solicitors in about November 2006 to ask for assistance. Mr. Fitzgibbon was instructed on 12 March 2007 to advise on whether there should be an appeal against sentence. 20. We have set out the history of these proceedings in some detail because it has a direct bearing on the issues we have to decide. 21. The Applicant seeks an extension of time of 14 months and 2 weeks within which to apply to this court. The ground of this application is that the Applicant was under a misapprehension as to the nature of the sentence imposed upon him. We are sceptical as to whether the Applicant did, in fact, fail to understand the nature of the sentence imposed by Judge Denyer. The judge explained in very clear terms that the sentence was one of imprisonment for public protection. Furthermore, we note that there has been a considerable delay in making any application to this court after the date at which the true nature of the sentence imposed was drawn to the applicant’s attention. However, we also bear in mind that the applicant was seriously misinformed by Gooden & Co., the solicitors then acting for him, as to both the nature of the indication given by Judge Wynn Morgan and the sentence imposed by Judge Denyer. Moreover, given the troubling course of events which I have related, we consider that it is appropriate to grant the extension of time sought. We turn therefore to the substance of the application. 22. We understand that difficulties are encountered in dealing with Goodyear indications in cases where the defendant is charged with one or more offences which are specified offences within Schedule 15 to the Criminal Justice Act 2003 and we hope it may be helpful if we were to offer some observations. 23. We consider that it is not necessarily inappropriate to seek or to give a Goodyear indication merely because a defendant is charged with a specified offence. However, there may be dangers in undertaking this course and it is necessary to warn of them. If an indication is improperly given, a sentencing judge may find himself bound by the “dangerous offender” provisions to impose a sentence which is qualitatively different from the indication he has given. In the alternative, he may consider himself bound by his prior indication to impose a sentence which does not accord with mandatory statutory provisions. 24. The so-called “dangerous offender” provisions in Part 12, Chapter 5, Criminal Justice Act, 2003 are mandatory. ( Reynolds and others [2007] EWCA Crim. 538 at paragraph 5). Thus, if an adult defendant falls to be sentenced for a specified offence committed on or after 4th April, 2005, and he is assessed as presenting a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences, the sentencing judge’s discretion is circumscribed. If the offence is “serious” (i.e. carries a maximum penalty of 10 years’ imprisonment or more) an indeterminate sentence must be imposed. If it is not “serious” an extended sentence must be imposed. 25. Goodyear was argued before the “dangerous offender” provisions came into effect, although judgment was handed down shortly after they came into effect. The impact of these provisions was not before the Court for consideration. Nevertheless, the guidance set out in Goodyear holds good. Of particular significance in this regard is paragraph 65(d) of the judgment: “[A]ny indication which may be given relates only to the matters about which an indication is sought. Thus, certain steps, like confiscation proceedings, follow automatically, and the judge cannot dispense with them, nor, by giving an indication of sentence, create an expectation that they will be dispensed with.” 26. It is axiomatic that a Goodyear indication will be sought before plea. At that time, it will often be the case that the sentencing judge will not be in possession of the information necessary to enable him or her to make the assessment of risk required by each of subsections 225(1)(b), 226(1)(b), 227(1)(b) and 228(1)(b). In this regard we understand that it is now the usual practice of the Probation Service not to produce a pre-sentence report until after the defendant has pleaded guilty or has been convicted. 27. There will, of course, be very clear cases where the assessment that the offender is dangerous is manifest even at that stage, perhaps based only on the antecedent history and the nature of the offending before the court. It may not be difficult, for example, to categorise as “dangerous” a professional armed robber who has a lifetime of convictions for that offence and who habitually carries loaded firearms in the course of his criminal occupation or a serial rapist with a long history of deviant and dangerous criminal sexual behaviour. 28. However, the great majority of cases will not be clear-cut. Pre-sentence and other appropriate reports will not be available. In such cases, it remains a matter for the judge to decide whether it is appropriate to give an indication. Such a situation was foreseen in Goodyear itself (at paragraph 58). “There will be occasions when experience will remind him that in some cases the psychiatric or other reports may provide valuable insight into the level of risk posed by the defendant, and if so, he may justifiably feel disinclined to give an indication at the stage when it is sought.” As Goodyear (paragraphs 56-59) makes clear, the judge is under no obligation to give an indication and he has an unfettered discretion in this regard. 29. There are particular difficulties in giving an indication in respect of a young offender (under 18 at the date of his plea of guilty or his conviction) because there is the additional option, which is not available when dealing with an adult, of imposing an extended sentence in respect of a serious specified offence. 30. If the Judge decides to give an indication where an assessment of future risk remains to be made he should make the following matters clear. (a) The offence (or one or more of them) is a specified offence listed in Schedule 15, Criminal Justice Act, 2003, bringing into operation the “dangerous offender” provisions contained in Part 12, Chapter 5 of that Act . (b) The information and materials necessary to undertake the assessment of future risk which is required by those provisions are not available and that that assessment remains to be conducted. (c) If the defendant is later assessed as “dangerous”, the sentences mandated by the provisions - an indeterminate or extended sentence - will be imposed. (d) If the defendant is not later assessed as “dangerous”, the indication relates in the ordinary way to the maximum determinate sentence which will be imposed. (e) If the offender is later assessed as “dangerous”, the indication can only relate to the notional determinate term which will be used in the calculation of the minimum specified period the offender would have to serve before he may apply to the Parole Board to direct his release; or, in a case where an extended sentence is the only lawful option, it will relate to the appropriate custodial term within the extended sentence (that is, the indication does not encompass the length of any extension period during which the offender will be on licence following his release). It must be remembered that where an extended sentence is imposed on any offender, the appropriate custodial term cannot be less that 12 months (subsections 227(3)(b); 228(3)(b)). (f) If an indeterminate sentence is mandated by the provisions, the actual amount of time the offender will spend in custody is not within the control of the sentencing judge, only its minimum. Nevertheless, it seems to us that judges may, understandably, feel a reluctance to give a Goodyear indication in circumstances where they do not yet know how dangerous the defendant really is. 31. Finally in this regard, we would point out that Goodyear (paragraph 70) already imposes an obligation on the prosecution to draw the attention of the judge to any minimum or mandatory sentencing requirements. That obligation includes a duty to inform the judge that the offence charged is a specified offence and of the requirement to undertake the risk assessment required by each of the relevant subsections. 32. Returning to the facts of the present case, we consider that the Recorder of Cardiff was justified in declining to give a Goodyear indication at the Plea and Case Management Hearing on 9 November 2005. As this court made clear in Goodyear (at paragraph 57) judges retain an unfettered discretion to refuse to give any indication of sentence. The Recorder clearly considered that he was not in a position to make an assessment of dangerousness on the information then before him. In particular, he did not have the benefit of a pre-sentence report. While it would have been open to the Recorder to give an indication subject to the qualifications we have referred to above and to defer the assessment of dangerousness, the course he followed was entirely appropriate. 33. It is a matter of great concern to this court that, the Recorder having refused to give a Goodyear indication, an application for such an indication was then made to Judge Wynn Morgan on 12 December 2005 without Judge Wynn Morgan being told then or on 16 December of the earlier application, its outcome or the reasons for the Recorder’s refusal to give an indication of sentence. If it is the case that a practice of forum shopping is developing, it is to be deprecated. 34. Mr. Fitzgibbon submits that the indication of sentence given by Judge Wynn Morgan, as recorded in the transcript set out above, does not make sense because it is internally contradictory. We agree. If, as the transcript states, it was the opinion of the judge that this was not a case in which there was a significant risk to members of the public of serious harm occasioned by the commission by the applicant of further specified offences, a pre-condition for the imposition of a sentence of life imprisonment or a sentence of imprisonment for public protection would not be satisfied. We have caused the transcript to be checked and are satisfied that it is accurate. However, we are entirely satisfied that the word “not” in the fourth sentence of the extract quoted above was a mere slip on the part of the judge. If that word is deleted, the passage makes complete sense. On consideration of the entire passage his intended meaning is clear. 35. Furthermore, it is clear from the transcript that the sentence which the judge indicated was a sentence of imprisonment for public protection with a minimum term of 18 months, less the time spent in custody on remand. Moreover, the judge stated in terms that this was an indeterminate sentence. Further confirmation is provided by the endorsement made by Mr. Michael Jones on his brief. We are at a loss to understand how the solicitor representing the Applicant on that occasion could have made such a fundamental mistake as to the nature of the indication. (However, we also note that Mr. Angelo Gooden, a partner in the firm, made an equally fundamental mistake as to the nature of the sentence imposed by Judge Denyer on 23 December 2005.) The recollection of Mr. Karl Williams as to the indication given by Judge Wynn Morgan is made after a long period of time and without the opportunity to consult the full file. We are satisfied that he is mistaken in his recollection. Had Judge Wynn Morgan given an indication of a determinate sentence it is inconceivable that Mr. Williams would not have raised the matter before Judge Denyer and protested that he was proceeding on a false basis. (We note that a different solicitor from Gooden & Co., Mr. Angelo Gooden, was present at the sentencing hearing on 23 December. However, having seen the file note prepared by the solicitor present on 16 December, we are unable to understand why Mr. Gooden failed to indicate that Judge Denyer was departing from what the file note recorded as Judge Wynn Morgan’s indication.) 36. In the particular circumstances of this case, we doubt that it was open to Judge Wynn Morgan to make an assessment of the dangerousness of the defendant on the basis of the material then before him. In particular, he had not been provided with a pre-sentence report. We do not consider that this case falls into the category of very clear cases, identified above, where the conclusion that the offender is dangerous is inevitable from the outset, for example because of the defendant’s antecedent history or the nature of the offence before the court. We consider that where, as here, the judge thinks it desirable to give an indication of sentence, the more appropriate course would be to give that indication subject to the important qualifications we have set out in paragraph 30 above, and to defer the assessment of dangerousness until the court is in possession of the material it needs to enable it to make that decision. 37. That assessment of dangerousness should normally be made by the judge who gave the indication as to sentence, when he comes to sentence. In the present case, when the matter came before Judge Denyer he clearly felt uncomfortable in sentencing the applicant in circumstances where a Goodyear indication had been given by another judge. There were in this case good reasons why sentence for any breach of the community orders had been reserved to Judge Denyer and one can see, therefore, why it was thought appropriate that Judge Denyer should deal with the sentence. We accept that it will not always be possible for a judge who has given a Goodyear indication to impose the sentence. However, we suggest that it would be desirable that whenever possible the judge who has given a Goodyear indication should himself sentence the defendant. If it is unavoidable that a different judge has to pass sentence, we consider that the sentencing judge should be provided with a transcript of the Goodyear indication. There is scope for misunderstanding if a Goodyear indication is merely related to the sentencing judge by counsel. The sentencing judge should have the benefit of a transcript setting out the precise terms of the indication given. 38. Mr. Fitzgibbon makes two criticisms of the approach followed by Judge Denyer in the present case. First, he submits that the judge failed to appreciate that the Goodyear indication is an indication of the maximum sentence which may be imposed. He says that the sentencing judge should have formed his own view as to the appropriate sentence. Secondly, he submits that the Applicant was sentenced to a term of imprisonment for public protection without any of the judges who heard his case having made a proper assessment of his dangerousness. We consider that there is force in these submissions. 39. This court in Goodyear (at paragraph 57) made clear that any advance indication of sentence to be given by the judge should normally be confined to the maximum sentence if a plea of guilty were tendered at the stage at which the indication is sought. In the present case the indication given by Judge Wynn Morgan was an indication of maximum sentence and did not relieve Judge Denyer of the duty to form his own view as to the appropriate sentence. It may be that Judge Denyer in the exercise of his independent judgement would have come to the same conclusion. However, the terms of his sentencing remarks indicate that he considered he was bound to impose the sentence previously indicated. The true position is that a judge is bound not to impose a more onerous sentence than the maximum sentence previously indicated in accordance with the Goodyear procedure. 40. Furthermore, it is for the sentencing judge to form his own view of whether the requirements of section 225(1) (b) Criminal Justice Act 2003 are satisfied. In the present case, Judge Denyer should not have adopted the conclusion of Judge Wynn Morgan. It is an unfortunate feature of this case that at no stage was a proper assessment of the dangerousness of the Applicant carried out. 41. In these circumstances, it falls to us to make a fresh assessment of the dangerousness of the Applicant. We are very conscious of the fact that we do not have the benefit of a pre-sentence report. However, we consider that in the light of the history of this case which we have set out and at this late stage, some 17 months after sentence and 21 months after the commission of the offence, this would be impracticable. The Applicant is now 27 years of age. He has 12 previous convictions for 19 offences. Only one of these is relevant for the purposes of section 229(3), namely his conviction for assault occasioning actual bodily harm on 28 May 1999 when he was sentenced to 6 months detention in a Young Offender Institution. Having regard to the age of that conviction, the nature of his other convictions and the other matters to which we are required to have regard under section 229(3) we have come to the conclusion that it would be unreasonable now to conclude that there is a significant risk to members of the public of serious harm occasioned by the commission of him of further specified offences. We consider, in particular when taking into account the history of the events surrounding the sentencing of the applicant, that the appropriate sentence in this case is a determinate sentence of three years imprisonment less the 122 days spent in custody on remand. The concurrent sentences of imprisonment will not be disturbed. 42. Accordingly we grant an extension of time within which to apply to this court, we grant leave to appeal against sentence and we allow that appeal to the extent indicated.

```yaml citation: '[2007] EWCA Crim 1701' date: '2007-07-13' judges: - LORD JUSTICE THOMAS - MR. JUSTICE LLOYD JONES ```

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

Neutral Citation Number: [2007] EWCA Crim 1898 Case No: 2006/02254 C2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM The Crown Court at Swansea Mr Justice Roderick Evans T20050356 Royal Courts of Justice Strand, London, WC2A 2LL Date: 26 July 2007 Before: LORD JUSTICE HOOPER MR JUSTICE BURTON and MR JUSTICE FLAUX - - - - - - - - - - - - - - - - - - - - - Between: Andrew Paul Rafferty Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr G Elias QC and Mr D A Harris (instructed by Goldstones Solicitors) for the Defendant Mr R Spencer QC and Mr P Griffiths for the Crown Hearing date: 6 June 2007 - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE HOOPER : 1. Having quashed the appellant’s conviction for manslaughter it became necessary to sentence the appellant for the offence of robbery to which he had pleaded guilty at the PCMH and in respect of which the judge imposed no separate penalty. At the conclusion of the hearing we announced that we would impose a sentence of 10 years detention under s.228 of the Criminal Justice Act 2003 made up of a custodial term of seven years and an extension period of three years. We also ordered that the 265 days spent on remand is to count towards the sentence. 2. We now give our reasons for that decision. The facts are very fully set up in our decision to quash the decision for manslaughter [2007] EWCA Crim 1846 . We start with the judge’s sentencing remarks. He said:- Rafferty, you are, of course, in a very different position. You were convicted of manslaughter on what was referred to at trial, as the causation basis. That is the violence which you bear responsibility, made a significant contribution to the death of Ben Bellamy at the hands of Taylor and Thomas, when they drowned him. Either by rendering him unconscious, so he could not resist drowning or if he remained conscious, by reducing his ability to resist drowning at their hands. On the evidence, that I have heard, I am satisfied, so as to be sure, that you bear responsibility, not only for an element of the violence used before you went to the cash point, but also for a degree of violence used thereafter. I accept of course, that at one stage you said to the other two, ‘leave it there boys.’ But I am satisfied that you elbowed Ben Bellamy in the back, to keep him on the ground when attempts were being made by somebody else to stop the attack, by Thomas and Taylor. That evidence is your support for the attack that was being carried out. I am also satisfied that you anticipated that you would return to the scene of the robbery to meet up with Thomas and Taylor and that Ben Bellamy would have been kept there against his will, by the other two. That it seems to be followed inevitably from you three robbers agreeing to meet up, a considerable time later, at the spot where the robbery occurred. I accept, of course, in accordance with the jury’s verdict, that not only did you not intend to kill Ben Bellamy but also you did not intend that he received really serious harm. I have read the pre-sentence report, dated 17 May 2006, you were born on 6 November 1987, you are now 18 years of age and seven months. You pleaded guilty to the robbery I am told when you were 17, but you were convicted of manslaughter, when you were 18. You are one of three people who attacked a defenceless person, alone at night. Then you left the scene, intending to return, you were aware of the conduct of Thomas and Taylor. I bear in mind your guilty plea to the robbery, the fact that you, alone, of the defendants answered questions to the police and you gave an account which was, in essence, demonstrably accurate. I bear in mind your background, and your family support. In sentencing you, I have to consider the question of dangerousness, that is whether there is a significant risk to members of the public of serious harm, occasioned by the commission, by you, of furthe4r specified offences. The presumption of dangerousness, set out in s.229 of the 2003 Act , does not apply in your case, despite your previous conviction for affray. Because you were under 18 at the time that affray occurred. However, I am bound to consider all the relevant information about you in considering the question of dangerousness. In so doing, I consider your previous conviction, I considered these two offences. Also the knife incident in April 2004 and the content of the pre-sentence report. Having done so, I conclude that the risk identified in chapter five of the 2003 Act , does exist in your case. This however, is not a case which calls for a life sentence, as far as you are concerned. I intend to pass upon you a sentence of imprisonment for public protection, that is an indeterminate sentence. You will be released only when the authorities consider that you are no longer a danger. Again I am required to fix a minimum term which you just serve before you can be considered for release. When you have served that term, you will not be automatically released, you will be released on licence, only when it is safe to release and that licence is liable to remain for the rest of your life. I impose this sentence only on the offence of manslaughter, having considered, in so doing, the associated offence of robbery. The term that I would have passed upon you, had I not been passing this sentence of imprisonment for public protection is one of ten years custody. I am required by statute, to halve that, and to deduct from it, the time that you have spent in custody, which I do. Given paragraph 30 of our judgment allowing the appeal against conviction it seems to us only right not to take into account when sentencing him, any responsibility for the violence used thereafter. Mr Elias submitted that we should also not take into account the reference by the judge to the appellant returning to meet up with the co-defendants and the appellant anticipating that Ben Bellamy would have been kept there against his will. It seems to us as Mr Spencer submits, that we are entitled to take that into account because it is part and parcel of the robbery. 3. The judge refers to the previous conviction for affray. That is an important factor in this case and we have been provided with the sentencing remarks of His Honour Judge Elystan-Morgan dated 11 November 2004. The appellant Rafferty pleaded guilty to an offence of affray at the close of the prosecution case and Joel Taylor the co-defendant in the case with which we are concerned pleaded guilty to an offence of wounding contrary to s.20 of the Offences against the Person Act. There had been an altercation in which a man had been assaulted. That led to “an atmosphere of threat and of a desire for violence” and to the co-defendant Taylor going to the home of a neighbour asking for a knife. The neighbour refused but Taylor armed himself with a sharp instrument. We were told that it was likely to have been a sharpened piece of bone. With that sharpened instrument Taylor stabbed McNeil deliberately twice in the lower back. Fortunately the wounds were somewhat superficial. In the words of the judge when he sentenced Taylor in Rafferty’s presence, he said to Taylor: “But when you stabbed that man you knew not where that weapon was going; it could have gone into a vital organ and indeed the very gravest consequences could so easily have flowed from your act.” The sentence passed was a detention and training order for a period of eight months. Insofar as Rafferty was concerned he said:- “I take the view… that you were a peace maker and you did speak kindly and decently to McNeil and tried to explain to him what the situation was and tried to calm the others down. But at a late point in events you became a belligerent, in other words, you became a fighter rather than a peace maker, and I take that into account.” Taking into account that Rafferty was a peace maker for a substantial period of time he passed a supervision order for the offence of affray. 4. The importance of that conviction and those sentencing remarks is two-fold. We shall consider below the impact upon the assessment which we have to make by virtue of the provisions of Chapter IV of the Criminal Justice Act 2003 . The involvement in this offence constitutes a substantial aggravating factor for the offence of robbery. Rafferty was again involved with Joel Taylor. He participated in the offence with Joel Taylor knowing Joel Taylor’s capacity to be as violent as he had been on the earlier occasion. To help Taylor in his assault on Ben Bellamy knowing of what Taylor was capable, is, in our view, a very serious aggravating factor. 5. We now turn to the Guideline on sentencing for robbery. Rafferty was aged 17 at the time of conviction and the appropriate guideline is to be found at page 14. Mr Elias accepts that the robbery falls into either category 2 or category 3 although he asks us to find that it falls into category 2. He said that the conviction of manslaughter showed only an intent to cause some harm and that was sufficient to put it into category 2. In our view this is a category 3 robbery- serious physical injury was caused during the course of the robbery albeit that the defendant may have only intended some less serious harm. This being a category 3 robbery the starting point is seven years with a sentencing range of six to 10 years. The following aggravating features are to be found:- More than one offender was involved. The victim was restrained and detained during the course of the robbery. The offence was pre-planned and committed at night. There was an element of vulnerability insofar as the victim was concerned. 6. In so far as the pre-planning is concerned, it seems clear that the idea of robbing Bellamy had been formed earlier before the arrival on the beach. Additionally the offence of robbery continued over a considerable period of time. 7. In so far as the listed mitigating factors are concerned, there was evidence of remorse in the appellant’s admissions to the police that he had been involved in the robbery. However, even in his basis of plea to the robbery Rafferty did not disclose his true involvement in the robbery as found by the jury. 8. We take the view that given all the aggravating features and in particular the fact that he committed this offence with Taylor, the sentence following a trial would be in the region of 10 years’ detention. Allowing for the plea of guilty we reduce that to seven years. 9. We now turn to the issue of dangerousness. We must now reassess the judge’s conclusion. Having done so we have reached the same conclusion as the judge. In our view there is a significant risk to the members of the public of serious harm occasioned by the commission by Rafferty of further specified offences. We have looked at the pre-sentence report. It shows a young man who is seriously disturbed and subject to substance and alcohol abuse. In the words of the probation officer there was no evidence to suggest that the appellant will react any differently should he be faced with a “same scenario” situation. To put it the other way, there is a significant risk that he will behave in that way. It seems to us that the circumstances of the robbery against the background of the affray in themselves provide sufficient evidence that the appellant is a significant risk within the meaning of s.225. 10. Because Rafferty was only 17 at the time of the conviction we have to decide whether an extended sentence is sufficient or whether it is necessary to pass a sentence of imprisonment for public protection. We take the view applying s. 226 that an extended sentence will be adequate for the purpose of protecting the public from serious harm and it is not necessary to impose a sentence of imprisonment for public protection. 11. These are our reasons for passing the sentence which we announced at the end of the hearing,

```yaml citation: '[2007] EWCA Crim 1898' date: '2007-07-26' judges: - LORD JUSTICE HOOPER - MR JUSTICE BURTON - MR JUSTICE FLAUX ```

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 257 Case No: 201205482/C1-201205485/C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 13th February 2013 B e f o r e : LORD JUSTICE RICHARDS MR JUSTICE GLOBE HIS HONOUR JUDGE KRAMER QC (Sitting as a Judge of the CACD) ------------------- R E G I N A v JAE JODIE LOVE LEE HYDE ------------------- 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 Morris appeared on behalf of the Applicants Mr G Patterson appeared on behalf of the Crown ------------------- J U D G M E N T 1. LORD JUSTICE RICHARDS: On 30th August 2012 in the Crown Court at Isleworth the applicants, Jae Love and Lee Hyde, each pleaded guilty to a count of burglary. The indictment charged them with an offence contrary to section 9(1) (a) of the Theft Act 1968 , stating under the particulars of offence that they had entered "a building namely 36 Micawber Avenue Uxbridge" as trespassers with intent to steal therein. As all concerned were aware, the building at 36 Micawber Avenue was a dwelling; but the indictment did not refer in terms to a dwelling. The point is important, because section 9(3) of the Theft Act provides by paragraph (a) for a maximum sentence of 14 years where the offence was committed in respect of a building which is a dwelling, and by paragraph (b) for a maximum sentence for 10 years in any other case; and even more significantly because Hyde's antecedents included two previous dwelling burglaries which engaged a statutory minimum sentence of 3 years pursuant to section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 if this was a further instance of a burglary of a dwelling. 2. After the applicants had entered their pleas of guilty the matter was adjourned briefly for their antecedents to be obtained. During the adjournment, defence counsel pointed out to the prosecution that section 111 of the 2000 Act did not apply because the building in question was not particularised in the indictment as a dwelling. Prosecuting counsel thereupon made an application to amend the indictment to substitute the word "dwelling" for "building" in the particulars of the offence. The defence contended that the pleas already entered by the applicants could not be vacated in these circumstances. The judge rejected that contention and ruled that the pleas should be vacated and the prosecution be permitted to amend the indictment. The applicants were then re-arraigned on the amended indictment and each again pleaded guilty. 3. The judge then sentenced Love to 10 months' imprisonment, with 6 months consecutive for breach of an existing suspended sentence; and sentenced Hyde to 876 days' imprisonment, that is 3 years less credit for plea on the burglary count, with consecutive sentences of 2 months and 1 month respectively for breaches of existing suspended sentences. 4. Applications by both applicants for leave to appeal against conviction and sentence have been referred to the full court by the single judge. The focus is on the convictions. It is said that the applicants’ pleas to the indictment in its original form should not have been vacated and that the applicants fell to be sentenced for burglary of a non dwelling, in which case the sentences imposed were manifestly excessive. If they were lawfully convicted of burglary of a dwelling, there is a short argument advanced in respect of Love as to whether the length of sentence imposed was nonetheless excessive. 5. In referring the applications to the full court the single judge noted that the point raised in respect of the convictions was without any substantive merit but that it should be the subject of decision by the full court. 6. The argument set out by Mr Morris in his written skeleton argument on behalf of the applicants was in essence that the court did not have jurisdiction to vacate the pleas of guilty to the indictment in its original form. A plea can be vacated only on application by a defendant, pursuant to the procedures set out in rule 39.3 of the Criminal Procedure Rules. Further, the prosecution was not entitled to apply to amend the indictment after the applicants had pleaded guilty. Accordingly, the amended indictment to which they pleaded guilty on re-arraignment was itself defective and/or unlawful and the convictions based on those pleas are unsafe. 7. That, as we have said, is the essence of the argument advanced in writing. The attention of both counsel was subsequently drawn by the lawyer in the Criminal Appeal Office to the case of R v JW , a judgment of the Court of Appeal dated 21st April 1999. In that case the appellant had pleaded guilty to counts of indecent assault on a female. The particulars of each offence did not aver that the female in question was under the age of 13, which affected the maximum sentence available. There was no suggestion that the appellant had pleaded guilty on any basis other than that the victims were children under the age of 13. When the issue of maximum sentence was raised in the course of mitigation, the judge permitted the prosecution to amend the indictment, pursuant to section 5(1) of the Indictments Act 1915 , to add the age of the victim to the particulars of each count. No application was made to vacate the plea; indeed counsel for the appellant said he did not wish his client to be re-arraigned lest it be taken as an indication of consent to the amendments to the indictment. The judge therefore ruled that the appellant need not be re-arraigned and the case proceeded in the usual way. 8. The argument advanced on the appeal was that once the appellant had pleaded guilty to the indictment in its original form, the trial was over and that the purported amendment therefore did not fall within the statutory power to amend "at any stage of a trial". The court, presided over by Judge LJ (as he then was), disagreed. It held that the argument confused the entry of a plea with the end of a trial. S v Recorder of Manchester [1971] AC 481 showed that the trial is not complete for this purpose until sentence has been passed (thus a plea can be changed up to a point of sentence). The amendment made therefore fell within the statutory power. There was moreover no unfairness in correcting what had been a complete oversight by the Crown. The appellant and his counsel both knew that the allegations in the indictment related to indecent assault on children under the age of 13. Any potential injustice was cured by the judge's offer to allow the appellant the opportunity to vacate his plea. The appeal was therefore dismissed. 9. In the light of the decision in JW , Mr Morris now accepts, as he must, that the judge in the present case did have power to allow the amendment to the indictment. Nonetheless, he adheres to his submission that there was no power to vacate the pleas. He submits that the judge's action in causing those pleas to be vacated without an application by the defence constituted a material irregularity, such that this court can and should interfere by quashing the convictions based on the amended indictment and, in effect, substituting convictions in respect of the indictment in its original form. 10. The Crown's response, as set out by Mr Patterson in his written skeleton argument, is that these convictions cannot be said to be unsafe since both applicants entered pleas of guilty to the amended indictment and both have continued to accept their guilt of the offence charged in that indictment. They were aware in the Magistrates' Court that they were charged with burglary of a dwelling and the case was sent to the Crown Court on charges of burglary of a dwelling. The amendment of the indictment in the Crown Court, once the error in the particulars was identified, caused the applicants no prejudice or unfairness beyond denying them the opportunity to take advantage of the error. No statutory provision or principle of law has been identified which prohibits a court from vacating a defendant's plea where it is appropriate to do so in the interests of justice, and the judge's approach was consistent with the overriding objective of the Criminal Procedure Rules. In any event, as JW shows, the amendment could have been made without vacating the pleas. Even if there was a procedural irregularity it is submitted that it did not render the convictions unsafe. 11. On the reasoning in JW it is clear, in our judgment, that there was power to amend the indictment notwithstanding that the applicants had already entered pleas of guilty to the indictment in its unamended form, and it was not a procedural irregularity for the judge to allow the prosecution to make the amendment. The amendment caused no injustice whatsoever, since it reflected the position as everybody understood it to be and accepted to be correct. 12. We have been shown nothing to support the submission that the judge had no power to vacate the applicants' pleas of guilty in the absence of an application by them or on their behalf to vacate those pleas. It appears to us that the court must have that power. But the point does not in fact matter one way or the other for present purposes. That is because it is established by JW that the judge could have dealt with the case by offering the applicants an opportunity to vacate their pleas but allowing their pleas to stand as pleas to the amended indictment if they did not wish to vacate them. In substance that is exactly the position that was reached by the alternative route adopted in this case, that is by vacating the pleas and allowing the applicants to enter fresh pleas. Since they did enter fresh pleas of guilty the end result was exactly the same as if the judge had adopted the course approved in JW . 13. There was no unfairness in any of this. The outcome was that the applicants unequivocally accepted their guilt of the offence particularised in the amended indictment. There is nothing to cast the remotest doubt on the safety of their convictions. Accordingly, the applications in respect of the convictions are refused. 14. There is one outstanding point, as we have mentioned, in respect of sentence, that is that Mr Morris seeks to contend that the sentence imposed on Love was manifestly excessive even on the basis that this was a dwelling-house burglary. 15. In order to consider that point we should briefly refer to the facts of the burglary. The owner of the property was a disabled lady who was on holiday at the time. The applicants broke into a shed at the rear of the property and used a shovel from the shed to force entry into the house. They broke in by the back door, damaging the hinges. They carried out an untidy search but there was no evidence that anything was stolen. Jewellery boxes were disturbed and cupboard doors opened. What happened was that a neighbour had seen them breaking in, called the police and the applicants were arrested as they tried to flee the scene. 16. Love, who is 36 years of age, had 47 previous offences against his name, including a number of thefts and similar offences. In sentencing him the judge found that this was a Category 2 burglary, with a starting point of 1 year’s custody and a sentencing range going up to 2 years. He referred to Love's criminal record which, in his view, increased the starting point. He took the starting point as one of 15 months and gave full credit for the plea. There was, in addition, a consecutive sentence for the breach of the suspended sentence, in respect of which no complaint is made. 17. What is submitted by Mr Morris is, in short, that the judge was wrong to treat this as a Category 2 burglary; he should have treated it as a Category 3 burglary; indeed from his sentencing remarks it is apparent that he was in some doubt as to the correct categorisation. In our judgment, however, the judge was entitled to treat this as a Category 2 burglary, and in any event when everything is taken into account and in particular when regard is had to Love's antecedents we do not accept that the judge's starting point of 15 months was arguably excessive or therefore that the sentence of 10 months, after full credit for plea, was arguably excessive. 18. Accordingly the renewed application in respect of sentence in the case of Love is also refused.

```yaml citation: '[2013] EWCA Crim 257' date: '2013-02-13' judges: - LORD JUSTICE RICHARDS - MR JUSTICE GLOBE - HIS HONOUR JUDGE KRAMER 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: 201005564 A3 Neutral Citation Number: [2011] EWCA Crim 880 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 15th March 2011 B e f o r e : LORD JUSTICE AIKENS MR JUSTICE KEITH MRS JUSTICE THIRLWALL DBE - - - - - - - - - - - - - - R E G I N A v KEVIN DAVID SPARKES - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7422 6138 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr M Lowe appeared on behalf of the Appellant - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE KEITH: On 28th September 2010 at Northampton Crown Court, the appellant was sentenced by Judge Wide QC to three years' imprisonment for two offences of burglary and three years' imprisonment for two offences of theft. He had pleaded guilty to all four charges. All the sentences were ordered to run concurrently with each other, but consecutive to sentences totalling five years' imprisonment which he was currently serving and which had been passed by the same judge, also at Northampton Crown Court, on 14th June 2010. He now appeals against the sentences imposed on him on 28th September 2010 with the leave of the single judge. 2. The offences for which the appellant had been sentenced on 14th June 2010 related to two domestic burglaries which the appellant had committed with another man exactly a year earlier on 14th June 2009. Both the burglaries had been committed at night. One of them related to an isolated farmhouse which was occupied at the time. Car keys were stolen. The keys were used to remove an expensive high-performance car from the driveway at the farm. The second burglary related to a house which was also occupied. This time a handbag was stolen from the kitchen. The appellant and his co-defendant were chased by the police in the car they took in what the judge described as colossal speeds, including going through one village which had a 30 mile an hour speed limit at something approaching 90 miles an hour. That had resulted in the appellant and his co-defendant being charged with aggravated vehicle taking as well. The judge took six years' imprisonment as his starting point for the totality of the appellant's offending that night, but sentenced him to five years' imprisonment in all to reflect his, albeit late, pleas of guilty. 3. The four offences which the appellant was sentenced for on 28th September 2010 had been committed while he had been on bail for the June 2009 offences. The burglaries were night-time domestic burglaries of homes which were occupied at the time by couples and their children, and the thefts related again to expensive high-performance cars which the appellant stole with keys he had taken from the premises. The first burglary was committed on 11th April 2010. Although the appellant was seen by the householder, there was no confrontation between them. The second burglary was committed on 5th May 2010. This time the appellant had driven off before the householder saw him. Both of the cars were recovered, and victim impact statements said that both families were still frightened and their sleep was affected. It is said on the appellant's behalf that the intrusion into the victims' homes was minimal. It was not as if vulnerable victims had been targetted or items of sentimental value taken, or as if untidy searching, ransacking or gratuitous vandalism had taken place. All that is true, but these were nevertheless serious offences. 4. The judge gave the appellant credit for his pleas of guilty, but he noted that the appellant had initially spurned the opportunity to plead guilty to these offences when he was sentenced for the offences committed in June 2009, and that he had waited instead to see whether there was forensic evidence by which the prosecution could prove his involvement in the April and May 2010 offences. He only pleaded guilty on the day his case was due to be listed for an adjourned plea and case management hearing and following Judge Wide's refusal to give a Goodyear indication in his case. 5. The appellant is 28 years old. He has a number of previous convictions, including convictions for domestic burglaries. In October 2003 he was made the subject of a curfew order for a domestic burglary. In November 2006 he was sentenced to 20 months' imprisonment for another one. And then, of course, there were the two domestic burglaries for which he was sentenced to five years' imprisonment in June 2010. Plainly, a substantial sentence of imprisonment was called for, and at first blush it had to be for at least three years in the light of the mandatory minimum sentence for a third domestic burglary required by section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 , unless there were particular circumstances relating to any of the offences or the appellant which made it unjust to pass the minimum sentence. Indeed, sentences totalling three years' imprisonment are not criticised, nor could they. The only ground of appeal relates to totality as a result of the judge ordering that the sentences of three years' imprisonment should be served consecutively to the five years' imprisonment the appellant was serving for the June 2009 offences. 6. In Watts [2000] 1 Cr App R (S) 460, it was said at page 463 that "although it may be proper to make a sentence consecutive to one passed on an earlier occasion, particularly where the second offence has been committed while on bail for the first offence, the court must nevertheless have regard to the totality of the sentence going to be served. If the offence had fallen to be dealt with at the same time would the same total sentence have resulted?" It is perfectly true that the appellant could have avoided being sentenced on two separate occasions had he pleaded guilty to these offences when he was sentenced for the June 2009 offences, but the fact that he chose not to plead guilty then should be reflected in the limited discount which he should be given for his late pleas of guilty, rather than denying him the opportunity to have his offending considered on the basis of totality. Bearing in mind the judge's starting point of six years' imprisonment for the June 2009 offences, and the late pleas of guilty for the current offences, making the three years' imprisonment consecutive to the sentences for the June 2009 offences means that the judge must have taken a notional starting point in the region of nine and a half years' imprisonment for all the appellant's offending. We think that that was too long, and that it should have been of the order of eight years' imprisonment. Giving the appellant an appropriate discount for the late pleas of guilty in both sets of cases, we think that the overall sentences should have totalled six and a half years' imprisonment. 7. But how does that fit in with the complicating factor of section 111 ? Unquestionably the sentences had to be consecutive. Yet if the minimum sentence was imposed consecutively, the totality principle would be breached. The answer lies in the court's power not to impose the minimum sentence where the particular circumstances relating to the offences or the offender make it unjust to pass the minimum sentence, taking into account the appellant's pleas of guilty which the judge was entitled to give effect to pursuant to section 144(2) of the Criminal Justice Act 2003 . That enables the court to give effect to totality and to the appellant's pleas of guilty. That is what was said in Raza [2010] 1 Cr App R (S) 56 , in which the headnote, which accurately reflects what the court said, reads: "Where an offender is convicted of a number of offences, one of which is subject to a mandatory minimum sentence, the principle of totality applies and requires the sentencing judge to consider whether the aggregate of consecutive sentences produces a total term which is disproportionate to the overall criminality of the offender's conduct, but the principle of totality should be applied in such a way that it does not undermine the will of Parliament by substantially reducing an otherwise appropriate consecutive sentence for another offence so as to render nugatory the effect of the mandatory minimum sentence." 8. In our judgment, since the principle of totality required the appellant to be sentenced to a total of six and a half years' imprisonment for his overall offending, it was unjust in these circumstances for the appellant to have been sentenced to consecutive terms of three years' imprisonment for the 2010 offences. We do not think that the will of Parliament will have been undermined if we substitute for the sentences of three years' imprisonment imposed by the judge for the 2010 offences sentences of 18 months' imprisonment, to be served concurrently with each other but consecutive to the sentences totalling five years' imprisonment imposed on 14th June 2010. To that extent this appeal is allowed.

```yaml citation: '[2011] EWCA Crim 880' date: '2011-03-15' judges: - LORD JUSTICE AIKENS - MR JUSTICE KEITH - MRS JUSTICE THIRLWALL DBE ```

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

Case No: 201100771 C4 Neutral Citation Number: [2011] EWCA Crim 2936 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MANCHESTER CROWN COURT His Honour Judge Hernandez T20060812, T20070655, T20077555 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/12/2011 Before : LORD JUSTICE PILL MR JUSTICE FOSKETT and HIS HONOUR JUDGE WIDE QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : REGINA Appellant - and - IAN STANLEY BARNETT Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - David Friesner (instructed by David Phillips & Partners ) for the Appellant Andrew Jebb (instructed by The Crown Prosecution Service ) for the Respondent Hearing date: 6 December 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Foskett: 1. This is the judgment of the court. Introduction 2. This matter came before the court by way of a renewed application for permission to appeal against sentence in the form of a confiscation order made by His Honour Judge Hernandez at Manchester Crown Court on 11 February 2011. The application had first been listed before a different division of the Full Court (Richards LJ, Calvert-Smith and Underhill JJ) on 29 September when leave was given to amend the original grounds of appeal (prepared by the Applicant in person) by their deletion and the substitution of new grounds prepared by Mr David Friesner. The hearing was adjourned with a direction that the Crown should attend at the adjourned hearing. 3. We will set out the detailed background shortly, but it emerged that it was not so much the actual confiscation order made (in the sum of £4000 payable within 12 months with 3 months imprisonment in default) that was the subject of the challenge in the proposed appeal, but the assessment by the judge of the extended benefit derived by the Applicant from his general criminal conduct in a sum of just in excess of £5 million. We raised the question of whether the proposed appeal was academic and, for that reason, did not merit the attention of the court. Whilst both Counsel thought it unlikely that the issue would have relevance at any future stage, they could not exclude the possibility that it may become relevant in future proceedings. Accordingly, we have been prepared to consider the arguments advanced. It is possible that our conclusion may have wider implications than merely in the circumstances of this case. 4. The point is a short one and depends upon the true effect of section 8(8) of the Proceeds of Crime Act 2002 . It may have a bearing on the practice to be followed when a court carries out an assessment of benefit under section 8 . 5. In view of the arguments we heard, we have given permission to appeal and will hereafter refer to the Applicant as ‘the Appellant’. 6. We will identify the short point in issue when we have set out the background in greater detail. The background 7. On 17 March 2004 the police searched a number of brothels run by the Appellant in the Manchester area. A total of £21,017.34 in cash was seized from those brothels. He was arrested for offences concerning the running of brothels and on 19 August 2004 was charged with various offences connected with that activity. 8. He eventually appeared before Manchester Crown Court on 10 October 2005 in relation to these matters. As will emerge, there is no doubt that there had been detailed discussions between the representatives of the prosecution and the defence in the period leading up to that hearing. 9. The indictment the Appellant eventually faced on that day (leave being granted during the hearing by His Honour Judge Hernandez to sign the same out of time) contained three counts of living on prostitution contrary to section 30(1) of the Sexual Offences Act 1956 . Each offence related to a specific brothel that he had operated at three separate addresses in Manchester and the particulars specified that the offences were committed between 1 March 2001 and 17 March 2004. This indictment was in substitution for an indictment containing other counts. 10. Following a considered and detailed Goodyear indication from the judge the Appellant pleaded guilty to Counts 2 and 3, Count 1 being left on the file on the usual terms. 11. The Goodyear indication followed submissions on behalf of the Appellant, the substance of which were not challenged by the prosecution, and its essence was in these terms: “So in summary, the nature of the offences if this defendant were to enter a [guilty] plea would cross the custody threshold. The authorities suggest a short term of imprisonment, but I would be minded to find and accept that exceptional circumstances could be argued which would justify the imposition of a suspended sentence of imprisonment but it may be that additional financial penalties would be appropriate.” 12. In expressing that view the judge also said this: “The Crown accepts that there has been a degree of working in partnership with this defendant and the prosecution authorities. Those matters have been ventilated in the various skeleton arguments that were presented to me yesterday in support of an argument for and against abuse of process, and it is perhaps unnecessary for me to go into any further details at this point.” 13. We have not seen those skeleton arguments, but we have noted in the exchanges that operated as a prelude to the Goodyear indication reference to a “Home Office document”, as it was called, entitled ‘For Love or Money’. We understand this to have been a reference to ‘For Love or Money: Pimps and the management of sex work’, a paper produced in November 2000 for The Policing and Reducing Crime Unit (‘PRC Unit’), part of the Research, Development and Statistics Directorate of the Home Office. It was emphasised that the views expressed in the report were those of the authors and not necessarily those of the Home Office, nor that they reflected Government policy. However, it would seem that the police in Manchester adopted at least part of the philosophy of that paper which suggested a degree of co-operation between the police and someone such as the Appellant with a view to trying to ensure that prostitution took “the least unacceptable form”. It appears that the major concerns would have been the use of drugs in any of the establishments or the presence there of under-age girls. Trafficking was another feature of understandable concern to the police. 14. On that basis it would appear that the Appellant’s activities, whilst not condoned by the local police, did receive a measure of tacit approval over a period of time. It seems that the brothels of which he was the owner did not at that stage in the climate then prevailing step over the line regarded as unacceptable. The process of tacit acceptance of what took place was described in the proceedings before the judge as one of “tolerance and openness” with “unwritten rules” being applied and the turning of a “blind eye”. It was plainly that approach that itself led to the discussions that took place between the prosecution and defence in the period before the hearing in October 2005 and undoubtedly influenced the judge’s approach to sentencing on that occasion. 15. One feature of the interchanges prior to the giving of the Goodyear indication related to the level of any confiscation order that might be imposed. As we have indicated, a total of £21,017.34 in cash was recovered from the brothels searched by the police. It requires little imagination to appreciate that a sum of £21,000 odd would be extremely unlikely to represent the total benefit received from running the brothels for the period reflected in the indictment. No-one, of course, suggested it was: it was the amount of cash found. 16. What was said to the judge about this aspect of the matter by the Appellant’s Counsel (and, again, not controverted by the prosecution) was this: “… the prosecution [is] clearly alive and concerned about the possibility of a disproportionate result resulting in the event that a full confiscation hearing were to be heard, they suggest that a figure of £21,107 is an appropriate basis. That, I submit, will in some way impact upon your Honour’s view of the case.” 17. After the judge gave the Goodyear indication Counsel then acting for the Appellant (Mr Mark Benson) returned to that matter, having taken instructions from the Appellant. The interchange was in the following terms: JUDGE HERNANDEZ: Yes, Mr Benson? MR BENSON: Your Honour, I am grateful for the time and for the fact that Your Honour has given a Goodyear indication. May I just clarify one point of detail? Your Honour referred to … an additional financial penalty. I think myself and my learned friend presumed that you were contemplating the figure that my learned friend said was the appropriate basis on which to proceed, the £21,000 figure. JUDGE HERNANDEZ: No, what I was intending to mean, that may be the matter subject to confiscation. There is a possibility of a fine being imposed and I will hear argument on that. 18. It is clear from this, and indeed from other parts of the transcript that we need not quote in full, that the prosecution was inviting the judge to make a confiscation order in the sum of £21,017.34. The defence were content with this. It is equally clear that no investigation in the manner that would ordinarily have been carried out to determine the amount of benefit received was carried out. Mr Friesner suggested that there was “a deal” between the prosecution and the defence and Mr Andrew Jebb, who appeared for the Crown before us, did not dissent from that description. We make no observation on whether this was or was not an appropriate course to adopt, but it is quite clear that that was the effect of what took place. That is further confirmed by what Counsel for the Crown at the time, Mr Holland, said on that occasion which was in these terms: “Cash was also seized from the various premises in the hundreds, representing the preceding day’s takings, but the police also had a warrant to search Mr Barnett’s home address …, and when they searched his premises, they recovered still more documents, effectively records of accounts kept by him concerning those premises as well as a sizeable amount of cash. In total the amount of cash recovered was £21,017.34, and I might pause for a moment and tell Your Honour that so far as that figure is concerned, the Crown seek confiscation of it, please, under the terms of the Criminal Justice Act 1988 . Documentation in connection with that has already been seized, and I offer that figure to Your Honour as being an agreed figure as between the parties in terms of benefit conferred by these offences, counts two and three, and being available for confiscation, that cash being in the possession of the police and accruing interest in an appropriate account.” 19. The judge sentenced the Appellant to consecutive sentences of 4 months imprisonment on each of the two counts to which he had pleaded guilty, making 8 months in all, the sentences being suspended for 2 years, and made him the subject of a confiscation order in the sum of £21,017.34. What he said in relation to the confiscation order was this: “The prosecution have taken a realistic and pragmatic approach to this matter and they have assessed your financial benefit to be £21,017.34 representing monies found either on the premises or at your home, and the benefit has been agreed in that sum, and I have already made a confiscation order in that amount. I am told that there will be further investigations by the Inland Revenue and her Majesty’ s Customs.” 20. Leaving aside any argument as to the legal effect of that order, there can be no doubt that the Appellant would have been entitled to assume that any risk he faced in relation to confiscation arising from his activities to date had been resolved by that order. The only further threat facing him from the financial point of view might be the result of any HMRC investigation, but that was outside the control of the court. 21. The order drawn up states that it was made under the Proceeds of Crime Act 2002 . That was incorrect. It should have been the Criminal Justice Act 1988 , as amended by the Criminal Justice Act 1993 and the Proceeds of Crime Act 1995 . Mr Holland had referred correctly to the 1988 Act . Mr Friesner takes no point on that since it is plain that the court and the Crown were intending to act under the 1988 Act . Should there have been an issue, he recognises that, applying Lazarus [2005] 1 Cr.App.R. 98 and section 11(3) of the Criminal Appeal Act 1968 , this court could substitute an order under the appropriate Act. 22. Whilst the proceedings which ended on 10 October 2005 were continuing, and indeed after they were concluded, the Appellant continued operating brothels in the Manchester area. 23. Just over two months after the proceedings before Judge Hernandez, on 17 December 2005 the Appellant was arrested again for managing brothels which, as we have indicated, he had continued to do whilst on bail and before and after the resolution of the confiscation proceedings on 11 October 2005. He was charged with various offences on 6 June 2006, those being five charges of keeping brothels and one of controlling prostitutes for gain. While the Appellant was on bail for these new offences he continued running the brothels and this led to further charges against him during 2007. A decision was made to prosecute the Appellant and the others who were alleged to have been involved in a single trial dealing with all outstanding matters. (It should, perhaps, be noted that whatever tacit acceptance of the Appellant’s activities there had been prior to his arrest for the offences that led to his appearance before the Crown Court in October 2005, he had been warned on a number of occasions of the likelihood of prosecution if he continued to operate his enterprise and there was a warning at the time of the sentencing process on 10 October 2005: see [2009] EWCA Crim 2684 , paragraph 7.) 24. On 12 February 2008 the Appellant pleaded guilty at Manchester Crown Court to four counts of keeping a brothel used for prostitution contrary to section 33A(1) of the Sexual Offences Act 1956 . The period reflected in each of these counts was 1 May 2004 to 15 December 2005 and related to four separate premises. He also pleaded guilty to one count of controlling a prostitute for gain contrary to section 53(1) of the Sexual Offences Act 1956 between the 25 July 2004 and 15 December 2005. Finally, he pleaded guilty to three counts of conspiracy with another to commit an offence contrary to section 33A(1) of the Sexual Offences Act 1956 between the 16 December 2005 and the 12 January 2007. 25. He was sentenced by His Honour Judge Ensor to various terms of imprisonment totalling 3 years and the suspended sentence imposed by Judge Hernandez was activated in full making a total sentence of 3 years and 8 months. Judge Ensor referred to the very significant amounts of money made from his activities and said that “on any view this was trading in brothels on a breathtaking scale”. He described the Appellant as “an avaricious and callous individual” and the trade as a vile trade “undertaken by an evil and immoral man”. 26. The Appellant’s wife, Michelle Barnett, was prosecuted separately for money laundering offences and convicted on 10 counts in April 2008. She was sentenced to 6 months imprisonment suspended for 2 years and made the subject of a confiscation order of just in excess of £250,000. Permission to appeal against the confiscation order was refused by the single judge. She abandoned her renewed application on 28 September 2011. 27. Judge Ensor did not deal with the issue of confiscation at the time he passed the sentences to which we have referred. The confiscation proceedings were postponed and, as we have indicated, in fact did not take place until 2 February 2011. The delay arose from the attempts made by the Appellant to challenge his convictions notwithstanding his pleas of guilty. Indeed he sought also to appeal against the convictions for the offences dealt with by Judge Hernandez on 11 October 2005: see [2009] EWCA Crim 2684 . His renewed application for permission to appeal against the sentences imposed by Judge Ensor was refused on 30 October 2008: [2008] EWCA Crim 2732 . 28. At all events, that is the procedural history leading up to the confiscation hearing on 2 February 2011. The judge on that occasion was also Judge Hernandez, Judge Ensor having retired in the meantime. The Appellant represented himself at the hearing, the Crown on this occasion being represented by Miss Tina Landale. The judge’s conclusion on the issue of the benefit obtained by the Appellant can be seen from the following passage of his ruling: “I turn now to consider his benefit pid:8251 figure. There is a dispute as to how the benefit figure should be calculated. Ian Barnett, seeks to argue that the Court, in calculating the benefit figure, should apportion his share of the takings at 37 percent to represent the fact that sums were deducted pid:8301 to cover the running costs of the premises and the earnings of the prostitutes. I am bound by the analysis of the definition of benefit handed down by the House of Lords in R v May . The benefit figure is the total value of the property for advantage obtained, not the pid:8351 defendant’s net profit after deduction of expenses paid to co-conspirators. I therefore accept the Crown’s submissions as to the basis of the calculations to ascertain the benefit figure. It should be based on the takings without any deductions to cover the costs of the prostitutes or other business expenses. I pid:8402 therefore accept the figure as put forward by the Crown, namely £5,071,222.70. This is based on a calculation of the proceeds from the brothels over the six year period which was calculated in the sum pid:8451 of £5,102,204, less the £21,017.34 confiscated in the first trial.” 29. It is not, of course, in issue that the Act that governed the judge’s decision on this occasion was the Proceeds of Crime Act 2002 . It is also not in issue that the Appellant’s convictions on 12 February 2008 resulted in the conclusion that he had a “criminal lifestyle”: see sections 6(4) and 75. This led to the application of the four assumptions set out in section 10(2) -(5) of the Act in deciding whether he has benefited from his general criminal conduct and deciding his benefit from the conduct. They are well-known, but we set them out for convenience: (2) The first assumption is that any property transferred to the defendant at any time after the relevant day was obtained by him - (a) as a result of his general criminal conduct, and (b) at the earliest time he appears to have held it. (3) The second assumption is that any property held by the defendant at any time after the date of conviction was obtained by him— (a) as a result of his general criminal conduct, and (b) at the earliest time he appears to have held it. (4) The third assumption is that any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct. (5) The fourth assumption is that, for the purpose of valuing any property obtained (or assumed to have been obtained) by the defendant, he obtained it free of any other interests in it. 30. Section 10(6) provides that the court must not make a required assumption in relation to particular property or expenditure if it is shown to be incorrect or there would be a serious risk of injustice if the assumption were made. 31. There is no real challenge to the judge’s application of the assumptions to the facts. However, the principal argument to which we will refer below (see paragraphs 33-53 below) is that the assumptions were applied incorrectly to benefits obtained by the Appellant prior to 10 October 2005. There is a minor matter, conceded by the Crown on this appeal, that the judge was wrong to take 15 December 2005 (namely, the date of his arrest for these matters) as the date by reference to which the “relevant day” for the purposes of the assumptions should be calculated. Subject to the principal argument, he should have taken the date upon which the Appellant was charged (namely, 6 June 2006) as the date by reference to which the relevant day should have been calculated: see section 85(1)(b). If the full 6-year period provided for by section 8(3) is applicable in this case, it is now agreed that the relevant day should be 6 June 2000. It is agreed that using this date, rather than 15 December 1999 as the judge did, would make little difference to the overall calculation of benefit - it would still be very substantial and run into several million pounds. 32. However, as we have said, the principal argument advanced by Mr Friesner on the Appellant’s behalf is that the judge should not have taken into account any benefit derived from the Appellant’s illegal activities prior to 11 October 2005. It is this argument that lies at the heart of the appeal and which we characterise as “the principal argument”. The principal argument 33. We should say at the outset that the judge did not have the benefit of the arguments that we have received and indeed the point taken specifically before us does not appear to have been taken before him. As we have indicated, the Appellant represented himself. His main argument was that the confiscation proceedings were an abuse of the process of the court. The judge rightly rejected that argument and there is now no appeal against his decision in that respect. The Appellant did, however, also argue that the prosecution was precluded from relying on the period embraced by the 2005 convictions for the purposes of calculating the benefit he received from his criminal lifestyle. The judge encapsulated the argument and gave his reasons for rejecting it in this passage in his ruling: “[The defendant’s] submissions raise another issue, namely whether the Crown are precluded from basing their calculations of his benefit figure by taking into account the period pid:7951 covered by his 2005 conviction. I have read the transcript of those proceedings in 2005. I am satisfied that the order made was or should have been made pursuant to the Criminal Justice Act 1988 . The order was in relation pid:8001 to the sum of £21,017.34, which presented cash seized upon his arrest it was described as particular criminal conduct in relation to the two brothels. It was not characterised as general criminal conduct. There was no proceeds of crime pid:8051 investigation undertaken. In those circumstances I find that there is nothing unfair in the Crown seeking to determine the relevant day as being the 15th December 1999, that is six years prior to the date of his arrest in respect of the second trial. In pid:8102 the circumstances I do not consider it is unfair for the Crown to pursue these proceedings. However, I accept the Crown’s concession that to avoid unfairness to the defendant, the sum of £21,017.34 should be deducted before the pid:8151 defendant’s benefit figure from his general criminal conduct is determined pursuant to section 8 of the Act within these current proceedings. I therefore find that there is no abuse of process of the Court for these proceedings to be pursued by the Crown, nor do the circumstances reveal pid:8201 any circumstances in which there could be a serious risk of injustice if any of the assumptions were made. In calculating his benefit figure, I have therefore applied the assumptions set out in section 10 of the Act.” 34. As we have indicated, the reference to 15 December 1999 is accepted now to have been wrong. The judge was, of course, correct to note that the order should have been expressed to have been made pursuant to the Criminal Justice Act 1988 . It is, however, accepted by the Crown that his reference to “particular criminal conduct” was misplaced because it is not an expression that appears in the Criminal Justice Act 1988 and was not introduced into the confiscation lexicon until the 2002 Act : see section 76(3). However, it was submitted by Mr Jebb, by reference to the passage in the proceedings before him in October 2005 quoted in paragraphs 18 and 19 above, that it is quite plain what he had in mind. We do not have to consider this argument because of the more fundamental argument based upon sections 8(8) and 10(9) of the Act to which our attention has been invited. 35. It does not appear that the judge’s attention was drawn specifically to section 10(9) of the Act. It is in these terms: (9) But if a confiscation order mentioned in section 8(3)(c) has been made against the defendant at any time during the period mentioned in subsection (8) - (a) the relevant day is the day when the defendant’s benefit was calculated for the purposes of the last such confiscation order …. 36. The period mentioned in subsection (8) is of the period of six years ending with the day when proceedings for the offence concerned were started against the defendant. As we have indicated in paragraph 31, in this case that means the period starting on 6 June 2000. 37. Since the confiscation order made on 11 October 2005 was made within that 6-year period, the question is whether it constitutes “a confiscation order mentioned in section 8(3)(c) ”. If so, it would mean that 11 October 2005 should be taken as the "relevant day" provided it can be taken as “the day when the defendant’s benefit was calculated for the purposes of the last such confiscation order.” 38. So what is “a confiscation order mentioned in section 8(3)(c) ”? It is necessary to look at subsections (3) and (4): (3) Subsection (4) applies if - (a) the conduct concerned is general criminal conduct, (b) a confiscation order mentioned in subsection (5) has at an earlier time been made against the defendant, and (c) his benefit for the purposes of that order was benefit from his general criminal conduct. (4) His benefit found at the time the last confiscation order mentioned in subsection (3)(c) was made against him must be taken for the purposes of this section to be his benefit from his general criminal conduct at that time. 39. It is accepted by the Crown that the Appellant’s convictions on the 11 October 2005 brought section 72AA of the Criminal Justice Act 1988 into play. This provision was introduced by section 2 of the Proceeds of Crime Act 1995 and provides for what are usually called ‘the Extended Benefit provisions’. Prior to the implementation of this section the court could make a confiscation order only in respect of the offence or offences of which the defendant was convicted in the same proceedings or which the defendant specifically requested the court to take into consideration in determining sentence: section 71(2), Criminal Justice Act 1988 . The new section enabled assumptions to be made (that are effectively mirrored in section 10 of the 2002 Act ) to the effect that any property held or transferred to the defendant in the 6-year period ending when the proceedings were instituted against him represented the proceeds of criminal conduct. It provides as follows: “ 72AA Confiscation relating to a course of criminal conduct. (1) This section applies in a case where an offender is convicted, in any proceedings before the Crown Court or a magistrates’ court, of a qualifying offence which is an offence of a relevant description, if - (a) the prosecutor gives written notice for the purposes of subsection (1)(a) of section 71 above; (b) that notice contains a declaration that it is the prosecutor’s opinion that the case is one in which it is appropriate for the provisions of this section to be applied; and (c) the offender - (i) is convicted in those proceedings of at least two qualifying offences (including the offence in question); or (ii) has been convicted of a qualifying offence on at least one previous occasion during the relevant period. (2) In this section “qualifying offence”, in relation to proceedings before the Crown Court or a magistrates’ court, means any offence in relation to which all the following conditions are satisfied, that is to say - (a) it is an offence to which this Part of this Act applies; (b) it is an offence which was committed after the commencement of section 2 of the Proceeds of Crime Act 1995 ; and (c) that court is satisfied that it is an offence from which the defendant has benefited. (3) When proceeding under section 71 above in pursuance of the notice mentioned in subsection (1)(a) above, the court may, if it thinks fit, determine that (subject to subsection (5) below) the assumptions specified in subsection (4) below are to be made for the purpose - (a) of determining whether the defendant has benefited from relevant criminal conduct; and (b) if he has, of assessing the value of the defendant’s benefit from such conduct. (4) Those assumptions are - (a) that any property appearing to the court - (i) to be held by the defendant at the date of conviction or at any time in the period between that date and the determination in question, or (ii) to have been transferred to him at any time since the beginning of the relevant period, was received by him, at the earliest time when he appears to the court to have held it, as a result of or in connection with the commission of offences to which this Part of this Act applies; (b) that any expenditure of his since the beginning of the relevant period was met out of payments received by him as a result of or in connection with the commission of offences to which this Part of this Act applies; and (c) that, for the purposes of valuing any benefit which he had or which he is assumed to have had at any time, he received the benefit free of any other interests in it. (5) Where the court has determined that the assumptions specified in subsection (4) above are to be made in any case it shall not in that case make any such assumption in relation to any particular property or expenditure if - (a) that assumption, so far as it relates to that property or expenditure, is shown to be incorrect in the defendant’s case; (b) that assumption, so far as it so relates, is shown to be correct in relation to an offence the defendant’s benefit from which has been the subject of a previous confiscation order; or (c) the court is satisfied that there would (for any other reason) be a serious risk of injustice in the defendant’s case if the assumption were to be made in relation to that property or expenditure. (6) Where the assumptions specified in subsection (4) above are made in any case, the offences from which, in accordance with those assumptions, the defendant is assumed to have benefited shall be treated as if they were comprised, for the purposes of this Part of this Act, in the conduct which is to be treated, in that case, as relevant criminal conduct in relation to the defendant. (7) In this section “the date of conviction” means - (a) in a case not falling within paragraph (b) below, the date on which the defendant is convicted of the offence in question, or (b) where he is convicted of that offence and one or more other offences in the proceedings in question and those convictions are not all on the same date, the date of the latest of those convictions; and “the relevant period” means the period of six years ending when the proceedings in question were instituted against the defendant.” 40. Section 72AA(1) (a) refers to a notice to be given by the prosecutor under section 71(1)(a) . In its amended form that section of the Criminal Justice Act 1988 read as follows: “(1) Where an offender is convicted, in any proceedings before the Crown Court or a magistrates’ court, of an offence of a relevant description, it shall be the duty of the court: (a) if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or (b) if the court considers, even though it has not been given such notice, that it would be appropriate for it so to proceed, to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct.” 41. The combined effect of these provisions might appear to predicate the need for a notice to the court under section 71(1)(a) of the Act to be served before the power to assess the Extended Benefit under section 72AA could be invoked. We will examine that proposition as a matter of principle below (see paragraphs 43-53 and 54-64 below). 42. The chronology of events in this case shows clearly that one of the officers involved in the inquiries into the offences dealt with in October 2005, DC Paul Harper from the Greater Manchester Police Financial Investigation Unit, had started investigating the Appellant’s finances and was aware for the need for the written notice under Section 71(1)(a) of the Criminal Justice Act 1988 . Indeed he had sent an unsigned copy through to the CPS for use in the anticipated confiscation proceedings. However, the notice was never served. 43. Mr Jebb has sought to argue that this failure to serve the section 71(1)(a) notice on the court would mean that the court would not have been entitled to make any of the statutory assumptions for the purposes of assessing the Appellant’s benefit. Drawing on the evidence of what occurred during the proceedings on 10 October 2005 (see paragraphs 18 and 19 above), he submitted that Judge Hernandez did not in fact seek to apply the extended benefit provisions and simply made an order for the confiscation of the money seized on the Appellant’s arrest, money which, he argued, represented the value of Counts 2 and 3 on the indictment to which the Appellant had pleaded guilty. 44. For the reasons we have given earlier (see paragraphs 18 and 19), we agree that the judge did not seek to apply the provisions of Section 72AA as such. He acceded to what in effect was a joint request on behalf of the prosecution and the defence, following discussion between them, to make a confiscation order in the sum of £21,000 odd and to treat that sum also as the benefit the Appellant had received. We do not in any way suggest that the judge was wrong to accede to that request, nor do we say that the agreement between the prosecution and the defence was itself inappropriate. There may well have been good reasons for taking that course at the time even though it resulted in the Appellant’s benefit from many years of criminal activity being treated as artificially low and undoubtedly very significantly lower than was the reality. 45. The essential question is whether that agreement could effectively be re-opened in subsequent confiscation proceedings based upon an acceptance of the existence of a “criminal lifestyle”. Whilst there is something very unattractive in the proposition that an artificial level of benefit should be assumed which is minute compared to the reality, it is also unattractive that once an agreement has been reached and sanctioned by the court, it can be reopened. 46. Mr Friesner has drawn our attention to the policy of the 2002 Act as reflected in the Explanatory Notes to section 8 which were published with the Act. The relevant paragraph is as follows: “This section describes how the court must work out whether the defendant has benefited from criminal conduct and what the value of that benefit is. Subsection 2 explains that the court must regard the defendant as having benefited by the value of any property obtained by him from criminal conduct up to the time the court makes its decision. Subsections (3) to (8) deal with the situation where the court is holding a confiscation proceeding in respect of the defendant’s general criminal conduct, and a previous confiscation order or orders has been made against the defendant in respect of such conduct. General criminal conduct means all the defendant’s criminal conduct at any time, so a court making a general criminal conduct confiscation order could confiscate the same benefit twice, unless the legislation prevented it. Section 8 prevents double counting of the same benefit by providing (broadly) that, once the court has calculated the defendant’s benefit from his or her general criminal conduct, it must deduct the amount ordered to be paid under the last general criminal conduct confiscation order previously made against the defendant. Sub-section (4) ensures that a calculation of benefit once made in relation to an offence will apply for the purposes of any subsequent calculation of benefit in respect of general criminal conduct. The provision is not required for particular criminal conduct because the same offences cannot be subject to a second conviction, or taken into consideration for sentencing purposes twice, and therefore there is no risk of confiscating the same benefit from particular criminal conduct twice.” 47. That policy, of course, is reflected in the proposition that “calculation of benefit once made in relation to an offence will apply for the purposes of any subsequent calculation of benefit in respect of general criminal conduct” (which is said to be the purpose of subsection (4)). It might arguably be said that an agreed figure which has not been “calculated” in the manner ordinarily required for the assessment, and which has been agreed at an artificially reduced figure for whatever reasons of expediency may have seemed right at the time, should not bind a court in carrying out a full assessment exercise on a subsequent occasion. However, we do not think that such an argument could be sustained in the light of the conclusions at which we have arrived in relation to the interpretation of the statutory provisions. 48. Our essential concern is not, of course, the policy behind the statutory provision as such, but the effect of the provision as it falls to be interpreted by the usual process of interpretation. Does the Act give effect to the policy? 49. Mr Friesner has argued that the policy is achieved by focusing on the expression “is required or entitled to make” in subsection (8) of section 8 . This provides as follows: The reference to general criminal conduct in the case of a confiscation order made under any of the provisions listed in subsection (7) is a reference to conduct in respect of which a court is required or entitled to make one or more assumptions for the purpose of assessing a person’s benefit from the conduct. 50. Subsection (5) requires the court assessing the benefit derived from general criminal conduct to deduct the aggregate of (a) the amount ordered to be paid under each confiscation order previously made against the defendant and (b) the amount ordered to be paid under each confiscation order previously made against him under any of the provisions listed in subsection (7). Subsection (7) lists “ Part 6 of the Criminal Justice Act 1988 ” as one of the relevant provisions for this purpose. 51. It follows, it is argued, that where a court was on a particular occasion “ required or entitled to make one or more assumptions for the purpose of assessing a person’s benefit from” general criminal conduct under the 1988 Act , then the assessment of benefit made on that occasion would apply for the purposes of any subsequent assessment of benefit in one or other of two circumstances: either (i) where the earlier assessment process was in fact undertaken (in other words in a situation where the court was required to carry it out) or (ii) where, although the court did not engage in the full process of assessment of benefit, but was entitled to do so notwithstanding not being “required” to do so, and a figure for the benefit was specified by the court as the result of an agreement between the prosecution and defence. 52. As we have indicated (see paragraph 43), Mr Jebb has argued that the lack of the service of a notice under section 71(1)(a) resulted in Judge Hernandez not being “entitled” on 10 October 2005 to make any assessment of benefit from general criminal conduct notwithstanding that an agreed figure was put forward. Mr Jebb recognised that the argument was not attractive since it required the reliance of the prosecution on its own failure to serve the notice at that time in order to permit the opening up of a more wide-ranging assessment on the occasion of the Appellant’s second appearance before Judge Hernandez in February this year than might otherwise have been the case. If, of course, that was the effect of the statutory provisions, we would be obliged to give effect to it. 53. However, we do not consider that Mr Jebb’s argument can be sustained for the reasons set out below. The reasons for rejecting the principal argument 54. In two cases in this court, presided over by the then Lord Chief Justice, Lord Woolf, it was established that defects in the notice given to the Crown Court by the prosecution did not disentitle the court from considering the question of confiscation and, of course, in that process considering the benefit received by the defendant from his or her general criminal conduct. 55. In Sekhon and Others [2003] 1 WLR 1655 the general issue was the extent to which procedural defects could, or should, operate to invalidate confiscation orders made under the then existing legislation. 56. This court introduced its judgment in this way: "Regrettably a series of cases have come before the courts recently which reveal that the prosecuting authorities, including the advocates appearing for them, have been attaching far too little significance to ensuring that confiscation proceedings are effective. A series of cases have resulted in orders for the confiscation of substantial sums being set aside for the failure to adhere to procedural requirements that are often of a technical nature." 57. It drew attention to the terms of section 72 which, so far as material, was in these terms: (1) A court shall not make a confiscation order unless the prosecutor has given written notice to the court to the effect that it appears to him that, were the court to consider that it ought to make such an order, it would be able to make an order requiring the offender to pay at least the minimum amount. (2) If the prosecutor gives the court such a notice, the court shall determine whether it ought to make a confiscation order …. 58. In relation to this section, the court concluded as follows at paragraph 31: "Notwithstanding the actual language of S.72(1) which read literally is mandatory in its terms, we would not regard it as likely that Parliament would, for example, be concerned to deprive the court of jurisdiction because of defects in the contents of the written notice which is required by S.72(1) . The notice, which does not have to be given to the defendant, starts the procedure and avoids the court being involved in confiscation proceedings if the prosecutor thinks that the court would not be able to order the defendant to pay more than £10,000. Furthermore, once the 1995 Act was in force, this is the almost inevitable conclusion because not only was the court required to exercise its powers when a notice had been given it had power to exercise its powers of its own volition." 59. The court also drew attention (in paragraph 13) to the changes made to section 71 of the 1988 Act by the Proceeds of Crime Act 1995 (see paragraph 40 above). It summarised those changes in this way: “ Section 1 of the 1995 Act made a number of changes to section 71 of the 1988 Act and these changes may be summarised as follows: (i) a duty was placed upon the court to exercise its powers to embark upon confiscation proceedings in every case in which written notice had been given by the prosecutor; (ii) the court was given a power to institute confiscation proceedings of its own volition; (iii) the minimum figure of £10,000 was abolished.” 60. This decision was, therefore, clearly to the effect that defects in the notice could not deprive the court of its entitlement to consider exercising its confiscation powers if invited to do so. 61. The status of Sekhon was considered by a Court of Appeal consisting of 5 judges (Lord Woolf CJ, Kennedy LJ, Mitchell, Hallett and Pitchers JJ) in R v Simpson [2004] QB 118 . The issue in the case was whether the fact that the notice that was served on the court by the prosecution was not in the form required by section 72 of the 1988 Act meant that the court had no jurisdiction to make a confiscation order: see paragraph 22. The appellant in that case contended that it did have that effect notwithstanding that the Crown had already informed the court prior to the service of the notice that the figure suggested as being the amount that the appellant benefited from the fraud far exceeded the statutory minimum amount of £10,000. In addition, the court observed, the issue as to jurisdiction was not raised by the appellant prior to the confiscation order being made. 62. We will not extend this judgment by referring fully to paragraphs 51-56 in Sekhon , but the court, having referred to them at paragraph 40 of the judgment in Simpson , said this at paragraph 41: “We have no doubt we should apply these paragraphs of the judgment in Sekhon . They are fatal to the arguments of the appellant on the jurisdiction issue. Any defects in the notice did not deprive the trial judge of jurisdiction.” 63. In our judgment, the combined effect of these two cases is as Mr Friesner contends, namely, that a failure to serve a notice on the Crown Court within section 71(1)(a) , or the service of a notice that is defective for some reason, does not deprive the court of the jurisdiction to consider a confiscation order. This means that, whilst the court may not be “required” to do so in such a situation, it is “entitled” to do so. If it is “entitled” to do so, it is plainly entitled to act on the basis of the assumptions set out in section 10 of the Act. 64. It follows that Judge Hernandez was entitled to consider the question of confiscation on 10 October 2005 and, accordingly, the assessment of benefit (albeit accepted as an agreed figure) at that time must be taken for the purposes of section 8 “to be his benefit from his general criminal conduct at that time”: subsection (4), referred to in paragraph 38 above. Conclusion 65. The statutory material concerning confiscation is somewhat labyrinthine and the process of following the appropriate paths is difficult, particularly when considering conduct spanning the introduction and subsequent amendment of various of the statutory provisions. 66. However, in our judgment, the path does lead in this case to the conclusion that the “assessment” made on 10 October 2005 must be taken as fixed for the purposes of any subsequent assessment of benefit. It follows that the “relevant day” for the assessment carried out by Judge Hernandez in February 2011 could not be earlier than 10 October 2005 and indeed, by virtue of section 10(9)(a) is that date. 67. The parties have agreed that the relevant period for the assessment of benefit to the Appellant is from 10 October 2005 until 12 September 2006. That latter date has been substituted for 6 June 2006 (see paragraph 31) because Judge Hernandez would have been obliged by section 8(2) to take account of conduct up to the time of his decision in February 2011 and the brothels were operating until 12 September 2006 when they were made the subject of a restraint order. The measure of the benefit received by the Appellant for this period has been agreed at £873,010. 68. Accordingly, whilst we do not disturb the order for confiscation made by the judge (£4000), we set aside his assessment of benefit recorded in the order made by the Crown Court (incorrectly, we are told) in the sum of £5,085,222.70 (rather than £5,075,222.70 as it should have been) and substitute the figure of £873,010. 69. The appeal is allowed accordingly.

```yaml citation: '[2011] EWCA Crim 2936' date: '2011-12-21' judges: - LORD JUSTICE PILL - MR JUSTICE FOSKETT ```

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: 200904127 A3 Neutral Citation Number: [2010] EWCA Crim 207 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday 13 January 2010 B E F O R E: LORD JUSTICE HOOPER MR JUSTICE WYN WILLIAMS RECORDER OF CROYDON (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - R E G I N A -v- BRETTON - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Palantype Notes of Wordwave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - MR S PARHAM appeared on behalf of the Applicant. - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE HOOPER: On 14 May 2009 at Huddersfield Magistrates' Court the defendant pleaded guilty and was committed to the Crown court for sentence under Section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 . 2. On 17 July 2009 at the Crown Court at Bradford, before His Honour Judge Scott, he was sentenced as follows. Offence 1: breach of a non-molestation order, 12 months' imprisonment concurrent. That offence was committed on 14 February 2009. Offence 2: arson, committed on 12 May 2009, imprisonment for public protection. Offence 3: breach of an anti-social behaviour order which was committed on 12 May 2009, the breach being the arson, 18 months' imprisonment concurrent. A period of two years (less 64 days spent on remand) was specified. The judge reached that period of two years by saying that the appropriate sentence after trial would have been one of six years, reducing that to four years for the guilty plea and then halving it to two years. 3. The appellant had been involved for some five or six years in a relationship - which can properly be described as tempestuous - with the complainant F. By her, he had a child. She also has an older child by another man. On 22 August 2008 she obtained a non-molestation order against him. On 1 September 2008 the appellant was imprisoned for 12 weeks for assaulting her and a three-year anti-social behaviour order was imposed on him forbidding him from contacting her. 4. On 14 February 2009 he confronted her on the doorstep of her home (count 1). At about 6.20 pm on 12 May 2009 (counts 2 and 3) the appellant telephoned her and accused her of having a relationship with another man. She terminated the call. He rang back repeatedly and, amongst other things, said, "You're fucked. I'm going to set your house on fire." She treated those threats seriously and took her two children to a friend's house. The appellant arrived at that house a few minutes later and told the owner to fetch F to the door. He was carrying two small bottles. He spoke to F and accused her of sleeping with someone else and made threats to her. She was with one of her children. The child was very upset by this. He then said, "Just watch what I do to your car." He went towards her car, a Vauxhall Vectra, smashed a window with a stone, picked up and threw the bottles through the smashed window and caused the car to set on fire. The child was hysterical by now. 5. The police and fire brigade were called but the car was burned out. The car was very important to F. Not only was she a single mother with all the responsibilities that that entails, but she also required regular hospital treatment. She needed her car to get to hospital, all of which the appellant would have known. 6. The appellant has a large number of previous convictions. At aged 14 he was sentenced to a young offenders institution for an offence of attempted robbery with an imitation firearm. That is an offence under Schedule 15A of the Criminal Justice Act 2003 , as amended, and therefore if the judge decided that IPP was appropriate then it was not necessary to sentence the appellant to a minimum term of two years. In 2003 the appellant received a detention and training order for an offence of robbery. There were various offences of assault, battery, criminal damage and offences of that kind; amongst them was a breach of an anti-social behaviour order. The offences continued through 2006, 2007, 2008. 7. It is important to note that starting in 2007 he was convicted of assault occasioning actual bodily harm on the complainant. In October 2007 there were two offences of criminal damage involving property of the complainant. In February 2008 there was another offence of criminal damage involving the complainant and a further offence of criminal damage in August 2008. In September 2008 there were two offences of battery on the complainant which led to the imposition of the anti-social behaviour order. 8. As the record shows, the appellant finds it extremely difficult - if not almost impossible - to comply with non-custodial alternatives. As the record shows, on many occasions he has been called back, having broken the terms of the sentence and has had to be re-sentenced. 9. The pre-sentence report is a substantial document dated 9 June 2009. It sets out in detail the background to this offence: "Ms F has been the victim of violence from Mr Bretton on numerous previous occasions which led to the installation of panic alarms, CCTV and the imposition of a non-molestation order. Having experienced previous violence is likely to increase the victim's vulnerability. Ms F is additionally vulnerable due to her illness which requires her to be on a dialysis machine daily. This fact is likely to significantly add to her distress, as well as coping with her illness and raising her children she has been subjected to a pattern of violence and harassment. The victim's statements describe her and their children as being very frightened during these offences, and in fact in general. As well as the financial loss, loss of her car would impact on her ability to manage on a day to day basis, especially due to her illness. There is also likely to have been significant emotional distress to all who witnessed this incident, not to mention the risk Mr Bretton was placing others in. Although with hindsight Mr Bretton is able to identify the impact of his behaviour on the victim, their children and other people present, it is clear he did not consider this at the time, and despite being aware of the effect has, in fact, demonstrated a pattern of repeating violent and aggressive behaviour towards the victim. Mr Bretton told me he was angry with the victim as she had been 'cheating on me'. He said he was angry and says he was grieving for his sister who died in December 2008. He said the victim knows which buttons to push and winds him up, and said he was drinking heavily which he also says he feels contributed towards his behaviour. I note from Probation records that other than the death of his sister, an almost identical explanation was given for his behaviour at the time of his last pre-sentence report in August 2008. This is clear evidence of victim blaming and an attempt to justify his offences. It also appears he has not progressed since August last year in terms of developing his understanding of the motivation for his offending or taken any real steps towards changing his behaviour. Having argued with the victim he went out of his way to go to the victim's location, evidencing pre-meditation, although he claims he set fire to the car on the spur of the moment and denies this was planned. It is clear that Mr Bretton has significant deficits with regards to his ability to recognise and resolve problems, such as his problematic alcohol use, his difficulties with his emotional well being/mental health, his poor anger management and his attitudes towards the victim and their relationship. It is essential that he fully engages in work to address these areas if he is to reduce his risk of further similar offending. During interview Mr Bretton told me he was 'horrified' by his offence of arson and that he was sorry for what he had done. He also demonstrated a good understanding of the impact of these offences on his partner, children and witnesses. It is my assessment that this remorse was genuine and that he accepts the harm his behaviour causes. However, as stated above, Mr Bretton did attempt to attribute blame on his partner for winding him up, and claimed he had a 'black out', suggesting he was not in control of his behaviour. Although alcohol is certainly likely to have acted as a disinhibitor, the underlying reasons for his behaviour remain present and as such it is my assessment that Mr Bretton is fully culpable for his actions." 10. The probation officer sets out in detail the previous convictions of which the appellant has been convicted: "The current offences form part of an entrenched pattern of offending behaviour beginning in 2001 when the defendant was 13 years old. They also take place within the context of a violent and abusive relationship and, based on Police records, what appears to be a pattern of continued harassment of the victim since their relationship ended. He has 6 previous convictions for criminal damage, 9 convictions for assault (victims include Police, the current victim and her daughter), two convictions for robbery, as well as offences of theft, driving offences, burglary, threatening behaviour, possession of offensive weapon, breaches of community orders and breaches of a previous ASBO. The current offence of arson also represents an escalation in the seriousness of his offending. Records indicate Mr Bretton has a poor history of compliance and engagement with community orders and although he tells me he wants to get help to address his difficulties and his offending his previous lack of engagement raises concerns about the extent to which he would comply were he made subject to community supervision again. He is currently assessed as presenting a high risk of re-offending." 11. At page 6 the probation officer examines the long history of drugs and alcohol abuse. For example, he drinks, so he told the probation officer, on average 350 units a week. She discusses attempts he has made in the past to deal with the issue of his alcoholism. She points out that there are concerns about his level of motivation to stop drinking. That is consistent with the history of previous convictions: non-custodial opportunities being given to the appellant to put his life in order followed by non-compliance. At page 7 the officer points out that the appellant told her he would murder anyone who hurt his ex-partner or daughter. On the same page there is reference also to the fact that he would most probably kill a particular individual. The probation officer reaches the conclusion that he presented a high risk of harm to the victim of this offence and to the public at large. 12. It is now accepted that the appellant meets the criteria of dangerousness. The only issue is whether the appropriate sentence is one of IPP or an extended sentence and whether the notional term as too long. The judge took the view that he was a dangerous man and presented a significant risk of serious harm, particularly to the complainant, and set a notional determinate sentence of four years, taking account of the plea. 13. In considering whether an extended sentence would be an alternative to a sentence of imprisonment for public protection, we remind ourselves that this appellant would have to be released halfway through the appropriate determinate term. In our view, on the facts as known to us and to the sentencing judge, it would not be safe to release him at that stage even under significant conditions which would be imposed upon his release. In our view the only possible sentence in this case is one of IPP. 14. In our view the notional term should be one of three years, taking into account the nature of the offence and the plea. We therefore set the minimum term as one-and-a-half years less the 64 days spent on remand.

```yaml citation: '[2010] EWCA Crim 207' date: '2010-01-13' judges: - LORD JUSTICE HOOPER - MR JUSTICE WYN WILLIAMS ```

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

No: 04/5228/A3 Neutral Citation Number: [2005] EWCA Crim 112 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 21 January 2005 B E F O R E: MR JUSTICE BEATSON MR JUSTICE WAKERLEY - - - - - - - R E G I N A -v- ROSHAAN SOORIYA RANJITKUMAR - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS L JOHNSON appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T 1. MR JUSTICE BEATSON: On 26th April at the Crown Court at Chelmsford the appellant pleaded guilty and on 13th August was sentenced by His Honour Judge Ball to fifteen months' imprisonment on count 1, conspiracy to defraud, and fifteen months' imprisonment concurrent on count 3, false accounting. A confiscation order in the sum of £14,600 was made, to be paid within six months, with nine months' imprisonment consecutive in default. A compensation order in the sum of £73,853.81 was made, to be paid within twelve months. No order was made in default of payment, but the magistrates' courts' powers in default of payment were enlarged to a maximum of two years' imprisonment. The appellant was ordered to pay £450 towards prosecution costs. He appeals against sentence by leave of the single judge. The appeal is confined to the compensation order. The appellant has now served his sentence of imprisonment. 2. The facts of the case are that the appellant was a cashier at the Halifax Building Society in Epping. Between 1st April 2003 and 9th July 2003 he obtained credit and debit card details from customers by passing their cards through a card reader device. That data was passed to an unidentified third party and used to clone cards. Forty-five accounts were cloned. The cards were then used to obtain goods fraudulently. The total of the goods obtained was £73,853.81. This was count 1. 3. There was no evidence that the appellant personally benefited from the transactions. It was HBOS Plc which bore the loss. 4. On 3rd June 2003 the appellant processed a fraudulent transaction, in which he issued a cheque in the sum of £14,500 from an account of an elderly customer. That cheque was paid into his aunt's account and subsequently 28 withdrawals of £500 each were made from that account. That formed the subject of count 3. On his arrest the card reader was discovered at his home. His aunt's bank card was found on him. 5. For the purposes of this appeal it is sufficient to record the information relevant to the compensation order. His benefit was agreed at £14,600. The realisable property was property at 85 Portia Way, Bow, with available equity of £13,143 - the appellant is or was the sole owner of that property; a Halifax ISA valued at £3,083.78; a Citreon Saxa valued at £2,220; cash found in the appellant's room of £500; and cash from his aunt's account of £637.28. The statement also included the property at 12 Chase Lane, Barkingside, in which the appellant and members of his family - his father, his stepmother and a number of other family members - lived. The available equity, after taking account of the mortgagee's interest, was £84,000. The appellant is the joint proprietor of this property with his stepmother. 6. The sentencing judge stated that, although on the face of it there was every reason why, having regard to personal mitigation, the court would want to avoid sending people like the defendant to prison, breach of trust cases called for special consideration because people in special positions of trust were expected to comply with the higher standards of honesty. The financial loss in the case was significant. It was a matter of conjecture how much money had found its way to the appellant. It was not accepted that he benefited but by a few hundred pounds. The bank had suffered a significant loss, and the court was not attracted by the thought that an insurance company would stump up rather than the bank bearing the loss. The sentencing judge stated that he proposed to take steps to ensure so far as possible that the losers did not suffer a penny of loss from the appellant's actions. Account was taken of the fact that significant financial orders would put members of his family who were occupying the Chase Lane premises at risk of homelessness. The judge stated: "I am afraid I am not particularly sympathetic to members of your family who, for what appear to be religious reasons, seem to have taken it upon themselves to put distance between you and them to ostracise you in a way which I find wholly unchristian, although that is not the religion in the dock on this particular occasion. However, it is disgraceful that members of the family should behave like that in a situation such as this. In any event, there will be financial orders." 7. Miss Johnson submits that the compensation order was punitive, unjust and wholly inappropriate. First, she submitted that the judge erred, in that he made an order that would necessitate the sale of the family home and make the family homeless contrary to the decisions in a number of cases of this court: Jorge [1999] 2 Cr App R (S) 1 ; Hackett (1988) 10 Cr App R (S) 388 ; Butt (1986) 8 Cr App R (S) 216 ; and Blackmore (1984) 6 Cr App R (S) 284 . In these cases this court has stated that a compensation order is not a punishment but is a convenient summary means of putting right all or some of the damage done by a criminal offence and avoiding the necessity for civil proceedings which might be expensive and time consuming. It is not appropriate for such an order to be made when the effect would be to leave the family homeless. 8. The exceptional situation in which such an order might be made was considered by this court in McGuire (1992) 13 Cr App R (S), where a compensation order did necessitate the sale of the matrimonial home but left sufficient equity for the appellant in that case to purchase a new home. 9. Secondly, Miss Johnson submitted that in any event the compensation order in the sum of £73,853.81 did not take account of the appellant's stepmother's interest in the property. At the most his equity in it was £42,000. She submitted that it is likely to be significantly less because his father, who lives there and meets the bills and pays the mortgage, also has a beneficial interest in the property. 10. Thirdly, she submits that the passage which we have quoted shows that the motivation - at least in part - of this compensation order was punitive rather than compensatory and that that was an improper purpose. 11. We have concluded that the compensation order must be set aside. We accept that, on the basis of the authorities cited, it was wrong to make an order which could only be satisfied by selling the family home. The cases cited all concerned a matrimonial home, but we consider that there is no difference in principle from a shared family home. In any event, this house now appears also to be the matrimonial home. We also consider that the relations between this appellant and other members of his family were wholly irrelevant to this sentencing exercise. Accordingly, we allow this appeal and set the compensation order aside.

```yaml citation: '[2005] EWCA Crim 112' date: '2005-01-21' judges: - MR JUSTICE BEATSON - MR JUSTICE WAKERLEY ```

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

Case No: 200804978D1 Neutral Citation Number: [2009] EWCA Crim 2878 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 18 December 2009 B e f o r e : LORD JUSTICE ELIAS MR JUSTICE NICOL HIS HONOUR JUDGE SCOTT-GALL (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v PAUL JAMES BRAND - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 0207 404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr H Baker appeared on behalf of the Appellant Miss J Treharne appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE ELIAS: On 4 April 2008 at the Crown Court at Cardiff, before HHJ Hopkins QC, the appellant was convicted of theft. The jury failed to agree a verdict in respect of two counts of kidnapping and rape. The co-accused, Lee Chapman, was found not guilty at this trial on the count of kidnapping. That was the only count he faced. 2. On 12 August 2008 at the Crown Court at Newport, before HHJ Morris, the appellant was retried and he was unanimously convicted both of kidnapping and rape. He was then sentenced on 30 September as follows: on count 1, which was the kidnapping charge, two years' detention in a Young Offender Institution; consecutive to count 2, which was the rape charge, seven years' detention in a Young Offender Institution; and on count 3, for theft, he was given 15 months' detention in a Young Offender Institution concurrent. So the overall sentence was nine years' detention in a Young Offender Institution. Allowance was made for days spent on remand, and a sexual offences prevention order was made requiring him to advise the Public Protection Team of any vehicle he owned or had access to as a driver. He now appeals against conviction by leave of the single judge. 3. The facts are essentially as follows. On 13 October 2008, the complainant went out to Newport with friends. She had a lot to drink, became separated from her friends and began to walk home at about 4 o'clock in the morning. She was picked up in a car by the appellant, who was the driver, and Lee Chapman, who was in the back seat. She had apparently recognised the two men from having seen them at one of the bars earlier in the evening. The three of them then agreed to drive around in the vicinity of Newport. There was evidence that the car stopped on two occasions, but there is some dispute as to precisely what happened on these occasions. The complainant said, however, that Chapman, sitting in the back, had been abusive. He had asked her to give them both a "blow job" and threatened she would be taken to Wentwood Forest, a place known because there had been a recent murder. She said she had at one stage kissed the appellant. She wanted him to take her home. He was asking her on a number of occasions for sex, and he tried to put her hand on his crotch. Instead of being taken home, she was driven against her will to Llanwern Village, a lonely spot outside Newport. She was feeling scared. Eventually they came to a dark unlit lane, where the car was reversed and stopped. Her case was that she was dragged from the car, the appellant grabbing her hair and her right arm, pulling her from the vehicle. He took her to the back of the car, pushed her to the ground, and then had sex with her. She was compliant because she was scared. 4. After the rape which she alleged had taken place, she went to get back in the car. Chapman meanwhile had stayed in the car. However, as she tried to get back in, the appellant pushed her out of the car and the two men drove off. She fell over, injured her knee and that caused bleeding. She was very shocked. She walked away and did not at this stage have her handbag, which she said she left in the car. She stopped a motor vehicle driven by a Mr Probert, and explained to him what had occurred. The police were called, and she was taken for interview and medical examinations and so forth. 5. The appellant's case was that she had at all times been in control of things. She had wanted to drive around. She had wanted to have sex with him, and had suggested at the spot that they should have sex. She had had her handbag with her at all times, and indeed he said that he was intending to take her back in the car, but that after they had had sex, she tried to get in the passenger door but it was locked. She lost her temper. She shouted and screamed at him for locking her out, and she was kicking and hitting the car repeatedly with her handbag. He noticed when driving away that she had fallen over. He said that he returned at that point to tell the complainant that he would take her home, but she refused. 6. When the police went to his house, they discovered a mobile phone that was hers, but not the handbag. She said that she had left the mobile phone in the car, but he had never seen the handbag and had done nothing with it. The jury heard evidence from a number of parties: one of these was a young woman called Hayley Williams. She had apparently read in the newspapers about this event and had gone to the police. She said that she had received telephone calls from the appellant on the day before this incident. She had met him at a club outside Newport about a week before. She said she had received both telephone calls and text messages from him. He had asked her where she was and where she lived. She said she had hung up. He told her in one call that he and his friend, Lee Chapman, would come and take her out and do dirty things to her, and then there was a threatening call in the evening at around 7 or 8 o'clock, when he said: "I'm going to take you and I am going to fuck you and me and Chapman are going to take you away and kidnap you." 7. She said he made a later call at about 10 o'clock in which he apologised, and she also said that she had made a call to a friend of hers, Jason Baker, at about 8.30. Her mother also gave evidence, and she indicated that Hayley had been very upset by these telephone calls. She had heard her telling a caller to "Fuck off", and she reproved her daughter because of the bad language. Hayley had also told her that a man had said that he would come and "shag Hayley", and that he and another boy were going to come up and get her. 8. The question arose before the judge as to whether two pieces of evidence should be admitted. The first was the telephone records of Hayley Williams and her evidence about the conversation she had with the appellant. The second was whether the jury should hear of the conviction for theft at the first trial before HHJ Hopkins. The issue of whether the telephone records should be admitted had been considered at the first trial before HHJ Hopkins. At that point the issue was treated as a question of admissibility under section 78 of PACE. The appellant had submitted that the material should not be admitted because it was inherently unsafe. The records showed, it was said, that, contrary to the assertion that she had made in interview, it was she who had telephoned the appellant first and not the other way round. In addition, she rang him on a number of occasions which she had not admitted. Perhaps most importantly, there was no record of the telephone call at 8 o'clock in the evening that was supposed to contain the threat of kidnap and rape. There was no record of the 10 o'clock phone call relating to the apology, and there was no record of the phone call made to Jason Baker. Furthermore, she had said that she had kept a record of the telephone calls that the appellant had made to her. 9. The judge on that occasion considered that the evidence should not be admitted, but the issue arose again at the second trial. The Crown submits that there were in fact a number of features which changed between the two trials, and which could perfectly sensibly explain why HHJ Morris took a different view to HHJ Hopkins. In particular, Miss Treharne for the Crown points out that by then it had become clear that in fact the first contact had been made by the appellant and not the other way round, as had been originally thought. He had telephoned Hayley very early in the morning. Second, there were text messages which were consistent with what the witness had been saying about unpleasant texts being received at around lunchtime. Third, there was evidence that, on occasions, the appellant used the phone of Lee Chapman, and that he did use 141 in order to conceal his identity. There was also evidence of two unidentified calls which were made in the evening roughly at the time given by Hayley Williams, which could be the relevant phone calls and could account for the fact that the appellant's phone number had not been recorded on her telephone. 10. In any event, we should say that, in our view, the judge at the second trial had to reach his own independent view as to whether this evidence was admissible. The argument advanced before him was essentially the same as had been advanced before HHJ Hopkins. It was said that the records simply did not bear out the evidence which this witness sought to give. It was accepted that it was potentially important evidence by the second trial. In fact, it had been recognised that it was bad character evidence and would be admitted under section 101 D of the Criminal Justice Act 2003 . Indeed, the submission is that it is potentially so important that this was why it ought not to have been admitted, and the judge ought to have excluded it under section 101(3) of that Act , which provides that the evidence should not be admitted "if it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it". 11. The judge accepted that there was potential difficulty with this evidence, but he noted that the witness had given very clear, strong and unambiguous evidence that these conversations had taken place as she alleged. She could not explain why they were not recorded in her telephone, but she remained adamant that what she was saying was the truth. In these circumstances, the judge considered that it was a matter which ought to go to the jury. It was for them to assess the potential reliability of this evidence, and to consider whether, notwithstanding the apparent contradictions between her statement and the records, the jury could still rely upon what she was saying. In our judgment, this was a proper conclusion open to the judge. 12. The appellant's state of mind was obviously highly material, and we think that the judge was entitled to conclude that, notwithstanding some of the difficulties with this evidence, it ought to be left to the jury. It plainly had significant probative value. It would be prejudicial if it were untrue, but that was a matter for the jury to consider, and the judge summed up this element of the evidence fairly to them, and told them that they had to be cautious in the way in which they approached this evidence. 13. Accordingly, we do not think that there is any error here such as to cast doubt on the verdict. 14. We turn to the question of the conviction with respect to the theft. The judge appears to have considered that the prosecution were seeking to adduce this as bad character evidence. That seems to be the way in which this issue was addressed at the time. We are quite satisfied, however, that the conviction in relation to this theft was not bad character evidence. That is defined in section 98 of the 2003 Act in the following way: "References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which— (a) has to do with the alleged facts of the offence with which the defendant is charged ..." 15. In this case, there can be no doubt in our view that the question of conviction for theft fell clearly within the terms of paragraph (a). It has to do with the alleged facts of the offence with which the defendant is charged. It was plainly highly material to the question of who to believe in relation to the handbag and whether it had remained within or without the car. It was also material to the wider question of credibility, and to the state of mind of the parties immediately after the rape had taken place. 16. The judge, in summing-up with respect to this aspect of the evidence, told the jury that the conviction was relevant "only to that issue of how she was behaving in Llanwern Village, their respective states of mind at that time and their respective credibilities as a witness". Mr Baker points out that it would not be directly relevant evidence as to the question of consent itself. We accept that, but that is not how the judge dealt with it. We think he dealt with it fairly. It was plainly admissible in the normal way because it did not constitute bad character under section 98 . It was plainly relevant evidence. The only basis for excluding it would have been under section 78, and Mr Baker in effect realistically accepted that there would be no proper basis on which it could be excluded under that section. 17. Accordingly, the appeal against conviction fails. (Submissions in relation to sentence follow) 18. LORD JUSTICE ELIAS: This is an appeal against sentence. We have just dealt with the facts of the case in dealing with the appeal against conviction. The only issue, it seems to us, is whether it can be said that the sentence of nine years here is manifestly excessive. Mr George submits this it is; that the appropriate sentence in the relevant guidelines stipulates as a starting point eight years, where the rape is accompanied by an aggravating feature. He submits the only aggravating feature here was the abduction of the victim. Accordingly, he says that eight years would have been the appropriate sentence, and that the judge was not justified in imposing nine. 19. We disagree. We think it is too simplistic to say that abduction was the only aggravating feature. There were other aspects about this particular rape which made it very unpleasant. In particular, the woman was taken to a dark place where she was abandoned. There was another man in the car which would have heightened to some extent her concerns. The rape was committed in his presence, albeit that he was sitting in the back of the car. The question we have to bear in mind is not whether we would have imposed the sentence of nine years, but whether it could be said to be manifestly excessive. We do not think it can. It is true the judge reached this figure by two consecutive sentences of seven years for the rape and two for the kidnap, but nothing, in our view, turns on that. We might have been minded to give a single sentence, but there is nothing wrong in deciding to mark out the kidnap element separately. 20. There was, in addition, the point that there was a theft of the bag. So for these reasons, we do not think it can be said that this sentence was excessive. It is within the range and comfortably within the range laid down in the guidelines.

```yaml citation: '[2009] EWCA Crim 2878' date: '2009-12-18' judges: - LORD JUSTICE ELIAS - MR JUSTICE NICOL - HIS HONOUR JUDGE SCOTT-GALL ```

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: 200801397/C1 Neutral Citation Number: [2008] EWCA Crim 3096 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 27th November 2008 B e f o r e : SIR ANTHONY MAY (PRESIDENT OF THE QUEEN'S BENCH DIVISION) MR JUSTICE SIMON MR JUSTICE BLAKE - - - - - - - - - - - - - - - - R E G I N A v MALIKA HADDAD MOUSTAKIM - - - - - - - - - - - - - - - - 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 Darlington (Solicitor Advocate) appeared on behalf of the Appellant Mr G Cammerman appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T 1. SIR ANTHONY MAY: As long ago as 24th May 2006 the appellant, now aged 44, appeared in the Crown Court at Croydon before His Honour Judge Pratt and a jury and was convicted of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug of Class A, that is to say cocaine. She was sentenced to 10 years' imprisonment. She was then represented by solicitors and counsel, and counsel, as we understand it, advised at the time that there was no basis for an appeal against conviction. She applied for leave to appeal against the sentence but on 6th November 2006 the Full Court, presided over by Tuckey LJ, dismissed a renewed application to that effect. 2. She now appeals against conviction by leave of the single judge upon one ground, who also granted the necessary long extension of time, something over a year and 8 months in which to do so. This came about because Mr Darlington was asked to look into the matter by a charity concerned with the welfare of female prisoners in the United Kingdom. He has formulated the one ground of appeal which requires substantial consideration. He has also done much investigation, covered much paper and advanced numerous applications which on investigation do not readily advance any substantial or coherent further grounds of appeal against conviction. We put it in those terms because Mr Darlington has not addressed us this morning and it would be quite unfair to come to any final conclusion on the matter. A number of these were disposed of by directions given by the full court on 24th October 2008 and nothing more for present purposes need to be said about them. 3. The facts upon which the appellant was convicted are briefly these. On 7th January 2006 at about 7.45 in the morning, she arrived by aeroplane at Gatwick on a flight from St Lucia. She spoke to a customs officer and told him she was in transit to Madrid. She said she had nothing to declare. A search of her hand luggage was conducted and a field test indicated the presence of cocaine. Her suitcase was searched and three bottles of Johnson's baby powder were found. The manufacturer's seals on the bottles had been cut and stuck back with adhesive. The bottles were found to contain plastic bags with white powder inside which on analysis was found to constitute 645 grams of cocaine, equating to 523.5 grams at 100 per cent purity. 4. The prosecution case was that she knew that she was carrying drugs in the bottles. The defence case was that she did not know that she was carrying drugs in the bottles and the issue for the jury accordingly was whether they should be sure that she had knowingly brought these drugs into the country. 5. A customs officer gave evidence that she had no previous convictions in this or any other country. A customs officer who questioned her established that she worked as a cleaner in Spain. She had gone to St Lucia to visit her boyfriend, whom she called "Peter Johnson". They were planning to get married in the August. Her ticket had been paid for by her, her mother and her boyfriend. She was interviewed and in her interview gave an account which was in the main the same as the evidence which she gave at trial. That evidence in summary was as follows. 6. She was 42 years old at the time and lived with her 13-year-old daughter in Madrid. She worked as a cleaner for an agency and earned between 1200 and 1300 Euros a month after tax. Her rent was 200 Euros a month and she received 250 Euros a month as maintenance for her daughter which had increased to 300 Euros in the December. Peter Johnson was her fiancée. He was a Canadian national but had been born in Nigeria. They were to be married in August. They met at the end of 2002/the beginning of 2003 in Madrid. She was then working for the Red Cross and he had a Red Cross badge. He got a job in St Lucia and moved there in December 2004. She stayed in Madrid. They spoke on the telephone almost daily during 2005. She visited him in August 2005 for three weeks. Her sister and her husband paid for the trip. She visited him again in the November for 10 days. He paid half of that trip and she paid the rest from her savings. Her last trip had been paid for by her mother. She stayed, she said, at Peter's house in St Lucia. She did not know the address and could not find her way there now. It was 10 to 15 minutes away from the airport. Lots of his friends visited the house including his friend, Raj. Raj worked as a volunteer for the Red Cross. Peter was a nurse. They both wore hats and T-shirts with Red Cross logos. She had been in custody since her arrest and had spoken to Peter on the telephone, the last time being on 25th March. Since then his telephone had been switched off. She told him everything after her arrest. She had received a letter in April from Raj, giving an address care of the Red Cross in St Lucia. 7. In so far as she had given an account in interview that her boyfriend was concerned with the Red Cross in St Lucia as a nurse, other evidence established that the Red Cross in St Lucia had never heard of a Peter Johnson. Her account continued that she met Peter's neighbour, Jack, in St Lucia. Raj also knew Jack. She did not know Jack's surname. He asked her to take a gift to a woman in Spain but did not mention her name. He said that this woman was pregnant and he wanted to help her. He gave her a bag of bottles of baby powder, shampoo and some body lotion. They looked as if they were new. She believed him. She would not have taken them if he had told her there were drugs inside. He told her he would give his friend her telephone number so that she could call her and arrange for them to meet. Peter gave Jack her telephone number. On one occasion Raj had used her telephone in St Lucia and had put his SIM card in her telephone. Raj gave her his number and she wrote it on a piece of paper. She did not know or suspect that there were drugs in the bottles. She still hoped to marry Peter in August. She had hoped he would have attended her trial. They planned to live in Madrid after the wedding. She had met Jack on her previous trips to St Lucia. Asked about Jack, she said that Jack was a real person, she had not invented him. He lived in the same street as Peter. She did not have a telephone number for him. She had called, she said, Raj, to find out what was going on with Peter and Raj had told her that Peter was travelling. That was her account. She said that she did not know how the traces of cocaine came to be on her bag. Her mobile telephone had been in several other people's hands. She did not know where Raj and Peter were now. She had hoped they would be at her trial. 8. The jury unanimously convicted the appellant and may be taken to have surely rejected her evidence that she did not know that she was importing cocaine. Her account was, as we have said, shown to be false in one particular, that is that Peter Johnson did not work for the Red Cross in St Lucia. 9. As we have said, the full court in October disposed of a number of matters which Mr Darlington had raised on 24th October. Those were relevant to other possible grounds of appeal for which leave had not been given and for which in other circumstances Mr Darlington would probably have been seeking to persuade this court that leave should be given. 10. The one substantial ground of appeal is that the judge's summing-up, with reference to the appellant's good character, was deficient. What the judge said in this respect was as follows. He said this: "You know from the officer that the defendant is aged 42 and you know Mrs Lieden and the defendant that she has no convictions in this or any country, she therefore falls to be dealt with by you as a defendant of good character. Now, how does that impact upon her trial? Well, a defendant of good character is entitled to say that I am as worthy of belief as anyone, so in the first place it goes to the question of whether or not you believe Mrs Moustakim's account. Secondly, she is entitled to have it argued on her behalf that she is perhaps less likely than a defendant of bad character to have committed this or any criminal offence. Good character is not a defence to a criminal charge. We all start life with a good character, some of us lose it on our way through, and it will be for you to decide what weight is proper to put upon this lady's good character when you come to consider the evidence which is your principal focus." Mr Darlington says that this was a deficient direction and Mr Cammerman, on behalf of the prosecution, agrees that it was deficient. 11. Mr Darlington refers us to the case of R v Lloyd [2000] 2 Cr App R 355 , which itself cites the well-known case of R v Vye (1993) 97 Cr App R 134 , where Lord Taylor LCJ said this: "To summarise, in our judgment the following principles are to be applied. (1) A direction as to the relevance of his good character to a defendant's credibility is to be given where he has testified or made pre-trial answers or statements. (2) A direction as to the relevance of his good character to likelihood of his having committed the offence charged is to be given, whether or not he has testified, or made pre-trial answers or statements." The case of Lloyd quotes a further passage from Vye at its page 479 as follows: "Provided that the judge indicates to the jury the two respects in which good character may be relevant, ie credibility and propensity, this Court will be slow to criticise any qualifying remarks he may make based on the facts of the individual case." 12. This court in Lloyd was concerned with character directions which had been given in the form of questions. The finding of this court in Lloyd is summarised in the headnote as this: "... that character directions should not be given in the form of a question, they should be given in the form of an affirmative statement, and that applied even if the question was a leading question; that in a case such as this one which turned almost entirely on the question of credibility as between the complainant and the appellant, the question of credibility was of the greatest importance and relevance so that, in the absence of an appropriate direction as to good character, the convictions were unsafe." Reference is made in the judgment of this court at page 360 of Lloyd , to the Judicial Studies Board guideline directions in this respect. We should, of course, say that although Lloyd is an example of a case where a deficient good character direction resulted in a conviction being held to be unsafe, there are other cases, in other circumstances where that may not be so, and we have had drawn to our attention the case of R v Zielinski [2007] EWCA Crim 704 where upon a different direction and on different facts the conviction was regarded as safe. 13. The two limbs of the direction required are reflected in the Judicial Studies Board guideline directions which include that a good character cannot of itself provide a defence to a criminal charge, but it is evidence which the jury should take into account in the defendant's favour. First, as with any person of good character it supports his credibility. This means that it is a factor which the jury should take into account when deciding whether they believe his evidence. Second, the fact that the defendant is of good character may mean that he is less likely than otherwise might be the case to commit the crime of which he is charged. 14. As we have said, Mr Cammerman, for the prosecution, accepts that the judge's direction in the present case was deficient. His written submissions explain why he accepts that the direction was deficient and additionally why, in prosecution submission, the extent of the deficiency is no more than, as he put it, moderate. His broad submission this afternoon has been that, although the direction given by the judge was, he accepts, deficient as to both of its limbs, the general sense of the required direction was given. What he helpfully wrote was this: "It is the Respondent's submission that the direction, taken as a whole, communicated the sense of the good character direction sufficiently that it need not undermine the safety of the conviction. On limb one, that is credibility, the learned judge stated that the Appellant was as worthy of belief as 'anyone'. The clear purpose of a good character direction, properly given, is to direct the jury that she is more likely to be telling the truth because she is person of good character. However, in the submission of the Respondent's, the use of the term 'anyone' communicates 'you or me' in distinction to a person with previous convictions. When taken in the context of a direction about good character it conveyed a sense, if less clearly than it ought to have done, that the Appellant is as likely to be telling the truth as an ordinary person of good character should be." The second limb of the direction, he submits, to propensity was expressed not as a direction but rather as a potential argument that may be advanced on the appellant's behalf. Mrs Moustakim was entitled to a direction rather than an invitation to consider argument. It was, in the respondent's submission, made clear that the defendant's good character was something that the jury should take into account in her favour when deciding on the likelihood of her committing the offence. Mr Cammerman goes onto submit that notwithstanding the deficiencies in the good character direction, the jury must have been left with the impression that Miss Moustakim's good character was a factor to be weighed in her favour when considering credit and propensity. Examination of the detail of the transcript may do injustice to the effect of the direction as a whole. Neither prosecution nor defence counsel intervened to comment upon the direction. Defence counsel did not form the view that the good character direction could form a ground of appeal. It is submitted that this may reinforce the view that the sense of the character direction was communicated adequately to the jury. 15. In our judgment, this direction, which we have read, in the present case was inadequate because: 1. There is no explicit positive direction that the jury should take the appellant's good character into account in her favour. 2. The judge's version of the first limb of the direction did not say that her good character supported her credibility. The judge only said that she was entitled to say that she was as worthy of belief as anyone. It went, he said, to the question whether the jury believed her account. 3. The judge's version of the second limb of the direction did not say that her good character might mean that she was less likely than otherwise might be the case to commit the crime. He said that she was entitled to have it argued that she was perhaps less likely to have committed the crime. The use of the word "perhaps" is a significant dilution of the required direction. 4. In the judge's direction each limb is expressed as what the defendant is entitled to say or argue, not as it should have been a direction from the judge himself. 16. We have carefully considered the safety or otherwise of this conviction in the light of the direction as to the appellant's good character and its deficiencies to which we have referred. We accept that on one view the case against her was strong. She imported a quantity of cocaine inexpertly concealed in baby powder bottles. Her account to the effect that she did not know that the bottles contained cocaine and that she was given no detail of the person to whom it was to be delivered in Spain was intrinsically questionable and was proved to be untrue in one respect, that is to say her account that her boyfriend worked for the Red Cross in St Lucia. However, the central issue in the case turned on the credibility of the appellant and it was precisely to this that the direction as to good character was directed. 17. As in the case of Lloyd , the character direction was a crucial part of the summing-up and a crucial factor when considering the safety of the verdict. In the absence of an appropriate direction, having the deficiencies which we have identified as to good character, in our judgment, this conviction has to be regarded as unsafe. Accordingly the appeal against conviction is allowed. 18. SIR ANTHONY MAY: What do the prosecution want to do in those circumstances? 19. MR CAMMERMAN: I am instructed to invite the court to order a retrial. The witnesses are available and can give evidence and hopefully the trial will take place within the period allowed by section 8 of the Criminal Appeal Act 1968 , 2 months. She will be arraigned and retried soon thereafter. 20. SIR ANTHONY MAY: She will be rearraigned on a fresh indictment within 2 months? 21. MR CAMMERMAN: Yes. 22. SIR ANTHONY MAY: We would anticipate and hope that it would happen more quickly than that. 23. MR CAMMERMAN: My Lord, yes. I will speak to those instructing me and invite a listing, if the court is minded to order a retrial, as soon as practicable. The bundles are in the same state as they were at trial. 24. SIR ANTHONY MAY: If we were to do that, and we will hear Mr Darlington in a moment, do we have to give a direction to venue or is that to be left to the presiding judges? 25. MR CAMMERMAN: I am afraid I am not in a position to assist on what the proper course the court ought to take. I operated under the assumption that it would return to Croydon. 26. SIR ANTHONY MAY: Plainly it should not be before the same judge but I cannot believe there is any reason for not having it at Croydon. 27. MR CAMMERMAN: That court has experience in dealing with cases of this type with being a local court to Gatwick. 28. SIR ANTHONY MAY: Mr Darlington, what about it? 29. MR DARLINGTON: I would hope to try to persuade my Lords not to order a retrial for basically three reasons. Of course, when dealing with those three reasons we have to, to some extent, enter on the material that your Lordship has not yet dealt with which would have been in the further grounds. That of course relates to the email from the British console. 30. SIR ANTHONY MAY: I am sorry to interrupt you, but I do not quite see why we have to consider material which might or might not be relevant in a further retrial in order to decide whether to have one. 31. MR DARLINGTON: The reason is, since this trial took place, my Lord, in May 2006, we have in fact had an emerging information that was not available, that was not available at the time of the retrial, of the original trial, with regard to who Peter Johnson is, what kind of person he is, whether in fact he deceived Miss Moustakim in respect of this matter from the start. Not necessarily, my Lord, by virtue of being in the Red Cross in Spain. It could be he was working in the Red Cross in Spain but not in fact working in the Red Cross in this country. 32. MR JUSTICE SIMON: Why are those matters for the jury? 33. MR DARLINGTON: They are new matters, my Lord, that were not before the original court. They are emerging-- 34. SIR ANTHONY MAY: They are matters that can be put before the next court if there is to be a retrial. 35. MR DARLINGTON: I put it my Lord in connection with two other grounds if I might be so bold to mention them. The second ground may not have much favour with your Lordships but it is nonetheless a factor which comes into the equation. It is this. On the facts that we can see with regard to the time that the defendant has actually served, she has actually served four-fifths of the sentence that she would otherwise serve. That, my Lord, is because of the way the oversees prisoners, including people in Spain, are now being released 9 months early. That means that she was actually arrested in January 2006. She has been in custody up until the current time, that is nearly 3 years. We are not going to reasonably get a trial, I would have thought, much before about March of 2009. Her release date would appear to be March/April 2010, after you have taken into account the period of time that would be allowed off. So by March of 2009, my Lord, she would actually have served approximately four-fifths of her sentence. I agree it is not-- 36. SIR ANTHONY MAY: She has not served four-fifths of her sentence at the moment. 37. MR JUSTICE SIMON: How long did the trial take? 38. MR DARLINGTON: Two days, two-and-a-half with the jury out, I think. 39. SIR ANTHONY MAY: Yes. That is the second point. The third point? 40. MR DARLINGTON: The third point is one that I put forward with some diffidence because I do not want to appear offensive or rude to my learned friend or indeed to the Customs who have in fact instructed him. But there are two ways in which one can prosecute a case, and I speak of my limited experience of 6 years in the Crown Prosecution Service. One is one runs it totally fairly. One acts as a minister of justice, that is one's approach. One assists the defence where it is in one's power to assist the defence, particularly by giving them material which they cannot otherwise get which is only within the prosecution power. 41. That is the Crown Prosecution Service way of dealing with prosecutions. I have to say, and I do not want to offend my learned friend, who may well be acting on instructions, that the minister of justice role has not been adopted by the prosecution in this case. 42. SIR ANTHONY MAY: You are entitled to assert that. It seems to me that it is of questionable value in two respects. Firstly, as to the actual conduct of the trial. Speaking for myself I have seen nothing that would be open to the kind of criticism you are making at the moment. Secondly, as to what has happened since, the appellant had one good ground of appeal which has succeeded and a lot of other enquiries have been made which we have not gone into. Not going into those means we are going to be persuaded one way or the other as to whether the Crown Prosecution Service has behaved in a proper manner or not. We are certainly not going to conclude that they have not. 43. MR DARLINGTON: May I put it this way? If this case proceeds to trial in March or April, or whenever it is of 2009, without the defence being supplied with material, which they have requested on the prosecution, and which only the prosecution can provide. They have the key to the door. No one else has, with regard to obtaining information, with regard to Mr Johnson, in St Vincent this defendant will not get a fair trial. 44. SIR ANTHONY MAY: That is all with the future. We are concerned with whether there should be an order for a new trial. 45. MR DARLINGTON: What I am saying, my Lord, the history of this case is that if we have a new trial we are going to need the information we have requested from the prosecution with regard to, firstly, whether Peter Johnson is even a man (inaudible). We need that information because it goes to the extent of the deceit that now is the nub of the defendant's case, that she was in fact deceived by Mr Johnson; she was innocent in a drug dealer's world; she did not know it. The information to confirm that totally is within the power of the prosecution. 46. SIR ANTHONY MAY: You have now said that three times. We got it the first time. Thank you. 47. MR DARLINGTON: What I am saying -- yes, simply, my Lord, the prosecution are -- the Customs, the people in St Vincent are not going to give us that information. They made that quite clear in their email of 22nd August. We are not going-- 48. MR JUSTICE SIMON: Mr Darlington, you can ask the prosecution for this information. If you say they are in breach of their disclosure obligations, you can raise this as an abuse argument in front of the judge, can you not? 49. MR DARLINGTON: We have raised it in every possible way we can. 50. MR JUSTICE SIMON: The proper way of raising it is as an abuse argument in front of the trial judge. 51. MR DARLINGTON: One further way, a simpler way, if I may say so, my Lord, simply for the prosecution to contact the authorities in St Vincent and get the information that we have been asking for the last past 5 months. They are not prepared to do that. Why are they not prepared to do that? There are two possible reasons, either because of budget considerations, which does not seem to me to be sufficient reason, or because they realise if they do make those enquiries they will in fact support the defence case. My submission is that that is not fair. 52. SIR ANTHONY MAY: What the prosecution may do, in circumstances where by direction of this court there is to be a retrial, remains to be seen. 53. MR DARLINGTON: Those are my three grounds. There is emerging information that was not available, that the defendant was involved in sentence and thirdly, unless the prosecution (inaudible) she is not to get a fair trial. (Short Adjournment) 54. SIR ANTHONY MAY: We propose to direct a fresh indictment and, if it is proceeded upon, a fresh trial. Mr Cammerman, is there any reason why the fresh indictment should not be preferred within 14 days? 55. MR CAMMERMAN: No. 56. SIR ANTHONY MAY: What about the period for rearraignment? 57. MR CAMMERMAN: There is no reason why that cannot happen far sooner than the 2 months allowed. 58. SIR ANTHONY MAY: Can we direct the period? I mean section 8(1) says within 2 months but if we are going to have a fresh indictment within 14 days, we ought to have rearraignment within 28, ought we not? 59. MR CAMMERMAN: My Lord, yes. 60. SIR ANTHONY MAY: Do you want to say anything about these periods? 61. MR DARLINGTON: Only, I may be being a little self interested from the point of view of convenience, it is possible to be heard at Isleworth, my Lord. 62. SIR ANTHONY MAY: I do not see why that should be. It is a Croydon case, is it not -- yes? I think we will direct that it should be at Croydon or at such other venue as the court by means of presiding judges may direct. 63. MR DARLINGTON: Could I, in the circumstances, as I say an application for directions already has be made to this court and will be among your papers. There are a number of requests that we have made in that application. They were heard, firstly, by the Registrar, then they were referred to the full court and refused by the full court. We are going to be in a situation, as I said, of needing that information in order to properly put this appellant's defence. We cannot get it. 64. SIR ANTHONY MAY: Mr Darlington, it is entirely up to the appellant and you or anybody else advising her as to how this retrial is conducted, how the proceedings are conducted but we are going to do so, direct that the trial is listed for hearing as soon as is reasonably possible. If applications within that trial are to be made, we would have imagined they would be made with a view to enabling the trial to take place as soon as possible. 65. MR DARLINGTON: I am only wondering if I could persuade my Lord, that it would have saved time if your Lordship was prepared to consider making now a letter, an order for letter of request. 66. SIR ANTHONY MAY: Certainly not. This court is concerned with appeal matters. We have determined the appeal. It is for the court to which this matter will now go to determine such matters. 67. MR DARLINGTON: May I raise one other matter with regard to this, that is the question of bail? My Lord, there is a bail application. 68. SIR ANTHONY MAY: What we propose to do is to direct that the appellant is remanded in custody, but that a bail application can be made to the trial court. 69. MR DARLINGTON: I am grateful for that. 70. There is one other matter, I make it not in my own interest because I was formally employed by the firm who were good enough to do preliminary work in respect of this case prior to legal aid being granted. I no longer work for that firm. They will get some payment because of the advice provisions but they would be better remunerated if in fact your Lordships were prepared to consider backdating the legal aid order to the time I was instructed. 71. SIR ANTHONY MAY: That is an application you made before the full court presided over by Hallett LJ and she refused it. 72. MR DARLINGTON: I thought she did not deal with it. I fully accept that. 73. SIR ANTHONY MAY: Our information is that that was dealt with by that court. 74. MR DARLINGTON: It is not a matter of consequence to me. 75. SIR ANTHONY MAY: The order of the court will be as follows: the appeal is allowed the conviction quashed. We direct that a fresh indictment be preferred on the counts upon which she was formally tried and convicted. The fresh indictment to be preferred with 14 days and a direction that she be re-arraigned on that fresh indictment within 28 days. We direct that she be remanded in custody but may, if so advised, apply to the trial court upon a bail application. There will be a representation order for the retrial. We direct that the retrial should take place at Croydon but not before the same judge, or at such other venue as may be directed by the court. (Pause) 76. I am asked whether there should be reporting restrictions on today's proceedings in the light of a retrial. I would have thought it is unnecessary. 77. MR CAMMERMAN: For my part, I see no good reason.

```yaml citation: '[2008] EWCA Crim 3096' date: '2008-11-27' judges: - SIR ANTHONY MAY - MR JUSTICE SIMON - MR JUSTICE BLAKE ```

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

Neutral Citation Number: [2008] EWCA Crim 314 Case No: 2007/03140/C4 - 2007/03501/C4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM The Crown Court at Wood Green Mr Recorder P Herbert T20060762 Royal Courts of Justice Strand, London, WC2A 2LL Date: 28/02/2008 Before: LORD JUSTICE HOOPER MR JUSTICE SILBER and MR JUSTICE UNDERHILL - - - - - - - - - - - - - - - - - - - - - Between : Mervyn Lamaletie and Karen Royce Appellants - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Miss M Jacobs and Miss H Rawat for the Appellants Mr J Benson for the Respondent Hearing date: 22 January 2008 - - - - - - - - - - - - - - - - - - - - - Judgment MR JUSTICE UNDERHILL: 1. On 16 May 2007 in the Crown Court at Wood Green, before Mr Recorder Herbert, the Appellants Mervyn Lamaletie (aged 28) and Karen Royce (aged 48) were each convicted on a single count of inflicting grievous bodily harm contrary to sec. 20 of the Offences Against the Person Act 1861 . In the case of Lamaletie the jury was unanimous; in the case of Ms. Royce the decision was by a majority of 10 to 2. On 8 June 2007 Lamaletie was sentenced to eighteen months imprisonment, and Royce to eleven months imprisonment suspended for two years with an unpaid work requirement of 200 hours. Ms. Royce was also ordered to pay £500 by way of costs and £500 by way of compensation. Both appeal against conviction with leave of the single judge. 2. The essential facts of the case can be summarised as follows. The complainant was a minicab driver, Mr Yadessa. At about 11 p.m. on 5 August 2006 he drove the Appellants, who had met for the first time earlier that evening, from a pub in Wood Green to Ms. Royce’s flat in Islington. When they arrived at their destination a row broke out about the fare. Ms. Royce said that she had not got any money in her bag and would have to go into the flat to get some. Mr Yadessa was not happy about that. The altercation became violent and culminated in Mr Yadessa receiving blows to the face which broke both his right and his left jaw. It was the prosecution’s case that it was Ms. Royce who struck the first blow, hitting Mr Yadessa with her handbag, and that Lamaletie then struck the heavy blows which caused the injuries in question and that both were throughout the incident acting together so as to be participating in a joint enterprise. The defendants’ cases were not identical as to detail, but in substance both Lamaletie and Ms. Royce said that it was Mr Yadessa who was the aggressor throughout the incident and that any force that was used by them was in order to defend themselves or their property. 3. At trial the principal witness for the prosecution was Mr Yadessa, who gave evidence essentially in line with the case for the Crown as outlined above. The only other eye-witness was a neighbour who observed the incident from his flat and then came down into the street to see what was happening. There was evidence from the officers who attended the incident, but only after the fight was over. Evidence was given of the Appellants’ answers in interview. Lamaletie’s Appeal 4. Lamaletie’s appeal is based on the Recorder’s decision to permit the Crown to adduce evidence of his bad character under sec. 101 of the Criminal Justice Act 2003 . He had a fairly extensive criminal record, with some 13 convictions for 27 offences, including six convictions for offences of violence. The question had been raised more than once in the pre-trial period whether a bad character application was to be made, and the Crown had repeatedly disavowed any intention to do so. Part at least of the reason for this reluctance appears to have been that, for reasons which are unclear, the Crown was unable to obtain any details of the convictions beyond the bare descriptions of the offences appearing on the standard antecedents print-out: the absence of such details, it seems to have been thought, made it impossible to seek to introduce the evidence under gateway (d). But Mr Benson of counsel, who was newly instructed for the trial, applied on the second day of the trial (having intimated an intention to do so on the previous day) for the admission of evidence of Lamaletie’s bad character under gateway (g), that is on the basis that he had “made an attack on another person’s character”: the attack in question consisted of his answers in interview, in which he had described Mr Yadessa as having initiated an unprovoked attack on himself and Ms. Royce. Because the detailed facts underlying the previous convictions remained unavailable, he disavowed any intention to rely on the offences of violence as demonstrating a propensity to commit such offences. The Recorder decided to allow the six convictions for violence to be put in evidence, but on the express basis that he would direct the jury that they should take them into account only for the purpose of assessing Lamaletie’s credibility. 5. On the basis of that ruling, Lamaletie made formal admissions of convictions for the following offences: • an offence under sec. 41A of the Public Order Act 1986 , for which he had been fined £150, together with orders for compensation and costs, in May 2000; • an offence of common assault (committed on bail), for which he was sent to prison for three months in September 2001; • an offence of assault occasioning actual bodily harm and one of common assault, for which he received a total sentence of six months imprisonment in November 2002; • an offence of assaulting a constable, for which he was imprisoned for four months in 2003; • another offence of assaulting a constable, for which he was again sent to prison for three months in January 2006; • an offence of affray, for which he was sent to prison for eight months in March 2006. 6. In his summing-up the Recorder dealt with the question of Lamaletie’s previous convictions as follows: If I can turn to Mr Lamaletie, you have heard that he is a person of bad character in the sense that he has the six criminal convictions for offences of violence that you had read out to you. It is important that you should understand why you have heard that evidence and how you may use it. You heard that evidence because he made a fundamental attack on the character of Mr Yadessa and effectively said, “I wasn’t the assailant at all, it was all Mr Yadessa’s fault and he made, in effect, an unprovoked attack on both parties.” And therefore, it was in that regard that I gave the prosecution the permission to refer to his previous convictions in the limited way that I did so. You can therefore use the evidence of previous convictions that you had read out to you in one regard and one regard only. If you think it right you may take into account when deciding whether or not the defendant’s evidence to you was truthful. A person with a bad character may be less likely to tell the truth, but it does not follow that they are incapable of doing so. You should not place undue reliance upon previous convictions in any event, and you certainly do not convict people because they have previous convictions. Equally, people of good character can commit criminal offences; people with criminal convictions can behave and be wholly innocent of any criminal charge. One linking factor is, there is clearly a link that there has been a history of Mr Lamaletie being untruthful in relation to offences of violence. But you are not asked to regard it as to anything other than going to his credit, whether he has been truthful about what has happened or not. 7. Lamaletie appeals principally on the basis that the Recorder was wrong to admit the evidence of his previous convictions, though there is also a complaint about the terms of the summing-up as it relates to them. Ms. Jacobs’ submissions on his behalf were under three heads. 8. First, she submitted that nothing that Lamaletie had said in interview amounted to an “attack on [the complainant’s] character” within the meaning of sec. 101 (1) (g). The defence of self-defence necessarily involved an allegation that the complainant committed an assault, or at least had threatened to do so, and nothing that Lamaletie had said in interview went beyond that: it was no more than an “emphatic denial”. She referred us to the decision of this Court in R v. Stone [2001] EWCA Crim 2379 ([2002] 1 Archbold News 1), which concerned the equivalent provisions of sec. 1 (f) (ii) of the Criminal Evidence Act 1898. We agree that, in the particular case of gateway (g), pre-2003 Act authorities may continue to be helpful. But, as is made clear in Stone , the position under the 1898 Act was not that the statute was not (to use the now modish term) “engaged” if the imputation on the character of a prosecution witness was a necessary part of the defendant’s case: rather, that fact might be relevant to the exercise of the Court’s discretion. As part of the exercise of that discretion it would be relevant to consider whether the imputation went beyond the minimum that was necessarily inherent in the defence raised - but there was no rule of law that that was the decisive criterion. In any event, whatever the position under the old law, it seems to us plain beyond argument that Lamaletie’s answers in interview constituted an attack on Mr Yadessa’s character within the meaning of sec. 101 (1) (g). Sec. 106 of the 2003 Act expressly provides that an allegation made in interview that another person has behaved “in a reprehensible way” is to be regarded as an attack on that person’s character. Lamaletie had in interview alleged not simply that Mr Yadessa struck the first blow but that he “was attacking me everywhere”: even the allegation that he had started the fight would probably be an allegation of reprehensible conduct, but Lamaletie in any event went further. 9. We do not therefore regard Ms. Jacobs’ first ground as sustainable. It was of course open to the Recorder to take into account, as under the old law, the fact that the allegation was made in the context of raising a defence of self-defence as one of the considerations relevant to the exercise of his discretion under sec. 101 (3). Ms. Jacobs did not formulate this part of her argument as a challenge to the exercise of that discretion: her submission was, as we have said, that there was in truth no attack on Mr Yedassa’s character. But even if she had put her case that way, we cannot say that the Recorder went outside the bounds of his discretion in this respect. He acknowledged the force of the point that Lamaletie ought not to be treated as having “put his character in” simply because he had alleged self-defence, but he considered that Lamaletie had gone further than that: in our view that conclusion was open to him. 10. We should add that Ms. Jacobs sought in her skeleton argument under this head to raise what seems to us to be on analysis a distinct point, namely that at the moment that the Judge made his ruling there was not yet any evidence of the “attack” relied on because the officer had not yet given evidence of Lamaletie’s answers in interview: she referred to R v. Nelson [2006] EWCA Crim 3412 . There is nothing in this point. As a matter of strict analysis, the Judge’s ruling – which was no doubt made at the stage that it was simply so that everyone knew where they stood - was conditional on the evidence of the interview being given, as it was, before the jury was told of Lamaletie’s convictions. 11. Ms. Jacobs’ second ground was that the Crown’s consistent position up to the start of the trial that it would be making no application under sec. 101 had given rise to a legitimate expectation on the part of Lamaletie that evidence of his bad character would not be adduced; and that in the light of that expectation the Recorder should not have acceded to the application. We do not agree. If the adducing of the evidence gave rise to no substantive unfairness, we can see no reason why the fact that the Crown had changed its position should by itself make any difference. 12. Ms. Jacobs’ third ground was that, although in form the Recorder admitted the evidence of bad character only under gateway (g), i.e. as going to the relative credibility of Lamaletie and the complainant, the evidence was bound in practice to be regarded by the jury as evidence of a propensity on Lamaletie’s part to commit offences of violence: thus the Crown was being permitted to adduce propensity evidence by the back door, in a case in which it had deliberately eschewed any application for such evidence to be admitted under gateway (d). The Recorder should therefore have refused to admit the evidence in the exercise of his discretion under sec. 101 (3). Ms. Jacobs reinforced that submission with two further points: (1) She submitted that a mere list of convictions, which was all that the evidence in question consisted of, could not in truth be of any real assistance to the jury on the question of credibility. (2) She drew attention to the final paragraph from the passage from the summing-up which we have set out at para 6 above. She pointed out that it was simply factually wrong to say that “there has been a history of Mr Lamaletie being untruthful in relation to offences of violence”. That is somewhat oblique, but it could only mean that Lamaletie had pleaded not guilty to some or all of the offences; but (as Mr Benson accepted) that was something as to which the admissions were in fact silent – it was not known in any of the cases what his plea had been. 13. This ground of appeal needs rather more careful consideration. We agree that Lamaletie’s antecedent history, as presented to the jury, was capable of being regarded as evidence of a propensity to commit offences of violence and therefore as making it more likely that he was the aggressor in the confrontation with Mr Yadessa. But for the peculiarities of the present case, summarised at para 4 above, it would have been wholly unobjectionable for the jury to use the evidence in that way. The Crown would almost certainly have applied for evidence of the convictions to be admitted under gateway (d) as well as (or perhaps instead of) gateway (g), and the application would almost certainly have been successful. Even if it had not done so, the evidence could still properly have been deployed to show propensity – a point explicitly made by Lord Woolf C.J. in R. v. Highton [2006] 1 Cr. App. R. 7 ( [2005] EWCA Crim 1985 ), at para. 10 (p. 132). Perhaps it would have been necessary for more details of the convictions to be obtained, as appears to have been believed in this case, though frankly we doubt it (see para. 14 below). The peculiarity of the present case, however, is that the Recorder stated that he would only admit the evidence on the basis that its relevance was limited to the issue of credibility and would direct the jury accordingly. That was a concession in Lamaletie’s favour because the Crown lost the chance positively to invite the jury to rely on the convictions as evidence of a propensity to violence. But we do not believe that the fact that the direction to the jury might not be 100% effective gives him any cause for complaint. The Recorder’s ruling in effect recreated the regime which applied under the old law. But even under the 1898 Act the fact that character evidence might incidentally demonstrate a propensity to commit the offences charged was not enough to preclude its admission under sec. 1 (f) (ii). In R v McLeod [1994] 1 WLR 1500 , Gage J conducted a thorough review of the decided cases, concluding with an authoritative summary of what they established. His first point in that summary (at p. 1512 F-G) was as follows: The primary purpose of the cross-examination as to previous convictions and bad character of the accused is to show that he is not worthy of belief. It is not, and should not be, to show that he has a disposition to commit the type of offence with which he is charged: see Reg. v. Vickers [1972] Crim. L.R. 101, Reg. v. Khan and Reg. v. Barsoum. But the mere fact that the offences are of a similar type to that charged or because of their number and type have the incidental effect of suggesting a tendency or disposition to commit the offence charged will not make them improper [our emphasis]: see Reg. v. Powell [1985] 1 W.L.R. 1364 ; Reg. v. Owen, 83 Cr.App.R. 100 and Reg. v. Selvey [1970] A.C. 304 . That in our view effectively disposes of Ms. Jacobs’ primary point. 14. We wish to add that we are not convinced that gateway (d) was in truth unavailable in the present case. Contrary to what appears to have been thought, there is no rule that full details are necessary in every case where the Crown seeks to rely on previous convictions as demonstrating propensity: see R v Hanson [2005] 2 Cr. App. R. 21, esp. at paras 12 and 17. We certainly accept that it is good practice for such details to be available in case they are required; but whether they are necessary in order for the jury fairly to assess their relevance to propensity will depend on the facts of the particular case. In the present case it is at least strongly arguable that the jury could draw a relevant conclusion from the simple fact, without more, that Lamaletie had no fewer than six convictions for offences of violence over a period of as many years. 15. Turning to Ms. Jacobs’ second point, we do not accept that a “mere list of convictions” could not assist the jury on the issue of credibility. It is important to bear in mind that this is a case where the gateway relied on is (g). The conception underlying that gateway, as previously with sec. 1 (f) (ii), is that where a defendant has impugned the character of a prosecution witness the jury will be assisted in deciding who to believe by knowing of the defendant’s character. As it was put by Devlin J. in the leading case of R. v. Cook [1959] 2 QB 340 , at p. 347: “… In the ordinary and normal case [the judge] may feel that if the credit of the prosecutor or his witnesses has been attacked, it is only fair that the jury should have before them material on which they can form their judgment whether the accused person is any more worthy to be believed than those he has attacked. It is obviously unfair that the jury should be left in the dark about an accused person's character if the conduct of his defence has attacked the character of the prosecutor or the witnesses for the prosecution within the meaning of the section.” For the purpose of that kind of exercise, what is relevant is “character” in a broad general sense; and we do not believe that it was ever the practice under the 1898 Act to consider the details of the evidence of bad character sought to be adduced. Such detail was unnecessary and potentially distracting. We do not believe that the position is different in a gateway (g) case under the 2003 Act : what, in essence, the jury here was being invited to put into the balance, when considering whether to believe the defendant’s or the complainant’s account of how the fight started was simply the fact that the defendant was a man with a significant record of offences of violence. In deciding whether to accept Lamaletie’s account that Mr Yadessa was the initial aggressor and had “attacked him everywhere”, the jury were entitled to take into account that significant record. 16. Ms. Jacobs sought to support this aspect of her submissions by reference to R. v. Meyer [2006] EWCA Crim 1126 . That was a case of wounding with intent, where the defence was self-defence. This Court held that the Judge was wrong to direct the jury that two previous convictions for offences of violence (in relation to which the defendant had pleaded guilty) were relevant to credibility: see per Fulford J. at para 22. But we cannot find in Meyer any statement of general principle that a history of offences of violence was incapable of being treated as relevant to credibility. We read it – as it appears also to have been read in R v Campbell [2007] 2 Cr. App R 28 ( [2007] EWCA Crim 1472 ): see para. 46 of the judgment of the Lord Chief Justice (at p. 378) – as simply a decision on the facts of the particular case. Indeed we note that it appears to have accepted by the Crown in Meyer that the convictions in question were irrelevant to the issue of credibility (see para. 1). It should also be noted that Meyer was not a case in which any reliance had been placed on gateway (g). We think it highly unlikely that the Court was intending to lay down any rule inconsistent with the general practice as we have referred to it in para. 15 above. 17. As for Ms. Jacobs’ final point, we agree that to a criminal lawyer the Recorder’s use of the phrase “a history of Mr Lamaletie being untruthful” would most naturally be understood as meaning that he had pleaded not guilty to some or all of the offences about which the jury had been told; and we must for the purpose of this appeal assume that that was factually incorrect. That was an unfortunate slip. However, it seems to us extremely unlikely that that is how the jury will have understood his words, both because of their opacity and because of the context in which they occurred. It is not in fact at all clear precisely what the Recorder was trying to say in the short passage in which the phrase occurs; but it was certainly not directed to inviting the jury to consider whether any previous not guilty pleas made Lamaletie less credible as a witness. Indeed the overall message being conveyed was plainly that the jury should ignore the point to which he was alluding, whatever it was, and should stick to the general direction which he had just given. 18. We see no real possibility that the jury were misled. We therefore dismiss Lamaletie’s appeal.We conclude this part of our judgment by observing that the unusual procedural history of this case has required us to become engaged in the somewhat artificial and unsatisfactory analysis required by the old law in this area. In most cases, however, this kind of exercise should be redundant, for the reasons powerfully explained in Campbell. Royce’s Appeal 19. At the conclusion of the hearing we announced that if Lamaletie’s appeal succeeded so would Royce’s appeal. We also said that if his appeal failed then her conviction under sec. 20 would, in any event, be quashed and a conviction for common assault substituted, with a consequential reduction in her sentence to 102 hours unpaid work as part of a community order (being hours which she had already completed). However, we reserved our reasons. They can be briefly stated as follows. 20. A number of points were made in Ms. Royce’s original grounds of appeal. In the end, however, the argument before us focused on a point which was not clearly pleaded but which we encouraged Ms. Rawat to develop. It was never the Crown’s case that Ms. Royce herself had struck the blows that caused Mr. Yadessa the serious injury which he suffered: its case against her was put on joint enterprise. The Recorder gave a direction in that regard which we need not set out here, but the question plainly caused the jury some difficulty because after they had been retired for some time they sent a note to the Recorder which asked, so far as relevant, “what degree of involvement is necessary for us to jointly convict on GBH ?”. The Recorder, after discussing matters with counsel, dealt with the note by a further direction in the following terms: I will repeat a direction in relation to joint responsibility firstly. The prosecution’s case is that both defendants committed this offence of grievous bodily harm. Where a criminal offence is committed by two or more persons, each of them play a different part. But if they are in it together as part of a joint formal agreement to commit if they are each guilty. With [inaudible] agreement do not mean that there will not need be any formality about it. Any agreement to commit an offence may arise on the spur of the moment, and that is essentially how the Crown’s case is put. Nothing need be said at all, it can be made with a nod and a wink or a knowing look. An agreement can be inferred from the behaviour of the parties, such as language and what they actually did. The essence of joint responsibility for a criminal offence is that each defendant shared the intention to commit the offence and played some part in it, however great or small so as to achieve that particular end. Your approach therefore, should be as follows. Looking at the case of either defendant you are sure that with the intention that I have mentioned each party committed the offence and took some part in committing it. Mere presence at the scene is not enough to prove guilt. But if you find a particular defendant was on the scene and intended and did, by his or her presence alone encourage the others, of that offence they would be guilty. The Crown’s case in relation to Miss Royce is that she swung her and shouting and swearing etc, racially abusive, but directly swung her handbag in the terms is seen to hit Mr Yadessa. He blocked that with his arm. If you believe that is part of a joint enterprise to commit harm, it does not necessarily have to be an intention to commit the extensive injuries that actually took place, but should be guilty of joint enterprise together with Mr Lamaletie. However, if that blow and her actions that apparently all her actions were not part of that joint agreement to commit harm to Mr Yadessa, then she would be entitled to be found not guilty of that. The essential question is, was she part of a joint agreement at that particular time. (There are some apparent errors in the transcription, but they are not such as to affect the overall sense, and we have not sought to correct them.) 21. It is the concluding paragraph of that passage which gives rise to difficulty. We understand from Mr. Benson that the Crown’s case on joint enterprise was based not primarily on Ms. Royce having struck the first blow but on evidence that throughout the incident, and specifically during the much heavier assault perpetrated by Lamaletie, she continued to encourage and assist him. That makes sense. But that is not what the Recorder directed the jury to consider. The focus of the paragraph in question – and particularly the opening sentences - is squarely on whether at the moment that she struck the first blow with her handbag she was acting as part of a course of action which had been (however informally) pre-agreed. But there was no evidence that could have supported a case to that effect. We need not review the evidence because, as we have said, that is not the way in which the Crown put its case. It is sufficient to say that this was, on the evidence, plainly an incident which developed spontaneously when Mr Yadessa tried to stop her leaving the scene without paying and she struck him: there is no room for any common intention to be formed prior to that point. The jury’s verdict cannot therefore be supported on the basis which the Recorder directed it to consider. Mr. Benson submitted to us that the verdict could be supported on the basis that the Crown had sought to advance – that is, on the basis of Ms. Royce’s participation thereafter. But that is not how the jury was directed to approach it, and we cannot uphold the conviction on that basis.

```yaml citation: '[2008] EWCA Crim 314' date: '2008-02-28' judges: - LORD JUSTICE HOOPER - MR JUSTICE UNDERHILL ```

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

Neutral Citation Number: [2019] EWCA Crim 1651 No: 201901041 A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 6 June 2019 B e f o r e : LORD JUSTICE SIMON MR JUSTICE LAVENDER HIS HONOUR JUDGE EDMUNDS QC R E G I N A v LEWIS CLIFORD IAN JEFFS 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 B V O'Toole appeared on behalf of the Appellant J U D G M E N T MR JUSTICE LAVENDER: On 8 October 2018, in the Crown Court at Lewes, the appellant was sentenced for two offences. The first was an assault occasioning actual bodily harm committed on 11 June 2018, to which the appellant pleaded guilty in the Crown Court on 8 October 2018. The second was an attempted burglary committed on 1 April 2018, to which he pleaded guilty in the Magistrates' Court on 13 June 2018. The sentences imposed were 2 years' imprisonment for the assault occasioning actual bodily harm and 18 months' imprisonment for the attempted burglary. Those two sentences were consecutive, making a total sentence of three and a half years' imprisonment. The appellant is now 34 years old. He has long-term significant alcohol and substance misuse issues. His first criminal offences were committed in March 1997, when he was 12 years old. Over the course of the next 20 years, ie until 11 June 2017, he was convicted of a total of 88 criminal offences. These included domestic burglaries in 1997, 1999 and 2006; non-domestic burglaries in 2009 and 2012; robbery in 2006 and twice in 2013; using threating, abusive words or behaviour with intent to cause fear or provocation of violence in 1999 and 2014; and assault or battery in 2009 and 2016. At about 6.45 pm on 11 June 2017 the appellant was one of a group of six or seven people drinking together in Eastbourne town centre. One of them engaged Brian Comiskey in conversation. Without any reason, the appellant punched Mr Comiskey. It was a single punch, but it knocked Mr Comiskey to the ground, rendered him unconscious and fractured his left eye socket. The effects on Mr Comiskey were profound. He had ongoing double vision and headaches, which prevented him from working. He lost his job and, unable to pay the rent, was evicted from his flat. He was diagnosed with PTSD and severe depression. He took several overdoses with the intention of ending his life. The effect on his mental health was such that he was twice detained under section 2 of the Mental Health Act 1983 . By the time of trial, he was not fit to give evidence and struggled even to leave his flat. There was no prospect of any improvement in his condition. The appellant was charged with inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861 . He pleaded not guilty. In his defence case statement, dated 29 July 2018, he made the false claim that he was not present when Mr Comiskey was assaulted. He did not offer to plead guilty to the lesser charge of assault occasioning actual bodily harm until the day of trial, 8 October 2018. Meanwhile, the appellant committed several more offences, for which he was sentenced on 31 January 2018. These were: battery, committed on 24 October 2017; theft, committed on 28 October 2017; battery again, committed on 8 November 2017; and possessing a knife in a public place, committed on 28 November 2017. He received a total sentence of 7 months' imprisonment, from which he was released on 21 March 2018. Then, 10 days later, at around 1.30 am on 1 April 2018, the appellant smashed a bathroom window at the rear of a bungalow in St Leonards-on-Sea, which was the home of a 78-year-old widow, Beryl Castle, who fortunately was away for the night. He used a rock which he had taken from the front garden. He appears to have tried to break other windows before breaking this one. The rock was thrown with such force that after smashing through the double glazed window it broke a laundry basket and made a hole in the plasterboard wall opposite the window. The appellant's blood was found on the net curtains inside the window. Nothing was taken. However, Mrs Castle had to contribute £200 to the costs of repairs and spent over £2,500 on improved security measures at her home. She described in her statement her anxiety and the resulting insomnia and referred to herself as someone who was not happy in her own home. Turning to the relevant sentencing guidelines, the first step is to determine the offence category. In the case of the assault occasioning actual bodily harm, this was clearly a case of greater harm, but none of the factors indicating greater culpability were present. It follows that this was a category 2 offence, for which the starting point is 26 weeks' custody and the range is from a low-level community order to 51 weeks' custody. The starting point for a category 1 offence is 1 year and 6 months' custody and the range is from 1 to 3 years' imprisonment. The judge said that category 1 had a particular definition which arguably was not met, but then said that category 2 imposed a range of sentences which most people would regard as entirely inappropriate to this case. His reason for saying that was, of course, that the harm caused to Mr Comiskey was so extreme in the context of a case of assault occasioning actual bodily harm. The fracture itself was sufficient to make this a case of serious harm in the context of such a charge, but the continuing impact on Mr Comiskey was a considerable additional aggravating factor. In effect, the judge was saying that the unusual facts of this case justified a sentence outside the range specified for category 2 offences. We agree, and indeed Mr O'Toole did not contend otherwise. The question is whether the judge was entitled to go as far outside the range as he did. As for other aggravating factors, the judge correctly identified the appellant's previous convictions, the timing and location of the offence, the ongoing effect on Mr Comiskey and the presence of others. As for mitigating factors, the judge acknowledged that this was a single blow and the appellant had expressed remorse through his counsel. Lack of premeditation was another mitigating factor, although not specifically mentioned by the judge. In addition, the judge said that he would give 10 per cent credit for the appellant's guilty plea. Mr O'Toole submits that the credit given should have been greater, but the guidelines on reduction in sentence for a guilty plea state that the reduction shall be decreased to a maximum of one-tenth on the first day of trial. Mr O'Toole submitted that a greater discount was appropriate because the indictment was not amended so as to add the lesser charge until the day of trial. But that submission misses the point. There is an exception in the guidelines for an offender convicted of a lesser offence. It states as follows: "If an offender is convicted of a lesser or different offence from that originally charged, and has earlier made an unequivocal indication of a guilty plea to this lesser or different offence to the prosecution and the court, the court should give the level of reduction that is appropriate to the stage in the proceedings at which this indication of plea (to the lesser or different offence) was made taking into account any other of these exceptions that apply." What matters is when the appellant first indicated that he would plead guilty to the lesser offence. In the present case that was on the first day of trial. The judge imposed a sentence of 2 years' imprisonment. That was equivalent to 2 years and 3 months before the discount for the appellant's guilty plea. Mr O'Toole submitted that this was too high. It was 15 months longer than the top of the range for a category 2 offence. It was 9 months longer than the starting point for a category 1 offence. Whilst some judges might have imposed a shorter sentence, we do not consider that this sentence was manifestly excessive when viewed on its own. We will come back to the issue of totality. The continuing effect on Mr Comiskey was such a striking and unusual feature as to justify a sentence of this length. In the case of the attempted burglary, it is accepted that this was a category 2 offence. The trauma caused to Mrs Castle made it a case of greater harm. The starting point for a category 2 offence is 1 year's custody and the range is from a high-level community order to 2 years' custody. The appellant's previous convictions were an aggravating factor. Indeed, had his previous domestic burglaries been more recent, he would have qualified for the minimum sentence of 3 years' imprisonment. Another significant aggravating factor, which was not mentioned by the judge, was that the appellant committed this offence while on licence, only 10 days after being released from prison. It was also an aggravating factor that the offence was committed in the middle of the night. None of the mitigating factors listed in the guidelines applied. This was an attempted burglary, but, as the judge noted, the appellant did substantial damage within the property. The judge imposed a sentence of 18 months’ imprisonment. The judge did not say what discount he had allowed for the appellant's guilty plea. That plea had been indicated at the first stage of the proceedings, so a discount of one-third was appropriate. On that basis, the sentence of 18 months' imprisonment was equivalent to a sentence of 27 months' imprisonment before discount. That was outside the range set out in the guidelines. Mr O'Toole submitted that the judge ought to have remained within the guidelines and that the aggravating factors did not justify a sentence before discount for guilty plea of more than 18 months' imprisonment. We agree that the judge ought not to have gone outside the range, but we consider that if he had been sentencing for the attempted burglary alone he would have been justified in going to the top of the range, ie 2 years before discount, giving a sentence of 16 months. Finally, we turn to the issue of totality. The judge did not refer to this in his sentencing remarks. Consequently, it was not clear from his judgment how he intended to give effect to it. It is accepted that consecutive sentences were appropriate. However, the second element of the principle of totality states that it is usually impossible to arrive at a just and proportionate sentence for multiple offending simply by adding together notional single sentences. The first element of that principle requires the court, whether it imposes consecutive or concurrent sentences, to pass a total sentence which reflects all the offending behaviour before it and is just and proportionate. It is relevant that the judge was sentencing the appellant for two entirely unrelated and very different offences committed almost 16 months apart. The requirements of the principle of totality are different in such a case from a case where two offences arise out of the same incident. Nevertheless, we consider that there ought to have been some reduction from the total which would be arrived at by simply adding together the sentences which would otherwise have been appropriate for the two individual offences if viewed in isolation. For the reasons which we have given, we consider that the judge would have been entitled to impose sentences of 2 years' imprisonment for the assault occasioning actual bodily harm and 16 months' imprisonment for the attempted burglary if each of them were viewed in isolation, but simply adding them together and imposing a total sentence of 3 years and 4 months would not have been appropriate. We consider that a total of sentence of 2 years and 9 months would be appropriate. We achieve that result by quashing the sentence of 18 months for the attempted burglary and imposing a sentence of 9 months' imprisonment. To that extent, this appeal is allowed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2019] EWCA Crim 1651' date: '2019-06-06' judges: - LORD JUSTICE SIMON - MR JUSTICE LAVENDER - HIS HONOUR JUDGE EDMUNDS QC ```

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

No: 2009/4603/A5 Neutral Citation Number: [2009] EWCA Crim 1967 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 23 September 2009 B e f o r e : LORD JUSTICE HOOPER MR JUSTICE UNDERHILL MR JUSTICE IRWIN - - - - - - - - - - - - - - - - - R E G I N A v MATTHEW RICE - - - - - - - - - - - - - - - - - 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 Urquhart appeared on behalf of the Appellant Mr C McDougall appeared on behalf of the Crown - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE IRWIN: On 20th July 2009 at the Huntingdonshire Magistrates' Court the appellant pleaded guilty and was committed to the Crown Court for sentence. On 26th August 2009 at the Crown Court at Peterborough the appellant was sentenced by His Honour Judge Bathurst-Norman as follows. For the first offence, causing death by careless driving, to 20 weeks' imprisonment, and for two other offences, each of using a vehicle with insufficient tyre tread, the appellant was fined £200 on each offence, the total sentence therefore being 20 weeks' imprisonment with £400 worth of fines. He was disqualified from driving for two years. 2. Another driver, Miss Buckingham, had previously pleaded guilty at the Magistrates' Court to driving without due care and attention, failing to stop and failing to report an accident, all in relation to the same incident. She was fined £300 and disqualified from driving for nine months. 3. The application for leave to appeal against sentence in this case has been referred to the full court by the Registrar, who granted a representation order for counsel. We have already indicated we propose to grant leave to appeal and treat today's hearing as the appeal. 4. This is a truly tragic case from all points of view. The incident occurred just after 6 pm on Friday 28th November 2008 on a road designated C121, Low Road, which is a narrow country lane near Fenstanton in Cambridgeshire. The road is often used by local people to avoid portions of the A14 when it becomes congested. 5. Mark Robinson, who was 32 years old at the time, was an avid cyclist, riding approximately 13,000 miles a year. He routinely rode to work and, on the evening in question, was on his way home when this incident occurred. At about 5.10 he suited up in his bicycle gear - it has been described to this court and indeed to the court below that he was wearing a "spiderman" outfit. It was dark in colour and, aside from the buckles on his backpack, there was no reflective material in his outfit. One of Mr Robinson's work colleagues noticed that as he left the lights on his bicycle were in full operation. The front light was a battery-operated LED type which was described by that witness as quite brightly lit. That witness also saw that Mr Robinson, whom he passed somewhat later as they both travelled home, was travelling at about 23 mph, quite a speed for a cyclist. It is clear that Mr Robinson was a very fit and very experienced cyclist. 6. Mr John Pook was driving his Ford Focus at about 40 to 45 mph in the opposite direction to Mr Robinson as they approached the scene of the accident. As Mr Pook drove his vehicle out of a bend onto a straight stretch of road, he and his wife saw Robinson's bicycle coming towards them with its front light on. There were no street lights illuminating the scene. Pook noticed that two vehicles had caught up with him and were travelling behind him. The vehicle immediately behind him was a Fiat Punto driven by Rachel Buckingham who was then aged 19 and the second vehicle was a Ford Focus being driven by the appellant. Both of them sought to overtake Mr Pook's vehicle. 7. As we have indicated, Miss Buckingham pleaded guilty to driving without due care and attention on the basis that what she did was to indicate and pull out into the oncoming lane. It was the appellant's account (which for these purposes is to be accepted given there was no challenge to it below) that in fact she had pulled out in front of him, he having already committed himself to overtaking the two vehicles in front of him. Miss Buckingham did not see Mr Robinson as she pulled out and as she began to overtake. She did see him at the last minute and swerved out of the way, avoiding him and pulling back into her proper lane. As she passed Mr Pook's vehicle she was of course obscuring the appellant's view and as she swerved and moved away he no doubt was confronted suddenly with Mr Robinson, within his proper lane but in a position for a frontal collision with the appellant's vehicle. 8. In interview the appellant said that it was he and not Miss Buckingham who had first crossed over into the oncoming lane. His attempt was to see if the lane of travel was clear. He had not seen Mr Robinson at that stage. It was at that point, he said, that Miss Buckingham indicated and pulled out. He did not, as of course he should have done, apply his brakes and pull into his proper lane. Had he done so Mr Robinson would not have been killed. As he did follow Miss Buckingham past Mr Pook's vehicle, it is of course the case that his view would have been totally obstructed. It is common ground that there was no room for two lanes of traffic and for a bicycle all simultaneously to pass each other without collision on this narrow lane. 9. The appellant's estimated speed at the time of the collision was around 55 mph and the estimated speed of Mr Robinson was nearly 16 mph. After the event, the handlebars of the bicycle were embedded in the windscreen of this appellant's car. Mr Robinson was thrown from his bicycle and suffered multiple injuries. He was taken from the scene and pronounced dead at Hinchingbrooke Hospital. As we have indicated, one of the appellant's tyres had insufficient tread and one was under inflated, but it is important to recall that the condition of the tyres played absolutely no part in this incident and are not relevant to the terrible day of Mr Robinson's death. 10. In a victim impact statement, which we shall emphasise later in this judgment, Mr Robinson's partner said of her loss that on the night he died a hand reached inside her chest and ripped out her heart. 11. In categorising the gravity of this offence it was common ground between the Crown and the defence, and accepted by the learned judge, that this was not one of those cases close to the border of dangerous driving, but nor was it at the bottom of the range of careless driving -- as would be the case with a moment of inattention or a slight excessive speed for a short period. This offence was in the middle range of careless driving. The judge correctly observed, in our view, that anyone who pulls out to overtake more than one car or who overtakes without making sure the road is clear ahead of them, are not paying proper attention to their driving. The appellant knew the road and he knew that it was not well lit, that shadows might obscure the lights of the cycle or indeed a pedestrian with a torch. Quite clearly, as we have said, the accident had devastating consequences for Mr Robinson, for his family and for his partner, whose life has been turned upside down by his death. The impact on her is eloquently expressed in her touching and sad statement which the judge bore well in mind, as do we. 12. We do however point out that there can be little or no difference in culpability between the driving of Miss Buckingham and that of this appellant in what they did that night. The difference was in the consequences. She too did not see Mr Robinson when she should. She too overtook in circumstances which were dangerous and she too might very easily have been the driver who killed him in the course of her careless driving. Because she did not in fact kill him, the maximum penalty that she faced was a fine and disqualification. 13. The appellant is a man of exemplary character. He is a golf professional, an occupation to which he seems to be gifted and dedicated. He has never been in trouble with the police and he has the strong support of a number of witnesses, whose statements make it clear that he is a decent, generous man, hard working and sensitive. These statements and the contents of the pre-sentence report attest to his deep remorse for what happened. His friends have spoken of the change in him since the crash, how he has become more withdrawn and quiet, and less outgoing. The probation officer states how the appellant, "Cannot say how terrible he feels at causing the death of another person. He says that he hates himself for what has happened." He has shown very clearly that he is fully aware of the impact of what has happened on the victim and on his family. We are told today by counsel that the police were sufficiently concerned about this appellant's state of mind to refer him to a psychologist in the aftermath of the investigation of the offence. As the judge himself observed in sentencing, "There are few people who have appeared in front of me who have been spoken of as well as you have been." It is also relevant that this appellant, after the crash and in the immediate shocking aftermath of these events, acted fully responsibly by stopping, summoning the police and doing what he could to bring aid to the stricken Mr Robinson. 14. In passing sentence after making the observations we have referred to, the judge stated that he would give full credit for the plea of guilty by the appellant at the first opportunity. Even having made that allowance, but for the personal mitigation, he would have been considering a sentence of at least 30 weeks' imprisonment. However, the personal mitigation permitted him to pass the sentence he did of 20 weeks' imprisonment, with disqualification for two years. In relation to the tyre offences they were completely irrelevant to the accident and he therefore passed the fines that he passed. 15. Mr Urquhart presented the case for this appellant very attractively. He makes a number of points. First he says the judge was wrong to say that the facts show a degree of impatience on the part of the appellant. Second, he says it was wrong of the judge in the course of remarks during mitigation to suggest that the driving of Miss Buckingham had not made a contribution to the accident. Pausing there, we reject both those points. We think the judge was correct to say there was a degree of impatience because this appellant did not pull back into his own lane once Miss Buckingham pulled in front of him. We also take the view that Miss Buckingham's driving, whilst as culpable as that of the appellant, did not in fact contribute to the death. Her vehicle must indeed have obscured his view, but his proper course was not to overtake until he could see. 16. Mr Urquhart also suggests the judge gave insufficient credit for the appellant's good character. We reject this also. The judge in our view did properly reflect these matters by reducing the sentence he would otherwise have passed by a full third. 17. The fourth point made in relation to the prison sentence is that it was wrong to impose a sentence substantially more severe on this appellant than was passed on Miss Buckingham. Here we have to address a really difficult point in sentencing such cases as this. As we have pointed out above, Parliament has set radically different maximum sentences for careless driving and for careless driving which leads to death. Yet, as is exemplified by the facts of this case, the difference in outcome, determining whether a driver faces one offence or the other, may be a matter of the chance of a moment. The possible sentences, and indeed the sentences recommended in the different relevant guidelines, are determined not by blameworthiness but purely by the consequences. 18. Indeed, the matter is even starker if one considers serious injury as opposed to death. Had Mr Robinson survived, but with a serious brain injury, to linger perhaps for years with a gravely diminished quality of life, the maximum penalty faced by this appellant would have been a fine. There is perhaps room for different views as to whether this situation is logically or morally right, but the courts must respect the intention of Parliament and there can be no doubt that the intention of Parliament was as we have outlined. Irrespective of blameworthiness the consequences of careless driving do make a crucial difference to sentence. We are unable to agree that the sentence passed here was too long. 19. However, there is one more consideration which needs to be addressed. The recommendation of the pre-sentence report was that any prison sentence should be suspended. It is not clear that this proposal was given active consideration by the judge. We consider that in the circumstances of this case it was a proposal which had merit, and certainly should have been considered by him in sentencing. By the provisions of the Criminal Justice Act 2003 and the guidelines issued by the Sentencing Guidelines Council in respect of the new sentences available under that Act, the court must first consider whether a sentence of imprisonment is appropriate and then decide length. If, as in this case, the appropriate sentence is less than 52 weeks then in relation to a suitable defendant the court may consider suspension. In our view that should have happened in this case. The combination of the facts of the case, the appellant's character and personal circumstances and his negligible risk of future offending make a suspension of the sentence appropriate. Given the period already spent in custody, we propose to alter somewhat the requirement which must accompany the suspended sentence, to one of 100 hours of unpaid work. 20. The appellant has also sought to appeal against the length of disqualification which was set at two years. This will seriously impede his ability to keep his job as a professional golf coach. We think there is merit in this appeal also and that the appropriate period should be 12 months' disqualification. Accordingly, having granted leave to appeal and representation by counsel, the sentence of imprisonment passed by the learned judge remains, but will be suspended for a period of two years, that period of course commencing at the original date of sentence. In the extremely unlikely event that this appellant breaches the suspended sentence, he will be liable to serve the balance of the 20 weeks' imprisonment, credit to be given for the period he has already served. The requirement attached to that sentence is for 100 hours unpaid work. This variation in sentence will have the effect that the appellant is released today. The period of disqualification from driving is reduced to 12 months. To that extent and for those reasons this appeal succeeds.

```yaml citation: '[2009] EWCA Crim 1967' date: '2009-09-23' judges: - LORD JUSTICE HOOPER - MR JUSTICE UNDERHILL - MR JUSTICE IRWIN ```

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

Neutral Citation Number: [2008] EWCA Crim 1018 No: 200800296/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 24th April 2008 B e f o r e : LORD JUSTICE HOOPER MR JUSTICE BLAKE SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - - - - - - - R E G I N A v RICKELL PATTERSON - - - - - - - - - - - - - - - - - - - - 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 Eissa appeared on behalf of the Appellant Mr J Janes appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE HOOPER: On 4th December 2007, at the Crown Court at Nottingham, the appellant, as he now is, was convicted of one count of murder. It was for him a retrial. The first trial had taken place in September 2007. At the conclusion of that trial the jury could not agree on a verdict. After a ten day adjournment to obtain a report, the appellant was sentenced to detention at Her Majesty's pleasure with a minimum term of 14 years less 224 days spent on remand. 2. At the time of the offence the appellant was aged 16 years and nine months, having been born on 25th July 1990. 3. He was cycling on the evening of 1st May on the pavement of Upper Parliament Street in Nottingham city centre. He was with two friends. Something then happened at a bus stop as the appellant cycled by involving the deceased, Timothy Smith. The appellant, rather than simply overlooking whatever may have happened, went back to the bus stop and said to the deceased, "What did you do that for?" The appellant then gave a half-hearted slap to Mr Smith. Mr Smith was aged 40 at the time. There was a struggle which lasted certainly less than a minute and did not result in any injuries to either the appellant or the deceased. But the appellant then produced a 7 centimetre kitchen knife and stabbed the deceased in the right chest leading to his death. 4. The appellant ran away, but the next day, having read what had happened, went to the police and admitted that he was the person who had stabbed the deceased man. He identified the place where the knife was to be found and the police found it there. At one of the first hearings the appellant pleaded guilty to manslaughter, a plea which the prosecution did not accept as dispositive of the case. 5. We have had the benefit of what is called a victim impact statement prepared by the deceased's mother. Mrs June Smith. The statement sets out in the most convincing manner the appalling effect this offence has had on her and also upon the deceased's brother. As she says in that powerful statement, "Every day I wake up to face yet another day of misery." 6. In his sentencing remarks the judge said the following: "Rickell Patterson, please stand up. You have been found guilty by the jury of the murder of Timothy Smith. You stabbed him to death with a knife which you had with you when cycling along a pavement in the very centre of Nottingham on 1st May of this year. It was 6.30 p.m., it was daylight and Timothy Smith was just one of many people waiting for the bus home after work. As you cycled through the bus queue he stepped back from the electronic bus timetable and got in your way, not realising that you were there. Nothing he did justified any action from you, let alone his death, but, notwithstanding that you had chosen to cycle along a crowded pavement, you reacted to his blameless act by remonstrating with him and slapping his face. A scuffle ensued. When he sought to protect himself from you, you took out the knife in your pocket, a kitchen knife with a 7.5 centimetre blade, and without hesitation stabbed him once with it in his right chest, causing his death. This was a senseless and unprovoked attack on an innocent and unsuspecting member of the public. There is only one sentence which the law allows me to pass and that is detention at Her Majesty's pleasure, because you were under 18 when the offence was committed. I must, however, determine the minimum term to be served by you before you can be considered for release by the Parole Board. It does not mean that you will be released after that period. It means that that is the minimum period which you must serve before the Parole Board may consider your release. In assessing the seriousness of your offence, I must have regard to Schedule 21 to the Criminal Justice Act 2003 . Since you were under 18 when the offence was committed, the starting point for assessing the minimum term is 12 years. I consider that your offence was seriously aggravated by the fact that without lawful excuse you carried with you into the centre of Nottingham a dangerous knife. As has been said before in other cases, the consequence of carrying a knife is that it is available for use and the fact that it is being carried is evidence that the carrier may be prepared to use it. Your actions show that you were prepared to use it. In assessing the extent to which this factor aggravates your offence, it is appropriate and necessary to bear in mind that there is considerable public concern at the carrying of knives in public places without lawful excuse. Regard to such concern is consistent with and supports the aim of preventing offending by children and young persons. I consider that there were some mitigating factors. Firstly, your intention was probably not to kill but only to cause really serious harm. However, it is a likely or possible consequence of stabbing a person with a knife that the person may die, even if that consequence is not intended. It is an extremely dangerous action. In those circumstances, the weight that can be given to this factor is at the lowest end of the scale. Secondly, you acknowledged your role in Mr Smith's death the next day and handed yourself in to the police. You showed the police where the knife was. Whilst some weight can properly be given to this factor and to your willingness to plead guilty to manslaughter, the appropriate reduction must be very much less than the one-sixth reduction which is appropriate where there is a plea of guilty to murder. Thirdly, although the fact that your age at the time of the offence was under 18 has been allowed for in the choice of 12 years as the starting point, you were still only 16 years and nine months at the time of the offence and therefore significantly below 18. I consider it proper to take that into account as a further mitigating factor. However, since there is no doubt that you realised it was wrong to carry a knife because of the very serious harm use of it can cause, there is a limit to the effect your age had on your culpability and therefore on the weight which can be given to this factor. It has been submitted on your behalf that there are two further mitigating factors: firstly, lack of premeditation. I accept that you did not go out with the intention to confront a person with the knife you carried with you, but, as I have indicated, it is an aggravating feature of your offence that you carried a knife with you into a public place and were prepared to use it. It is also said that you acted to some extent in self-defence. I do not consider that that is a significant factor in this case. It was you who went up to Mr Smith and confronted him. The last mitigating factor is that you have no previous convictions. Indeed, as is apparent from the documents placed before me, those who know you have spoken very highly of you and it seems that the events of 1st May of this year were, as the author of the report on you said, inconsistent with the experience that various different people in the community have of you. Your progress whilst on remand does appear to support the descriptions of you contained in those references. But with an offence so serious as that which you committed, your previous convictions and your previous character can have but a small effect on the length of the sentence. Counsel urges me not to make a sentence of such length that it is crushing. However, the seriousness of your offence and the guidance which the courts must follow inevitably leads to a long minimum period. Having taken into account the aggravating and mitigating factor to which I have referred and borne in mind the matters pressed on your behalf by counsel, I have determined that the minimum term which you must serve to reflect the seriousness of your offence is 14 years. There will be deducted from that period the time which you have spent in custody; that is 224 days. If and when you are released following a determination by the Parole Board, you will remain on licence for the rest of your life, which means that you can be recalled to prison at any time." 7. The judge identified correctly that under Schedule 21 of the Criminal Justice Act 2003 , having regard to the appellant's age, the starting point after a trial was a minimum term of 12 years. 8. He accepted a number of mitigating factors. Looking at paragraph 11 of Schedule 21 , the first mitigating factor is that the appellant intended only to cause serious bodily harm. The prosecution invited the judge to sentence the appellant on that basis, and, as we have seen in the sentencing remarks, he did so. The judge, however, decided that the weight to be given was at the lower end of the scale, because, he said, it was a likely or possible consequence of stabbing a person with a knife that the person may die. 9. It may be, we know not, that the judge in saying that was relying upon a passage in the case of Peters [2005] 2 Cr App R(S) 101 at 634. However, in paragraph 14 in that case Judge LJ was giving an example whereby this mitigating factor may not carry much weight. His example was where death, even if unintended, is a possible or likely consequence of the offender's premeditated conduct. He then went on to use as an example an abduction and torture case. 10. In our view, the judge ought to have given this mitigating factor more weight than he appears to have done. 11. The second factor to which paragraph 11 refers is lack of premeditation. Clearly in this case there was no premeditation in the sense that those words are used in the statute. 12. It is accepted, and in our view rightly accepted, that neither subparagraphs (d) or (e) can be prayed in aid, i.e, some measure of qualification or some measure of self-defence. The judge rejected self-defence as not being appropriate during the course of his sentencing remarks. We agree with that. 13. The final subparagraph in paragraph 11 refers to the age of the offender. That, of course, is a very important factor. We remind ourselves that we are dealing with someone who was only 16 years old at the time of this offence. 14. To those mitigating factors it can be added, in our view, the remorse identified, the remorse that was shown when the appellant handed himself in and admitted the stabbing. For a young man to go to a police station and admit that he had stabbed is an important reflection on his behaviour and, of course, it is important from the point of view of the deceased's family. The fact that the killer is identified so quickly is something which will, at least in some small measure, ease the pain felt by the family. 15. We are invited to take into account, as the judge took into account, the positive good character of the appellant. It is unusual in cases like this to have reference letters of the kind with which the trial judge and this court have been supplied. A series of letters not from members of the family but from independent persons involved with youth work testify to his positive good character. He had no previous convictions or cautions. One of the writers describes him as "a calm, quiet and shy individual who has steered clear from the more boisterous crowd that populates the area. He has shown a lot of potential to go a long way in life and has been employed by the centre for the last four months." Another person described him as "responsible, punctual, motivated and well mannered, and very enthusiastic to learn." Another described him as polite and well mannered. It seems clear that there has been in his history no sign that he was capable of the terrible violence which he inflicted that day. Positive good character for a 16 year old is of considerable importance. 16. Likewise, the Crown Court report prepared for the sentencing hearing tells us something about this young man, which, again, one might not have expected. During a riot at the young offender institution where he was detained he alerted the staff to what was happening and took action to help ensure the staff's safety. For a young man in a custodial environment to come to the protection of the staff says a good deal about him. The report also shows that he had to move establishments six times in the seven months before he was sentenced. 17. The appellant had received, so the report shows, "excellent reports from each establishment", "indeed, he has not faced a single disciplinary hearing during his time on remand and this is extremely rare for young people with whom the YOT works in custody", "his prison file repeatedly records comments from staff on the wing and education noting [the appellant] is a polite young man with 'an excellent attitude and behaviour'." He is determined to make the best use of his opportunities. What that report shows is that the opinions expressed by those professionals with whom he had been in contact before this offence are reflected in the opinion of those who are looking after him in custody. Those then are the mitigating features. 18. The aggravating feature is one, and one only, but a very serious one; it is the carrying of a knife in a public place. As the judge said in his sentencing remarks, there is considerable and justified public concern at the carrying of knives in public places without lawful excuse. Over and again these courts see the consequences of young people carrying knives and then in a state of panic and confusion using it with either fatal or very serious consequences. 19. What we have to do is to try and balance the mitigating features and that very serious aggravating feature to decide what is the appropriate minimum term. Of course, the appellant is subject to detention for life. All that this court is doing is reviewing whether the judge chose the right term at which point he will become eligible for parole. Of course, that does not mean that he will get parole, and, even if he were to get parole, he would be eligible for recall on licence for the rest of his life. Our task, then, is simply to decide at what point might this appellant be able, should he wish to do so, to seek parole. Whether he obtains parole is, of course, nothing to do with this court and is decided by the Parole Board. 20. Having considered the case very carefully, we have reached the conclusion that the trial judge was wrong to choose a period of 14 years and that he should have chosen a period of 12 years. To that extent this appeal is allowed. The term will be less the 224 days spent on remand. 21. THE COURT ASSOCIATE: The reporting restrictions were lifted in the lower court in this case, my Lord. 22. LORD JUSTICE HOOPER: There are no reporting restrictions. I do not know why it has been listed under an initial. 23. MR EISSA: They were certainly not in place at the end of the trial. It was reported immediately in the local media. 24. LORD JUSTICE HOOPER: There are no reporting restrictions in this case.

```yaml citation: '[2008] EWCA Crim 1018' date: '2008-04-24' judges: - LORD JUSTICE HOOPER - MR JUSTICE BLAKE - SIR CHRISTOPHER HOLLAND ```

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

Case No. 2003/04299/B1 Neutral Citation Number: [2004] EWCA Crim 1270 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday 4 May 2004 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( The Lord Woolf of Barnes ) MR JUSTICE AIKENS and MR JUSTICE FULFORD ----------------- R E G I N A - v - MARK PAUL SMOLINSKI ----------------- Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) ----------------- MR HENRY JAMES appeared on behalf of THE APPELLANT MR PAUL GRUMBAR appeared on behalf of THE CROWN ----------------- J U D G M E N T THE LORD CHIEF JUSTICE: 1. On 27 June 2003, in the Crown Court at Swindon, before Mr Recorder Powles, the appellant was convicted by a majority verdict of 10:2 of indecent assault upon a female (count 1). The jury were unable to reach a verdict on counts 2-4. They were therefore discharged from delivering a verdict on those counts and the matters were ordered to remain on the file. The appellant was subsequently sentenced to a Community Rehabilitation Order for three years. As he was convicted of a sexual offence to which Part 1 of the Sex Offenders Act applies, the appellant was required to comply with section 2 of the Act: notification to the police for a period of five years. The appellant now appeals against conviction by leave of the single judge. 2. We have no transcripts available to us of the evidence which was given by the two complainants who were sisters, and who were respectively aged 6 and 7 at the relevant time, but we have been assisted by the fact that counsel who appear before us today were the counsel who appeared at the trial. 3. The offences were alleged to have occurred some time between 1981 and 1983, but they were first reported to the police twenty years later, in September 2002. The appellant at the time of the offence was 16 years old. He baby-sat for the two girls, Clare and Michelle, at their house on between three and six occasions over a period of a few months. 4. It was the prosecution's case, supported by both girls, that on one such occasion the appellant sat between them when they were wearing nightdresses and simultaneously played with their vaginas (count 1 in respect of Clare and count 2 in respect of Michelle). The girls could not recall if they had underwear on beneath their nightdresses. There was no suggestion of any digital penetration. 5. The appellant's case was that the allegations were untrue. He denied that he had been guilty of the conduct alleged. However, when he was interviewed by the police he was not as adamant about his not having done anything of this nature as might be expected, notwithstanding the period of time which had elapsed. 6. An application was made by Mr James on behalf of the appellant to stay the proceedings for abuse of process. It was submitted that the appellant could not receive a fair trial as a result of delay and that he would be prejudiced by lack of memory because of the time that had elapsed. 7. The judge perfectly correctly, as is accepted, approached the matter in accordance with the decision of Attorney General's Reference No 1 of 1990 . He came to the conclusion that on the balance of probabilities it had not been shown that a fair trial was impossible. 8. The making of applications to have cases stayed where there has been delay on the basis of abuse of process has become prevalent. In making his application Mr James followed what has become the usual practice in cases of this nature. This court does not criticise him for doing so. However, the court questions whether it is helpful to make applications in relation to abuse of process before any evidence has been given by the complainants in a case of this nature. Clearly, having regard to the period of time which has elapsed, the court expects that careful consideration has been given by the prosecution as to whether it is right to bring the prosecution at all. If, having considered the evidence to be called, and the witnesses having been interviewed on behalf of the prosecution, a decision is reached that the case should proceed, then in the normal way we would suggest that it is better not to make an application based on abuse of process. It will take up the court's time unnecessarily. Unless the case is exceptional, the application will be unsuccessful. That was indicated by this court in R v B (unreported) [2003] EWCA Crim 319 , which is also referred to in the current edition of Archbold. In that case this court referred to the earlier decision, including Attorney General's Reference No 1 of 1990 (1992) 95 Cr App R 296 , and suggested that the approach of Lord Lane in that case indicated the general position. 9. If an application is to be made to a judge, the best time for doing so is after any evidence has been called. That means that on the one hand the court has had an opportunity of seeing the witnesses, and, on the other hand the complainants have had to go through the ordeal of giving evidence. However, despite the latter point, which obviously is one of importance, it seems to us that on the whole it is preferable for the evidence to be called and for a judge then to make his decision as to whether the trial should proceed or whether the evidence is such that it would not be safe for a jury to convict. That is a particularly helpful course if there is a danger of inconsistencies between the witnesses -- inconsistencies of the sort that it is common ground occurred here. However, as is pointed out by Mr Grumbar on behalf of the Crown, the Recorder who tried this case was very experienced. He gave an immaculate summing-up. He dealt with the application to which we have made reference in a perfectly appropriate manner. It is likely that if he thought this case was not one which it was safe for the jury to consider, he would have withdrawn it from them. 10. Although this was not stressed by Mr James, the matter that has weighed heaviest with this court in considering this appeal is the fact that in relation to one girl the jury came to the conclusion that they were satisfied that the case had been made out; but in relation to the other girl they were not satisfied that the case had been made out in respect of the second count of the indictment. This is significant because the one thing upon which the two girls were agreed was that the appellant behaved in exactly the same way in relation to the subject matter of the first and the second count on the indictment in respect of each. We find it difficult to see, if the jury accepted, for example, Clare's evidence, who was apparently the most adamant about the matter in relation to the count affecting her, and they were satisfied as to her, why they should not be satisfied with regard to her sister as well, particularly in view of the description which Clare gave. It is true with regard to counts 3 and 4, which alleged acts of gross indecency, that the girls' accounts differed, but in relation to counts 1 and 2 they were the same. 11. Looking at this case as a whole, we see the position as follows. We consider that it was proper for the Recorder to leave the case to the jury. He properly summed up to the jury. Questions as to whether witnesses are to be believed or not are essentially matters for the jury. If it had not been for the matter of the verdicts, to which we have referred, we would have found it difficult to interfere with the conviction which took place in this case. We do not think it is right for this court to lay down the principle that because of the period which has elapsed (twenty years) when the complainant has given a reason for the delay, it is inevitably the case that the convictions will be unsafe. However, where there has been a long period of delay such as existed in this case, and where the complainants are young, as they were here (6 and 7 respectively at the time matters happened), this court should scrutinise convictions with particular care. Likewise, we consider that trial judges should scrutinise the evidence with particular care and come to a conclusion whether or not it is safe for the matter to be left to the jury. 12. In this case, looking at the matter as a whole, bearing in mind there are discrepancies, bearing in mind that the elder sister, until reminded by her younger sister, was apparently oblivious of what was alleged to have happened earlier, bearing in mind the conclusion which the jury came to on the first count but were unable to come to the same conclusion on the second count, that this is a case where the conviction is unsafe. Accordingly, we will therefore allow the appeal. 13. We hope we have made clear two things in the course of hearing this appeal. One is that we discourage applications based on abuse in cases of this sort. Secondly, where evidence is given after so many years, the court should exercise very careful scrutiny at the end of the evidence to see whether or not the case is safe to be left to jury. If there is an appeal, then this court will scrutinise the situation with care. We are certainly not indicating that it is not right to bring prosecutions in the appropriate circumstances merely because of the period that has elapsed. As this court appreciates, it is sometimes very difficult for young children to speak about these matters and therefore it is only many years later that they come to light. Justice must be done of course to a defendant, but the court must also be mindful of the position of the alleged victims.

```yaml citation: '[2004] EWCA Crim 1270' date: '2004-05-04' judges: - MR JUSTICE AIKENS - MR JUSTICE FULFORD ```

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

No. 2009/03590/A1 Neutral Citation Number: [2009] EWCA Crim 2484 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 5 November 2009 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MRS JUSTICE RAFFERTY DBE and MR JUSTICE HENRIQUES - - - - - - - - - - - - - - R E G I N A - v - JONATHAN CLARKE - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404 1400; Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr A J Arlidge QC appeared on behalf of the Applicant Mr K Khalil QC appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T Thursday 5 November 2009 THE LORD CHIEF JUSTICE: 1. This renewed application for leave to appeal against sentence by Jonathan Clarke following his conviction for murder on 29 May 2009, in the Crown Court at Norwich, before Calvert-Smith J and a jury, arises from a particularly horrific murder. At the conclusion of the trial the applicant was sentenced to custody for life and the minimum period to be served before consideration could be given to his possible release into the community was assessed at 27 years (with appropriate credit being given for time spent on remand). 2. The essential issues raised in this appeal are that the minimum term proceeded on the basis of a failure to make sufficient allowance for the youth of the applicant at the time the offence was committed, together with his various problems as identified to that date, and secondly that there is a disparity in the sentences imposed on him and the other two co-accused, and in particular the co-accused Stewart. 3. Stewart was convicted of murder and sentenced to life imprisonment with a specified period of 22 years (less the time spent on remand). He was born in October 1983 and was a few years older than the applicant. Maria Chandler was significantly older than both men. She was sentenced to life imprisonment with a specified period of 17 years (less the time spent on remand). 4. It is a feature of this case that in March 2007 the applicant watched a spoof horror film. In this film one of the scenes showed a woman who was gagged and tied to a tree. Liquid (intended to represent petrol) was thrown over her. A masked man then tried to set her alight using matches, but without success and so he turned a flame-thrower on to her. She was set alight. The applicant was watching this film with a female friend. The applicant commented, "Wouldn't it be wicked to do this to someone in real life?" 5. In sentencing the applicant the judge observed that the film demonstrated that the applicant had been planning such a killing in real life since he had seen the film fifteen months earlier before the actual killing occurred. 6. In the real world, Simon Everitt, a young man aged 17, had befriended a young woman called Fiona Statham. She had had boyfriends who included Stewart and the applicant, as well as Simon Everitt. The precise sequence of their friendships is not entirely clear, but it looks as though the applicant had been the first of these three, then Everitt, then Stewart, then Everitt again. Miss Statham admitted that she had cheated on all of them with the others, and indeed that when she had taken up with Simon Everitt she had visited the applicant and had had sexual intercourse with him. The way in which those relationships developed was plainly a source of indignation for the applicant; but the relationship between him and Stewart and Simon Everitt was also under pressure because the two of them thought that Simon Everitt had been spreading false rumours about them. 7. Maria Chandler was a friend of the applicant, Stewart, and Miss Statham. A meeting was arranged to try to sort out the differences. The meeting was unsuccessful. The applicant attacked Simon Everitt and then, having armed himself with a rounders or baseball bat from Chandler's nearby home, pursued Simon Everitt away from the scene. He was later to boast that he had given him a good kicking. He was arrested, but later that night he was released on bail. 8. On the following evening Simon Everitt was lured to go to a village to the north of Lowestoft. It looks as though the go-between was Stewart. That evening Stewart and Chandler set off in her car with the applicant to the pre-arranged destination. It is significant that a false alibi was already in the process of creation. All three of them wore clothes which they intended to dispose of as soon as they could after what was to ensue had occurred. There were other suggestions in the evidence of careful preparation for the destruction of any incriminating evidence. 9. On the way the car stopped at a garage. Chandler took a petrol can from the boot of her car and she and the applicant filled it up. The applicant paid for the petrol with money provided by Chandler. The car then drove on to the scene. 10. In the meantime Simon Everitt had arrived. When the three in the car arrived they met up. There was no negotiation or discussion. Simon Everitt was struck by one or both of the men. It was calculated violence but, instead of leaving it there, Simon Everitt was then abducted. He was bundled into the boot of Chandler's car which was driven to a deserted spot in some woods. The evidence suggested that the applicant had been to this site on an earlier occasion. 11. The Crown's case was that Simon Everitt was tortured and then executed. It is clear that he was tricked into this meeting, clear that he was beaten when he first encountered the others, and equally clear that he was forcibly abducted and driven in the boot of the car to this isolated spot. When they eventually arrived and he was removed from the boot of the car there is no doubt that Simon Everitt was given to understand that he was going to die and he plainly thought he was going to die. He prayed. He was in deep fear. A mock trial was conducted. He was tied to a tree. The mock trial involved interrogation, answers and then a confession to having had sexual intercourse with the girl. Petrol was then poured into his throat and over him. That was done by Stewart. A knife was used to cut his clothing and probably to stab or to cut him, although for reasons which will emerge his body was so badly decomposed by the time that it was found that no positive evidence was available to establish that such injuries had been inflicted (at any rate to the criminal standard). Then, covered in petrol, he was set alight. 12. The case for the Crown was that all three were involved in the killing. However, the only source of precisely what happened was Stewart. His evidence was that the applicant set fire to Everitt. The flames or the heat caused the rope that was tying him to the tree to melt. The young man was able to stagger away a short distance before he fell to the ground, where he died. 13. Efforts were then made by the applicant, Stewart and Chandler to cover their tracks. Although they had left scene, the applicant found a spade, returned to the scene and removed the remains of the deceased to a swampy area where they were covered up. Having done that, he boasted to his friends about what had happened. He said that the remains would never be found. 14. It was Stewart whose conscience caused him trouble. Everitt was believed to have disappeared. However, Stewart told his mother that he and the others had taken Everitt, the deceased, to some woods and given him a kicking. That was only partly true. Eventually on another occasion Stewart told his mother that the deceased had been killed. She urged him to hand himself in to the police. He refused to do so. With remarkable and commendable courage, she decided that she could not keep this information to herself and she informed the police of what her son had told her. 15. The three offenders were arrested. The applicant denied that he had been present at the scene of this killing. That remained his defence at trial. It was rejected by the jury. The defence of the other two, also rejected by the jury, involved a denial of participation in the murderous enterprise. 16. There was evidence at trial from the applicant himself which has some relevance to the issues of sentencing and the reasons why the judge formed the conclusion that he did. In his evidence he admitted that he habitually carried two hunting knives. That was the basis on which the jury was later invited to infer that he had indeed used a knife on the deceased. But no less significant, he gloried in his evidence that if he had been present the killing would have been "a blood bath"; the victim would have been "mutilated limb by limb" during the interrogation. 17. These facts speak for themselves but, given the very severe sentence that was imposed, we must underline that there is clear evidence which demonstrated, as the Crown contend and we accept, that by the time the fatal attack on the deceased was planned the applicant evinced an intense hatred for the deceased. Following the attack on the deceased the previous day, the applicant had been granted bail. It would have been sufficient if the violence between them had stopped there. Instead the killing was organised. As the narrative shows, it must have been inspired by some of the detail shown in the film which he had seen fifteen months earlier. The coincidence otherwise would be remarkable. It is not without importance that the applicant had commented that this would be a "wicked" (ie wonderful) thing to do. He had not provided the car, nor the petrol can, but he had helped to fill it. He had been party to the assault on the victim before, party to the abduction, and he was party to the forcible removal of the victim into the woods where he tied him to the tree. Stewart was involved in all of this. He helped to tie the victim to the tree and he poured the petrol into the victim's mouth and over him. They then all left the victim there to die. 18. However, it was the applicant who buried the victim in what was intended to be his final resting place, and it was the applicant who boasted about what had happened. 19. The judge had presided over this trial. It was inevitable that, following the jury's verdict, there would be a life sentence. The information before the judge included a pre-sentence report dated June 2009. It described a medium to high risk of re-offending and a high risk of harm to the public. We do not find any of those suggestions in the least surprising. But as the applicant denied any involvement in this offence, the report was of limited value. 20. A psychiatric report dated September 2008 suggested that the applicant was not suffering from mental illness. A psychological report, also dated September 2008, in a detailed analysis set out something of the applicant's background and something of the problems from which he suffered. We do not wish, and nor did Mr Arlidge QC wish to take this out of perspective, but there are a number of features of this report which set out some of the problems. The applicant, for example, suffered from Attention Deficit Hyperactivity Disorder ("ADHD"). His IQ was low; he was within the lower fourteen percentile of the population. He had a number of other problems. It was suggested that he would benefit from further and subsequent psychiatric treatment. He was not, however, suffering from a serious mental illness or from any learning impairment. During the interview with the psychologist he was mentally alert and responsive, able to sustain his attention and to concentrate for a period of two hours. He had no difficulty in comprehending the questions that were put to him and apparently showed a good understanding of the case alleged against him and of the proceedings in which that case would be examined. He did not have intellectual difficulties, but his verbal ability was described as "relatively weaker" than his non-verbal activity. He had no formal qualifications. By the time of the examination he was estranged from all the members of his family, having left home at the age of 17 and lived independently since then. An assessment of his personality profile indicated that he was likely to be prone to sudden mood changes "switching from passive to aggressive modes of behaviour and finding it difficult to sustain a stable mood for too long". The report continued that he was prone to "experiencing feeling dejected and rejected". The recommendation was that he would be well advised to seek further psychiatric assessment while in custody in respect of the ADHD diagnosis. 21. However that material is viewed, it did not, and realistically could not, impinge on the assessment which the judge was required to make and the sentencing decision which had to follow. The way in which the judge approached the case was to inform the defendants of his sentence and then to set out in considerable detail -- there are 18 pages of transcript -- the very many considerations which impinged on his mind when forming his view. He noted the film which had been seen, the way in which the applicant's resentment for the deceased had grown and how there were a number of movements by the young woman between the three young men. He set out the history. He believed that the defendants had planned the abduction, torture and murder of the deceased. He pointed out that the plan had included thought being given to preventing the discovery of the body of the deceased and to enable his murderers to avoid arrest, prosecution and conviction. He was impressed by the fact that the murder as planned was to be carried out in the same way as the murder shown in the film. He described the way in which the plan unfolded. He then set out the precise circumstances in which the death occurred. It is unnecessary and over-harrowing to repeat the details again in this judgment. The judge identified what he said had led to the unravelling of what was intended to be the perfect murder: the applicant's inability to refrain from boasting about what he had done and Stewart's confession about what had happened; and finally, the courageous and public-spirited action of Stewart's mother in reporting these matters. 22. The judge recognised that Stewart eagerly joined in a plan which the applicant had worked out in his own mind. The judge also recognised that Chandler was happy to join in. Omitting, without ignoring, the references to the way in which the death of this young man impacted on his father and his mother and the remaining members of the family, we come to the way in which the judge's sentencing remarks culminated. He plainly had in mind Schedule 21 to the Criminal Justice Act 2003 because at page 13 he identified in terms the appropriate starting points precisely as they are set out in the statute. He concluded that the whole life tariff did not arise, but he then had to consider the appropriate starting points for each of these cases. In the end, in the course of his remarks in open court, he omitted to say precisely which paragraph of the Schedule was to apply to each of the defendants. His sentencing remarks plainly indicate that he had in mind a 30 year minimum starting point for the applicant and a 15 year starting point for the other two defendants. From those starting points he worked downwards to allow for the applicant's age, and upwards to produce a proper reflection of the aggravating features of each of the other cases. In case there was any doubt, when he left court, we understand that Mr Khalil QC, who appeared then as he does today on behalf of the Crown, wanted to check that the omission had been accidental and to discover precisely what had happened. It was made clear to him, and he made it clear to the remaining counsel in the case, that the judge had indeed taken the 30 year starting point for the applicant and the 15 year starting point for the other two defendants. 23. In our judgment it is clear on these facts that the judge was entitled to conclude that in the case of the applicant, young as he was, this was a sadistic killing. We are not in a position to say that it had been planned from the moment when he watched the film fifteen months earlier. Taking the matter in isolation before us, Mr Arlidge is entitled to argue that that cannot be so; that is a finding too far on the basis of an observation following a film watched fifteen months earlier, given that the immediate trigger of resentment was the way in which the relationships between the girl in question and the other young men had yet to develop. 24. The problem for Mr Arlidge is that the judge saw the applicant give his evidence. He observed him throughout a long trial. We do not think that we can interfere with his finding, but in any event on the evidence that there is available to us, we can see no reason whatever to disagree with the judge's view that, so far as the applicant is concerned, this was a sadistic killing. If so, the starting point for the assessment of the minimum term was 30 years. 25. So far as the other two are concerned, the judge might, it is true, have formed the same view of Stewart, although improbably in the case of the female defendant, but there was, as he explained in his careful sentencing remarks, insufficient evidence to enable him to say that he was sure that Stewart's participation was sadistic for the purposes of the Schedule. He said that he had no doubt that the word "sadistic" applied to the applicant but that he was "not convinced" that the same applied to Stewart. That is close to saying that on a balance of probabilities he might have made such a finding, but that he was not prepared to do so on the basis of the criminal standard. He acknowledged though, and it was a significantly aggravating feature of a case with a starting point of 15 years, that even if he did not "derive actual pleasure from what happened"; he derived some satisfaction and that he took a full part in it; and he made no effort whatever to do anything to mitigate the cruel death that he had witnessed. 26. The judge looked for mitigating features. He noted the age of the applicant. That plainly was a feature to be acknowledged not merely because of the terms of the Schedule but because in any event that is an ordinary principle of sentencing which applies to whatever charge a defendant faces. So far as Stewart was concerned, although the judge recognised that he was older than the applicant, his conclusion was that he was immature and not as old as his years. He identified the reasons for that conclusion. He based himself on the way in which Stewart gave evidence before the jury at trial and the assessment of Stewart to be found in the pre-sentence report. He took the view -- and in our judgment he was entirely justified in doing so -- that it was a matter of mitigation that Stewart had admitted to his mother most of what he had done and that he had been "clearly affected" by what he had done or what he had taken part in soon after it had happened. The judge recognised that when Stewart's mother went to the police, he (Stewart) denied that what he had said to his mother was true. He considered the evidence in relation to Miss Chandler but it is obvious from the narrative account of the facts that her role was, although serious enough, much less than that of the applicant. There was not the slightest suggestion in her case that she had been involved in a sadistic killing. 27. Standing back therefore we return to submissions made by Mr Arlidge: insufficient allowance, it is argued, was made for the applicant's youth and the various aspects of his background which may with the maturing process leaded to some improvement. The judge plainly had in mind the fact of the applicant's youth. He said so in terms. We cannot think of any other reason why he reduced the appropriate starting point of 30 years to 27 years. That fact in our judgment was plainly reflected in the sentence. We do not think on the evidence available to us that any further discount would have been appropriate. 28. Mr Arlidge's second submission relates to the distinction in the sentences imposed on the applicant and the other two defendants but for the reasons which are already apparent in the course of this judgment, Stewart in particular, and not in reality Chandler. He submits that the distinctions between these two were not justified and that the 22 year term on Stewart presented too great a disparity when set against the 27 year term ordered in the case of the applicant. 29. We do not find that the culpability of each of these two men was identical, or (as Mr Arlidge put it) virtually identical. There is no doubt that Stewart was deeply involved in this offence. Let us stand back and assume for a moment that Mr Arlidge is right. That merely leads to the conclusion that Stewart may have been fortunate that the minimum term imposed in his case was not somewhat longer, though not as long as the term imposed on the applicant, if only because the judge could not find himself satisfied about the sadistic element which he found established in relation to the applicant. Quite apart from the fact that the judge was not satisfied as to the sadistic element of the case, there is a further distinction which is that Stewart had indeed shown himself in the immediate aftermath of the horror of the incident that night sufficiently affected by what had happened to make a confession to his mother of his involvement in this crime. The judge observed all these three defendants in the trial. In the result, having approached the matter on the basis of what would happen if Mr Arlidge were right about the excessive distinction between Stewart and the applicant, our conclusion is that the judge was entitled to recognise the difference between these men and their criminality. 30. In the end, despite the characteristic persuasiveness with which Mr Arlidge advanced submissions after what must have been a profoundly difficult trial (at any rate for those representing the applicant) we cannot see that the applicant has the slightest basis for complaint at the minimum term ordered by the judge. In those circumstances this application will be refused. 31. Mr Arlidge, do you have a representation order to today's purposes? MR ARLIDGE: My Lord, no. THE LORD CHIEF JUSTICE: We think you should. MR ARLIDGE: I am obliged. THE LORD CHIEF JUSTICE: Very well.

```yaml citation: '[2009] EWCA Crim 2484' date: '2009-11-05' judges: - MRS JUSTICE RAFFERTY DBE - 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} ======

Neutral Citation Number: [2011] EWCA Crim 5 Case No: 2010/3869/A8 COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM The Hon Mr Justice Mitting Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/01/2011 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE CALVERT-SMITH and MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - - - - - - - Between : R - v - Peter William Coonan (formerly Sutcliffe) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Edward Fitzgerald QC and Mr P Bowen for the Appellant Mr Peter Wright QC and Mr A Darbishire for the Crown Hearing dates : 30 th November 2010 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: 1. On 22 nd May 1981 at the Central Criminal Court, Peter Coonan, formerly Sutcliffe, was convicted before Boreham J and a jury of 13 counts of murder. He had earlier pleaded guilty to 7 counts of attempted murder. No defence was advanced to the charges of attempted murder. There was none. In relation to the charges of murder the jury was invited to consider diminished responsibility. This partial defence was not established. The appellant was sentenced to life imprisonment (as the mandatory sentence) in respect of each murder conviction, and for the offences of attempted murder discretionary life sentences were imposed. 2. In accordance with the practice at the time, the trial judge made a recommendation for the consideration of the Secretary of State about the minimum custodial period which the appellant should serve. He referred to “the extent in geographical terms, and the depth in human terms, of the terror which you induced into the population of a wide area of Yorkshire”. He reflected on the danger that the appellant represented. He recommended that the minimum term should be 30 years. But that recommendation must be seen in the context of the judge’s observation that the sentence of life imprisonment would mean “precisely that. For reasons which I have already discussed with your counsel in your presence I do not feel that I am able to make that recommendation”. In short he did not believe that it was open to him when making a recommendation about the length of the minimum term to recommend that life should mean life. It is not clear why he reached that conclusion, and the arguments which persuaded him to it are not available. 3. When in October 1997 the Home Secretary sought a recommendation from the then Lord Chief Justice, Lord Bingham of Cornhill, as to the minimum tariff, Lord Bingham wrote to Boreham J who responded: “On the counts of murder… I now think it would have been better to have made no minimum recommendation. However that may be, I have no doubt that this is one of the rare cases where the offences were so heinous and the perpetrator so dangerous that life should mean life”. 4. Lord Bingham took a different view and recommended to the Home Secretary that the minimum terms should be 35 years. He said: “It seems clear that when committing these crimes Sutcliffe’s mental state was disturbed, even if his responsibility for the crime was not diminished. This leads me to the conclusion that the requirements of retribution and general deterrence should be met by a term of years rather than a ruling that life should mean life. But plainly, given the number and brutality of these crimes, and their public consequences, the term should be one of exceptional length.” 5. It is plain therefore that the trial judge took a different view to that taken some 16 years after the conclusion of the trial by the Lord Chief Justice. What is not clear is whether the Lord Chief Justice was provided with all the papers currently available to us, from before 1997, or whether he was supplied only with the short summary invariably written by trial judges in the course of preparing and explaining their own recommendations about the minimum term to be served. For some years before 1997 this generally provided the basis on which the Lord Chief Justice made his own recommendations. 6. In the end, in this case, no tariff was set by the Home Secretary. After the coming in to force of the Criminal Justice Act 2003 ( the 2003 Act ) he made a reference to the High Court for a minimum term to be set under section 276 of the 2003 Act in accordance with the statutory provisions in schedule 22 . 7. Accordingly, just over 29 years after the appellant was convicted, on 16 July 2010 Mitting J made an order, having directed himself in accordance with the statutory provisions which governed his decision, that the appellant should be subject to a whole life minimum term: that is, in effect, that he should never be released. 8. This is an application for leave to appeal against that decision. It is not and never could be an appeal against conviction. In particular neither the reference by the Home Secretary to the High Court, nor this application for leave to appeal against Mitting J’s decision provides the opportunity for, and it is not and never could constitute an appeal in which the verdict of the jury might be called into question. This consideration is of fundamental importance in the present application: Mitting J, like us, was bound by the verdict of the jury. Its correctness was not and is not open to argument. Judges making the assessments under schedule 22 of the 2003 Act cannot impose a sentence which would reflect a defence which was not established when, as a matter of law, it should have been established by the defendant, or superimpose their own judgments on issues of provocation and self defence, contrary to the verdicts of the jury. This is not an issue of res judicata. It is simply that where, as here, Mitting J was making an assessment of the appropriate minimum term following a conviction nearly 30 years ago, the verdict of the jury is unassailable and not open to compromise. 9. The offences committed by the appellant are notorious. Mitting J outlined the circumstances of the offences in very brief form. We shall gratefully adopt his summary. “(i) On 5 July 1975 in Keighley, the Respondent attacked Anna Rogulskyj in the street, causing two depressed fractures of her skull. I do not know for certain what weapon or weapons were used, but it was the Respondent's habit to take with him a ball pein hammer and sharpened screwdriver with which to carry out the attacks. Her injuries are consistent with the use of a hammer. ii) On 15 August 1975 in Halifax, he attacked Olive Smelt in an alleyway, causing two depressed fractures of her skull and two lacerations across her back. She was found face down with her skirt pulled up. iii) On 27 August 1975, he attacked Caroline Tracey Browne, a 14 year old, in a lane outside the small town of Silsden, striking her repeatedly on the head with a blunt instrument.” It is to be noted that this girl was not a prostitute. It is also significant, although on the appellant’s behalf it was urged at all times that it was simply coincidental, that when the appellant decided to confess his crimes to the police in what may appear to have been a logical and well remembered sequence, he omitted any reference to this particular crime. “iv) On 30 October 1975, in Leeds, he murdered Wilma McCann, fracturing her skull and stabbing her fifteen times to the throat and trunk. Nine stab wounds were grouped around the umbilicus. When found on an embankment, her jacket and blouse had been torn open and her bra pushed up, exposing her breasts. v) On 20 January 1976, in Leeds, he murdered Emily Jackson, causing two depressed fractures to her skull and fifty two stab wounds, inflicted by a screw driver, to her chest, abdomen and back. Her coat and dress were pulled above her waist. There was a boot imprint on her thigh. vi) On 9 May 1976, in Leeds, he attacked Marcella Claxton, striking her several blows from behind causing eight lacerations to her scalp. vii) On 6 February 1977, in Leeds, he murdered Irene Richardson, causing three severe lacerations to her skull with two underlying fractures and gaping wounds at the front of her neck and abdomen, exposing her intestines. Her boots and trousers and one pair of knickers had been removed. viii) On 23 April 1977 in Bradford, he murdered Patricia Atkinson in her flat, causing severe lacerations and fractures to her skull and small puncture wounds to her lower abdomen, extending in to her genitalia. Her jumper was pulled upwards and bra unfastened. Her panties, jeans and tights were lowered. ix) On 26 June 1977, in Leeds, he murdered Jayne Michelle McDonald, aged sixteen. She sustained depressed fractures of the skull and repeated stab wounds through the same two openings in her upper abdomen and back. In the pathologist's opinion, she did not die before she was stabbed. Her sun top was pushed up and left breast exposed. x) On 10 July 1977, in Bradford, he attacked Maureen Elizabeth Long, causing a large depressed fracture of her skull and numerous stab wounds to the trunk, one of which penetrated her liver and fractured ribs. When she was found about six and a half hours after the attack, her dress was pulled down from her shoulders and up from her waist. xi) On 1 October 1977 in Manchester, he murdered Jean Bernadette Jordan, causing eleven head wounds and fractures to the skull, striking nineteen blows to her upper body and shoulders and additional wounds to her chest and abdomen, probably inflicted after death. She was found nine days after the attack in an allotment. An attempt had been made to sever her head. She was partly disembowelled. The Respondent said that he had returned to where he had left her body, to retrieve a five pound note. xii) On 14 December 1977, in Leeds, he attacked Marilyn Moore, hitting her several times from behind to the head, causing seven or eight lacerated wounds and a depressed fracture of the skull. xiii) On 21 January 1978, in Bradford, he murdered Yvonne Anne Pearson, causing extensive fractures of her skull, lacerations to the top and back of her head and temples and two fractured ribs, believed by the pathologist, to have been caused by kicking. She was not found for over two months. Her upper clothing had been pulled upwards exposing her breasts and her pants rolled downwards. Her mouth was blocked with stuffing from a nearby settee. xiv) On 31 January 1978, in Huddersfield, he murdered Helen Maria Rytka, causing multiple fractures to her skull, lacerations to her forehead and three stab wounds to the centre of her chest. She was almost naked when found three days later. The Respondent admitted having sexual intercourse with her while she was alive. xv) On 16 May 1978 in Manchester he murdered Vera Evelyn Millward, hitting her over the head three times with a hammer and stabbing and cutting her abdomen repeatedly. An eight inch wounds exposed her intestines. Her dress and slip had been pulled up to expose her abdomen.” 10. Until then, with the exception of the attack on Caroline Browne, each of the victims were women who were or were said by the appellant to be prostitutes, encountered in red light districts. There was then a pause of just under a year before the next series of attacks. None involved prostitutes, and when he was first interviewed he did not suggest that he believed them to have been prostitutes. “xvi) On 4 April 1979, in Halifax, he murdered Josephine Whittaker, causing a fracture right across her skull, twenty one stab wounds to the front and back of her trunk, three stab wounds to her vagina through the same wound and six stab wounds to the leg. The weapon used was a sharpened Phillips screwdriver. Her outer clothing had been displaced and her knickers torn from around her right thigh. xvii) On 2 September 1979, in Bradford, he murdered Barbara Janine Leach, a student, fracturing her skull and stabbing her three times to the lower chest and four times around the umbilicus. Again, a sharpened screwdriver was used to stab the victim repeatedly through the same wounds. Her blouse and bra had been displaced upwards and the belt and zip of her jeans undone to expose her lower abdomen. xviii) On 20 August 1980, in Farsley, he murdered Marguerite Walls, a civil servant, by strangling her. She had multiple lacerations, bruises and abrasions, probably caused during a struggle. There was bruising to the abdominal muscles and three scratches to the external walls of the vagina. She sustained three fractured ribs when the Respondent knelt on her abdomen. She was completely naked, except for stocking tights. xix) On 24 September 1980 in Leeds, he attacked Uphadya Anandavathy Bandara, a doctor from Singapore, by strangling her with a rope. She sustained a fracture to the back of her skull, possibly caused by a fall, and facial injuries. Her cardigan had been pulled up around her head. xx) On 5 November 1980, in Huddersfield, he attacked Theresa Simone Sykes, aged 16, striking two blows to the back of her head, causing compound depressed fractures of her skull. xxi) On 17 November 1980, in Leeds, he murdered Jacqueline Hill, a student, causing four fractures to her skull, one of them to the right eye, penetrating into her skull and another to the inner side of the left breast. Her blouse and bra were pulled up and her jeans pulled down. She may not have died at once. ” 11. The appellant was eventually arrested on 2 January 1981, in the company of a woman. He was carrying a hammer and a knife, which he managed to hide just before his arrest. He later admitted that this woman was his next intended victim. 12. The case that the appellant suffered from diminished responsibility at the time of each of these killings was based on a psychiatric analysis of his state of mind, and the assumption that he had indeed undergone what was described as a primary schizophrenic experience. He was to tell the psychiatrists who examined him, and gave evidence at trial that, in 1967, while he was at work in a graveyard, he heard a voice which he took to be a divine voice which communicated with him repeatedly thereafter, which eventually told him that it was his mission to kill or eradicate prostitutes. If so he was acting under the deluded belief that his attacks on all these unfortunate women were divinely ordered. This formed the basis of the opinion expressed by three psychiatrists on his behalf at trial that he was suffering from an abnormality of mind properly described as encapsulated (which means hidden) paranoid schizophrenia. But, and it is a crucial “but”, it was accepted by all the psychiatrists that the diagnosis depended on the truthfulness of the appellant’s account of the divine visitation and its continuing influence over him throughout the period of these crimes. 13. It is equally clear that the trial was conducted on the appellant’s behalf by Mr James Chadwin QC, a distinguished member of the North Eastern Circuit, on the basis that unless the appellant’s evidence about events in the cemetery was accepted by the jury the defence of diminished responsibility would not be established. 14. The judge identified three key questions: i) Whether the appellant honestly believed that had had that experience in the cemetery, 15 years before the trial in Bingley, in 1967 (the primary schizophrenic experience). The judge summed this issue up to the jury, “The doctors all say that their diagnosis, and opinions are based, certainly in the main – I think it is fair to say almost exclusively – upon what this defendant has told them. Put in another way: they all agree that if the defendant does not establish the truth in what he has told them, their diagnosis cannot stand. The basic facts are that the doctors have founded their opinions on these have they not? First of all that he, the defendant, believed – honestly believed – that he heard the voice of God in that cemetery at Bingley. In other words, to use the psychiatrist’s words, he was hallucinating. He genuinely believed that he had heard the voice which was not there to be heard…Doctor Milne said – I detect no difference in the other doctors – this: if that is not true the diagnosis collapses. Do you remember, it was called a primary schizophrenic experience.” ii) Whether he was “deluded to believing that he had a divine mission to exterminate prostitutes? Not just a mission. Not just a mission to exterminate women, but a divine mission to exterminate prostitutes”. iii) Whether the appellant believed, at the time of each killing, or attempt to kill, that each individual victim was a prostitute, no matter what he thought before and no matter what doubt or fear he had afterwards. On these issues the judge reminded the jury that in just the same way that the diagnosis of the psychiatrist called on behalf of the defendants would fail if the jury did not accept the defendant’s account of the primary schizophrenic experience in Bingley, similarly, it would fail if at the time when he struck or killed any of his victims he did not genuinely believe that the victim was a prostitute. On the other hand, the jury were directed that if the facts asserted by the defendant were established then they might think that the defence was “made out”. 15. Although the judge directed the jury in accordance with the statutory provisions, he identified a single stark issue for decision. This is clearly illustrated by a passage at the very end of his summing up where he directed the jury: “…in the end you may think the real question, and the one to be decisive about is;…Do we think it is more probable than not that whenever he killed he acted under a belief – a deluded belief – that he had a divine mission to kill prostitutes. If the answer to that question is yes, then you may think that his defence is made out…if you do not accept that, why then, you may think his defence clearly fails.” 16. The correctness of this approach was underlined by the judgment of the Court of Appeal Criminal Division, dated 24 May 1982, where Lord Lane CJ observed: “The psychiatrists all substantially agreed that in a case such as this, the diagnosis was necessarily based very largely, if not entirely, upon what the accused man had told them. Again there was a general consensus of opinion between the medical men that if the accused man really believed that what he was telling the doctors was true, namely that he was on a divinely inspired mission to kill prostitutes, then the diagnoses would be correct. There was also a consensus that if on the other hand what this man told them upon the more important features of the case was to his knowledge false and was a deliberate lie, then their diagnosis in its turn would be falsified.” He continued: “The matter was thrashed out at great length before the jury and the jury came to the conclusion that …this man was probably not telling the truth to the doctors and accordingly their diagnosis was falsified, through no fault of theirs.” 17. Precisely the same situation arose when Mr Chadwin sought to develop what was described as fresh evidence before the Court of Appeal on the basis that further incidents after the conclusion of the trial lent weight to what was said by the psychiatrists advising the defendant and their diagnosis of encapsulated paranoid schizophrenia. However the court rejected the application because it was “in essence a reiteration of the same views as were previous expressed, supported by some post – trial examples of …in those circumstances the question whether this man is indeed telling the truth about these further matters again arises for decision.” 18. In reality we are being faced with the same situation which confronted the court in May 1982, although it has been developed in a different way in the context of an application for leave to appeal against the minimum term ordered by Mitting J. 19. Mr Fitzgerald began his submissions by accepting that the seriousness of this criminality called for a whole life tariff and that the only basis on which he would argue for any lesser sentence (that is, a very lengthy minimum term rather than a whole life term) arose from the mental disorder from which the appellant suffered at the time when he committed the offences. Stripped to essentials there are two connected grounds of appeal. It was submitted that Mitting J was wrong to refuse to admit the evidence of Dr Kevin Murray for the purposes of making the assessment of the appropriate minimum term, and thereafter, for failing to take account of the evidence of the appellant’s mental disorder or mental disability as mitigation of the seriousness of the offences on the basis that his mental condition lowered his culpability. 20. The essential argument before us therefore continues to be focused on the appellant’s state of mind at the time when he committed the offences. Mitting J’s decision was governed by the provisions of schedule 22 of the 2003 Act which required him to have regard to the general principles set out in schedule 21 , which provides the statutory framework for the determination of the minimum term. Where the seriousness of the offence, or the combination of the offence and one or more offences associated with it, is “exceptionally high” and the offender was aged 21 or over when he committed the offence, the appropriate starting point is indeed a whole life order. Cases within this category include cases when two or more people are murdered. Every one of the murder convictions fell within this “exceptionally high” category. Where there are thirteen victims of murder, and eight more of attempted murder, all committed on separate occasions, it is self evident that the seriousness of the offences is effectively beyond description. The facts speak for themselves. The aggravating factors include a significant degree of planning or premeditation, sexual or sadistic connotations to the killings, mental or physical suffering inflicted on the victim before death, as well as concealment, destruction or dismemberment. All these features were present, but as there cannot be a term longer than a whole life term, in reality, they fall to be considered in the overall context of the horrific number of the offences falling within the “exceptionally high” category for which the appropriate minimum term had to be fixed. 21. Paragraph 11 of schedule 21 , goes on to identify a number of specific matters of potential mitigation. “Mitigating factors that may be relevant to the offence of murder include – … (c) The fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957 …, lowered his degree of culpability…” 22. It follows from this provision that, notwithstanding that the offender failed to establish that his responsibility was substantially diminished for the purposes of the partial defence, if he in fact suffered from mental disorder or disability which lowered his degree of culpability then this may provide an element of mitigation. We therefore agree with Mr Fitzgerald that it does not inexorably follow from the verdict of the jury that, for the purposes of assessing of the minimum term, the potential mitigation identified in paragraph 11(c) of schedule 21 was excluded from further consideration. In short, if Mitting J’s reasoning proceeded on the basis that the decision by the jury that the appellant had failed to establish diminished responsibility meant that the issue whether he suffered from relevant mental disorder or disability capable of providing mitigation was resolved against the appellant, he misread the statute. It is arguable that he did. For this reason we granted leave to appeal. 23. Mitting J’s difficulty was that he was confronted with a medical report from Dr Kevin Murray, the clinical director at Broadmoor Hospital, who had been the clinician responsible for the appellant since November 2001, which re-asserted that the jury’s verdict should have been guilty of manslaughter on the grounds of diminished responsibility, and not guilty of murder. As we have emphasised this approach was not open to Mitting J. What is more, Dr Murray’s opinion depended, in just the same way as the evidence of the conclusions of the psychiatrists at trial, on the truthfulness of the appellant’s account about the voices directing his divine mission to kill prostitutes. Mr Fitzgerald suggested that it would follow from Dr Murray’s belief in substantial diminution of responsibility that, at the very least, the appellant suffered from a level of mental disorder which lowered his culpability. But that proposition, too, was equally based on the same premise on which the psychiatrists supported diminished responsibility at trial, namely that the appellant was telling the truth about the essential matters raised by him in his defence. 24. In this context it is noteworthy that long before he became Dr Murray’s patient, the appellant believed that his “divine mission” was over. By about June 1985 he no longer believed that he had been given such a mission, and from about May 1989 he started to assert that his instructions to kill the women had come from a “diabolical rather than divine source”. In other words, any judgment made by Dr Murray himself about his patient’s creditworthiness was based on the accounts given to him by the appellant long after he had ceased to suffer from the delusions which, so he claimed at trail, led him to commit these crimes. 25. It is, of course, possible to spend time identifying a number of different theoretical reasons for the jury’s verdict. Given the burden on the appellant to prove that his responsibility was substantially diminished, it is, in theory, possible that the jury, or some of its members, may have thought it improbable, but nevertheless possible, that he was telling the truth. For the purposes of diminished responsibility, that would not be enough. However as we have already noted, it is clear from the way in which the appellant’s case was advanced and conducted at trial, the detailed summing up by the judge, as well as the observations of the Court of Appeal Criminal Division, that the only real issue for the jury (and we are concerned with the realities) was whether or not they were prepared to act on the truthfulness of the appellant’s evidence to them. If they were, then diminished responsibility was established. If they were not, it was not. The verdict of the jury demonstrated that they were not prepared to believe him, and for good reasons. Like the Court of Appeal Criminal Division, we shall identify some of them. a) On the day after his arrest, 3 rd January 1981, the appellant was interviewed. He told a large number of lies. This did not merely consist of untruthful denials, but positive and carefully crafted assertions designed to mislead. In early 1985, long after the trial and after the appellant had been admitted to Broadmoor, it was recorded by the consultant responsible for his condition following his admission, and who supported the diagnosis of paranoid schizophrenia, that an incident involving a manicure set “demonstrated very clearly to me how accomplished a liar he is and this must never be forgotten”. (Our emphasis) b) When he was interviewed on the following morning, after telling some further lies, he told the police that he was indeed the Yorkshire Ripper. He was asked in terms how it had all started. He gave a lengthy description of how he had not meant to kill Wilma McCann, but she was mocking him, and after that it just grew and grew. He hit her with a hammer because he was in a rage, but he didn’t think that he meant to kill her. Then he realised that he was in trouble, so he decided to finish her off and stabbed her. He had lifted up her clothes so as to make sure that he could see where he was stabbing her. Having made further admissions he was asked if he wished to make a statement. His statement was exhibit 36 at trial. In it he described how this woman had told him he was “fucking useless”, and how this made him very angry. The statement is long and detailed. The significant feature is that there is no mention of divine intervention, or hearing voices, or acting on a divine mission. At that stage, he was saying that it was the incident involving Wilma McCann that had triggered off his murderous campaign, because she had insulted him. c) In the context of the last six victims, none of whom were prostitutes, he gave evidence to the jury that even if they were not, he honestly believed that they were. But he told the police in his statement that the compulsion inside him “seemed to lay dormant but eventually the feeling came welling up and each time they were more random and indiscriminate. I now realise I had the urge to kill any woman and I thought would eventually get me caught but I think that in my sub-conscious this is what I really wanted”. Indeed he then went on to speak of the attack on Josephine Whittaker, and said that when he saw her walking up the street “I realised she was not a prostitute, but at that time I wasn’t bothered. I just wanted to kill a woman”. This, again, is inconsistent with a divine mission to kill prostitutes. d) The next matter was the conscious decision he made that his attacks on women should be switched from the Leeds and Bradford area to Manchester. He told the psychiatrists that his reason for doing that was another delusion, genuinely held, which arose when he read a newspaper report of a priest who had described Manchester as wicked, which led him to realise that this was another divine message that he should go to Manchester to kill women there. In stark contrast, when he spoke to the police, he told them that the reason for changing his area of operations was that things were “hotting up” in Leeds and Bradford. This therefore was his first and important explanation for the changed pattern of attacks. e) It was a feature of the attacks on many of these women that some of them, at any rate, were subjected to sexual humiliation and degradation. We do not propose to identify all the cases, but the attacks on Irene Richardson, Patricia Atkinson, June Jordan, Yvonne Pearson, Helen Rytka, Josephine Whittaker, Marguerite Walls, had particularly striking sexual elements. The jury are likely to have doubted, as we do, whether the infliction of some of these injuries and the sexual ill-treatment of the victims came anywhere within the divine mission which he claimed to be fulfilling. In order to underline the significance of this aspect of the case, we must refer to just one section of the appellant’s confession, to the murder of Helen Rytka. “I hit her a furious blow to her head which knocked her down. She just crumpled like a sack. She was making a loud moaning sound so I hit her a few more times on the head…she had stopped moaning but she wasn’t dead. I could see her eyes moving. She held up her hand as though to ward off any further attack from me. I told her not to make any more noise and she would be alright. By this time I was aroused sexually so I had intercourse with her. I just undid my flies. I spread her legs out and did it. It only took a few minutes before I ejaculated inside her”. In his evidence the appellant told the jury that he had behaved in this way in order to avoid any suspicions about his behaviour which might had been engendered in two taxi drivers who were not very far away. Whether the jury believed that or not, the fact was that this violent attack and its effect caused him to become sexually aroused, and led him to rape his helpless victim. f) A prison hospital officer, supervising the appellant during a visit by his wife before trial, reported that he told her that he had given the police the details of the offences. He said that he expected to receive 30 years’ imprisonment, but if he could make people believe that he was mad, he would be detained in what, according to the witness, he described as a “loony bin”. It was open to the jury to accept the evidence of the prison officer that, contrary to the appellant’s assertion, his wife was not distressed during the visit and the appellant did not appear to be trying to reassure her and comfort her. g) Shortly thereafter, and shortly before the trial, the ward report of another prison officer stated that the appellant was “arrogantly confident” that a plea of diminished responsibility would be accepted, that he would be incarcerated or no more than 10 years, and maybe less, and that the psychiatrists had told him that that was the length of detention necessary in order to satisfy the public. When he gave evidence the appellant denied having spoken the words attributed to him. 26. In short, in the context of the evidence from the trial there were ample reasons why a jury would have been likely to reject the appellant’s account of his divine mission. The constant reiteration of his account over succeeding years did not, of itself, make it any more credible. 27. These provide some of the essential features of the context in which we examined the detailed report from Dr Murray, including his earlier report which, in effect, begins the analysis of the issues from before the start of the appellant’s murderous offending. They set out the now very long history of psychiatric analysis of the appellant in the context of the assessment of the risk he posed to public safety. The broad conclusion of many psychiatrists is that the appellant suffers from chronic mental illness – a diagnosis first made in 1983/4, and therefore given considerable emphasis by Mr Fitzgerald - and there is broad support for the proposition “that the offences had arisen directly as a consequence of mental disorder”, for which the appellant has been treated. Anti-psychotic medication was provided on the basis that this was necessary treatment for schizophrenia, without which, again as Mr Fitzgerald underlines, the treatment would have been unlawful. 28. We also note that Dr Murray fairly acknowledged the reservations about the mental disorder explanation for the appellant’s offending by Dr Adrian Berry whose scepticism is based on the appellant’s “capacity for anger and violence in the course of his assaults”: the sexualised nature of “two” of his offences; (we would merely suggest that there were many more such cases); and the unusual development of the reported symptomatology; that is “benign from 1967 to 1969, followed by a couple of incidents; intrusive from 1969 to 1975 but not irresistible; irresistible between 1975 and 1981 and then continuing until 1993 without incident, before … anti-psychotic medication was introduced”. Dr Berry noted the appellant’s ability to deceive those around him and the possibility “that his apparent symptomotology was a convenient explanation for his offending, allowing him to receive treatment rather than punishment and to locate responsibility for his actions on to an illness”. These observations did not represent a formal assessment of the case, and the views expressed by Dr Berry should, according to Dr Murray, be seen as a statement recording “a preliminary view rather than a final position”. 29. Two psychophysiological assessments were made. The penile plethysmography (PPG) assessed the appellant’s response to stimuli of a violent or sexual, or sexually violent nature. It was followed in May 2006 by the polygraph examination (known colloquially as the “lie detector”) carried out in the context of a research programme regarding the utility of polygraph techniques in the assessment of the truthfulness of accounts of their behaviour given by post-conviction sex offenders. The PPG provided no indication of deviant arousal, although the diabetes from which the appellant was suffering “may have impaired his responsiveness”. The polygraph examination was directly related to the issues raised at trial, and in particular the account of events in the graveyard in Bingley in 1967. The conclusion was that the appellant was not being “completely truthful” in his replies. Like the PPG it would be unwise to regard this test as determinative because it is accepted that a proportion of these tests are “wrong”. Nevertheless those responsible for the polygraph tests believe that the process produced results which were “reliable if not infallible”. Dr Murray’s view is that in the light of all the other evidence the test represents a “false negative”. He remains persuaded “of the validity of the psychosis explanation” although he now holds it with “a little less certainty than previously”. 30. We must now return to the submission advanced by Mr Fitzgerald on the basis of paragraph 11(c) of schedule 21 , mental disability or disorder. The question is whether the appellant was subject to mental disability or disorder which did in fact constitute any, and if so how much mitigation for his offences. In other words, such disorders do not of themselves automatically lower the degree of the offender’s culpability: often they will, but not necessarily. If they do, then their degree and their possible impact as mitigation must be assessed in the overall context of the entire case, including all its aggravating features. 31. An interesting debate followed in the course of which Mr Fitzgerald submitted that it was for the Crown to disprove mental disorder as a mitigating factor within the context of paragraph 11(c) of schedule 21 of the 2003 Act , and that it must do so to the criminal standard of proof. Our attention was drawn to a number of authorities both in the Court of Appeal Criminal Division, the Privy Council, and the Constitutional Court in South Africa. We mean no discourtesy to the submissions, but we do not believe that they advance the argument, certainly where they were concerned with legislative provisions directly concerned with the circumstances in which the death penalty was to be imposed. 32. Returning to first principles, we do not agree that the court is obliged to accept matters advanced to it as mitigation unless the prosecution disproves them. Of course, in a case in which the sentence depends on prescribed statutory formulation of features which, if established, would result in a heavier sentencing regime, or a minimum sentence, the ingredients must be established by the prosecution to the criminal standards. One obvious example, far removed from this case, is the obligation on the court to impose a minimum term when the defendant is said to be what we shall describe as a “repeat offender”. If he denies the convictions which would establish that he is indeed a repeat offender, the prosecution must prove that he is. The same principle would apply when the question to be decided is the presence or otherwise of a particular feature of a murder case which, in accordance with schedule 21 of the 2003 Act , would elevate the starting point for the assessment of the minimum period from, say, 15 years to 30 years. To the extent to which issues such as these may be said in a very broad sense to constitute mitigation, the prosecution must disprove them. However, many matters raised in mitigation are personal to the defendant himself and extraneous to the prosecution, or, as in this case, notwithstanding the expert psychiatric evidence, are advanced or depend on the truthfulness of what the defendant is saying, or what is asserted on his behalf. For example, it may be submitted in mitigation that the defendant is totally remorseful. Of itself that does not create a burden of disproof on the prosecution. If there may be an element of genuine remorse, the sentencing judge will evaluate its extent and take it into account as far as he considers that it goes. Similarly, it may be suggested in mitigation that the defendant is physically infirm or that for health reasons a custodial sentence would bear disproportionately heavily on him. This is a matter for evaluation by the judge, but very rarely indeed for refutation by the prosecution. In circumstances like these, a factor advanced by the defendant as potential mitigation does not fall to be elevated into a probability because it is not disproved by the prosecution. 33. The sentencing process is not mathematical. Self-evidently factors which do not constitute aggravation should not be treated as if they were, but equally facts which do not constitute mitigation should not be treated as if they do. Criminal activity which has not been proved should not be treated as aggravation, but equally matters advanced in defence which, by the jury’s verdict, have been rejected, cannot constitute mitigation. As applied in the present case, Mr Fitzgerald’s submission that the prosecution is obliged to disprove matters of mitigation raised by the defence would, if carried through to its logical conclusion, have required Mitting J and would now require us, to convert a defence of substantial impairment of responsibility rejected by the jury into a mitigating feature of identical substance, to be reflected in the assessment of the minimum term. In other words, for the purposes of sentence, the appellant’s mental responsibility would have to be treated as substantially impaired when, for the purposes of his convictions for murder, this contention was rejected. On any view that would be a surprising conclusion. In fact, as we have explained, the legislative structure of paragraph 11(c) specifically addresses this issue, and permits allowances to be made in mitigation for mental disorder or disability not amounting to the substantial impairment of responsibility involved in the defence of diminished responsibility. These are not matters of disproof by the prosecution. 34. Moving from Mr Fitzgerald’s broad submission, we must return to the facts of this particular case. As we have indicated, we do not accept that the effect of the burden of proof in the context of diminished responsibility should lead us to approach the decision of the jury as if diminished responsibility was neither established by the defendant, nor disproved by the prosecution. The entire case, whether of substantial impairment of responsibility for the purposes of trial, or indeed mental disorder as potential mitigation for the purposes of paragraph 11(c) of schedule 21 , depended and continued to depend on the appellant’s assertion that his actions were the result, as he genuinely believed, of divine inspiration. It is clear to us that this account was rejected by the jury. 35. The hearing before Mitting J was not a review of an earlier decision, but an assessment made now, in 2010, in accordance with the provisions of schedule 22 of the Act, which is directed to the seriousness of the offence or offences and the general principles, including features of aggravation and mitigation to be found in schedule 21 which, certainly in 1981, were not the subject of express statutory provision, 36. The vast gap between the date when the life sentence was imposed and the date when the minimum term comes to be assessed is obviously problematic. Although an assessment of the seriousness of the offence or offences is required, the eventual assessment is not being made by a judge who was the trial judge. So he must work on all the available written material without seeing and hearing all the evidence for himself. In making his assessment he must draw the appropriate conclusions from the formulation of the directions and summing up to the jury, the verdicts of the jury as well as any observations by the trial judge and later by the Lord Chief Justice. 37. In this case Mitting J was required to take account of the fact that the analysis of appellant’s state of mind at the time of the crimes was one which on entirely reasonable grounds the jury was not prepared to accept. No other or additional basis for the appellant’s asserted mental disorder or disability beyond that investigated at the trial has been identified and no new, previously unappreciated mental condition to which he may have been subject has been revealed. In other words, the passage of time does not make the appellant’s account at trial of how he came to commit these offences any more likely to be credible now than it was then. 38. We are not, of course, suggesting that the man who perpetrated these crimes was in any ordinary sense of the words “normal” or “average”. The sheer abnormality of his actions themselves suggest some element of mental disorder, and this no doubt formed part of Lord Bingham’s reasoning when he observed that the appellant’s mental state was “disturbed” when he committed these crimes. There is however no reason to conclude that the appellant’s claim that he genuinely believed that he was acting under divine instruction to fulfill God’s will carries any greater conviction now than it did when it was rejected by the jury. In any event although the bare recital of these offences, particularly recited one following another, may by the simple process of virtual repetition diminish their impact, when taken on their own, many of them, and more realistically, an examination of the entire catalogue of the offences as a whole demonstrate that this was criminal conduct at the extreme end of horror. Each of the attempted murders, as well as each of the murder offences, taken on its own was a dreadful crime of utmost brutality: taking all the offences together we have been considering an accumulation of criminality of exceptional magnitude which went far beyond the legislative criteria for a whole life order. Even accepting that an element of mental disturbance was intrinsic to the commission of these crimes, the interests of justice require nothing less than a whole life order. That is the only available punishment proportionate to these crimes. 39. We note that in his written submission, Mr Fitzgerald referred to the progress made by the appellant in response to the treatment he is currently receiving at Broadmoor Hospital, which it was suggested rebutted the assessment that the appellant is “uniquely dangerous”. The submission was not developed in oral argument, but, as it seems to us, the question whether, in the most exceptional circumstances, any allowance should be made against the minimum period ordered by the judge for a defendant’s general progress in custody by a small reduction in the minimum term can rarely have any application to the case where, just because of the exceptional seriousness of the offending, for the purposes of punishment the whole life term has been imposed. 40. This appeal is dismissed.

```yaml citation: '[2011] EWCA Crim 5' date: '2011-01-14' judges: - 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} ======

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 Number: [2023] EWCA Crim 734 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202300527/A4 Royal Courts of Justice Strand London WC2A 2LL Wednesday 7 June 2023 Before: LORD JUSTICE LEWIS MRS JUSTICE LAMBERT DBE THE RECORDER OF LONDON HIS HONOUR JUDGE LUCRAFT KC (Sitting as a Judge of the CACD) REX V CRAIG SIMPSON __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) MR D TAYLOR appeared on behalf of the Appellant J U D G M E N T 1. LORD JUSTICE LEWIS: On 21 November 2022 in the Crown Court at Manchester, the appellant, Craig Lawrence Simpson, was convicted of one offence of encouraging or assisting the commission of one or more offences, believing that one or more offences would be committed. He was sentenced to eight years' imprisonment. He appeals against sentence with the leave of the single judge. 2. The facts can be stated shortly. Over the period between January and June 2017 an Organised Crime Group imported a large quantity of cocaine into the United Kingdom. The system was that a crate would be delivered to a legitimate haulage company, Sovereign Speed, at their depot near Schiphol Airport. A yellow tracker label would be attached to the crate. The crate would be flown to Send Direct at Manchester Airport. It would be collected within about one hour of arrival. Cases containing 40 kilograms of cocaine each were delivered on five occasions in 2017, namely 20 April, 27 April, 17 May, 7 June and 14 June. 3. The appellant's role in this importation was to prevent the purchasers of the cocaine from knowing exactly where and how the crates arrived into the United Kingdom. This was done by the appellant picking up a van, leaving the driver behind and travelling a short distance to Send Direct at Manchester Airport. At Send Direct the appellant would produce a printout of the delivery note to prove he was entitled to take the crate. The appellant used a false name, "Ian Allen" when collecting the crate. Provided that he had the delivery note for each crate, Send Direct would hand over the crate to him. The crate would then be loaded into the van. The appellant would then drive back to where he had left the driver of the van. That driver then drove off with the crate containing the cocaine. 4. Usually the appellant would arrive at Send Direct an hour or two after the crate had arrived. The reason the appellant knew when to arrive at Send Direct was because each crate was tracked and the appellant had access to the tracking information. 5. As we have said, each of the five cargoes contained approximately 40 kilograms of cocaine, making a total of approximately 200 kilograms of cocaine. 6. On 14 June 2017 a wooden crate that was later seized at Coquelles was delivered to Sovereign Speed. Enquiries with Sovereign Speed produced CCTV from their depot in Schiphol. Footage during the period between 18 April and 14 June 2017 showed an unknown man delivering crates linked to the intercepted crate to the Sovereign Speed depot using two Dutch-registered vans. The crate intercepted at Coquelles was ultimately destined for Send Direct near Manchester Airport. A yellow tracker had been attached at Schiphol and as indicated, the appellant had access to the tracking information. Consequently, when the crate was stopped at Coquelles the appellant knew it had been stopped. When the crate did eventually arrive in Manchester he did not turn up to collect it from Send Direct. He left the United Kingdom on 17 June 2017. He then spent four years in Spain before being extradited. 7. The appellant was charged with two offences. The first (count 1) was fraudulently evading a prohibition on importation and the particulars were that he was knowingly concerned in the importation of class A drugs, namely cocaine. He was acquitted of that offence. 8. Count 2 was an offence of encouraging or assisting the commission of one or more offences. The particulars were that between 1 January 2017 and 16 June 2017 the appellant did an act, namely collected crates, which was capable of encouraging or assisting in the commission of one or more offences, namely evading the prohibition on the importation of certain goods and evading duty, believing that one or more of the offences would be committed and that his act would assist or encourage in the commission of one or more of the offences. 9. The appellant's defence statement said that he was not engaged in the importation of cocaine. It further said that he did not believe his acts were capable of encouraging or assisting the commission of an offence. He said that he was simply doing driving work for a company and the defence statement gave explanations as to why the appellant collected the van and went to the depot in the way he did, why he drove the van back, why he used a false name and why he had left the United Kingdom. 10. As we have said, he was acquitted of being knowingly concerned in the importation of cocaine. He was however convicted of the offence of encouraging or assisting the commission of one or more crimes. 11. The appellant was aged 47 at the time of sentencing. He had a long record of previous convictions, comprising 26 convictions involving 146 offences. He had convictions for four drug offences, including one of possessing heroin with intent to supply for which he had been sentenced to four years' imprisonment in 1998. The last conviction was in 2008. The judge also had before her a pre-sentence report. 12. The sentencing judge said that the appellant had been convicted of assisting in the commission of one or more crimes, contrary to section 46 of the Serious Crime Act 2007 . In effect he had been convicted of being knowingly involved in a smuggling operation that included prohibited items and/or dutiable goods. 13. The judge said that she had taken account of the drugs guideline for both class A drugs, because this operation in fact involved cocaine, and class B drugs which would come under the auspices of prohibited items as reflected in count 2. The judge treated it as a Category 1 offence within the drugs guideline because of the amount of drugs involved. The judge treated the appellant as performing an important and very trusted role, acting as the buffer between those above him in the chain and the customers. She had no doubt that the appellant knew that this was a sophisticated and valuable smuggling operation. Under the guidelines for drug offences that would amount to a significant role as the appellant was performing an operational role, there was an expectation of significant financial gain and the judge was sure that the appellant was aware of the scale of the operation. As the judge said, for a substantive class A drugs offence that would give a starting point of 10 years and a range of 9 to 12 years' custody and for a substantive class B drugs offence a starting point of five-and-a-half years with a range up to seven years' imprisonment. The judge expressly said however that she had to acknowledge that the appellant had been acquitted of knowingly being concerned in the importation of cocaine. 14. The sentencing judge also said that she had considered the sentencing guidelines, in so far as they were of any assistance, in relation to fraud and the evasion of duty. For the appropriate category that would have resulted in a sentence with a range of up to six-and-a-half years' custody. 15. The sentencing judge said that she had taken the mitigation into account but that was very limited, given that it involved a gap in the record of offending and also the appellant's family situation. There were aggravating features, namely the previous convictions for drugs, the fact that the appellant was unlawfully at large for a period of four years and the offences which were committed did in fact involve cocaine. The judge said that the appropriate sentence was one of eight years' imprisonment. 16. Mr Taylor for the appellant submits that the jury could have convicted the appellant on the basis that he had been assisting in the importation of drugs which was subject to duty, which was being evaded, rather than assisting in drug smuggling. He submitted that it was not fair therefore to sentence the appellant by reference to the drugs guideline and the appellant should have been given the benefit of the doubt and sentenced by reference to the guidelines appropriate to a revenue offence. The offence could be treated as a Category 4 offence within those guidelines and that would have led to a sentence with a starting point of five-and-a-half years and a range of four years to six-and-a-half years. He submitted therefore that a sentence of eight years' imprisonment was manifestly excessive. 17. First, the starting point is to consider the offence for which the appellant was convicted. Sections 44 to 46 of the Serious Crime Act 2007 creates three offences dealing with assisting or encouraging the commission of offences. Section 46 is the provision applicable here. It is the third of that set of offences. It is in the following terms so far as material: " Encouraging or assisting offences believing one or more will be committed (1) A person commits an offence if— (a) he does an act capable of encouraging or assisting the commission of one or more of a number of offences; and (b) he believes— (i) that one or more of those offences will be committed (but has no belief as to which); and (ii) that his act will encourage or assist the commission of one or more of them. (2) It is immaterial for the purposes of subsection (1)(b)(ii) whether the person has any belief as to which offence will be encouraged or assisted." 18. Section 47, so far as material, adds a further important ingredient to the section 46 offence, providing as follows: "(4) If it is alleged under section 46(1) (b) that a person (D) believed that one or more of a number of offences would be committed and that his act would encourage or assist the commission of one or more of them, it is sufficient to prove that he believed— (a) that one or more of a number of acts would be done which would amount to the commission of one or more of those offences; and (b) that his act would encourage or assist the doing of one or more of those acts." 19. This distinct offence therefore is directed against lending encouragement or assistance to the commission of one or more offences. The criminality is doing something which the person believes will encourage or assist in the commission of one or more offences and it is not necessary for the purposes of section 46 to identify which offence or offences the person believed would be committed. That was recognised by this court in R v Sadique [2013] 2 Cr.App.R 31. 20. Secondly, the maximum penalty for an offence contrary to section 46 is prescribed by section 58 of the 2007 Act . That provides so far as material as follows: "(4) Subsections (5) to (7) apply if a person is convicted of an offence under section 46 by reference to more than one offence ('the reference offences'). ..... (6) If none of the reference offences is murder but one or more of them is punishable with imprisonment, he is liable— (a) to imprisonment for a term not exceeding the maximum term provided for any one of those offences (taking the longer or the longest term as the limit for the purposes of this paragraph where the terms provided differ) ... " 21. The effect of those statutory provisions is that in the case of an offence contrary to section 46 , committed by reference to more than one offence, the offender is liable for the maximum penalty applicable to the most serious of those offences. That is so even though he has no belief as to which of the reference offences will be committed. In those circumstances it is appropriate to take into account the guidelines for the most serious offence and to consider also the guidelines for other offences that the offender might have been assisting. Thus in R v Rowlands [2020] 1 Cr.App.R (S) 31 the appellant was charged with enabling or assisting the commission of the supply of class A and class B drugs. As the court said at paragraph 16: "The appellant believed that the benzocaine which he sold would be used in the supply of controlled drugs. He had no particular belief as to whether any specific supply would be of drugs of class A, or drugs of class B, or both. But he believed that offences of supply would be committed and he believed that his sale of the benzocaine would assist those offences. The fact that he had no particular belief as to the class of drug which would be supplied cannot be equated with a belief that only drugs of class B would be supplied." 22. In those circumstances the court held that the sentencing judge in that case was correct to look at the guidelines for both class A drugs and class B drugs. The court recognised that the culpability of an offender who believed that he might be assisting in either the commission of class A or class B drugs might be lower than an offender who believed that he was assisting in the commission of offences involving only class A drugs. 23. In the present case the sentencing judge carried out the sentencing in the way envisaged by this court in R v Rowlands. The appellant was convicted of doing acts which encouraged or assisted in the commission of either the import of prohibited goods or the import of goods subject to duty. Prohibited goods would include class A drugs or class B drugs but the judge had to bear in mind that the appellant did not believe that the offences related to cocaine in light of his acquittal on count 1. 24. The criminality involved therefore was assisting in the commission of offences believing, whilst not knowing, that that could involve the importation of drugs or of goods subject to duty. There is nothing to suggest that the appellant believed that he was only assisting in the import of goods subject to duty, such as alcohol. In the light of that, the judge was correct to have regard to the sentencing guideline for drugs offences and also to consider other potentially relevant guidelines such as those for revenue offences. 25. In terms of the drug guideline, the sentencing judge, having heard the evidence, considered that the appellant played a significant role in the operation. She also expressly acknowledged in determining the culpability of the appellant that he had been acquitted of knowingly importing cocaine. In fixing the appropriate sentence the judge looked at the guidelines for class A drugs where the starting point was 10 years and the range was 9 to 12 years. In relation to class B drugs the starting point there was five-and-a-half years and the range up to seven years. The judge also looked at the guidelines on revenue fraud. There, treating it as a Category 4 offence would lead to sentences in a range of up to six-and-a-half years. 26. In all those circumstances the sentencing judge fixed the appropriate sentence at eight years' imprisonment. That did reflect the criminality involved, namely assisting in the commission of one or more offences believing that one or more of them would be committed. Further, the sentence did reflect the appellant's culpability. At the very least he assisted in offences which he believed could be drugs offences (although he did not believe the drugs were cocaine) or offences involving goods subject to duty. The sentence was lower than the starting point for the substantive class A drugs offence. It was slightly above the category for class B drugs offences. But in the circumstances a sentence of eight years' imprisonment was not manifestly excessive by reference to the guideline for drug offences, given the scale of the operation, the involvement of the appellant, his previous convictions and the absence of any real substantial mitigation. Even if the operation had been fixed by reference to the guidelines on the evasion of duty on goods, a sentence of eight years, although severe, would not have been manifestly excessive. There would have had to have been an upward adjustment to reflect the fact that this involved a large scale operation with the appellant demonstrating high culpability over a period of time. Whilst we doubt that it is appropriate to try and fix the sentence within Category 4, given that this was in fact a drug smuggling operation and not a revenue fraud, a sentence of eight years' imprisonment would not be manifestly excessive even by reference to those guidelines. 27. For those reasons, this appeal is dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2023] EWCA Crim 734' date: '2023-06-07' judges: - LORD JUSTICE LEWIS - MRS JUSTICE LAMBERT 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 312 Case No: 2010/3894/D2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 9 February 2011 B e f o r e : LORD JUSTICE JACKSON MR JUSTICE OPENSHAW THE COMMON SERJEANT His Honour Judge Barker QC (Sitting as a Judge of the CACD) __________________ R E G I N A v KEITH PREDDIE __________________ Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) __________________ Mr C Royle appeared on behalf of the Appellant Mr I McLoughlin appeared on behalf of the Crown __________________ J U D G M E N T 1. LORD JUSTICE JACKSON: This judgment is in five parts, namely: Part 1. Introduction, Part 2. The Facts, Part 3. The Criminal Proceedings, Part 4. The Appeal to the Court of Appeal, Part 5. Conclusion. Part 1 Introduction 2. This is an appeal against conviction essentially on the ground that the appellant was convicted on the basis of flawed identification evidence. It is important at the outset to set out the relevant provisions of the Code of Practice which deals with these matters. 3. Pursuant to the Police and Criminal Evidence Act 1984 the Secretary of State has issued a number of Codes of Practice to regulate the investigation of crime and to ensure the fair treatment of suspects. The fourth of these codes is Code D Practice for the Identification of Persons by Police Officers. Section D.3 of Code D is entitled "Identification by Witnesses." This section includes the following provisions: "3.1 A record shall be made of the suspect’s description as first given by a potential witness. This record must: (a) be made and kept in a form which enables details of that description to be accurately produced from it, in a visible and legible form, which can be given to the suspect or the suspect’s solicitor in accordance with this Code; .... 3.2 In cases when the suspect’s identity is not known, a witness may be taken to a particular neighbourhood or place to see whether they can identify the person they saw. Although the number, age, sex, race, general description and style of clothing of other people present at the location and the way in which any identification is made cannot be controlled, the principles applicable to the formal procedures under paragraphs 3.5 to 3.10 shall be followed as far as practicable. For example: (a) where it is practicable to do so, a record should be made of the witness’ description of the suspect, as in paragraph 3.1(a), before asking the witness to make an identification; (b) care must be taken not to direct the witness’ attention to any individual unless taking into account all the circumstances, this cannot be avoided. However, this does not prevent a witness being asked to look carefully at the people around at the time or to look towards a group or in a particular direction, if this appears necessary to make sure that the witness does not overlook a possible suspect simply because the witness is looking in the opposite direction and also to enable the witness to make comparisons between any suspect and others who are in the area; ... (d) once there is sufficient information to justify the arrest of a particular individual for suspected involvement in the offence, e.g., after a witness makes a positive identification, the provisions set out from paragraph 3.4 onwards shall apply for any other witnesses in relation to that individual. Subject to paragraphs 3.12 and 3.13, it is not necessary for the witness who makes such a positive identification to take part in a further procedure; (e) the officer or police staff accompanying the witness must record, in their pocket book, the action taken as soon as, and in as much detail, as possible. The record should include: the date, time and place of the relevant occasion the witness claims to have previously seen the suspect; where any identification was made; how it was made and the conditions at the time (e.g., the distance the witness was from the suspect, the weather and light); if the witness’s attention was drawn to the suspect; the reason for this; and anything said by the witness or the suspect about the identification or the conduct of the procedure." Having set out the relevant provisions of the Code, we must now turn to the facts. Part 2. The facts 4. In the early hours of Saturday 13th February 2010 Mr Ziyad Shoaib was waiting at a bus stop on Hartlington Road, Feltham. He was on his way home from work. Two young men approached. They attacked Mr Shoaib, punching and kicking him. They stole his bank debit card and forced him to reveal his PIN number before running off. 5. Mr Shoaib dialled 999 and reported the robbery to the police. In his 999 call he gave a very brief description of the two assailants. He said that one was a black male and one was an Asian male aged around 18 years. 6. The police sent the two most readily available officers to attend on Mr Shoaib. They were PC Poppy and PC Johnson. They arrived and spoke to Mr Shoaib. An ambulance also arrived in order to take Mr Shoaib to hospital because of his injuries. 7. Before Mr Shoaib was taken to hospital, however, he was taken by the police officers on a drive around the area. The objective was to see if Mr Shoaib could identify the robbers. As the police officers were driving around with Mr Shoaib in the car, they saw their colleagues arresting two suspects. There was quite a struggle in progress. Therefore PC Poppy and PC Johnson stopped their car and went over to assist. 8. Mr Shoaib recalls that he looked out of the window of the police car and recognised the two suspects as the men who had attacked him. Mr Shoaib recalls telling the police this in answer to a question. Shortly after that Mr Shoaib was taken to hospital for treatment. 9. The two men who were arrested were the appellant and a young man called Lloyd Francis. The two suspects were taken to the police station. The police officers also returned to the police station and wrote up their notes or made their statements. PC Poppy and PC Johnson recorded in their statements the description of the two assailants which had been given by Mr Shoaib when they first arrived at the scene. That description was as follows: "There were two males, one possibly mixed race or Asian wearing grey trousers and grey hooded top. The second a black male with a maroon top and braided style ponytail." However, the two officers did not record in their notebooks or their statements anything about Mr Shoaib identifying the two suspects at the time when the police car pulled up and PC Johnson and PC Poppy assisted in effecting the arrest. 10. Later that day, after his injuries had been treated at hospital, Mr Shoaib attended at Acton Police Station for an identification parade. The video identification procedure was adopted. Mr Shoaib picked out the appellant and Lloyd Francis in that procedure. 11. In the case of Lloyd Francis there could be little doubt about his involvement in the robbery. This was because there was blood on his person and the DNA from that blood matched the DNA of Mr Shoaib. 12. The two suspects were duly interviewed at the police station. The appellant in interview denied that he had been involved in the robbery of Mr Shoaib and indeed denied that he had been present or anywhere near the commission of that offence. 13. Following the interviews of the suspects and the other police investigations, criminal proceedings followed. Part 3. The Criminal Proceedings 14. Both the appellant and Lloyd Francis were charged on an indictment containing one count of robbery, relating to the incident on 13th February 2010. The prosecution case was that Lloyd Francis was the man described as having been of mixed race or Asian, and that the appellant was the man whom Mr Shoaib had described as being the black man. 15. In view of the DNA evidence, Mr Francis had no prospect of acquittal and he duly pleaded guilty. The appellant however, against whom there was no DNA evidence, pleaded not guilty. His defence was that he had not been involved in or present at the robbery. In other words the appellant asserted that this was a case of mistaken identification. It was therefore for the prosecution to prove that the appellant had been correctly identified as the second robber and that had to be proved to the criminal standard. 16. The trial of the appellant took place in June 2010 at Isleworth Crown Court before Mr Recorder Brigden and a jury. At the start of the trial there was a voire dire . The reason for the voire dire was to ascertain whether Mr Shoaib had seen the two suspects at the time of arrest. Mr Charles Royle, defence counsel, who appears today in this court as well, had it in mind that he may be able to argue that the video identification procedure was tainted. The taint might well turn out to be that Mr Shoaib had seen the two suspects at the time of arrest and was simply picking out the two men whom he had seen being arrested. However, in the course of the voire dire events took an unexpected course. Mr Shoaib gave evidence to the effect that he had not only seen the two suspects at the time of arrest but also he had positively identified them as his two assailants. As previously mentioned, this was not a matter which featured in the witness statements of any of the police officers. Nor did it feature in the witness statement of Mr Shoaib. 17. In those circumstances, Mr Royle submitted to the court that there was now new evidence of a previously unknown street identification by the principal witness. Furthermore, this street identification had been conducted in a manner which breached a number of provisions of the Code. Therefore, submitted Mr Royle, the evidence of the initial street identification should be excluded. The Recorder briefly adjourned the hearing in order that further witness statements could be obtained from the police officers, in order to see whether they confirmed Mr Shoaib's recollection of the street identification. 18. Further witness statements were duly obtained before the trial proceeded and those have been furnished to this court today. It can be seen that the effect of those statements is that the officers describe taking Mr Shoaib on a drive around in the area of the robbery and they give a further account of the arrest of the suspects. However, they say nothing about any street identification conducted by Mr Shoaib at the time of the arrest. 19. With the benefit of these further witness statements, the arguments between counsel continued. It must be said that the Bench interrupted defence counsel in the course of his perfectly proper submissions more frequently than was either appropriate or conducive to an efficient disposal of this necessary application. 20. The Recorder in due course rejected the submission that the evidence of the street identification should be excluded. The trial then proceeded. The first witness was Mr Shoaib and he duly gave evidence of his initial identification of the two suspects. That evidence, including the cross-examination of Mr Shoaib, was summarised as follows by the Recorder in his summing-up and there is no suggestion that this summary is in any way inaccurate: ""I called the police and gave a description from outside the Airman Pub and at some point they said: 'We've got'" - when the police arrived - "'we've got two people and they look like you describe.'" And they drove off for 40 seconds approximately and he was asked: "Are these the two people?" I said: 'Yes. I recognise them.' "I saw two young men surrounded by policemen. A police" - this is in cross-examination - he was asked again, quite rightly, the police constable said or the police constables, we do not know who it was, said: "Are these the two men who attacked you?" "And I said: 'Yes,' after having looked at them. I was in the car; the two were on the pavement. I took my time. I looked at the dress and height. I looked at them for about 35 seconds. They were" - do you remember, he pointed out - "they were about eight to 10 yards away. It was cold, it was not raining. There was quite good street lighting." And when pressed, he said: "I could've got the right people; I could have got the wrong people, but I was convinced about this defendant and I do not agree" - when he was accused of making a mistake by defence counsel, quite properly - "I do not agree I made a mistake."" 21. After Mr Shoaib had left the witness box several police officers gave evidence, including those who went to Mr Shoaib's initial assistance and those who were involved in the arrest of the two suspects. None of the police officers gave evidence to the effect that Mr Shoaib had identified the two suspects at the time of the arrest. 22. On behalf of the defence there was just the one witness, namely the appellant. The appellant gave evidence to the effect that on the night in question he had been to a party in Fruen Road, he had seen some policemen there and he was outside the party for a while. He left Fruen Road and he went into Bedfont Road, where apparently he was seen by a police officer. Then he said he met the co-defendant Lloyd Francis at the railway station. This was the first time he had seen Mr Francis that day. He then went up New Road, into Hounslow Road and he was arrested at the road junction. So the appellant gave evidence broadly in line with his interview to the effect that he had not been involved in the robbery and he had met Lloyd Francis by chance at a time when, as it subsequently turned out, Mr Lloyd Francis had finished carrying out the robbery. 23. The Recorder in his summing-up directed the jury that the central issue in the case was one of identification. In giving that direction the Recorder was plainly correct. The Recorder gave to the jury certain directions about identification evidence to which we shall return in Part 4 of this judgment. 24. In due course the jury returned a unanimous verdict of guilty. 25. The appellant was aggrieved by his conviction and maintains that the identification evidence against him was flawed. Accordingly he has appealed against conviction to this court. Part 4. The Appeal to the Court of Appeal 26. The essential grounds of appeal are two-fold. First, it is said that there were errors by the police in obtaining identification evidence. Secondly, it is said that there were errors by the Recorder in conduct of the trial. We shall first examine the alleged errors on the part of the police. 27. The first point made by Mr Royle is that no street identification at all should have been undertaken in this case. Mr Royle draws our attention to the opening words of paragraph D.3.2 of Code D. Mr Royle submits that this was not a case where the suspect's identity was not known. This was a case where two suspects were being arrested. The officers arresting them had concluded that they entertained reasonable suspicion and that the circumstances were such that the suspects could be arrested and taken to the police station. In those circumstances, submits Mr Royle, the police should have avoided any attempt at street identification. If the two officers accompanying Mr Shoaib needed to assist in arresting the suspects (with whom there was something of a struggle), then they should have left Mr Shoaib in the company of the paramedics in the ambulance and they should have gone to assist by themselves. There was no need for Mr Shoaib to identify or indeed come within close sight of the two suspects. 28. We see considerable force in these submissions and we think that Mr Royle's contention is correct. The opening words of paragraph D.3.2 of the Code, are backed up by the opening words of sub-paragraph (d) of that section of the Code, which is to the same effect. It is clear that the police had taken a decision that they had sufficient grounds to warrant the arrest of Francis and the appellant. In those circumstances the proper course would have been to avoid any contamination of the witness and for the first identification procedure to be carried out at the police station. Indeed, we understood from the very helpful submissions of the prosecution today (Mr McLoughlin appearing for the prosecution, although he was not counsel at trial) that it is not seriously disputed that the police had sufficient material in their view to warrant arresting the suspects and taking them back to the police station. 29. The next point made by Mr Royle is that if the police decided to do a street identification then they should have conducted such an identification properly, and in accordance with the procedures in Code D. Mr Royle submits that there were three breaches of Code D in relation to the street identification. The first breach was that no record was made of the description of the suspect given by Mr Shoaib before he conducted the street identification. The second alleged breach of the Code is that the police did not take care not to direct the witness's attention towards the suspect. Mr Royle submits that it was quite plain who the suspect was from the circumstances in which the street identification took place, and that was a breach of paragraph D.3.2(b). Thirdly, submits Mr Royle, there was a breach of paragraph D.3.2(e) in that no record was made by the police officers of the street identification. Indeed not only were the details required by sub-paragraph (e) not set out in the record but the police officers' statements are entirely silent about this matter. 30. We shall examine each of these alleged breaches separately. So far as the first matter is concerned, it seems to us that if the police were going to carry out a street identification in circumstances where there was no necessity for the procedure at all, then they should certainly have taken care to record the description of the assailants given by Mr Shoaib before they asked him whether or not the two individuals being arrested were the men who had attacked him. There would be no particular problem for the police in doing this. A very brief description had already been recorded as a consequence of the 999 call in a CAD message on the police computer system. When the two officers first arrived to talk to Mr Shoaib, he gave them the very brief description of his assailants which we have read out in Part 2 of this judgment. That could rapidly have been recorded by PC Poppy or PC Johnson. However, it was not done. The first time when those two officers recorded this description was when they got back to the police station and were writing out their statements. In this regard, therefore, we accept the submission that there was a failure by the police to comply with the first part of paragraph D.3.1 of the Code and there was also a failure to comply with paragraph D.3.2(a) of the Code. 31. We come now to the second alleged breach of the Code. Here Mr Royle points out that when Mr Shoaib was conducting the street identification it was perfectly obvious who the suspects were, because there were two individuals struggling and surrounded by police officers who were restraining them. It did not take much imagination for Mr Shoaib to know where he should be looking. On this point Mr McLoughlin for the prosecution submits that really no alternative course was practicable. The police could not release hold of the two suspects because it was quite obvious that they would run away. No phraseology of the question could sensibly leave Mr Shoaib in any doubt as to who were the individuals he was being required to consider for identification purposes. Mr McLoughlin accepts that the question put to Mr Shoaib could have been more open than the form of words used, but he submits that that is of no practical consequence. 32. We see force in the prosecution's submissions in relation to this Code breach. If a street identification was going to be undertaken there was no way of avoiding the fact that Mr Shoaib would see who the two suspects were, and would have his attention drawn to them. Indeed that is a further reason why a street identification would be inappropriate in all the circumstances. But if the procedure was to be adopted, we do not think it involved a breach of sub-paragraph (b). 33. We now come to the third breach of the Code, namely a failure to comply with paragraph D.3.2(e) in that PC Poppy and PC Johnson failed to make any record whatsoever of the street identification which had been carried out. As a matter of fact it is clear that there was this breach of the Code. It is clear that no record was made of the street identification. There is no possible justification for that omission because when the police officers got back to the police station and were making their statements they could well have written out an account of what happened at the scene of the arrest, but they did not do so. 34. In the result therefore, in relation to this limb of the case we hold that there were two breaches of Code D as previously identified. Therefore, drawing the threads together, we accept that overall there was a breach of the Code in deciding to carry out a street identification and then, having made that decision, there were two further breaches of the Code by the police in carrying it out. 35. We come now to the second limb of this appeal, namely the contention that there were errors by the Recorder in the conduct of the trial. 36. The first matter complained of is that the Recorder erred in his ruling before the jury were sworn in, when he declined to exclude evidence of the street identification. The Recorder having listened, with a number of interruptions, to the submissions of counsel concluded that it was doubtful whether there was any breach of the Code. The Recorder also decided that, if there was a breach of the Code, then in the exercise of his discretion he would admit the identification evidence to be given by Mr Shoaib in relation to what he saw at the time of the arrest. 37. We do not agree with the Recorder's analysis. In our view there were clear breaches of the Code as identified above. There was no necessity for any breaches of the Code to be committed because the police could easily have taken the suspects to the police station and conducted a satisfactory identification parade at that location. 38. We now turn to the significance which the Recorder ought to have attached to the breaches of the Code. For this purpose it is necessary briefly to review some of the authorities relating to Code D. 39. In Popat [1998] 2 Cr.App.R 208, the appellant was the subject of a street identification. There was no subsequent identification parade conducted at the police station. A number of breaches of Code D occurred. The Court of Appeal carefully reviewed the matter and concluded that Popat's conviction was safe and they dismissed his appeal against conviction. 40. In R v Forbes [2001] 1 AC 473 , the House of Lords gave guidance about the conduct of trials where Code D had been breached. In the course of that judgment the House of Lords disapproved this court's decision in Popat . At paragraph 20 of the speech of Lord Bingham, in sub-paragraph (i), the following comment on the Code is set out: "Code D is intended to be an intensely practical document, giving police officers clear instructions on the approach that they should follow in specified circumstances. It is not old-fashioned literalism but sound interpretation to read the Code as meaning what it says." In paragraph 23 of his speech, Lord Bingham commented as follows on the effect of breaches of the Code: "It was readily and rightly accepted for the appellant that even if the failure to hold an identification parade was (as we have concluded) a breach of Code D 2.3, it does not necessarily follow that the evidence of Mr Tabussum's identification should have been excluded. That would depend on an exercise of judgment under Section 78 of PACE, taking account of all the circumstances of the case. But it was argued that in the circumstances here the appellant had been denied a fair trial and his conviction should be considered unsafe. The starting point of this argument was the recorder's ruling (correct in the light of R v Popat , but wrong in the light of our decision) that there had been no breach of paragraph 2.3. From this it had followed that the Recorder had never exercised her judgment whether evidence of Mr Tabassum’s street identification should be admitted or not, that the appellant's counsel had been denied the opportunity to cross-examine the police investigating officer on his decision not to hold an identification parade and that the jury had not been directed on the breach of the code and the possibility of prejudice to the defence of the appellant." 41. In K v Director of Public Prosecutions the victim was approached by a group of four persons, two black males, one white male and one mixed race black female, and was asked for money. The victim handed over his wallet which was searched and then returned to him. He was required to hand over his mobile phone, which he duly did. After the robbery the victim contacted the police who attended the scene. The victim described the group of four who had robbed him. A dog handler came to the scene. Two officers took the victim in their car to look for the group of four, whilst the dog and his handler started to track the path of the group. The dog and the handler were making good progress in that regard. In the meantime the police officers saw a group of four whom they thought might be the robbers. The officer told one of the suspects to walk to the police car with him as he wished to see if that suspect would be identified by the victim as a person responsible for the robbery. They pulled him over to the car and held him at the window. The victim, looking through the window of the police car, identified the person brought there as one of the four who had robbed him. 42. In due course the appellant, who had been so identified by the victim, stood trial at Grays Magistrates' Court before the District Judge. The appellant was convicted. However the Divisional Court, comprising Rose LJ and Henriques J, quashed that conviction. At paragraph 38, Henriques J giving the judgment of the court said this: "The difficulty .... is that, at the time when witness and suspect were permitted to view one another, the safeguards built into the statute and the Codes of Practice were simply not being observed. This was a clear case in which the victim should not have been directed towards the suspect." Henriques J went on to say that this was a case in which there should have been no confrontation. Instead, the victim and the suspect should have been kept apart, and an identification procedure should have been carried out later at the police station in accordance with Code D. The court thereafter ruled that the identification evidence should not have been admitted, and that therefore the conviction should be quashed. 43. In our view the Recorder in this case ought to have adopted the same analysis as that of the Divisional Court in K v DPP . This was a case where there were clear breaches of the Code of Practice and the Recorder ought to have disallowed the identification evidence. The evidence of the street identification could not safely or properly be adduced in view of the serial breaches of the Code which had occurred. Furthermore, the evidence of the video identification later that day could not be of any value. This was because the witness, Mr Shoaib, had seen quite close up the two suspects being arrested and there was therefore a substantial chance that during the video procedure, with the best will in the world and however honestly he attempted to do the task, Mr Shoaib would simply pick out the two suspects whom he had seen being arrested. 44. We bear in mind the observation of Lord Bingham in Forbes that Code D is an intensely practical document giving police officers clear instructions on the approach which they should follow. Unfortunately the fact is that in this case the police officers simply did not follow that clear and practical guidance. 45. We therefore conclude that the Recorder erred in his ruling at the start of the trial. Unfortunately, however, the Recorder's errors do not stop there. Having allowed the identification evidence to be admitted and the trial to proceed, the Recorder failed to give proper guidance in the summing-up. 46. There are three areas of concern in relation to the summing-up. First, the Recorder did not give a proper direction in relation to identification in accordance with the Court of Appeal's decision in Turnbull [1997] QB 224 . The Recorder gave part of the standard form Turnbull direction but he did not express this as a straightforward direction of the court. Instead, on a number of occasions he used phrases which suggested that the guidance which he was giving reflected a defence submission. At one point he interjected in the Turnbull direction "This is the point that defence counsel makes". At another point he interjected that "Defence counsel has quite understandably and correctly pointed out certain matters". 47. Mr McLoughlin for the prosecution submits that these blemishes in the Turnbull direction do not matter because what the Recorder was doing was identifying sound submissions made by the defence and bolstering them or supporting them. We do not agree with that submission. In our view the Turnbull direction ought to be given with the imprimatur of the court and it ought to be made clear that that is a direction of law from the judge to the jury. Thereafter, when the judge comes to summarise the competing arguments of the parties, he can of course point out those aspects of the Turnbull direction upon which the defence place reliance. That, however, does not mean that the Turnbull direction should be given with interjections about defence submissions. We also note that a normal part of the Turnbull direction was omitted. This is the observation that wrongful convictions have occurred in the past because of mistaken identification. 48. The second area of concern in relation to the summing up relates to the video identification. The Recorder in his summing-up failed to tell the jury that the evidence which they had heard about the video identification was of no significance. The Recorder should have said that the evidence was of no significance because by the time of the video identification Mr Shoaib had already seen the two suspects earlier that day and had identified them as his assailants. 49. The fact that the video evidence was of no weight had, no doubt, been drawn to the attention of the jury during the course of the trial. Indeed we understand that that was common ground between counsel. Nevertheless, when the Recorder or judge sums such a case up at the end, if a piece of evidence, apparently damaging to the defendant, is in fact of no significance, then that should be explained to the jury. 50. The third area of concern in relation to the summing-up relates to the breaches which had occurred of Code D. The Recorder dealt with the question of the Code and breaches of the Code in the course of his directions of law. He referred to the arguments of counsel and observed that "arguably" there was a breach of Code D. In our view that was wrong. The Recorder ought to have identified all of the breaches of the Code which occurred and directed the jury's attention to those matters. However, this matter does not stop there. The House of Lords in Forbes have stated that the trial judge should explain to the jury the significance of any breaches of the Code and the prejudice or possible prejudice which these might cause to the defence. The Recorder gave no such direction in this case. Indeed, the Recorder tended to belittle the breaches of the Code in so far as they occurred by pointing out that the Crown in their submissions were relying on "a degree of commonsense." Part 5. Conclusion 51. Let us now draw the threads together. In our view the identification evidence was flawed by reason of breaches of the Code and it should not therefore have been admitted. Furthermore, there were serious defects in the summing-up as outlined just now. When we stand back and look at this case in the round, we take the view that the conviction of the appellant is not safe and accordingly this appeal against conviction is allowed. 52. MR MCLOUGHLIN: My Lord, just for the sake of completeness and so I can get back to those instructing me to say I have raised this, it is implicit within your Lordships' ruling that there is no question of a retrial because the identification evidence against this defendant has been found to be flawed in the ways that you have outlined and therefore the Crown would simply have no evidence of identification to put before a second jury. 53. LORD JUSTICE JACKSON: You are clearly entitled to apply for a retrial if you see fit. However, we do not see how any such application could possibly succeed. I do not know if that indication is of any assistance. 54. MR MCLOUGHLIN: Indeed, it is. At least I may say that I raised it and had the reaction from your Lordships that I did.

```yaml citation: '[2011] EWCA Crim 312' date: '2011-02-09' judges: - LORD JUSTICE JACKSON - MR JUSTICE OPENSHAW ```

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

Case No: D1/201002010 Neutral Citation Number: [2011] EWCA Crim 726 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WOOLWICH CROWN COURT HIS HONOUR JUDGE SHORROCK T20097440 Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/03/2011 Before : LORD JUSTICE JACKSON MR JUSTICE SILBER and THE COMMON SERJEANT, HHJ BARKER QC, SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - T B F Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms Teresa Hay (instructed by Crown Prosecution Service ) for the Respondent Ms Maria Dineen (instructed by Registrar of Criminal Appeals ) for the Appellant Hearing date: 17 th February 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Jackson : 1. This judgment is in five parts, namely: Part 1. Introduction, Part 2. The Facts, Part 3. The Criminal Proceedings, Part 4. The Law, Part 5. The Appeal to the Court of Appeal. Part 1. Introduction 2. This is an appeal against conviction by a 62 year old man who has been convicted of committing sexual offences against his step-daughter and daughter between 30 and 40 years ago. 3. This appeal raises the familiar but intractable problem of when justice requires proceedings to be stayed in cases of historic sexual abuse. This problem is a sensitive one, because the criminal justice system must protect the victims of sexual abuse, who often, for understandable reasons, do not make complaint for many years. The criminal justice system must also protect defendants from facing a jury and possible conviction in circumstances where a fair trial is no longer possible. 4. After these introductory remarks, we must now turn to the facts of the present case. Part 2. The Facts 5. In 1969 the appellant married P H. P H had a daughter called K, born on 8 th September 1967, who became the appellant’s step-daughter. The next child of the family was A, who was born on 19 th October 1969. A was the daughter of the appellant and P H and, therefore, the half sister of K. The appellant and P H had two more children after that, K born on 20 th January 1971 and P born on 24 th July 1974. 6. K lived in the family home until 1975. When K reached the age of 8 she went to live with her grandmother. A lived in the family home until 1983. At the age of 14 A was placed into care. In 1984 the appellant left the family home and went to live with a woman who subsequently became his second wife, Mrs G F. 7. Many years later, when they were both married with children of their own, K and A made complaints to the police about serious sexual offences committed by the appellant. It was in 2008 that A, whose name is now A P, went to the police about these matters. The police then contacted K, whose name is now K F. K F then made similar allegations against the appellant. 8. In essence each of the two half sisters was alleging that the appellant had committed a series of sexual assaults upon them, starting when they were very young and culminating in sexual intercourse. 9. The police arrested and interviewed the appellant, who denied all allegations. Those denials were not accepted. Criminal proceedings then followed. Part 3. The Criminal Proceedings 10. The appellant was charged on an indictment containing thirteen counts. Counts 1 to 4 were allegations of indecent assault against K. Count 1 alleged that the appellant had touched K’s vagina while she sat on his lap at her grandmother’s house when she was about 2 or 3. Count 2 alleged that the appellant had rubbed his penis between her legs while she was in bed with him and her mother when she was probably aged 4 or 5. Count 3 alleged that the appellant had touched K’s vagina while bathing her when she was about 4 or 5 years old. Count 4 alleged that the appellant had forced K to perform oral sex on him while she was seated on the lavatory, when she was aged 4 to 6. Count 5 was a specimen count of rape said to have occurred when K was 12 years old during a period when her grandmother was in hospital. Count 6 was a specific allegation of rape said to have occurred in the living room when K was aged 12 or 13, during the same period when her grandmother was in hospital. Count 7 was a specimen count of indecency with a child reflecting K’s allegation that the appellant had forced her to masturbate him when she was about 13 years old, again during the period when her grandmother was in hospital. 11. Counts 8 and 9 were allegations of specific indecent assaults against A. Count 8 alleged that the appellant had touched A’s vagina while she was in bed with him, her mother and brother during a thunderstorm when she was aged 4 or 5. Count 9 alleged that the appellant had put his hand up A’s skirt and touched her over her knickers while she was standing on the cellar stairs at her grandmother’s house, when she was aged between 4 and 6. Count 10 was a specific allegation of rape when A was aged 7, which was said to have occurred in the living room while her mother was out working. Count 11 was a specimen count of sexual intercourse with a girl under 13, reflecting A’s allegation that from the age of about 7 to 11, the appellant had sexual intercourse with her in the living room more than ten times. Count 12 was a specimen count of buggery arising from A’s allegation that the appellant had anal sex with her two or three times when she was aged 8 or 9. Count 13 was a specimen count of indecency with a child, reflecting A’s allegation that the appellant had forced her to masturbate him. She could not give her age at the time. 12. The appellant pleaded not guilty to all counts. He stood trial at Woolwich Crown Court in March 2010 before Judge Shorrock and a jury. Both K and A gave evidence in support of their allegations. P H, who was the mother of both K and A, gave evidence for the prosecution. Ms H said that anal sex had never been a part of her sex life with the appellant. Between 1980 and 1985 she worked at the Twilights nightclub in the evenings. In relation to count 7, she walked into the living room unannounced. She saw K and the appellant sitting next to each other and K was masturbating him. This was in June or July 1980. K shot out of the room. Ms H was horrified. The appellant admitted to what he had done but said that he was drunk, that it had never happened before and would never happen again. Ms H did not accept that he was drunk. She spoke to K in her bedroom and asked her whether anything like that had ever happened before. K said “no, mummy, no”. Ms H was going to call the police but did not do so, partly because the appellant begged her not to and partly because of the advice her brother gave her. Ms H’s brother did not give evidence at the trial. However, the jury were informed that the brother had been contacted and was unable to recall Ms H contacting him regarding this incident. 13. K F’s husband, I F, gave evidence. He said that K told him about the sexual abuse in early 1992. Also, a friend of A P called T H gave evidence about complaints of sexual abuse which A used to make sometime before the police were involved. 14. The appellant gave evidence firmly denying all the allegations. He said that A had come to stay with him and G at Christmas 1984, when they enjoyed a normal father/daughter relationship. The appellant said that many of the incidents could not have happened. For example, he could not have committed the alleged indecent assaults in the grandmother’s house without being seen. This was because of the layout of the house. Also, he said that he was often away from home in connection with his work or in connection with his hobby, which was banger racing. 15. The appellant called four further defence witnesses. G F, the appellant’s wife, gave evidence that she had never seen the appellant behaving inappropriately towards young girls. He certainly never interfered with her daughter. She trusted the appellant with her own children and had no reason to suspect him of anything untoward. She confirmed the appellant’s evidence that when A visited them for Christmas in 1984 she behaved towards the appellant in a way that someone who had been abused would not have done. She also confirmed that thereafter they saw A regularly. 16. K F, the appellant’s son, gave evidence that he did not recall ever seeing the appellant behaving inappropriately towards K. He never got the impression that she felt uncomfortable in his presence. He trusted the appellant with his own children and had no reason to suspect him of anything untoward. 17. P S, the appellants’ daughter, gave evidence that she was never abused by him. She also went to live with her grandmother when she was 13 or 14, not to escape the appellant but because her grandmother was house bound. She did not recall ever seeing the appellant behaving inappropriately towards K when she was younger. She never got the impression that K felt uncomfortable in his presence. She trusted him with her own children and had no reason to suspect him of anything untoward. 18. S L, G F’s daughter, gave evidence that she had never seen the appellant behaving inappropriately towards young girls. He certainly never interfered with her. She confirmed that when A visited them for Christmas in 1984, she behaved towards the appellant in a way that someone who had been abused would not have done. She, S L, trusted him with her own children and had no reason to suspect the appellant of anything untoward. 19. Both prosecution and defence witnesses gave evidence about an incident in 1984 after the appellant had gone to live with G F. On this occasion P H and K visited the appellant and accused him of having molested K. The appellant denied the allegation of molestation. The appellant asserts that he reported this incident to the police and sought their help in preventing P and K from making unfounded allegations against him. At the time of the trial no police records existed either to confirm or to contradict this assertion. 20. At the end of the evidence the appellant applied to the judge to stay the proceedings on the grounds that, after such a long period of delay, a fair trial was not possible. The judge accepted that the long period of delay caused difficulties for the appellant. For example, the grandmother was no longer alive to confirm or contradict what the appellant said about the layout of her house. Also, independent evidence about the appellant’s whereabouts at relevant times could no longer be obtained. Also there was no medical evidence to support or contradict the complainants’ evidence. On the other hand the judge considered that he could compensate for all these matters by giving appropriate directions to the jury in his summing up. Accordingly the judge rejected the application for a stay. 21. Following that ruling, counsel delivered their closing speeches. The judge then summed the case up. In due course the jury returned unanimous verdicts, finding the appellant guilty on all thirteen counts. The appellant was sentenced to 14 years imprisonment. 22. The appellant was aggrieved by his conviction and now appeals to the Court of Appeal on two grounds: i) The proceedings ought to have been stayed because of the long delay between the alleged offences and the date of trial. ii) There were defects in the summing up. 23. Before addressing these two grounds of appeal, we must first review the relevant law. Part 4. The Law 24. The Crown Court has always had the inherent power to stay criminal proceedings on the grounds of abuse of process. One instance of abuse of process is the bringing of a prosecution so long after the events in issue that a fair trial has become impossible. 25. In R v J.A.K [1992] Crim LR 30, K was charged with having raped his younger sister twenty years previously, when the sister was aged 11 or 12. Ognall J ruled that the test was whether a fair trial was possible. He held that in the instant case the period of delay combined with the absence of any evidence capable of corroborating the complaint led to the inference that a fair trial would be impossible. Accordingly, the judge stayed the proceedings. In his commentary on this decision Professor Smith noted that whether a fair trial was possible depended on the circumstances of the case. He also noted a possible inconsistency between earlier decisions and observed that this was a question on which experienced judges might form different opinions. 26. In R v Jenkins [1998] Crim LR 411 the appellant was convicted in 1997 of four counts of indecent assault on a female, one count of attempted rape and one of attempted buggery. He was alleged to have committed specific offences against S and J (who were sisters) between 1963 and 1967, and against C and M (who were also sisters) between 1981 and 1985. S, who was 36 at trial, said that her memory was poor for the first ten years of her life and she remembered the incidents only after counselling in 1995. J, who was 35 at trial, said that she made no complaint until 1995 and at first only supported aspects of S’s account without making any allegations herself. The judge declined to order a stay. The Court of Appeal allowed the appellant’s appeal against conviction. The court said that the judge had discretion and the court would not interfere with the exercise of it, even where the members of the court would have exercised the discretion differently, unless the judge erred in principle or there was no material on which he could properly have arrived at his decision. However, the delay in the counts regarding S and J was exceptional and it was not a case where offences occurred over many years, nor where the complainants shared a home with the appellant. There were many unexplained delays, inconsistencies and instances of “improved memory” and some evidence of “contamination” in relation to J’s evidence. It was difficult for S and J (or the appellant) to recall precise details of events over thirty years ago, and the delay accordingly caused prejudice to the appellant in putting his defence. The convictions involving S and J were not safe. The other convictions were tainted, because evidence of the earlier incidents was led in support of them, so those convictions too were quashed. 27. In R v B [2003] EWCA (Crim) 319; [2003] 2 Cr App R 13 the appellant stood trial for sexually abusing his step-daughter between September 1968 and September 1972. In January 2002 an application was made before the start of trial that the proceedings should be stayed as an abuse of process by reason of delay. The judge refused the application. The appellant appealed on the ground that the evidence relied on was unreliable and unsupported by any independent evidence. The Court of Appeal allowed the appellant’s appeal and quashed the conviction. Lord Woolf CJ, giving the judgment of the court, said that the judge’s ruling, in which he refused to grant a stay, could not be faulted. However, such applications should not normally be made before the start of the trial. The best time to assess whether the process should be stayed on the grounds of delay is at the end of the trial when all the evidence has been called. 28. In that case the appellant was severely prejudiced by the delay. The complainant’s mother had died. She might have been able to give useful evidence. The public house in which the mother had worked no longer existed. The appellant’s work records no longer existed. Those records might have enabled him to prove that he was away from home when certain of the incidents were alleged to have occurred. Lord Woolf pointed out that at the end of the day the issue boiled down to who the jury believed. At paragraph 28 Lord Woolf said this: “In this case it has to be recognised that because of the delay that occurred, in our judgment the appellant was put in an impossible position to defend himself. He was not, as Mr Jenkins [defence counsel] says with force, able to conduct any proper cross examination of the complainant. There was no material he could put to the complainant to suggest that she had said that something had happened on one occasion which could be established to be incorrect. There was no material in the form of notes that were given to the doctors which showed that she had changed her account. All that the appellant could do was to say that he had not committed the acts alleged against him. Mr Jenkins says that to say to a jury, when faced with allegations of the sort that were made here, ‘I have not done it’ is virtually no defence at all.” In all the circumstances of that case this court concluded that the appellant’s conviction was unsafe. 29. In R v Smolinski [2004] 2 Cr App R 40 the appellant was charged, inter alia, with offences of indecent assault upon two females aged six and seven. The offences were first reported to the police some 20 years later. The appellant denied that he had been guilty of the conduct alleged. An application was made on his behalf to stay the proceedings for abuse of process. The submission was made that he could not receive a fair trial as a result of delay and that he would be prejudiced by lack of memory because of the time that had elapsed. The trial judge came to the conclusion that on the balance of probabilities it had not been shown that a fair trial was impossible. The appellant was convicted by a majority verdict of 10 to 2 on count 1, but the jury were unable to reach a verdict on counts 2 to 4, which were ordered to remain on the file. The appellant appealed. The Court of Appeal quashed the appellant’s conviction. Lord Woolf CJ, giving the judgment of the court, again stressed that in cases such as this applications to stay for abuse of process should not generally be made before trial. At paragraph 9 Lord Woolf said this: “If an application is to be made to a judge, the best time for doing so is after any evidence has been called. That means that on the one hand the court has had an opportunity of seeing the witnesses, and, on the other hand the complainants have had to go through the ordeal of giving evidence. However, despite the latter point, which obviously is one of importance, it seems to us that on the whole it is preferable for the evidence to be called and for a judge then to make his decision as to whether the trial should proceed or whether the evidence is such that it would not be safe for a jury to convict. That is a particularly helpful course if there is a danger of inconsistencies between the witnesses - - inconsistencies of the sort that it is common ground occurred here.” 30. Lord Woolf went on to note some discrepancies in the evidence. He also noted that one complainant had been believed by the jury and the other complainant had not been believed, even though they were both making similar allegations. In explaining the court’s conclusion at the end of his judgment, Lord Woolf said this: “11. ….We do not think it is right for this court to lay down the principle that because of the period which has elapsed (twenty years) when the complainant has given a reason for the delay, it is inevitably the case that the convictions will be unsafe. However, where there has been a long period of delay such as existed in this case, and where the complainants are young, as they were here (6 and 7 respectively at the time matters happened), this court should scrutinise convictions with particular care. Likewise, we consider that trial judges should scrutinise the evidence with particular care and come to a conclusion whether or not it is safe for the matter to be left to the jury. 12. In this case, looking at the matter as a whole, bearing in mind there are discrepancies, bearing in mind that the elder sister, until reminded by her younger sister, was apparently oblivious of what was alleged to have happened earlier, bearing in mind the conclusion which the jury came to on the first count but were unable to come to the same conclusion on the second count, that this is a case where the conviction is unsafe. Accordingly, we will therefore allow the appeal.” 31. In R v Joynson [2008] EWCA Crim 3049 the appellant was charged with fourteen sexual offences (12 indecent assaults and 2 counts of buggery) committed approximately 35 years previously at a boarding school where he was working as a house parent. The five complainants were former pupils at the school. At the end of the evidence the defence applied for a stay on the basis that the long period of delay and the absence of school records made a fair trial impossible. The trial judge rejected that application and in due course the jury found the appellant guilty on all counts. 32. This court, comprising Lord Judge CJ, Toulson LJ and Maddison J quashed the appellant’s conviction. Toulson LJ, giving the judgment of the court, identified the various aspects of prejudice caused to the appellant. He said that the next step was to consider whether the safeguards provided by the trial process were such that the convictions may be regarded as safe. He then went on to analyse the protection afforded by those safeguards in this way: “32. We turn to consider the adequacy of the safeguards, doing so again in the context of the particular facts of this case. Mr Gosling has referred us to the protections inherent in the trial system. One safeguard was the ability of Mr Barlow to cross-examine the complainants and other witnesses, to which the judge referred. However, the effectiveness of any cross-examination must be dependent on the material to be deployed. In one case there may be ample other material and the significance of missing material may therefore be small. In another case the absence of material which previously existed may be critical. 33. In relation to PF, the defence, as Mr Gosling has rightly submitted, had available to it the contradiction between PF and his mother. It also had the evidence of the appellant himself that he had left the school before DC arrived. In relation to those issues the jury was left with the word of one witness against another. They lacked contemporaneous evidence which would have settled those points. There was no objective evidence to show that PF was wrong. Without that material the effectiveness of any cross-examination was bound to be reduced. 34. We also find it difficult in this case to see how the specific prejudice which we have identified could be nullified or made practically harmless by a “strong direction”. A jury could be warned - - and indeed this jury was properly warned - - to consider with special care the risk of memories becoming unreliable through passage of time, but, as the judge also correctly directed them, the jury had to decide the case on the evidence. No general warning could in this case be a substitute for the documents which were missing. 35. This court is always slow to allow an appeal against a conviction where the case has been handled with care by an experienced judge and the jury has reached its conclusions of fact after hearing all the witnesses. Nevertheless, we must stand back from the case and ask ourselves whether we regard the convictions as safe. The case as presented to us may be a little different from the way it was presented to the judge when he read the skeleton arguments which were before him, but we are troubled by the very great delay and its particular consequences in the context of the specific allegations in this case. We have reached the conclusion that we cannot regard these convictions as safe.” 33. In R v MacKreth (deceased) [2009] EWCA Crim 1849 the appellant was convicted on 23 counts of indecent assault and 10 counts of rape, all committed between 23 and 27 years before trial. During the relevant period the appellant had been in charge of a residential care home for teenage girls who were in some sort of trouble. The trial judge rejected the appellant’s application for a stay on the grounds of abuse of process at the start of the trial. This court approved the judge’s rejection of the stay application and upheld the appellant’s conviction. 34. Rix LJ, giving the judgment of the court, noted that the principles for dealing with stay applications had not changed over the last decade. However, the courts were now astute to pay real and not mere lip service to a concern to do justice in such cases. Those principles were as follows. First, it is for the defence to prove, on the balance of probabilities, that the continuation of the proceedings would amount to an abuse of process. Secondly, stays of proceedings in such circumstances should be the exception rather than the rule. Where the application for a stay is based on delay, a stay should be an exception rather than the rule even if the delay could be said to be unjustifiable. Still more rarely should a stay be imposed in the absence of any fault on the part of the complainant. Thirdly, the judge considering an application to stay of this kind may have regard to his powers to exclude evidence, to give appropriate directions to the jury about delay, and in particular to give directions to the jury about the difficulties which the delay has presented to the defence. Fourthly, the judge may also take into account the extent to which the prosecution case depends on contemporaneous documents. The more it does so, the more difficult it will be for a defendant to establish that an indictment should be stayed. Fifthly, where a delay results from the reticence of an alleged victim in reporting an allegation of sexual abuse, one is entitled to adopt an understanding attitude towards the difficulties that can be encountered by such witnesses in making complaints. Sixthly, as long as a fair trial can be held, it is in the public interest that cases such as this should be tried. Seventhly, a judge may stay the whole indictment or individual counts of an indictment. 35. The court noted that in the instant case extensive records relating to the care home survived, as listed in paragraph 45 of the judgment. As to the documents which were missing, the appellant’s counsel was unable to point to any specific way in which those would have assisted the defence, apart from putting forward pure speculation. After a careful scrutiny of the circumstances of this particular case the Court of Appeal concluded that the appellant’s conviction was safe. 36. In R v Hereworth [2011] EWCA Crim 74 this court applied the principles stated in MacKreth in upholding the appellant's conviction for sexual offences against children some 25 years after the events in question. 37. From this review of authority we derive the following five propositions in relation to criminal prosecutions brought after a long delay: i) The court should stay proceedings on some or all counts of the indictment for abuse of process if, and only if, it is satisfied on balance of probabilities that by reason of delay a fair trial is not possible on those counts. ii) It is now recognised that usually the proper time for the defence to make such an application and for the judge to rule upon it is at trial, after all the evidence has been called. iii) In assessing what prejudice has been caused to the defendant on any particular count by reason of delay, the court should consider what evidence directly relevant to the defence case has been lost through the passage of time. Vague speculation that lost documents or deceased witnesses might have assisted the defendant is not helpful. The court should also consider what evidence has survived the passage of time. The court should then examine critically how important the missing evidence is in the context of the case as a whole. iv) Having identified the prejudice caused to the defence by reason of the delay, it is then necessary to consider to what extent the judge can compensate for that prejudice by emphasising guidance given in standard directions or formulating special directions to the jury. Where important independent evidence has been lost over time, it may not be known which party that evidence would have supported. There may be cases in which no direction to the jury can dispel the resultant prejudice which one or other of the parties must suffer, but this depends on the facts of the case. v) If the complainant’s delay in coming forward is unjustified, that is relevant to the question whether it is fair to try the defendant so long after the events in issue. In determining whether the complainant’s delay is unjustified, it must be firmly borne in mind that victims of sexual abuse are often unwilling to reveal or talk about their experiences for some time and for good reason. 38. Some of the reported decisions contain statements to the effect that a stay on grounds of delay will only succeed in rare cases. This statement is no doubt true, because the prosecution will be scrupulous in weeding out cases that are vulnerable to abuse applications. The prosecution generally will not put the complainants in such cases through the unnecessary ordeal of giving evidence. However, the statement that stay applications only rarely succeed is of limited help in any individual case. As Rix LJ observed in MacKreth , “since about 2000 the courts have been astute to pay real and not mere lip service to a concern to do justice in such cases”. This concern is evidenced by the Court of Appeal decisions in B , Smolinski and Joynson . 39. There are also references in the reported decisions to the judge’s power to compensate for delay by excluding evidence. This is a power which should be borne in mind during the course of the trial and the judge should exclude any evidence which would render the trial unfair. However, if the stay application is made near the end of the trial, by that stage all decisions on admitting or excluding evidence will have been made. 40. This completes our review of the authorities cited by counsel. We must now turn to the appeal in the present case. Part 5. The Appeal to the Court of Appeal 41. The principal ground of appeal is that the judge erred in failing to stay the criminal proceedings at the end of the evidence. In addition, as a subsidiary ground of appeal, the appellant makes certain criticisms of the summing up. It is not necessary, however, to deal with that subsidiary ground. 42. In support of the main ground of appeal Miss Maria Dineen, for the appellant, points to the massive time lag between the events in issue and the trial. The alleged offences against K occurred between 30 and 40 years ago. The alleged offences against A occurred between 30 and 37 years ago. Ms Dineen further submits that the delay in this case was unjustified and it has seriously prejudiced the appellant’s defence. All witnesses had considerable difficulty in recalling events of the 1970s. 43. We accept that the delay here is unusually long, even in the context of cases concerning historic sexual abuse. Both the complainants and the appellant had considerable difficulty in recollecting events between 1971 and 1981. This inevitably affected the reliability of their evidence. 44. As a result of the passage of time much of the evidence upon which the appellant would have relied was no longer available. The appellant could not call the grandmother to say that she had seen nothing untoward. Nor was it possible to adduce any evidence about the layout of grandmothers' house, a matter upon which the appellant placed some relIce. The appellant’s work records would also have been important evidence, as the appellant contended that he was away from home for much of the time during the relevant period. 45. There was controversy at trial as to when the grandmother was in hospital. These dates were important, as K returned to live at home when her grandmother was in hospital and K alleged that the appellant raped her during this period. Unfortunately the hospital records relating to the grandmother no longer existed. 46. In many cases of historic sexual abuse there is justification for the delay in bringing criminal proceedings. That is not so, however, in this case. It is common ground between prosecution and defence that in 1984, some 27 years ago, K and her mother visited the appellant for a doorstep confrontation. On that occasion they accused the appellant of having molested K. No good reason has been put forward why K’s complaints were not reported to the police in or soon after 1984. That would inevitably have led to the police interviewing A, who was then in care. 47. Ms Teresa Hay for the prosecution points out that there was corroboration for count 7, in that P H gave evidence that she saw K masturbating the appellant on the occasion in question. The judge directed the jury that if they found count 7 proved, that could constitute evidence of propensity which the jury may take into account when considering the other 12 counts in that indictment. There is no criticism of that direction. 48. We were initially inclined to view P H’s evidence on count 7 as a powerful factor in the prosecution’s favour, even though the law no longer requires corroboration in sexual cases. However, we have come to the conclusion that the existence of this evidence does not support the prosecution contention that a fair trial was possible after such lengthy delay. First, the defence case was that P H and the complainants had colluded. They were all motivated by malice because the appellant had walked out in 1984 and gone to live with another woman. In this regard it should be noted that the judge recognised the possibility of collusion between the two complainants and directed the jury to consider the evidence of each complainant quite separately: see pages 19 and 20 of the summing up. Secondly, there were many inconsistencies between the evidence given by P H and by K F concerning count 7, for example when the incident happened, what was said afterwards and so forth. Thirdly, P H states that she discussed the incident with her brother and took his advice about what to do. Ms H’s brother has no recollection of any such conversation. 49. In our view this was a case, like Joynson , in which no direction given by the judge to the jury could compensate the appellant for the prejudice suffered by reason of the long delay. Also it was a case, like B , in which the long delay had left the appellant’s counsel with no material to use in cross-examination. Essentially, the jury were left with the complainants’ evidence that the offences occurred and the appellant’s denial of the allegations. The difficulties which the appellant faced in this case were similar to those described by Lord Woolf CJ in paragraph 28 of B . Ms Hay conceded that that was a very difficult paragraph for the prosecution on this appeal. 50. We have carefully considered all the circumstances of this case in the light of the guidance given by the Court of Appeal in the earlier cases summarised in Part 4 above. We do not lightly interfere with the decision of the trial judge in his consideration of the stay application. However, we have come to the conclusion that his decision was wrong. The long delay in this case before commencement of the criminal proceedings had the consequence that a fair trial was no longer possible. For all of these reasons we allow the appellant’s appeal and quash his conviction on all counts on the indictment.

```yaml citation: '[2011] EWCA Crim 726' date: '2011-03-24' judges: - LORD JUSTICE JACKSON - MR JUSTICE SILBER ```

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: 200405580/5581/A3 Neutral Citation Number: [2004] EWCA Crim 3487 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 9th December 2004 B E F O R E: LORD JUSTICE JUDGE (Deputy Chief Justice of England and Wales) MRS JUSTICE DOBBS DBE SIR MICHAEL WRIGHT - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 115 and 116 OF 2004 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS S WHITEHOUSE appeared on behalf of the ATTORNEY GENERAL MISS S A RODHAM appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. Lord Justice Judge: This is a reference by HM Attorney General under section 36 of the Criminal Justice Act 1988 of sentences imposed on two offenders, Christopher Hiscock and Jeffrey Coombes, on 3rd September 2004. The case was heard at Woolwich Crown Court before His Honour Judge Carroll. The offenders pleaded guilty to possession of cannabis with intent to supply contrary to section 5(3) of the Misuse of Drugs Act 1971 . Each was sentenced to two years' imprisonment. 2. Christopher Hiscock is 42 years old, having been born in March 1962. Jeffrey Coombes is 33 years old, having been born in June 1972. Hiscock is a man of positive good character without any previous convictions or court appearances. Coombes was treated as a man of good character. Both men put positive references before the sentencing judge. 3. The facts of this offence are very simple. The offender Hiscock was driving a Mercedes van. His co-offender Coombes was driving a VW Golf. The van contained 120 kilogrammes of cannabis in 240 packages. On the day in question, 19th July 2003, police officers from the National Crime Squad, together with officers from Customs and Excise, followed this convoy. They noted numerous telephone calls between the two offenders and between each of the offenders and a number ascribed in the memories of their telephones to someone known as "Big". They stopped the van and it contained this valuable quantity of cannabis. The street value was estimated at something over half a million pounds, £500,000 to £630,000. The bulk value was something between £240,000 and £360,000. 4. The offenders were interviewed. They made no comment. They were charged with conspiracy to supply cannabis. They pleaded not guilty to that charge. They submitted defence case statements asserting that they were unaware of the contents of the van. 5. The case was then listed for trial. This time a fresh indictment was prepared. This charged the offenders with possession of cannabis with intent to supply it. To that charge both offenders pleaded guilty. They put forward a basis of plea, which was accepted by the Crown and signed by all three counsel. The basis of plea reads: "1. [The defendants] were asked to transport a van containing cannabis from the farm to another for a sum of money. [The sum of money was £400 each]. 2. They did not have contact with the drugs before the morning of 19th July 2003, nor did they have any role in its ongoing sale or other financial interest in it. The single delivery was the full extent of their involvement, financial or otherwise. 3. As a result they were unaware of the exact quantity or value of the drugs." 6. We pause to reflect that it is odd that these two men were trusted with goods of so much value and that the owners were prepared to trust them by giving them so little for it. But, more important, we have to record our concern that this basis of plea was accepted at all. The quantity of drugs found in the van was very substantial and the offenders provided no information to tell anyone where the cannabis had come from, or its ultimate destination, or anything at all about it. It simply emerged out of the blue sky when they turned up and were asked to drive the transports. 7. The offenders pleaded guilty. The judge gave them credit for that plea, treating the pleas that were tendered as pleas that have were offered at the first available opportunity. This was the first opportunity they had had to plead guilty to the count to which they did plead guilty. There was in fact ample evidence of conspiracy to supply. 8. It is submitted on behalf of the Attorney General that these sentences are lenient, excessively so, and ones with which the Court should interfere. Our attention has been drawn to a number of authorities, including, as the starting point, Aramah , a very well-known authority, offering guidance from 1982. We have also been reminded of more recent cases of which the most recent is Lee Odey [2001] 2 Cr App R(S) 85 at page 388. We mean no discourtesy to those who have supplied those authorities, but we have to be careful to remember that any sentencing decision, other than a guideline decision expressed to be so, is no more than an indication of the Court's view of the appropriate sentence in a particular case with a particular defendant in particular factual circumstances. 9. This was a serious case of its kind. What the sentencing judge had to do, however, was to reflect on the agreed basis of plea. That meant that these offenders had handled very substantial quantities of cannabis, but that their involvement was very limited and that their financial profit from it was in context absolutely minuscule. We cannot avoid being troubled by this agreed basis of plea, and by the fact that the offenders did indeed seem to come out of nowhere into possession of this valuable haul of cannabis and without having any real idea of where it might be going. 10. We do not know what counsel for the prosecution's instructions were, or the information which was available to him. It was not counsel who appears today on behalf of the Attorney General. What we have to say is said in measured terms, because it may be that we are offering criticism which is unjustified, but we have to assume that counsel was justified in reaching the agreement that he did. If we do assume that, we have to assume there must have been powerful evidence to support it. If not, it is a matter of complete surprise that it was accepted in terms that these men had no contact with the drugs before the morning of 19th July, had no other role, in effect, had no knowledge of anything except that they were asked to transport the van containing cannabis. On the face of it, this was not realistic. 11. The Court has attempted recently, just before the summer vacation, in a case called Underwood on 31st July 2004, to ask counsel and judges examining written bases of pleas to examine the entire process with great care. Neither the judge nor prosecuting counsel would have had the benefit of that judgment on 19th July 2004. If they had, perhaps the basis of plea would not have been agreed. 12. We have reflected on the judge's analysis based on the agreed basis of plea. He also had powerful personal mitigation available to each of the offenders and he rightly examined the nature of the potential impact of a prison sentence on each of them and their families. We also note that there are good reports for both offenders from the prisons at which their sentences are being served. 13. In summary, by reference to sentencing standards in this class of case for the amount of cannabis involved in this particular offence, the sentences were undoubtedly lenient sentences. We have, therefore, had to reflect carefully on them. We have come to this conclusion. If we allow, as we would have to allow, for the double jeopardy principle bearing in mind the agreed basis of plea, it would not, in our judgment, be appropriate to increase the sentences. Accordingly, although we grant leave, the reference will be dismissed.

```yaml citation: '[2004] EWCA Crim 3487' date: '2004-12-09' judges: - LORD JUSTICE JUDGE - MRS JUSTICE DOBBS DBE - SIR MICHAEL WRIGHT ```

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

Neutral Citation Number: [2008] EWCA Crim 938 No: 2007/5479/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Monday, 21 April 2008 B e f o r e : LORD JUSTICE MOSES MR JUSTICE MADDISON SIR RICHARD CURTIS - - - - - - - - - - - - - - R E G I N A v RAJA IQBAL - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr D Rosario appeared on behalf of the Applicant - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE MADDISON: During the first part of 2007 the applicant, Raja Parvez Iqbal, who is 43 years of age, appeared before the Crown Court in Sheffield in relation to five indictments. Indictment No 1 had two counts. Taken together they charged the applicant, Richard Gordon and Richard Anthony Blake with conspiracy to transfer the proceeds of drug trafficking and to transfer criminal property between 3rd January 2000 and 24th December 2004 -- although Mr Rosario on the applicant's behalf informs us today, and we accept, that the evidence pointed to the applicant's involvement having begun in or about November 2001. In reality the two counts represented one continuous course of activity involving the transfer of sums of money from the United Kingdom to Jamaica by way of a money laundering operation. There were two counts because during the period concerned one Act of Parliament, making such conduct illegal, the Drug Trafficking Act 1984, was replaced by another, the Proceeds of Crime Act 2002 , which had the same effect. 2. Following a trial in April 2007 the applicant was convicted of both counts by a jury. The co-accused Gordon pleaded guilty on rearraignment to count 2 alone and no evidence was offered against him in respect of count 1. The co-accused Richard Blake pleaded guilty to both counts and indeed gave evidence for the prosecution against the applicant. 3. Indictment No 2 contained three counts. Counts 1 and 2 charged the applicant, Telita Maria Fowler and Robert Alexander Fowler with conspiracies similar to and between the same dates as those charged in indictment No 1. In addition Robert Fowler was charged in count 3 with possessing criminal property, namely £590 in cash. The applicant was convicted by a jury of counts 1 and 2, following a trial ending on 2nd May 2007. Telita Fowler pleaded guilty to counts 1 and 2. Robert Fowler was convicted by the jury of all three counts. 4. Indictment No 3 charged the applicant with further similar offences, but that indictment was ordered as against him to lie on the file on the usual terms. 5. In indictment No 4 the applicant was the only defendant. There were 17 counts. Counts 1 and 2 were ordered to lie on the file on the usual terms, but following a third trial, this one during May 2007, the applicant was convicted by the jury of counts 3 to 17. All were counts of conspiracy to transfer the proceeds of drug trafficking or criminal property between the same dates as those stated in the earlier indictments. The conspiracies in indictment 4 were all charged as conspiracies with a person or persons unknown. Six different false addresses were used in the course of those conspiracies, as was information wrongfully obtained from three passports. 6. In indictment No 5 the applicant was one of seven defendants. There were two counts again charging conspiracy to transfer the proceeds of drug trafficking and criminal property, this time between 3rd January 2000 and 20th March 2005. Three of the defendants, including the applicant, were charged in count 1 and all seven were charged in count 2. The applicant was convicted of both counts following a trial ending on 6th July 2007. One of the other six defendants was acquitted by the jury. As to the other five, Carl Anthony Hinds pleaded guilty on rearraignment to both counts. Jennifer Elaine Hazel pleaded guilty on rearraignment to both counts. Aron McKenzie Hines and Nathaniel Wynter pleaded guilty to count 2, the only count concerning them. Princess Elizabeth Strodder was convicted by the jury of count 2, the only count concerning her. 7. It is necessary to refer briefly to yet further indictments. In indictment No 6 Carl Hinds was charged with conspiracy to supply crack cocaine to another person. He pleaded guilty. In indictment No 7 another defendant, Natalie Jane Czerwinski, faced 15 counts of transferring criminal property and two of possessing a controlled drug with intent to supply. After a trial she was convicted by the jury of 12 of the counts of transferring criminal property and of both of the drugs offences. 8. It has been necessary to refer to all of the defendants associated with the applicant because reference is made to them and to the sentences received by some of them in the course of the submissions made on the applicant's behalf. 9. On 20th September 2007 the applicant was sentenced by His Honour Judge Robertshaw, who had presided over all of the trials, to serve 11 years' imprisonment concurrently on each of the counts, there being 21 in all, of which the applicant had been convicted. A substantial confiscation order was also made in his case. 10. Richard Gordon was sentenced to 10 months' imprisonment. Richard Blake was sentenced to a total of five years' imprisonment. A substantial confiscation order was made in his case and he was recommended for deportation. Telita Maria Fowler received a total sentence of two years' imprisonment and a confiscation order was made. Robert Fowler was sentenced to a total of four years' imprisonment and recommended for deportation. A substantial confiscation order was made in his case also. Carl Anthony Hinds received a total of eight years' imprisonment, of which five years was for the offences charged in indictment No 5, with three years consecutively for the offence in indictment No 6. A substantial confiscation order was also made in his case and he too was recommended for deportation. Jennifer Hazel and Aron Hines were each sentenced to 16 months' imprisonment. Nathaniel Wynter received 10 months' imprisonment suspended for two years and Princess Elizabeth Strodder received three months' imprisonment suspended for two years. Natalie Czerwinski was sentenced to a total of two years nine months' imprisonment of which 15 months related to the transfer of criminal property and 18 months consecutively to the drugs charges. 11. The applicant applies for an extension of time of about two weeks in which to renew his application for leave to appeal against his total sentence of 11 years' imprisonment following refusal by the single judge. We grant the extension of time. 12. Despite the complexity of the indictments, the circumstances of the offences were comparatively straightforward. The applicant was the proprietor of a newsagents shop in Sheffield. From these premises he conducted numerous international money transfers through franchises known as Western Union and later Money Gram. Each transfer was effected by the completion of a "send" form and the handing over of a sum of money by the client concerned. An equivalent amount of money would then become available almost immediately to a named person in a nominated country. 13. During the periods charged in the indictments the applicant used this mechanism to facilitate the transfer to Jamaica of sums of money he knew to be the proceeds of drug trafficking. He did this over a period of at least three years and on a very substantial scale. False addresses and details obtained from stolen passports were used in connection with some of the transfers. The co-accused Hinds was a regular user of the applicant's services. Hinds would use details of various friends and associates, who became co-conspirators, to send money on his behalf. On some occasions the applicant himself would provide false passports and false details of this kind and would actively encourage some of the transferors to use his agency. In all, the applicant was involved in 1,523 separate transfers of money, totalling just over £1 million. 14. The applicant was of previous good character. The judge had a pre-sentence report which referred to difficulties within the applicant's family in that his wife was suffering from schizophrenia and the couple had three young children. The applicant was seen as presenting a low risk of re-conviction. 15. Passing sentence, the judge made the basis on which the sentences were to be passed very clear. He said as follows: "One of the great social evils of our age is the trafficking of dangerous class A drugs. It brings misery to so many people, to users and their families, to the victims of robbery, burglary and fraud committed by users who can only raise the money needed to satisfy their craving by resorting to crime, to honest and decent people who have the great misfortune to live in neighbourhoods blighted by the activities of drug dealers. Drug dealing is both an abhorrent and highly lucrative activity. For many reasons drug dealers need to rid themselves of the cash proceeds of their trade and to do so early and fast. ... Over many months at this court beginning in April of this year, a series of trials have taken place involving the laundering of the substantial cash proceeds from trafficking class A drugs on the streets of Sheffield. ... Having listened to all of the evidence in all of those trials, I am left in no doubt that there exists a significant degree of direction and control of the Sheffield drugs trade from Jamaica. It was where drug dealers were being commissioned and sent out into the field. It was where substantial sums of money, the proceeds of drug trafficking in Sheffield, were being returned. Lifestyles which were lavish, bordering on the extravagant, were being financed in Jamaica and all of this on the back of misery to this city. ... What all of this adds up to may be stated in one word; deterrence. Those who do what each one of you has done to a greater or lesser extent play a vital role in the whole illegal drugs trade. The principal purpose of sentencing has to be deterrence, making it clear by the message which is sent out, not only in Sheffield but to Enham Town, Jamaica, where this criminal activity appears to be largely based, that those who lend their assistance in this way are only slightly less culpable than the actual dealers and incidentally I have little doubt that before today is out the results of this case will be known in Enham Town Jamaica, because there will be those present in this courtroom ready to relay it." 16. The judge went on to indicate that he had given credit to those defendants who had pleaded guilty and had taken into account the number and value of the transactions attributed to each of the defendants. He had also taken into account the nature and extent of their individual roles. 17. Turning to this applicant individually, the judge described him as a linchpin in the entire operation with a role which was crucial and pivotal. The judge pronounced himself satisfied that the applicant knew perfectly well what was expected of him: "Your breach of the responsibility with which you were entrusted was flagrant, calculated and chronic." 18. It is submitted that the total sentence of 11 years was manifestly excessive; and that the judge's starting point was too high, especially compared with a previous decision of this court and with the sentences received by the co-accused and in particular Blake, Fowler and Hinds. The judge, it is said, overstated the position in saying that it was possible, but only just possible, to imagine a worse case than that. Reliance is placed on the case of El-Kurd [2001] Crim.L.R 234, in which this court reduced from 14 years to 12 the sentence on a man who had transferred £70 million over a two year period. Blake and Hinds, it is observed, had been involved in transfers of £300,000 but were also directly implicated in drug trafficking. Fowler, involved in the transfer of £200,000, was said by the judge to have been close to those involved in generating the money. Finally, it was submitted that the judge attached insufficient weight to the good character of the applicant, to the personal mitigation available to him and to the modest financial benefit he was said to have received. 19. We disagree with those submissions. Having presided over all four trials the judge took the view that deterrent sentences were appropriate for the reasons which he clearly explained and which we endorse. The defendant was rightly described as the linchpin of the operation. The judge was very well placed to assess the different roles of the various defendants and it is obvious from his sentencing remarks that he did so carefully, taking into account their roles, pleas, criminal records (where applicable) and in Blake's case the fact that he had given evidence against the defendant, albeit that aspects of his evidence were considered unreliable. 20. It is right to say that the defendant in El-Kurd had transferred very much more money than this applicant, but over a shorter period, and he was sentenced specifically on the basis that he had not been proved to have laundered drugs money. In the case of Monfries [2004] 2 Cr.App.R (S) 3 this court held that it was appropriate to have some regard to the appropriate sentence for the antecedent offence when sentencing for a money laundering offence, although there was no direct correlation, and that the money launderer's knowledge of the antecedent offence is a relevant factor. In this case the antecedent offence was one of trafficking in class A drugs on a large scale and the applicant knew it. 21. For these reasons we agree with the single judge that it cannot properly be argued that the total sentence of 11 years was manifestly excessive, even though it might be seen as being towards the top end of the relevant sentencing bracket and for those reasons this application is refused.

```yaml citation: '[2008] EWCA Crim 938' date: '2008-04-21' judges: - LORD JUSTICE MOSES - MR JUSTICE MADDISON - 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: [2016] EWCA Crim 2237 Case No. 2016/01363/C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Queen Elizabeth II Law Court Derby Square Liverpool L2 1XA Date: Tuesday 6th December 2016 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Thomas of Cwmgiedd ) MR JUSTICE WILLIAM DAVIS and THE RECORDER OF MANCHESTER ( His Honour Judge Stockdale QC ) ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - - - - - - - R E G I N A v TERRI-MARIE PALMER - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (trading as DTI) 165 Fleet Street, London EC4 Telephone No: 020 7404 1400; Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr M Trafford QC appeared on behalf of the Appellant Mr F McEntee appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T ( As Approved by the Court ) THE LORD CHIEF JUSTICE: 1. On 19 February 2016 in the Crown Court at Preston before Kerr J and a jury the appellant (now aged 24) was convicted of the murder on 14 August 2015 of Damon Searson, aged 24 years. She was sentenced to life imprisonment with a minimum term of twelve years. She appeals against conviction with the leave of the single judge. 2. The issue before us relates to social media messages and the way they should be adduced in evidence. We shall set them out in a moment. 3. We say at the outset that this is a tragic case. It is unnecessary to set out the details of the tragedy, particularly for the appellant for whom this court and plainly the trial judge had the greatest sympathy. An outline will suffice. The factual background 4. The deceased had a very bad criminal record. It comprised 18 convictions for 33 offences, including one for assault occasioning actual bodily harm on a former girlfriend. The last court appearance of the deceased had been in July 2012. He had a very serious alcohol problem, but by early 2015 was in rehabilitation. 5. It was then that he met the appellant, who was a year younger than he. She had qualified as a hairdresser. She had worked hard and long hours in a hairdressing salon. The deceased visited that salon to have his hair cut, but he attended more and more frequently. From time to time he was on his own with the appellant. In circumstances which are not altogether clear they began a relationship. 6. There is little doubt that their relationship was emotional and stormy. Although at times they had dreams, as do many young couples, of setting up a home together, they also had massive rows. As is common these days, many details were set out in Facebook exchanges both with the deceased and with the appellant's close friends. From those exchanges it is clear that the appellant resented the deceased's drinking and taking drugs. Although he would stop drinking for a while, he would always relapse. When drunk he could be very aggressive and very violent. 7. The appellant, on the other hand, wanted him to live a decent life. She wanted him to work as hard as she did. However, he was more interested in spending her money and living off her hard work than earning a living for himself. Indeed, he resented the long hours that it took her to earn the money which he would then spend. In addition, he was described as possessive and controlling. The appellant believed that he was seeing other women, although she was not seeing other men. She resented being falsely accused by him of infidelity and being called "a slag" by him. Despite his treatment of her and his failure to take any steps to reform himself, she loved him. In short, she appears to have believed that it was her mission in life to make him a better person so that he could live a good life and find happiness with her. 8. In February 2015 the deceased left rehabilitation and move in to live with the appellant and her mother. That arrangement did not last long. The appellant tried to get him to work. She took him out with friends, including her best friend, Chelsea O'Brien. Eventually, the appellant found a caravan to rent in Morecambe. She transferred money into the deceased's account for him to contribute towards it. Unsurprisingly, he spent it on drink. On 1 August 2015 they moved into the caravan. At first they were happy, but rows then started. 9. The circumstances in which the deceased was killed on 14 August 2015 can be briefly related. The account that was given by the appellant was largely accepted by the prosecution, up until the time of the fatal incident. During the day the appellant had worked, as was usual. The deceased had met her and they had gone back to the caravan and had supper. However, at some time during the evening it appears that arguments started on topics such as the deceased's failure to find work, he calling her names, accusing her of talking to other men, and his excessive drinking. It was plain from her own evidence, supplemented by Facebook messages she posted, that, unsurprisingly, she became very angry. 10. What happened in the period immediately before midnight is disputed. There can be little doubt that the appellant threw certain things at the deceased from the kitchen at one end of the caravan to where he was on the sofa at the other end. At midnight Scott Addy, a neighbour in the next door caravan, heard a knock on his caravan door and heard a female voice. He opened the door but found no one, so he walked a short distance to the appellant's caravan and entered. He saw the deceased lying on the floor with the appellant pressing cloths to his chest. She had a phone in her hand. She was calling an ambulance. The call had been made at 12.07am. The appellant said that the deceased was drunk, he had been messing with a knife and it had gone into his chest. 11. When an ambulance and police officers attended the scene they were given an account by the appellant that they had been play-fighting when the deceased had picked up a knife and pretended to get her with it. She had hit him away. He was messing around with her, holding the knife. When she hit him, his arm went away and the knife stuck into him. 12. The following day, after her arrest and when interviewed at Lancaster Police Station, she provided a prepared statement. In that account she said that the deceased was lying on a couch with the phone nearby. There had been a knife on the counter next to her and he had asked her to throw the knife to him. She had presumed that he proposed to use the knife to fix the phone. She threw the knife towards him, aiming for the floor in front of him. The next thing she saw was him pulling the knife out of his chest and blood was pouring from him. She then called an ambulance. 13. A post-mortem examination showed that there had been a penetrating stab wound on the left side of the chest. The knife had passed horizontally inwards, had cut through the protective coating between the ribs and had penetrated the heart. The wound was approximately 10cm in length. The course of the trial 14. Before turning to the issue involving the social media messages, it may be helpful briefly to mention what happened at the trial. It was the Crown's case that the appellant had lost her temper and had inflicted the wounds, intending to cause really serious bodily harm. The Crown relied on the Facebook and text messages between the appellant and the deceased to show the tumultuous relationship to which we have referred and the significant lack of trust between them. 15. The evidence of the pathologist was particularly relied on as showing that the appellant's version of events did not fit in with the way in which the wound had been caused. 16. The defence case was that the deceased had been lying on the sofa and the appellant had thrown the knife towards the ground in the course of an argument. She did not see the weapon enter the deceased. It may be that he was high on alcohol, and he may have rolled over on to it and somehow the knife had entered the heart. 17. It is important to point out that, consistent with the appellant's instructions, no defence of manslaughter was run. The judge, however, left to the jury the issue in the case which was essentially: had the appellant deliberately stabbed the deceased? If she had done so, had it been done with intent to cause really serious bodily injury? If she had not had that intent, had she had an intention of causing some harm? It was for the jury to consider whether the Crown had proved that and therefore had disproved her account of accident. The way the issue as to the social media messages arose 18. It was in that context that, prior to the commencement of the trial, an issue arose in relation to the admissibility of some of the social media messages. What appears to have happened is that leading counsel who had originally represented the appellant withdrew and Mr Trafford QC came in at short notice to conduct the defence a few days before the trial. On going through the Crown's opening and the trial papers he had a concern about certain social media messages. It had been the Crown's position that the messages to which we shall refer in a moment were part of the background and that they were not evidence of reprehensible conduct. 19. The messages included: (i) An exchange between the appellant and the deceased on 16 July 2015, less than a month before he died, in which the appellant said: "Crying myself to sleep for the second time this week, and it's only Wednesday, thanks Damon, I'm so angry and hurt, I honestly want to rip Jack's face off and fucking stab you." (ii) The exchange between the appellant and her best friend, Chelsea O'Brien on 28 July 2015, which read as follows: "CHELSEA O'BRIEN: Who you gonna stab this time, calm down. LOL. THE APPELLANT: Damon, fucking hate him, LOL. CHELSEA O'BRIEN: What has he done, is he down. THE APPELLANT: He came down at the weekend but gone now. I fucking CBA [can't be arsed] with him, who the fuck goes through their GF [girlfriend's] phone and roots through her bedroom and in her drawers when she's asleep!! Fucking pissed off, absolute weirdo." (iii) The exchange with a woman called Kaisaha on 9 August, which included the appellant saying (as part of a longer message): "I think I'm going to vom. If he tells me he's been fucking anyone I'm stabbing him." 20. We have been told by the Crown advocate that the attitude of the Crown was that these exchanges were not evidence of reprehensible conduct. They were admissible in any event as part of the background. The Crown therefore had not served any notice of bad character as they were simply part of the background. 21. It is apparent from what we have been told today that Mr Trafford took the view that these were highly prejudicial and the judge should exercise his discretion not to admit them. He thought that the Crown wanted to adduce them under section 101(1)(c) of the Criminal Justice Act 2003 (CJA 2003) and he prepared a short written argument for the trial judge on that hypothesis. That occurred on the Friday prior to the commencement of the trial which was due to take place on the Monday. 22. Over the weekend it seems that the Crown had second thoughts. A written skeleton argument was prepared for the judge. It was not as clear as a judge should have expected, but it seems that the Crown were plainly taking the point that the exchanges did amount to reprehensible conduct and were admissible either under section 98 of the CJA 2003 as to do with the offence, or under section 101(1)(d) of the CJA 2003 as relevant to an issue in the case. 23. The background to what had happened perhaps explains the significant difficulties that the judge had when he came to give his ruling. It is a matter of some regret, we would suggest, that more thought and detailed consideration had not been given by the Crown to these documents. Mr Trafford was quite right to anticipate that they were prejudicial and quite right to anticipate that the Crown might want to adduce them as bad character evidence, even though that thought had not occurred to the Crown. The ruling by the judge 24. It is clear that when the Crown presented its argument to the judge, the argument was not of the quality which it should have been in such a difficult case, bearing in mind the position of this young appellant and the relationship into which she had entered. It is evident from the judge's ruling that he did not entirely follow the argument that had been advanced before him. Having heard counsel for the Crown today, we are not in the least surprised at the difficulty the judge faced. Such a case plainly required much more experienced counsel. 25. The judge concluded, although it is not necessary for us to reach a view on this, that although the evidence was evidence of reprehensible conduct for reasons we shall explain in a moment, it was not within section 98. He took the view that there was not a sufficient nexus in time to make it admissible. The law as to that is well explained by Professor Spencer in his book, Evidence of Bad Character , at paragraph 2.31 of the third edition, and Blackstone 2017 at paragraph F13.10, and recent decisions of this court including that in R v Lunkulu and Others [2015] EWCA Crim 1350 at [94] to [100]. 26. The judge went on to consider whether it was admissible under section 101(1)(d). He took the view (and he had to for this purpose) that the Crown's submission that this was evidence of reprehensible conduct was, in fact, correct, contrary to the view that they had taken earlier. He considered that the exchanges we have set out were capable of being interpreted as evidence of reprehensible conduct, as a threat to stab would be. Whether or not they were, in the ultimate analysis, was for the jury to consider. The judge went on to hold that they were of sufficient probative value that they were relevant to the defence of accident, and potentially relevant to rebutting that defence. He then considered whether he should exercise his discretion to exclude them and concluded that it was not unfair to admit them. The direction to the jury 27. The judge gave a very careful direction to the jury as to how they should use the messages. He said: "There are a small number of messages which, if taken literally, include expressions of a wish or intention to 'stab' Damon. As you know, there is a disagreement about how you should interpret those messages. The Crown say that they are relevant to whether [the appellant] is telling the truth when she says she threw the knife and says she did not stab Mr Searson with it. They say that her use of the word 'stab' in those messages makes it more likely that what she did was just what and that her use of the word 'stab' helps you to be sure that this was not an accident, as she claimed. The defence, on the other hand, say that is complete nonsense and that the Crown are reading far too much into casual private message sent between close friends, which are just a figure of speech, to use [the appellant's] phrase, and that it is absurd to suppose that they were seriously meant. You will recall that Miss Chelsea O'Brien agreed with that when asked questions about it by Mr Trafford for the defence, that her evidence was that such remarks were not seriously meant. Members of the jury, you will have to decide what you make of those messages, taken in their proper context. The messages that included references to violence and stabbing and so forth were about three or four in number out of hundreds or thousands. You will decide what weight you give to them and whether they support the prosecution case and make it less likely that [the appellant] is telling the truth when she says that Mr Searson's wound was inflicted be accident, but I must warn you not to rely too heavily on those few messages. You must not allow them to overshadow the direct evidence of what happened at the scene. By the 'direct evidence' I mean the physical evidence of what happened; the position of the sofa, the position Mr Searson was found in, the knife, the green plastic Seven Up bottle and so forth. You cannot convict [the appellant] of murder wholly or mainly on the basis of what she said in those Facebook messages a few weeks and days before Mr Searson died." We shall return at the end of this judgment to consider what the judge said as to the real issues in the case. The submissions to us and our conclusion 28. In eloquent submissions advanced before us, Mr Trafford first submitted that the evidence contained in the three messages was not evidence of bad character as it was not "other reprehensible behaviour", as defined in section 112 of the CJA 2003. He pointed to the decisions of this court in R v Fox [2009] EWCA Crim 653 and R v Osbourne [2007] EWCA Crim 481 . Those are decisions where, on the particular facts of those cases, this court took the view that in the first case notations in a personal notebook and in the second case evidence about previous aggression were not evidence of reprehensible conduct. 29. In our judgment each case must be considered on its own facts. The cases helpfully summarised in Archbold , in Blackstone and in Professor Spencer's work are illustrations of what is a fact-specific determination. The issue, quite simply, is: in context were the messages capable of amounting to reprehensible conduct? In our view the message in this case could be properly read in that way. It was for the jury ultimately to assess whether or not they were. The Facebook messages contained sufficient for a jury to be entitled to conclude that they amounted to threats to stab. Without doubt, if such a conclusion were reached, that would be reprehensible conduct. 30. The second issue, again argued eloquently by Mr Trafford before us today, was that the messages were not relevant to an important matter between the parties so as to be admissible, even if evidence of bad conduct, under the gateway in section 101(1)(d) of the CJA 2003. It was submitted that the issue in the case was not premeditation, as it was accepted by the Crown that what had happened was unpremeditated. It was submitted therefore that the social media exchanges could not possibly be of assistance. 31. Again, we have looked at that in the context of this case. It seems to us that they were potentially relevant to the issue of accident. If the appellant had expressed the view on previous occasions that she might stab the deceased when stressed or angry, that was in our view evidence that might be of assistance to the jury in determining an important issue between the parties, i.e. in this case whether what had happened was accidental or whether it had been a result of the appellant stabbing the deceased with the necessary intent. 32. We have next considered the third submission as to whether it was unfair to admit the evidence in the sense that its prejudicial value outweighed its probative weight. We think that the judge was entitled to exercise his discretion as he did. We cannot see any basis for saying that the view he took was not a view that was open to a judge. 33. Finally, the fourth submission made by Mr Trafford was that the direction on this issue given by the judge in his summing-up was incorrect. We have set out the passage at length. We consider that the judge gave a correct direction. He directed the jury to the potential relevance, but went on to stress that the real issue in this case turned on much simpler issues. 34. Accordingly, and despite the eloquent way in which these arguments have been presented to us and the other authorities which have been placed before us and to which it is not necessary to refer, we consider that in this fact-specific case the judge was right in the conclusion he reached. The evidence was admissible. The safety of the conviction 35. In accordance with our duty on every appeal that comes before this court, we have to consider whether the conviction was safe. The real issue, as the judge identified in the passage we have set out, relates to the formidable case that the appellant faced. Her evidence was that this was an accident. She did not say that she had stabbed the deceased, or that she had not meant to do him serious bodily injury. That was not her case. She had therefore to contend with the pathology evidence of the deep stab wound and the fact that it had penetrated through the protection that surrounds the heart. 36. Having considered that evidence together with all the other evidence in the case, we are entirely satisfied that in the way in which the case proceeded before the jury, this was an entirely safe conviction. It is, therefore, with some regret because of our sympathy for the appellant that we have to dismiss this appeal. 37. MR TRAFFORD: Your Lordship indicated at the beginning of this appeal some discomfort with how some of the academic works, as well as submissions by leading counsel throughout the country, misunderstood the structure of the Act. In particular, your Lordship appeared to identify that the section 98 through to 101 route was one that remained unclear and caused this court, and therefore puisne judges and other judges throughout the land, some difficulty in dealing with it. 38. THE LORD CHIEF JUSTICE: Yes. 39. MR TRAFFORD: Your Lordship, therefore, may consider, despite the fact that the Supreme Court have dealt only last month with an issue arising from the bad character provisions – that is to say, the standard of proof required for non-conviction bad character – 40. THE LORD CHIEF JUSTICE: Yes. 41. MR TRAFFORD: - in the case of Mitchell that was handed down, I think, in October, that another opportunity may be afforded to their Lordships to consider the broader scheme of the Act. 42. THE LORD CHIEF JUSTICE: If you wanted to apply for us to certify a point of law, we would require you to do so in writing. You have 28 to do so. 43. MR TRAFFORD: I understand. 44. THE LORD CHIEF JUSTICE: Obviously we would consider any such application, but at the moment it is difficult to see what point of law arises in this case that could be said to be of general public importance – 45. MR TRAFFORD: Thank you. I understand. 46. THE LORD CHIEF JUSTICE: - on the way in which the case was argued and the way in which the matter appeared, but we note what you have said, and, of course, you have 28 days in which to apply, and we will carefully consider any application. 47. MR TRAFFORD: I am grateful.

```yaml citation: '[2016] EWCA Crim 2237' date: '2016-12-06' judges: - THE LORD CHIEF JUSTICE OF ENGLAND AND WALES - MR JUSTICE WILLIAM DAVIS ```

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

No: 201001509/1500/1505/D4 Neutral Citation Number: [2010] EWCA Crim 3078 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 17 November 2010 B e f o r e : LORD JUSTICE LAWS MR JUSTICE BLAKE THE RECORDER OF BRIGHTON AND HOVE (His Honour Judge Richard Brown DL) (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - R E G I N A v SARBAZ HUSSAIN ABDULLAH FERAS SAAD DAOUD KHAN - - - - - - - - - - - - - - - - - - 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 I Shafi appeared on behalf of the Appellants Abdullah and Saad Mr B Singh appeared on behalf of the Appellant Khan Mr R Jameson QC appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE LAWS: These three appellants faced an indictment which in its final form contained eight counts. On 6 November 2009 at the Sheffield Crown Court before His Honour Judge Goldsack QC the appellant Khan pleaded guilty to count 1 (conspiracy to kidnap), count 6 (intimidation) and count 8 (possessing a firearm with intent to endanger life). On 11 February 2010 in the same court Saad and Abdullah were convicted on count 1. On 12 February 2010 Judge Goldsack passed sentence on all three as follows: Khan, concurrent terms of imprisonment for public protection with a specified minimum term of eight years on counts 1 and 8, these years concurrent on count 6; Saad seven years; Abdullah six years. The Crown offered no evidence against Khan on a count of attempted murder and an offence of possessing a prohibited weapon was ordered to be left on the file in his case. 2. There were five co-defendants. Kochki was acquitted on count 1, after the jury disagreed and the Crown offered no evidence. Moss was acquitted by the jury on count 1. Mullings was acquitted on count 1 by direction of the judge. She was acquitted of other offences also which we need not specify. Ahmed was acquitted on count 6 by direction of the judge at a separate trial. Count 7 (perverting the course of justice) was ordered to lie on the file in the case of the co-defendant Jamieson who alone was charged on that count. 3. Saad and Abdullah now appeal against their conviction on count 1 by leave of the single judge. Abdullah also seeks an extension of time within which to renew his application for leave to appeal against sentence after refusal by the single judge. Khan appeals against sentence by leave of the single judge. 4. The complainant, Mark Morris, was a man of bad character. On 27 February 2009 he was recruited by Khan to courier some 15 kilogrammes of skunk cannabis from Birmingham to Middlesborough. They went together to Birmingham. Khan left the drugs with Morris and drove back to Middlesborough. Morris was to return there the next day. Instead he contacted an associate, Carl Rennie, and he and Rennie drove to Sheffield with the drugs on 28 February 2009; so Khan was double-crossed. Morris and Rennie set about disposing of the drugs. To this end Morris arranged to meet the co-defendant Tristan Moss on Sunday 1 March at the Tesco stores in the Shirecliffe area of Sheffield. Accompanied by others, Morris went there by taxi arriving about 6 o'clock in the evening. 5. Meanwhile Khan realised he had been double-crossed. He discovered that Morris was in Sheffield. On Sunday 1 March he, Saad and the co-defendant Kochki set out for Sheffield. The Crown's case was that Morris was kidnapped on 1 March outside Tesco. Khan had been in touch with Moss by phone to facilitate a meeting with Morris. Moss's evidence was to be that Khan assured him that nothing bad would happen to Morris. At the Tesco car park, said Moss, Moss got into a car being driven by a Kurdish male. Morris also got into the car. It was driven off at speed. Moss said that Morris asked him what was going on and he answered he did not know. The car stopped in Melinda Street. About four people, according to Moss, were waiting there, one of whom aggressively pulled Moss out of the car. 6. The judge summing up reminded the jury of Moss's evidence: "I didn't realise Morris was to be kidnapped. I thought I would buy my weed and then Morris would sort out his problems with this other man." 7. Morris was to identify Abdullah as the man who pulled Moss from the car. Morris was also to say that both Khan and Saad were amongst his kidnappers. He said that he was transferred by Khan and Saad into Khan's BMW car and taken to a flat in Lopham Street. This was Abdullah's home. Khan held a gun to his head. He was told to phone Rennie. He went to a meeting with Rennie accompanied by Khan, Saad and Abdullah. He saw Rennie in his car. Khan pulled out a gun and fired it at the car (that was count 8). Rennie drove off. After this Morris was made to phone Rennie. Khan spoke to Rennie, saying he wanted his stuff back by 3.00 am or Morris would lose a finger. Morris was then taken to a different address in Rotherham and locked in a cupboard for 20 minutes. In the middle of the night, according to Moss, Rennie dropped off the drugs at the pre-arranged spot and Morris picked them up on instructions. He returned to the Rotherham address. He was taken by car to a hotel where he spent the rest of the night with Khan with a bed placed behind the door. He was returned to the earlier address in Rotherham and again put in a cupboard. He was driven to Middlesborough in Khan's BMW. He was taken to various locations, including the house of Saad, from which he succeeded in escaping and went to the house of a man called Ruffit. 8. On 6 March 2009 Morris gave a video identification of Saad. On 7 March he was admitted to hospital with appendicitis. Khan phoned him there and told him not to identify anyone on an identification parade: he would be paid if he obeyed that instruction (count 6). A police officer witnessed Khan about to enter the hospital and Khan drove away. 9. On 1 April 2009 Morris identified Abdullah as one of the kidnappers. The bullet fired at Rennie's car was recovered by police. It had passed close to Rennie's head. Other salient features of the evidence included traces of Morris's saliva and DNA in Khan's motor car. He had apparently spat on the floor in order to leave traces of himself. There was also evidence relied on by the appellant Saad of acts of kindness by Saad towards Morris. 10. Saad and Abdullah both gave evidence to the effect that Morris was not actually kidnapped at all; or, if he was, they were unaware of it and took no part in it. 11. At the trial of Saad and Abdullah the Crown applied to the judge for leave to adduce before the jury evidence of Khan's conviction, notably in the form of his plea of guilty to count 1, the conspiracy charge. The defence objected to that latter piece of evidence going in. It was accepted that the conviction was _prima facie_ admissible, but it was submitted that its admission would render the trial unfair and so it should be excluded under section 78 of Police and Criminal Evidence Act 1984 . The judge admitted the evidence. 12. It is well established that such a ruling should only be reversed in this court if no judge could reasonably have made it or it was made on a false basis: see, for example, Smith [2007] EWCA Crim 2105 , per Hughes LJ at paragraph 23. 13. Giving his ruling, the trial judge in this case said this: "The prosecution seek to adduce the conviction for two purposes: to prove that DK [Daoud Khan] committed the offence and to provide support for Morris's evidence, they accepting that he is not a witness on whose evidence a jury would be likely to convict without some support. It is the prosecution's intention to amend the conspiracy count to allege 'and with others unknown'. That will remove the risk of a jury taking the view that at least one of the remaining accused must be guilty. A jury can be directed quite simply that the conviction of DK does not in itself help in any way as to whether any of the accused on trial are guilty of the conspiracy count. Although it does prove DK committed the offence -- that is 'until the contrary is proved', section 74(2) [that is a reference to section 74 of the Police and Criminal Evidence Act] -- it will not prevent those accused who do not accept a kidnapping occurred from testing the prosecution evidence or calling their own so as to submit that in fact the jury cannot be sure DK was guilty. So far as the circumstances of the pleas are concerned, leading counsel for the prosecution makes two points: they were on a full facts basis and the charge faced by DK until quite a late stage had in fact been possession of a firearm with intent and the defence will be at liberty to raise the circumstances in the course of the trial, he having frankly acknowledged that the pleas were in fact tendered on the basis that the count against his girlfriend would not be proceeded with. ... The convictions are admissible unless they should be excluded under section 78 . I bear very much in mind that a balancing exercise is required and fairness means fairness to both sides and to each accused and doing what the interest of justice require. In my judgment the interests of justice here require that the jury hear the evidence of all the convictions; properly and carefully directed the jury will then be able to reach proper conclusions based on all relevant evidence." 14. After the jury retired on 9 February 2010 the judge and counsel for the first time had sight of the pre-sentence report relating to Khan. Khan had told the probation officer that he was innocent of the conspiracy to kidnap charge. Counsel for Saad and Abdullah submitted that in the light of this the jury should be discharged, or at least that their deliberations should be suspended until the court had heard from counsel for Khan. It was said the jury had been inadvertently misled. 15. The judge disagreed. He considered that there was no force in the submission that the jury had been misled. The case for both appellants had been made entirely clear to the jury, namely they did not accept there was a kidnap despite Khan's plea. It was a common occurrence for defendants to demur from their plea during a probation interview only to confirm their plea come sentencing. Khan had unequivocally pleaded guilty upon the advice of experienced counsel. The discovery of what he said in his probation interview did not affect the position in the trial. 16. It is now submitted in support of the appeals against conviction that the judge should not have admitted Khan's plea to count 1. There was in the written submissions an alternative argument to the effect that the judge was wrong not to discharge the jury in the light of the contents of Khan's pre-sentence report. However Mr Shafi this morning has, if we may be allowed to say so, very sensibly indicated he does not rely on that proposition as a self-standing head of argument. 17. The learning shows that the discretion to admit a conviction of another against a co-accused on the same charge should only be exercised sparingly, especially in relation to joint defences such as conspiracy: see, for example, Curry [1988] Crim LR 527. 18. The appellants and the Crown have both referred to the case of Smith [2007] EWCA Crim 2105 which we have mentioned in passing. In that case Hughes LJ said this at paragraph 16: "We have been taken to the line of cases which begins with R v O'Connor [1987] 85 C App R 98. They are well known; we need not review all of them. We should, however, refer to the helpful distillation of many of them in R v Kempster [1990] 90 Cr App R 14 in the judgment of Staughton LJ. That line of cases indicates that section 74 should be sparingly applied. The reason is because the evidence that a now absent co-accused has pleaded guilty may carry in the minds of the jury enormous weight, but it is nevertheless evidence which cannot properly be tested in the trial of the remaining defendant. That is particularly so where the issue is such that the absent co-defendant who has pleaded guilty could not, or scarcely could, be guilty of the offence unless the present defendant were also. In both those situations the court needs to consider with considerable care whether the evidence of the conviction would have a disproportionate and unfair effect upon the trial. With those cases can be contrasted the kind of case in which there is little or no issue that the offence was committed, and the real live issue is whether the present defendant was party to it or not. In those circumstances, commonly, the pleas of guilty of other co-defendants can properly be admitted to reinforce the evidence that the offence did occur, leaving the jury independently to consider whether the guilt of the present defendant is additionally proved." 19. In admitting Khan's conviction the judge here was plainly not acting on a mistaken basis. The question therefore is, was his decision to admit the conviction so unreasonable as to justify this court's interference? In our judgment the following points arise. 20. 1. It was not a necessary inference from Khan's plea that either Saad or Abdullah was involved in the conspiracy. Count 1 alleged, as we have noted, conspiracy by the named defendants and persons unknown. The judge had himself suggested or required that it be amended to make that allegation. 21. 2. Moreover, while Saad and Abdullah by no means abandoned their contention that there had been no kidnapping at all, that issue became something of a dead letter after the evidence of the co-defendant Moss, who plainly testified that Morris had been kidnapped. Moss did not identify any of the kidnappers except Khan. He was not cross-examined on the issue of kidnap or no on behalf of Saad or Abdullah, no doubt for perfectly good reasons. Thus Moss gave clear evidence of the fact of kidnap quite independently of Khan's plea of guilty. Mr Shafi takes issue with an observation in counsel for the Crown's skeleton argument to the effect that the issue of kidnap was not conclusively determined by Khan's plea. As to that, no doubt the plea was strong and central evidence of the fact of kidnap; but there was other evidence also. 22. 3. Moreover it is plainly likely, and Mr Shafi accepts this, that the jury accepted Moss's evidence. They acquitted him and so presumably accepted, or did not reject, his evidence that he was not involved in the kidnap. That being so they are no less likely to have accepted his evidence that Morris was in fact kidnapped. 23. 4. Given that there was a kidnap, the real issue in the case -- were Saad and Abdullah involved? -- was not closed off or determined by Khan's plea. The acquittal of Ahmed, jointly charged with Khan on the intimidation count (count 6), and the jury's disagreement in relation to the co-defendant Kochki on count 1, demonstrate to our mind that the jury did not necessarily associate Khan's guilt with his co-accused on any given count. It is of course right, as Mr Shafi submitted this morning, that the case against Ahmed and Khan on count 6 arose in very different circumstances from the facts of count 1. Nevertheless it seems to us that the general points remain. 24. 5. Mr Shafi helpfully told us this morning that the jury were told that Khan had been charged with a greater offence, that of attempted murder, and, of course, pleaded to a lesser offence; and they were told also the background relating to charges against Khan's girlfriend. It follows that any points that may properly have been made as to the circumstances of Khan's plea were available to be made. 25. In all the circumstances we have concluded that the judge's decision to admit the evidence of Khan's plea was a reasonable and proper one. That being so, and bearing in mind as we have said that Mr Shafi takes no separate point as to the refusal to discharge the jury in the light of Khan's pre-sentence report, the appeals against conviction must fall to be dismissed. That leaves the matter of sentence. 26. We turn then to the matters relating to sentence: Khan's appeal and Abdullah's application. We deal first with Khan. He is a man of 31 with eight previous offences including one offence of section 20 wounding for which he received a sentence of 18-months imprisonment in 2001. The pre-sentence report in his case stated that there was a serious risk of harm to individuals and the public. He was the prime mover in the kidnap, whose facts are set out in our conviction judgment and which we do not repeat. 27. The kidnap was a sustained, cold-blooded, vicious affair. He shot at the man Rennie in the latter's car. Mr Singh has urged on us that the basis of his plea to the firearm offence was that he used the gun with intent to frighten only. That is, with respect to Mr Singh, inconsistent with his plea of guilty which was to an offence of possessing a firearm with intent to endanger life. In the course of his sentencing remarks the learned judge indicated that Mr Khan had now accepted again a basis of plea consistent with the offence to which he had pleaded guilty. On top of all this Khan intimidated Mr Morris when Mr Morris was in hospital. 28. In our judgment the finding of dangerousness necessary for an IPP sentence was well justified here. However, there is something in Mr Singh's argument as regards the minimum term. It will be recalled that the judge imposed a term of eight years. That implies a starting point as high as 27 years if the judge meant to give, or should have given, maximum credit for plea. That is too high notwithstanding the fact that determinate sentences, had they been appropriate in principle, could well have been passed on the basis that consecutive sentences for the firearm and kidnapping offences were justified. 29. We consider that the minimum term should be reduced to seven years from eight. We will accordingly quash the judge's order that he serve a minimum period of eight years and substitute a period of seven years. The IPP otherwise remains. 30. As for Abdullah, as Mr Shafi frankly acknowledges, it is very difficult to complain of a sentence of six years for an offence of conspiracy to kidnap after a contested trial. It is right, as Mr Shafi has said, that there is nothing to show that this applicant had previously been involved with the drugs business; but he was an active participant in this very serious conspiracy. We see no basis on which it can be said that six years was arguably improper. His application for leave to appeal against sentence will be refused. 31. MR SINGH: My Lord, may I clarify one point in relation to the seven years? Is that intended to take account of the year served on remand or not? There was almost a year served on remand. 32. LORD JUSTICE LAWS: As I understand it, he gets that off, doesn't he? 33. MR SINGH: No, not automatically. Not in an indeterminate sentence. That applies to an determinate sentence. 34. LORD JUSTICE LAWS: What did the judge say in relation to the eight years? 35. MR SINGH: He took that into account and fixed eight from the date of sentence. ( pause while the bench conferred ) 36. LORD JUSTICE LAWS: The sentence of seven years is intended by us to operate on the same basis and in the same way as the judge's eight year sentence did. I am sorry if we did not make that clear. 37. MR SHAFI: I think in respect of Ahmed it was said he was acquitted on the direction of the learned Recorder. No case to answer. 38. LORD JUSTICE LAWS: Yes, as I think I said when describing the facts of the case. 39. MR SHAFI: I am sorry, nothing turns on it. 40. LORD JUSTICE LAWS: No, but one wants the transcript to be accurate. Yes, my note, which I think I read out, was Ahmed was acquitted on count 6 by direction of the judge at a separate trial. Thank you.

```yaml citation: '[2010] EWCA Crim 3078' date: '2010-11-17' judges: - LORD JUSTICE LAWS - MR JUSTICE BLAKE ```

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

Neutral Citation Number: [2009] EWCA Crim 1729 Case No. 2009/02875/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Date: Thursday 23 July 2009 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE BUTTERFIELD and MR JUSTICE FLAUX - - - - - - - - - - - - - - - - - - - - - ATTORNEY GENERAL'S REFERENCE No. 50 of 2009 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 _______________ R E G I N A - v - JONATHAN HASLAM - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4A Telephone No: 020 404 1400; Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr L Mably appeared on behalf of the Attorney General Mr D Hislop appeared on behalf of the Offender - - - - - - - - - - - - - - - - - - - - - J U D G M E N T THE LORD CHIEF JUSTICE: 1. This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court for review a sentence which she considers to be unduly lenient. We grant leave. 2. The offender is Jonathan Haslam. He is 40 years old, having been born in March 1969. He is a man of effective good character. There were powerful supporting references before the judge. 3. On 20 March 2009, in the Crown Court at Oxford, the offender pleaded guilty at a plea and case management hearing to one offence of causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861 . On 5 May 2009, he was sentenced by His Honour Judge Hall to twelve months' imprisonment suspended for two years. Ancillary orders were also made: a requirement to carry out 200 hours of unpaid work; and a curfew between 9pm and 6am. 4. The offence arose out of a violent incident which was recorded on CCTV. Although there is no sound to the recording, we have been able to see the entire incident; we have looked at it twice, and we have looked at it in slow motion. It is right to say at the outset that, notwithstanding the very serious injuries sustained by the victim, Scott Swandle, it is plain that the offender neither sought nor provoked any violence. He was having a quiet drink in a public house with his friends. 5. At about 8pm on Sunday 26 October 2008, at the end of a "lazy weekend", the offender and his girlfriend went to a public house in Abingdon for a quiet drink together. After purchasing their drinks they went out into the beer garden and sat at a table. They chatted to a member of staff and to another woman. They were all sober and behaving quietly. The group was approached by 20 year old Scott Swandle. He had been at the public house for a number of hours and was plainly very drunk and loud and was obviously using unpleasant language. He swayed towards the table where the group of people were sitting. He tried to engage the offender and his girlfriend in conversation, although most of what he said was incoherent. He would not leave them alone. He was not aggressive at the outset, but he was argumentative and making a nuisance of himself. Eventually, he moved away, but then repented of his departure and returned. More words were exchanged. This time the offender told him to "Fuck off". 6. Swandle raised his arm and pointed at, or possibly touched the offender while he was still sitting at the table. With that the offender jumped to his feet and punched Swandle in the body. Swandle stumbled backwards and fell over a table. He ended up on his back on the ground. That fall, which we have seen, was severe. It may well have caused the very serious injury which Swandle suffered. 7. If the incident had stopped there, we doubt whether the offender would have been prosecuted for anything. He simply disposed of someone who had been extremely provocative and who appeared to be acting in a violent way, trying to touch him when he had no wish to be touched, after some unpleasant language had been used. It is what happened thereafter that represents the serious element of the offence. In his opening, counsel for the Crown put it this way: "The offender pushed Swandle very hard over a nearby table. Swandle went to the ground. The offender goes to him and strikes a number of blows from what can be seen in the DVD using his fist. He was not punched to the ground, he was not pinned to the floor. The offender simply went for him with his fists and then, as Swandle lay there and the offender was punching him, the offender's girlfriend intervened and pulled him away." 8. Swandle was very seriously injured. He was unconscious. Blood ran from his ear and his nose. His face was swollen. The offender's girlfriend dialled 999. An ambulance arrived. Swandle was taken to hospital. A CT scan revealed that he had suffered a basal skull fracture, with extensive bleeding inside the skull, both within and outside the brain. Swandle was detained in hospital for nine days. On his discharge he was prescribed medication for pain relief. The hearing in his left ear was affected. A consultation revealed that a bone in the ear had been dislodged. In due course (and the operation may now have taken place) it was intended that Swandle should undergo an operation to remove the bone which was interfering with his hearing. We do not minimise the consequences to Swandle. They were serious. 9. The day after the incident police officers attended at the offender's home address. He was arrested and interviewed under caution. He admitted that he had been involved in the incident. There was some exaggeration of the extent of Swandle's behaviour, but the offender admitted that he had lost his temper and that the attack had begun as a result of him losing his temper. 10. A written basis of plea was submitted on behalf of the offender which, with one exception, was accepted by the prosecution. It reads as follows: "1. That immediately prior to the assault in issue the complainant approached the defendant, the defendant's girlfriend and her friend. 2. The complainant was drunk and was making a nuisance of himself.... 3. The complainant called the defendant's girlfriend and her friend 'slags' and 'cunts'." That last point is not accepted by the prosecution. Although it was not accepted, there would have had to have been positive evidence to demonstrate that this aspect of the offender's position was to be rejected. "4. The defendant said to the complainant, 'Do you mind going away, this is a private conversation'. 5. The complainant reacted aggressively, came up to the defendant and said, 'Who the fuck are you?' 6. The defendant believed he was going to be attacked and struck out at the complainant in self-defence. 7. By his plea the defendant accepts that in the heat of the moment he used excessive force." 11. The case presented to Judge Hall involved the prosecution accepting that the person who started all the trouble that evening was the complainant; that the offender had sought to defuse the situation as it developed; that the complainant reacted aggressively to those efforts; and that the offender acted in what he believed to be self-defence, although he went too far. It is obvious, too, from the summary of the facts and the basis of plea that was accepted, that the behaviour of the complainant had involved serious provocation. 12. There was a pre-sentence report before the judge. The author of the report concluded that the offender presented a low risk of re-offending. He did not pose a significant risk of serious harm to members of the public. That was all entirely in keeping with the evidence based on the character references which were before the judge. 13. During the course of the hearing Judge Hall was anxious to discover whether there was any indication about how Swandle had been injured and whether his injuries had occurred as a result of going backwards over the table. Counsel for the Crown said that it was not clear whether the basal skull fracture was the result of the fists used by the offender or was the result of Swandle going over the table and striking his head on the ground. Judge Hall considered that the basal skull fracture would have been an unusual injury from a fist assault in the circumstances in which the fists were used. 14. When he came to pass sentence, Judge Hall was concerned about the serious injury that had been sustained by Swandle, and was concerned about the offence to which the offender had pleaded guilty. He examined the question of how the major injury had been caused. He said that it was not at all clear how it had happened. He was "always reluctant" to be critical of people who had been badly injured in an unlawful attack, but he was plainly anxious that the situation should be fully ventilated because a viewing of the video clearly showed why the assault had taken place. The complainant was "drunk, he was aggressive and he was abusive". As the judge put it, "what followed should not have happened but .... anyone who has seen the video would understand that it did happen and that a drunk man was attacked unlawfully because of the way he had been behaving". The judge acknowledged that the sentence that he intended to pass would be in one sense a lenient sentence, but he took everything into account and concluded that the offender had acted out of character. He asked himself the question: did the offence merit imprisonment? The answer was: yes, because of the severity of the injuries. However, the second question was: was there any point in sending the offender to prison? He concluded that there was not. Accordingly, a suspended sentence was imposed and the ancillary orders were made. 15. We have been told today that 67.5 hours of the Community Service Order have already been carried out. In addition, the offender has been under the curfew arrangements ordered by Judge Hall. 6. On behalf of the Attorney General our attention has been drawn to the aggravating features of the offence: the very serious injuries suffered by Swandle and their effect on his health and general approach to life; when the offender used his fists, the victim was lying defenceless on the floor; and after the attack, the offender left the scene without offering any assistance to the unconscious victim. Our attention has also been drawn to the Sentencing Guidelines Council's Definitive Guideline on Assault and Other Offences against the Person, which it is said suggests that for injuries such as occurred in this case a sentencing starting point in the range of five years. 7. We must be careful about guidelines. Of course the court must have regard to them; that is a statutory requirement. The court must also have regard not only to the guideline as set out in the figures which the tables produce, but also to some of the text. Our attention has been drawn to the difficult issue which arises in this case between the culpability of the offender and the harm which is consequent on the violence. The guideline reads as follows: "Culpability and harm 7. The culpability of the offender is the initial factor in determining the seriousness of an offence. All offences against the person have the potential to contain an imbalance between culpability and harm. This can produce situations where low culpability produces a high level of harm, high culpability produces no harm at all or where the two are more evenly balanced since the same act can, in different circumstances, produce varied levels of harm. Where this imbalance occurs, the harm has to be judged in the light of the culpability of the offender ." (Our emphasis) 8. It seems to us that Judge Hall, without referring directly to that text, must have been addressing these difficult issues of the balance between the relatively low level of culpability involved here, as against the high consequent harm. Indeed, in reality, as an offence of section 18 grievous bodily harm with intent, it is accepted by the Crown, and rightly so, that this is an offence at the lower end of the scale. We would go further. We consider that it is at the lowest end of the scale for such an offence. Account must be taken of the offender's admitted intention, and the circumstances in which this violent incident blew up. 9. Our conclusion can be expressed briefly. Like Judge Hall, we consider that the sentence that he passed was a lenient sentence. The question which then arises is: was it unduly lenient? It is arguable that it was. However, when we stand back and look at the matter in the round, recognising that in a case like this the impression formed by an experienced judge who was able to witness the incident for himself and form his own view of the precise extent of the offender's culpability, we are not satisfied that this is an unduly lenient sentence for the purposes of section 36 of the 1988 Act . In those circumstances, although the sentence was a lenient one, we do not consider that it was unduly lenient. In those circumstances we do not interfere with it. _________________________________

```yaml citation: '[2009] EWCA Crim 1729' date: '2009-07-23' judges: - MR JUSTICE BUTTERFIELD - MR JUSTICE FLAUX - 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} ======

Case No: 201501540 A5, 201501655 A5, 201501788 A5, 201501843 A5 Neutral Citation Number: [2016] EWCA Crim 94 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SOUTHWARK HIS HONOUR JUDGE ROBBINS T20137601 Royal Courts of Justice Strand, London, WC2A 2LL Date: 22/03/2016 Before : LORD JUSTICE BEAN MR JUSTICE SWEENEY and HIS HONOUR JUDGE GRIFFITH-JONES - - - - - - - - - - - - - - - - - - - - - Between : HARVINDER SANGHERA, SAVDEEP SINGH ATKAR, DAVID BROWN & STEPHEN O'MEARA Appellants - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - J Scobie QC for Sanghera; M Duck QC for Atkar ; S Vullo QC for Brown; M Graffius for O’Meara (all assigned by the Registrar of Criminal Appeals) A Bunyan (instructed by Crown Prosecution Service ) for the Crown Hearing dates : 18 March 2016 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Bean : 1. The four appellants against sentence participated to varying degrees in an enterprise to import cocaine directly from Mexico aboard British Airways transatlantic flights from Mexico City to London Heathrow. On arrival in the UK the drugs, disguised as innocuous packages, would be unloaded in a BA warehouse facility and then collected by couriers using false documents for cutting, distribution and consumption. The success of the scheme depended on the participation of corrupt BA employees who were able to bypass the security arrangements to ensure that the cocaine was loaded in Mexico and identified and retrieved at Heathrow. 2. On 7 February 2013 Flight BA242 from Mexico City landed at Heathrow at 2pm. A box containing cocaine and ammunition was handled by an employee at an airport warehouse facility and released to a courier, David Walton from LHR Logistics, who produced a fake customer release notice allowing him to take custody of the package. Surrey Police followed the package to a residential property in Staines. Three men were discovered there unpacking 21 1kg packages of cocaine at 84-88% purity. Two sealed vacuum packs were also found containing 100 rounds of 9mm ammunition. The police continued with surveillance of the conspirators. Between 18 and 21 February 2013 the appellant Sanghera met a man called Christopher Monaghan, who was believed to be the intended recipient of part of the importation. 3. On 12 May 2013 Monaghan was seen to hand a two inch wad of banknotes to the appellant Brown. The Crown’s case was that Brown was acting as a middleman to attend to Monaghan’s outstanding debt as a result of the disrupted importation. Sanghera travelled to Canada and the USA between February and August of 2013 in furtherance of the conspiracy. 4. On 22 and 23 August 2013 police observed meetings between the appellants Atkar and O’Meara. There was a surge of telephone activity between Sanghera and his Mexican and Californian contacts as well as an increasing number of calls between the conspirators as they made arrangements for a further importation. On 23 rd August 2013 a BA employee delivered the provisional booking list for the next day’s flight BA242 arriving from Mexico to the appellant Atkar in a car park in Slough. 5. On 24 th August 2013, as in February, a box removed from the airport warehouse and released to a courier, who drove off in his van in convoy with another van. The box was transferred to the second vehicle which was then stopped by uniformed police. The box was found to contain 19 1kg packages of cocaine at 83-95% purity. Following the seizure of the box, there was numerous telephone calls between the appellants. Sanghera and Atkar were recorded discussing the consequence of the lost shipment. The appellants, except for O’Meara, were arrested on 16 th October 2013; O’Meara (who was by then in Spain, to take part, we were told, in a boxing tournament) was arrested at a later date. 6. The two shipments of cocaine had a combined weight of almost 40kg and a wholesale value of over £2 million. The street value would of course have been far greater. 7. Sanghera and Atkar were charged with conspiracy to import cocaine, Brown and O’Meara with conspiracy to supply cocaine. In addition, Sanghera was charged with conspiracy to import the ammunition. A preliminary hearing took place in the Crown Court at Southwark on 31 October 2013. A trial date of 31 March 2014 was set at that hearing. 8. The plea and case management hearing (PCMH) was held before Judge McCreath on 16 th January 2014. Atkar pleaded guilty but on the basis that he accepted involvement in the August importation but not the February importation. The others pleaded not guilty. 9. Sanghera, on 18 th February 2014, indicated a plea of guilty on a similar basis to that of Atkar, namely that he accepted involvement in the August importation only. He pleaded guilty to the ammunition charge on 28 th March 2014. O’Meara and Brown, who were only accused of involvement in the August consignment, indicated pleas of guilty on 12 th and 28 th February 2014 respectively. 10. There was considerable delay before any of the present appellants was sentenced. It is not suggested that any of them was to blame for this. Eventually they appeared before Judge Robbins at Southwark on Friday 20 th March 2015. By this time Sanghera had withdrawn his basis of plea: he accepted that he was to be sentenced for a conspiracy which covered both importations of cocaine. He submitted a revised basis of plea, which was accepted by the prosecution, stating that there were others above him in the conspiracy. No doubt there were. 11. Atkar maintained his original basis of plea. A Newton hearing was therefore held in which the prosecution called evidence of a recorded telephone conversation between Sanghera and Atkar on 24 th August 2013. There was reference to a period of five minutes. Sanghera said “in that five minutes you are likely to get pulled over” and Atkar said “In the same fucking spot. We’ve had plenty.” The prosecution relied on the latter remark as showing Atkar’s surprise and discomfort that he was under observation and about to be stopped or arrested in the same location at which those involved in the February importation had been detected. Atkar gave evidence before the judge at which he denied the conversation and denied involvement in the February transaction. The judge was satisfied to the criminal standard that Atkar had been involved in the earlier part of the conspiracy. The entire Newton hearing lasted just under an hour. The prosecution then opened their case against all four defendants. After hearing mitigation in the afternoon session, the judge passed sentence the same day. The judge’s findings 12. In his sentencing remarks the judge said:- “This was a very sophisticated, well organised and determined criminal network. Those towards the top of the organisation, you Mr Sanghera and you Mr Atkar, were obviously capable of masterminding and resourcing a complicated international smuggling operation and sustaining it over a lengthy period, as the Crown say. .. It is submitted, and I accept, that you both occupy a leading role in the conspiracy with you, Mr Sanghera, somewhat above Atkar in the hierarchy. You, Sanghera, were closely linked to the original source of the cocaine. You liaised by telephone with contacts in California and Mexico and key times and travelled to the US and Canada. You also had links in the UK to operations such as the Monaghan syndicate to supply cocaine onwards within the UK.........He bought and sold on a substantial commercial scale to a sophisticated operation which involved the cooperation of numerous BA employees in both Mexico and the UK. You, Atkar, are in my judgment correctly described as Sanghera’s trusted aide or lieutenant, a leader in your own right responsible for organising couriers through O’Meara and Brown. You obtained information about the BA cargo shipments from BA employees, paying cash for that service. You encouraged them to abuse their positions at work, whether or not they were aware of what they were lending themselves to. Both of you, Sanghera and Atkar, clearly stood to make very substantial profits from this conspiracy. Your high degree of oversight and knowledge is evident from the transcipts of the probe, about a hundred pages or so that were listened to from Atkar’s car. The Crown say, in my judgment quite correctly, that the use of passenger flights to move criminal cargo, circumventing proper procedures and corrupting airport staff represents a considerable danger to the public. The packages were unmanifested with all the attendant security risks, thinking of explosives and ammunition and indeed ammunition was concerned in court 3. The quantities of cocaine involved were very considerable. As I have said approximately 40kilos of cocaine handled in the two disrupted importations. The minimum quantity involved is therefore eight times larger than the indicative quantity of 5 kilos for category 1 of the guidelines. Moreover … we have heard plenty of strongly suggestive [evidence] in this court’s judgment that other importations occurred.” 13. Addressing O’Meara and Brown he said:- “Mr O’Meara, you were first observed with Atkar in May 2013. Mr Brown, you were first observed meeting Monaghan to collect money on 12 May 2013. The Crown submits, and I accept, that both of you occupy under the guidelines significant roles. Both of you had operational and management functions, arranging couriers and the collection of money for Sanghera and Atkar. You each involved others in the conspiracy, namely the other drivers. You were clearly motivated by financial reward. You, O’Meara, accept that you were being offered £10,000 by Mr Atkar to arrange for another person to collect the cocaine on 24 August. The August importation alone involved 19 kilos, almost four times the indicative quality listed for category 1. It is submitted by the Crown that even on this basis O’Meara and Brown, your participation falls well above that covered by category 1 and I so find.” 14. Turning to the charge of conspiracy to import ammunition, to which Sanghera had pleaded guilty, the judge said:- “The February importation involved not only 20 kilos of cocaine but 100 rounds of live 9mm ammunition which is prohibited without a certificate for use with a handgun. The maximum penalty is 7 years imprisonment and it has been said by the Court of Appeal that the importation of prohibited ammunition is a serious matter because the inevitable result of supplying ammunition is that another will sooner or later be furnished with the means to endanger life. The smuggling of firearms and ammunition is every bit as serious as the importation of drugs; such importation increases the arsenal in this country of illegally held firearms. It is a matter of considerable significance in the present case that these firearms were being imported for distribution to others.” The sentences imposed by the judge 15. The judge sentenced Sanghera to 25 years imprisonment for the conspiracy to import cocaine and 5 years consecutive on the ammunition charge, making a total of 30 years imprisonment. Atkar was sentenced to 21 years imprisonment; O’Meara and Brown to 13 years each. Although the judge had earlier in his sentencing remarks set out the chronology of the pleas of guilty, he did not explain what starting point he had taken and what reduction for the plea of guilty he had allowed in each case. 16. Each of the appellants appeals against sentence by leave of the single judge. 17. We should mention that we were given, as the judge was, some limited information about other participants in the February importation. Monaghan was sentenced to a total of 16 years imprisonment for two drugs supply conspiracies and three counts of money laundering at the Guildford Crown Court on the 11 th February 2015. This included a sentence of 12½ years for the conspiracy which culminated in the February 2013 importation in which he was considered to have played a leading role. One difficulty with drawing any conclusions from that sentence is that there was evidently a significant reduction for totality. We were told about six other defendants who were sentenced at Kingston Crown Court on 11 th October 2013 for involvement in various respects in the early conspiracy: for example Stuart Walton, assessed as playing a significant role as a driver, was sentenced on the basis of a 12 year starting point. We know so little about the facts of their involvement, the exact role they played and the personal mitigation which may have been involved in any of their cases that it is difficult to draw any useful conclusions. Reduction for the pleas of guilty 18. It is most regrettable that the judge did not indicate what credit he was giving for any of the pleas of guilty. Since he did not, we have had to decide ourselves what reduction should have been given in each case. None of the defendants entered an unequivocal plea of guilty at the first reasonable opportunity. The trial date was set at the preliminary hearing. Even at the PCMH more than two months later there was no unqualified plea of guilty from anyone, although Atkar admitted the charge to the extent of the August importation. 19. We begin with Atkar. The credit to which his plea of guilty at the PCMH would otherwise have entitled him is inevitably diluted by the fact that he took the issue of participation in the earlier phase of the conspiracy to a Newton hearing at which he gave evidence and was disbelieved. But as against that, it is in our view important in a complex and multi-defendant case to give particular credit to the first defendant to break ranks and plead guilty. We consider that Atkar should have been given a discount of 20% for his plea. 20. Sanghera’s credit for his plea of guilty on the drugs charge is likewise diluted by the fact that it was offered on the same limited basis. It is right to say that he abandoned his denial of involvement in the February importation shortly before he was sentenced without taking the matter to a Newton hearing. But he cannot claim the same credit as Atkar for being the first to break ranks. We consider that the level of discount for plea on the drugs charge in his case should have been 1/6th. On the ammunition charge the plea of guilty was so late that he was not entitled to more than a 10% reduction, although in his case there is the separate question of totality. 21. Brown and O’Meara tendered unqualified pleas of guilty in the weeks following the PCMH. Mr Graffius, for O’Meara, submitted that as the preliminary hearing was held in his client’s absence the plea and case management hearing should be regarded as the first reasonable opportunity for his client to have entered a plea of guilty. We do not accept that this should make any difference: O’Meara could have indicated through his solicitors his intention to plead guilty as soon as he was arrested. We consider that the appropriate level of discount for both Brown and O’Meara is 20%. The sentencing guidelines and the authorities 22. As the judge noted, the table of sentencing guidelines for the importation or supply of class A drugs conspiracy is based, even in Category 1, on an indicative quantity far below those involved in this case. The guideline gives a starting point of 14 years custody for a leading role in category 1 based on an indicative quantity in the case of cocaine or heroin of 5 kg. The category range is 12-16 years. On page 10 of the guideline there is this important statement:- “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.” 23. We were referred to a number of decisions of this court on sentencing for the importation or supply of large quantities of class A drugs. Some of them dated back to the 1990s, long before the adoption of the current definitive guideline in 2012. 24. An important recent case is Welsh [2014] EWCA Crim 1027 where Sir Brian Leveson PQBD said:- “2. It is appropriate to start with an overview of the case. Operation Blenheim was a police investigation into an organised crime group in Liverpool which supplied large quantities of Class A drugs to crime groups in Glasgow for onward distribution. The conspiracy involved the use of a number of safe houses in Liverpool to store and mix drugs. The drugs were packaged using hydraulic presses and metal moulds. Some of the drugs seized were of high purity, close to importation. [The] evidence showed that between September 2011 and October 2012, the conspirators made 111 trips to Glasgow to supply drugs, adulterants and collect cash. In total, 23 kg. of Class A drugs (19 kg. of heroin, 4 kg. of cocaine and 1 kg. of 'crack' cocaine) along with 107 kilograms of adulterants with the potential to realise drugs with a street value of £6.7 million were seized during the course of the conspiracy. However, if the seizures were representative, indications were that the couriers transported between one and two kilograms of Class A drugs as well as adulterants on each trip. In view of the number of trips made it could be inferred that overall the conspiracy involved quantities of Class A drugs in excess of 100 kilograms worth between £100 million and £200 million. 3. As with any case of this nature, the role and responsibility of the offenders ran from the organisers, making vast profits from the operation through to those at the bottom of the chain of organisation, who, although knowingly involved in a conspiracy, were engaged upon it only peripherally. It was the task of the judge to have regard to s. 143 of the Criminal Justice Act 2003 and, when determining the appropriate sentence for each offender, to consider both culpability and harm…….. 4. Although a number of the appellants and applicants have individual issues to raise, in the main, the substantive arguments advanced on this appeal concern the applicability of the guideline concerning supply of a controlled drug, its relationship with the guideline for importation, the extent to which a sufficient distinction was drawn between those at the centre of the conspiracy and others and the impact of personal mitigation. We will deal with these issues generically before considering the detail of each of the appeals and applications that have been argued before us. The Definitive Guideline 5. Although the judge considered that the definitive guideline did not strictly apply to offences of conspiracy, it is clear from R v McCalla [2012] EWCA Crim 2252 and R v Khan [2013] EWCA Crim 800 that it does………….. 8. As for the relationship between the offence of supplying a controlled drug and importation (or, in either case, conspiracy to commit the offence), it is argued that, as a matter of principle, it is appropriate to ensure that the highest sentences are reserved for the latter offenders: in R v Tourh [2009] EWCA Crim 874 for (among other offences) conspiracy to supply a controlled drug of class A, a sentence of 25 years imprisonment was reduced to 22 years for that reason (articulated at para 43). Whether or not this observation can be elevated to the status of a principle, we doubt that it has any practical application to cases which fall to be considered under the guideline which has identical starting points in relation to both offences for leading and significant roles at category 1 and only marginally reduces the starting point (by one year) for a lesser role in relation to a supply offence. 9. It may be that the culpability at the very highest level is increased when the complexities of arranging importation are taken into account but we doubt whether leading and significant roles in the most structured, persistent and heaviest supply cases (of which this is an example) merit such a distinction. In any event, the definitive guideline identifies the circumstances in which leading, significant and lesser roles can be determined irrespective of the quantity of drug involved and the guideline is careful to identify the use to which indicative quantities can be put. As for weight itself, Hughes LJ in R v Boakye [2013] 1 Cr App R (S) 2 , page 6, [2012] EWCA Crim 838 explained that the weights which determine the categories are not thresholds but indications of the "general region" of weight that goes into the relevant category: "it is not exclusively an arithmetical process": see para. 39. Insufficient Distinctions in sentence 10. A large number of appellants argue that the judge failed adequately to reflect the relative culpability of the offenders with a sufficiently wide range of sentences. Judge Aubrey certainly referred to the principle of parity commenting that in cases of this nature there was bound to be an element of "crowding or bunching" as to length. The word "crowding" comes from R v Brookhouse [2004] EWCA Crim 3471 in which, having analysed a large number of cases concerned with importation, the court recognised (at para 66): "20 years is clearly justified on the authorities for an important, but secondary, participation in large scale importation of class A drugs. You do not receive, for the reasons which we have indicated, sentences above 30 years, although they might be possible. In between those two points have to be fitted quite a large number of disparate people who clearly are more involved than those who might receive 20 years, but less involved than those who might not receive 30 years. We seem to have a crowding of this kind in the present case." 11. In Attorney General's Reference Nos 99-102 of 2004 [2005] Cr App R(S) 82, a 20 year starting point was said to be at the bottom of the bracket for a major organiser of wholesale distribution within this country and, again in the context of importation, Scott Baker LJ in R v Farman Ali [2008] EWCA Crim 1855 made the point (at para 22) that "once the … 20 to 30 year bracket is reached, there is a considerable amount of bunching of varied circumstances". 12. In our judgment, these observations do no more than reflect the inevitable position which a judge has to confront when seeking to differentiate the role and responsibility of a large number of offenders in the context of the most serious crime in which regard it has to be borne in mind that the penal consequences of conviction extend beyond a custodial term but also include confiscation of the proceeds of crime. Where (as here) quantities exceed category 1, so that sentences of 20-30 years might come into play as explained in the rubric to the guideline, it is an exercise of judgment to scale up the corresponding sentences for those at the bottom rung of leading along with significant and lesser roles in such a way that fairly reflects not only the part played by the offender then being sentenced but also his comparative significance within the offending as a whole. Given the limit beyond which a sentence for this type of offence does not normally extend, it is not surprising that at the highest levels, sentences on different offenders will be nearer to each other than might otherwise be the case. ……………..” Antecedents and Personal Mitigation 16. The definitive guideline proceeds on the basis that the starting point is fixed without reference to past record; reflecting s. 143(2) of the Criminal Justice Act 2003 , prior convictions, particularly if relevant in nature, constitute an aggravating factor. On the other hand, prior good character and lack of previous convictions or relevant convictions may reduce the seriousness of the offence or reflect personal mitigation. Other relevant factors include remorse, a willingness to address offending behaviour and personal circumstances. These last features can obviously play a significant part in the determination of sentence at the lower end of the ranges: for crime as serious as that involved in these cases, however, the part that they can play is very much more limited. 17. The judge underlined the gravity of all drug supply offences and did not need to emphasise the degradation and human misery that drugs cause to those who ingest them, their families and the wider community (impacted not least because of the increase in crime committed to pay for their acquisition). Equally, involvement in serious crime impacts on the offender and his aspirations and is likely to create the type of pressure that family members have articulated in letters submitted to the judge and seen by the court. 18. Unfortunately for the families concerned, the offender has brought these difficulties upon himself and they join the list of those adversely affected by his criminality: these issues can have little impact on the overall sentence for the most serious crime. In Boakye (ibid) the Court addressed an argument focusing upon the impact of custodial sentences upon the families of the defendant, and in particular upon children. Hughes LJ observed (at para. 32) that the position of children in a family might be a relevant consideration in sentencing but that: "it will be rare that their interests could prevail against society's plain interest in the proper enforcement of the criminal law. The more serious the offence, generally the less likely it is that they can possibly do so". The same principle applies here. The interests and concerns of the families of the defendants can be of little significance at the most serious levels of criminality.” 25. Rose LJ observed in Attorney General’s References no 99-102 of 2004, Whiteway and Others [2005] 2 Cr App R S 82 at paragraph 43 that in the previous case of Soares [2003] EWCA Crim 2488 sentences in excess of 30 years would have been regarded as properly representing the starting point following a trial for the prime mover in importing 2000-3000 kg of a class A drug. These extraordinary figures apart, it does appear that there is generally a ceiling of 30 years for the starting point, as the President’s judgment in Welsh and its citation from Brookhouse indicate. 26. It is difficult to discern any clear pattern of sentences in the reported cases involving class A drugs greatly in excess of the Category 1 indicative quantities. Mr Scobie QC for Sanghera pointed out to us that in Welsh itself the quantity of drugs involved was 100kg, said to have a street value in excess of £100 million. Christopher Welsh Jr, described as the head of the organisation, was given a sentence of 16 years, 8 months imprisonment, representing a starting point of 25 years before discount for a plea of guilty at the first opportunity. But we do not accept that it must follow that the starting point in Sanghera’s case ought to have been lower than 25 years. Firstly, it should be noted that the conspiracy in that case was to supply, not to import, heroin and cocaine. Secondly, this court was considering defence appeals against sentence, and held that the sentences were not excessive: it does not follow that a slightly longer sentence on Christopher Welsh Jr would have been reduced on appeal. A contrasting decision is Back [2009] EWCA Crim 754 . The principal defendant (Sirignano) had pleaded guilty to two counts of conspiracy to import and two of conspiracy to supply, the total weight of the drugs being about 15.8 kg at high purity. He was described as the “dominant person in an organisation which imported, distributed and supplied cocaine”, which cannot be said of Sanghera; on the other hand, the quantities were less than half of the 40kg involved in the cases of Sanghera and Atkar. This court held that the appropriate starting point in his case before discount for plea was 25 years, not the 28 years which the trial judge had adopted. 27. In Attorney General’s References (nos 15, 16 and 17 of 2012) (David Lewis and others) [2013] 1 Cr App (R S) 52 Hallett LJ said: “17. ………………..A judge must obviously explain any departure from the ranges provided but departures are possible, as the Council makes plain in the words "where the operation is on the most serious and commercial scale involving a quantity of drugs significantly higher than category 1 sentences of twenty years and above may be appropriate depending on the role of the offender. 18. The focus for sentencing in drugs offences remains the same: it is on culpability and harm and massive importations of drugs have the potential to cause immense harm. If therefore an offender plays a lesser role in an operation on a serious and commercial scale involving a quantity of drugs significantly higher than category 1, a sentence significantly higher than the range indicated (six to nine years) must be appropriate.” In our view the same principle must clearly apply to offenders such as Brown and O’Meara who play a significant role in the supply of class A drugs in very large quantities. The appellants’ submissions 28. Mr Scobie QC for Sanghera submitted (correctly, we think) that to reach a sentence of 25 years on the drugs charge before discount for plea the judge must have adopted a starting point of at least 30 years, perhaps even slightly higher. Mr Scobie accepted that importation of 40kg of high purity cocaine is a substantial quantity, but sought to draw a distinction between the present case and cases involving hundreds of kilograms of class A drugs. He argued that the maximum starting point of 30 years established by the case law must be reserved for cases of “massive quantities”. 29. On the ammunition charge, Mr Scobie rightly accepted that a consecutive sentence was appropriate, but submitted that the figure of 5 years, only 2 years below the statutory maximum, was clearly excessive for importation of a limited quantity of ammunition, and failed to take account of totality or to give any credit for the plea of guilty, albeit one entered at the last moment. 30. Mr Duck QC for Atkar submitted that his client’s part in the conspiracy, as Sanghera’s lieutenant, should be regarded as “at the lower end of a leading role”. Atkar was the first to plead guilty and should be given credit accordingly. Mr Duck said that his client now accepted that the judge’s findings on the Newton hearing could not realistically be challenged, and conceded that the basis of plea which the judge held at that hearing to be false must dilute that credit to some extent; but he observed that the Newton hearing had occupied very little court time. He submitted that the judge must have taken a starting point for Atkar which was far too high. 31. Mr Vullo QC for Brown and Mr Graffius for O’Meara emphasised that their clients had been involved in the August episode only. If the judge allowed Brown and O’Meara a 20% discount for their pleas of guilty, he must have taken a starting point of 16 years, which counsel submitted was far too high for a defendant playing a significant but not a leading role. 32. Mr Vullo also submitted that there was an unfair disparity between his client’s sentence and that previously passed on Walton in respect of the February consignment: for the reasons given above we are not attracted by that argument. Conclusions 33. This was a very serious conspiracy involving (in the cases of Sanghera and Atkar) nearly 40kg of high purity cocaine, a relatively sophisticated international smuggling operation extending over several months, and the corruption of airport staff. We agree with all the judge’s observations about the aggravating features of the case. Nevertheless, we have come to the conclusion that each of the appellants’ sentences should be reduced to a limited extent. 34. We begin with Sanghera. Although he played a leading role in the conspiracy, he was not its mastermind; and the quantity of 40kg, though eight times the indicative quantity for Category 1, is not as great as the most massive importations to have come before the courts. These two factors in combination persuade us that the starting point of 30 years which the judge must have adopted was wrong. We consider that the appropriate starting point in his case on the drugs charge is 27 years; applying a discount of one-sixth, the sentence in his case on that count will be one of 22 ½ years. In respect of the importation of 100 rounds of ammunition the consecutive sentence will be 3 ½ years, making 26 years in all instead of the 30 years imposed by the judge. 35. Atkar was described by the judge as being a leader in his own right, but as Sanghera’s trusted aide or lieutenant. The starting point in his case should have been 24 years. A reduction of 20% from this would give a figure just over 19 years. We shall substitute a sentence of 19 years for the 21 years imposed by the judge. 36. In the cases of Brown and O’Meara we consider that the starting point should have been 14 years. A reduction of 20% from this would give a figure just over 11 years. We shall substitute sentences of 11 years on each of them for the 13 years imposed by the judge. 37. The appeals are accordingly allowed to the extent which we have indicated.

```yaml citation: '[2016] EWCA Crim 94' date: '2016-03-22' judges: - LORD JUSTICE BEAN - HIS HONOUR JUDGE GRIFFITH-JONES ```

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

No: 200704623 A2 Neutral Citation Number: [2007] EWCA Crim 2563 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 19th October 2007 B e f o r e : LADY JUSTICE HALLETT DBE MR JUSTICE ANDREW SMITH HER HONOUR JUDGE GODDARD QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NO 95 OF 2007 - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr G Patterson appeared on behalf of the Attorney General Mr R Priestly appeared on behalf of the Offender - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LADY JUSTICE HALLETT: The offender Jamie Scott pleaded guilty at Plea and Case Management Hearings in May 2007 to two offences, namely wounding with intent to do grievous bodily harm and burglary. On 3rd August 2007, at the Crown Court at Manchester, he was sentenced by HHJ Atherton for the offence of wounding with intent to four years' detention in a Young Offender Institution and for the offence of burglary he was sentenced to a concurrent term of six months' detention, making a total sentence of four years. Her Majesty's Solicitor General considers the sentence unduly lenient and seeks leave to refer it to us. We have no hesitation whatsoever in granting leave, the reasons for which will become clear when we rehearse the facts of the offences. 2. The offender was released on licence from a Young Offender Institution on 7 th November 2006. He remained subject to three conditional discharges which had been imposed in respect of offences of criminal damage and public disorder. Within a matter of weeks he was out committing another offence. In the early hours of the morning of 28th December 2006, with a number of others, he broke into a public house in Manchester. He cut himself on entering and left traces of his DNA behind. His entry disturbed the landlady, who lived upstairs and was sleeping alone at the time. She came downstairs but fortunately too late to discover the intruders. They committed the offence under the influence of alcohol and in order to obtain more alcohol. Three part bottles of spirits were stolen with an estimated value of £15. Damage to the tune of £200 was caused. 3. On 20th January 2007 the offender was arrested and interviewed. He declined to give an account of why his blood was at the scene. He was, perhaps surprisingly, remanded on police bail. Then, on 17th February 2007, he committed the far graver offence of wounding with intent. His victim was a young man called Ryan Kay, aged 16 at the time of the offence. There had been a history of antagonism and violence between the offender, his co-accused named Blake Hayes and others, and the victim and his associates. On an earlier occasion the victim assaulted the offender with a knife, causing wounds to his abdomen which required hospital treatment. The offender declined to report the incident to the police, preferring, it seems, to take his own revenge. 4. On the Friday night of 16th February 2007, Ryan Kay was at a birthday party at a house in the Moston area of Manchester. His brothers and many friends were present. He learned that something was afoot between the offender’s group and one of his (Kay's) friends, a boy called Nathan Shepherd. In the past Shepherd had been involved in incidents of violence with the co-accused Blake Hayes. Unfortunately, eight young people decided to leave the party and they went to assist Shepherd. They had all been drinking. They found the offender in a nearby street. By now it was in the early hours of the morning. The victims can be seen on CCTV footage acting in an aggressive manner towards the offender. At that stage he was on the retreat. Threats and abuse were exchanged. The offender was with a young woman, Toni Callan. She decided to use her mobile phone to summon assistance. This led to a drastic escalation of events. 5. Blake Hayes and others arrived. They had in their possession a brandy bottle which was later used as a weapon by the offender. The reinforcements rushed from their car. The victim and his companions ran off with the victim running in one direction and his companions running in the other. The victim was pursued by the offender, Hayes and others. Most of those who were pursued escaped unharmed. However, there came a time when Ryan Kay ran out of steam. He came to a standstill. He was resigned to the fact he was going to be attacked and that is precisely what happened. 6. He was surrounded by the offender and his group. He was knocked to the ground and he was subjected to a sustained attack involving kicking and stamping. The offender was armed with the brandy bottle which he deliberately fashioned into a particularly offensive weapon with a jagged edge. He too attacked the victim by hitting and beating him. He stabbed the victim repeatedly with the bottle. During the course of the attack he was heard by the victim to say "you're gonna get stabbed". Later he was heard by a witness to say, "let's go and finish him off". Whilst on the ground, the victim received stabbed wounds to the lower back area. There were multiple lacerations of 1 to 2cm in length. Whilst on the ground he was curled into a foetal position trying to protect his face. He also received a number of injuries to the back of his hands which indicated attempts to stab him in the face. 7. The attack appeared to come to an end. Mr Kay was able to take hold of some railings and to pull himself up onto his feet. As a result, he was no longer protecting his face. At that point the offender deliberately thrust the jagged bottle neck into the victim's right eye. A witness pulled the offender away. Both he and Blake Hayes shouted at the victim, telling him that he had deserved what he got. The victim was helped away from the scene. He was taken home, the police were called and he was then driven to hospital. During the course of this he appears to have lost consciousness. 8. The damage to his eye was so serious his eyeball had to be removed. There were cuts to his face and upper and lower eyelids. There was also a fracture of his nose and he had pains to his ribs and his neck. Tragically, the victim has been left with virtually no sight at all. Since birth he has had very poor vision in his left eye. The result of the attack is that he is now virtually blind. He can see only colours and shapes. He says he is unable to appreciate television and cinema, that he cannot write, draw or go fishing as he used to do. He will never be able to drive. He feels that he will never leave his house alone. The effect of the attack has left him depressed and angry. He has scars over a substantial area of his body and he will have to endure at least one more operation. We could go on. Suffice it to say the effects of the attack upon him have been devastating. 9. The offender was arrested at his home address on 18th February. He made no comment when interviewed. He was 18 at the time of the attack. He is now 19. Between 30th July and 2nd August 2007, Blake Hayes was tried in respect of the same attack. He was found guilty of unlawful wounding. 10. The offender has convictions for a number of offences beginning in 2004. They include offences of violence, criminal damage, dishonesty and road traffic offences. On several occasions he has been sentenced to detention. The previous offences said to be of particular relevance to the section 18 offences are as follows: an offence contrary to section 5 of the Public Order Act 1986 for which the offender received a 12 month conditional discharge, an offence contrary to section 4 of the same Act for which he received a sentence of four months detention and training, another offence contrary to section 5 of the Public Order Act, committed in June 2006, for which he received a conditional discharge, and an offence of having a bladed article in a public place, again committed in the summer of 2006, for which he was also sentenced to two months' detention. This last offence involved the possession of a 12-inch kitchen knife. 11. Mr Patterson on behalf of Her Majesty's Solicitor General suggested the following offences were of particular relevance to the burglary matte: namely two offences of theft and an offence of taking a motor vehicle without consent. 12. Mr Patterson also wished to highlight passages in the pre-sentence report, which referred to the offender’s attitude to his offending. This caused the author considerable concern; as did his approach to alcohol consumption. He was identified by the author of the report as a prolific offender. He was assessed as posing a high risk to the public whenever he feels aggrieved by them. His abuse of alcohol contributes to the risk. 13. In his sentencing remarks, the judge described the section 18 offence as one of the most serious offences the offender could commit and the incident as one of the most appalling cases of street violence he could think of. Yet, and despite the assessment of risk in the pre-sentence report, at no stage during the sentencing hearing does the learned judge appear to have considered the provisions of section 224 to 229 of the Criminal Justice Act 2003 . 14. According to Her Majesty's Solicitor General, the following aggravating features are present. (1) In relation to the section 18 offence, it was committed to exact revenge for the earlier incident. (2) There was the adaptation and use of the weapon. (3) The attack was sustained and determined. (4) The wounds indicated repeated attempts to stab the victim in the face and in the head. (5) This was a group attack which was committed on a 16 year old vulnerable victim. He was outnumbered. (6) the attack led to grave injuries which have had a devastating impact upon the victim. 15. Mr Patterson also suggested that the offender's record and pattern of offending indicate this is a young man who has failed totally to respond to community penalties and indeed to periods of detention. Sadly, his offences keep escalating. Finally, he reminded the court that the offence was committed shortly after being released on bail in respect of the burglaries. 16. We turn to the aggravating features of the burglary offence: (1) the premises were occupied (2) the offence was committed at night while the landlady slept alone (3) she was fearful for her own safety (4) the offender was accompanied by others (5) the offender had committed previous offences of dishonesty (6)he was on licence and subject to court orders at the time he committed the offence. 17. Mr Patterson suggested there were two primary mitigating features, his age and his plea of guilty. However, Mr Patterson submitted this court should adopt the same approach as the trial judge said he was adopting, namely that, given his previous record, the amount of discount the court should give to this young man simply because of his age was limited. 18. Mr Priestly on behalf of the offender added to those mitigating features in this way. He invited the court to bear in mind the observations of the secretary of a local resident's association about the bad behaviour of the complainant and his associates. They were said to be looking for trouble that night, as they often did. He reminded us how the incident started and the fact that it does not seem that the offender went out that night looking for his revenge. As the judge himself observed, it could so easily have been the offender who had been at the receiving end of serious violence. The tables turned during the course of the chase. Mr Priestly argued that the judge was best placed to assess the criminality of the offender and whether or not this young man was a danger to the community within the terms of the Criminal Justice Act. He argued that it was not necessarily unreasonable to decline to make a finding of dangerousness. His record was, as he put it, “bad but not that bad”. It indicates an “antisocial obnoxious individual” rather than a dangerous one. He conceded that the sentence was lenient but invited this court to say, given those factors, it was not unduly lenient. 19. We turn first to the question of dangerousness. It was common ground that we have power to make the statutory determination and to pass a term of detention for public protection if that is what we decide is required. It is in our view unfortunate, to say the least, that the judge here failed in his statutory duty to consider the dangerousness provisions of the Criminal Justice Act 2003 and that counsel failed to bring this to his attention. 20. We have no doubt whatsoever, given the circumstances of the offence and the offender, that there is only one course available to us. Any reasonable judge would be bound to find that this young man poses a high risk to members of the public of serious harm occasioned by the commission by him of further violent specified offences. His record speaks for itself. His attitude towards his offending and his attitude towards the abuse of alcohol are sufficient to cause this court great concern. His behaviour that night shows that, given any degree of provocation, which may be present on the streets of Manchester in the early hours, he will react in an exceedingly violent fashion. If not already armed, he will arm himself with a vicious weapon. If he attacks he is prepared to continue attacking until his victim his gravely injured. 21. This attack was sustained and brutal. It was committed by a gang of young men, with this offender playing his full part as part of an ongoing feud with the complainant. The complainant was beaten, stabbed and kicked as he lay defenceless on the ground. Given its severity, the initial attack could have been fatal. But, that was not enough for this young man. When he saw his wounded and defenceless victim stagger to his feet the offender delivered the unkindest cut of all, he used the bottle to stab his victim in the eye. The blow was deliberate and clearly aimed at the face (as others had been). At the very least he risked blinding his victim in one eye and in fact caused almost total blindness. We find it hard to believe that a young man, whatever the perceived slight, could act in that dreadful fashion. We accept that the complainant himself may have been no angel but nothing he had done in the past could come close to justifying or mitigating an attack of this kind and its appalling consequences. 22. Further we must not forget that at the time of the attack the offender was on licence. He was on bail. He was subject to conditional discharges and he had a record for aggressive behaviour. Finally there was yet another offence for which he fell to be sentenced. namely a serious offence of burglary, committed mob-handed at night whilst a woman slept upstairs alone. The judge, in our view, appears to have paid scant attention to that offence. 23. Thus, despite Mr Priestly's brave attempt at upholding the judge's sentence, we have no doubt whatsoever that the catalogue of offending and the catalogue of aggravating features for these two offences lead inevitably to the conclusion that the sentences passed were unduly lenient. As we have indicated, we have no doubt that this young man is dangerous within the meaning of the Criminal Justice Act and therefore we impose a term of detention for public protection. In fixing the notional determinate term we shall bear in mind both the offences. In our view, the offender, despite his age and despite his pleas of guilty, could not have complained had he received a total determinate sentence in double figures. Bearing in mind he is being sentenced for the second time for the same offences, we shall specify a period of four and-a-half years as the relevant period of the term of detention. 24. Mr Patterson, I think he deserves credit for a certain number of days. 25. MR PATTERSON: Yes, it was 150 days. 26. LADY JUSTICE HALLETT: He will have credit for those days. (pause) Mr Patterson, having swept up the burglary in the determinate term, should we say no separate penalty is appropriate on the burglary matter? 27. MR PATTERSON: Yes, absolutely appropriate. It has been reflected in the setting of the minimum term in relation to the wounding with intent. 28. LADY JUSTICE HALLETT: No separate penalty on the burglary. Thank you very much.

```yaml citation: '[2007] EWCA Crim 2563' date: '2007-10-19' judges: - LADY JUSTICE HALLETT DBE - 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. 2013/04867/A4 Neutral Citation Number: [2014] EWCA Crim 120 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 23 January 2014 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Thomas of Cwmgiedd ) MR JUSTICE SIMON and MR JUSTICE IRWIN - - - - - - - - - - - - - - R E G I N A - v - SOUTHERN WATER SERVICES LIMITED - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404 1400; Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr R Thwaites QC and Mr C Darton appeared on behalf of the Appellant Mr D Walbank appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T Thursday 23 January 2014 THE LORD CHIEF JUSTICE: The offence 1. In either late December 2010 or some time before 7 January 2011 Southern Water Services Limited, part of the Southern Water Group, a utility company owed by professional shareholders, discovered that their sewage-pumping station at Margate, which discharged effluent into the sea off the coast of Kent, was faulty and was discharging untreated sewage. They did not notify the Environmental Agency or the Fisheries Conservation Authority until 17 January 2011. That was a breach of their licence and their obvious duty to the public. It transpired that three of the four transfer pumps had failed. Vibration appears to have caused the feet of the pumps to shear. This reduced the capacity of the works so that up to 50 per cent of the sewage was discharged untreated on occasions into the sea. In the period to July 2011, because they were unable to make permanent repairs to the pumps, there were further discharges of untreated sewage into the sea. 2. From the papers before the judge it appears that that the company failed to disclose the full extent of those further discharges, until the Environment Agency required them to do so. 3. On 2 July 2013 in the Canterbury Magistrates' Court the company pleaded guilty to contravening the conditions imposed on it by regulation 12(1), regulation 38(1)(a) and regulation 39(1) of the Environmental Permitting (England and Wales) Regulations 2010. The case was committed to the Crown Court. It was heard on 23 August 2013 in the Crown Court at Canterbury by Her Honour Judge Adele Williams, the resident judge who is very familiar with local conditions in Kent. Culpability and harm: The findings of the judge 4. In cases of this kind a judge's duty is first to find the degree of culpability; and second, to consider the extent of the harm or potential harm, before turning to consider the financial circumstances of the offender. 5. As to culpability, the judge found that there had been a failure to notify and to remedy the problems quickly. We will return to that finding shortly. As to harm, the judge found, in accordance with the case advanced by the Crown, that there was no evidence of actual harm. It appears from the helpful materials that have been put before us by Mr Thwaites QC that there was no evidence of actual harm. 6. However, it was important to look at the potential harm and, particularly in environmental cases, to consider also the impact upon the local economy. It is self-evident that it is the perception of pollution that often has a very serious effect on a local economy. The Crown opened to the judge the fact that the coast of Kent had more blue flag beaches within the area of Thanet than any other authority in the United Kingdom. Part of the coast was designated as a site of Special Scientific Interest. There was extensive use of the areas for amenities, particularly bathing and water sports. Furthermore, the waters were used for shell fisheries. The judge found that any loss of confidence in the use of the coastal waters of Kent could have a serious effect on the local economy. 7. The judge then looked at the aggravating features. She concluded, first, that there had been a failure to notify the initial failure promptly and properly, and some of the other discharges. She also found that there had been a failure to use sufficient resources to remedy the problem more quickly. Finally, she looked at the company’s record of previous convictions. 8. As mitigating features, the judge looked at the co-operation that had been given, what had been done to remedy the problem, and the plea of guilty. 9. She fined the company the sum of £200,000. The appeal: Culpability and harm 10. In the appeal, which has been argued before us today by Mr Thwaites QC, it has been put forward that the fault was caused by a fault in design; that it would have been very difficult to anticipate the problems that arose. 11. The difficulty with that submission made at this stage, which is fair to say of the way in which Southern Water and its main board have approached the whole of this serious criminal offending, is that those representing the company were not given the proper material to enable them to explain to the sentencing judge why there had been no fault on their part in the design. Secondly, nothing of any substance was put forward before the sentencing judge to show why there had been delay in dealing with this matter. Mr Thwaites QC has directed our attention to some interviews which took place with the low-level operatives responsible. 12. Apparently the main board of Southern Water Services Limited failed to appreciate the seriousness of the criminality involved in what had happened and to commission proper evidence, if such was the case, to show that there was good reason why the failure could not be remedied more quickly. It was said on behalf of the Crown that there had been a systemic failure and that the company should have put in more resources. Again, there was no evidence from the company at its main board level to deal with this submission. It is, therefore, hardly surprising that the judge concluded, as she did, the level of culpability which we have set out in the absence of any evidence from the company, and evidence properly put forward, which would show the care and attention that a company of this size would give to such a serious incident as this. If there was material which could have enabled the judge to reach a different conclusion, it is entirely the company's own fault that the judge came to the conclusion she did, as they did not put forward any evidence. 13. Secondly, it is said that the company had not caused any damage. That is accepted. The submission was advanced that sewage had been discharged into the sea for years and years and years, and why should anyone worry about it? 14. It seems to us that it is self-evident that the permission that was given by the Environment Agency was conditional on the fact that the pumping station was state of the art; and that it would remove a good proportion of the harmful bacteria. It seems to us that it must be a judgment for the Environment Agency as to the way in which they presented the case to the judge. The judge was entitled to come to the conclusions we have summarised that there was the potential for serious harm. The submission made to us by Mr Thwaites QC is not supported by evidence. Nor was it supported by evidence below. Again, that is indicative of the way in which the main board of Southern Water has treated this matter. 15. It was, therefore, right that the judge should approach this case on the basis that there had been no actual harm, but that there was the potential for serious harm to the local economy and that there had been a degree of unexplained culpability which reflected poorly on Southern Water. The financial circumstances of the company 16. Against the findings of the judge, with which we can see no basis on the material before us for interfering, we turn to look at the financial circumstances. Southern Water is a very large company by any standards. It had a turnover of approximately £0.75 billion in the last financial year. Its turnover in the year before that was only a little less. Its profitability after tax was £79 million in 2012 and £156.9 million in 2013. It is a company owned by professional shareholders who have two representatives on the board. It is, therefore, a company that has very substantial resources and a management that is quite capable, if it were to put its mind to it, of dealing with the problems that arose in this case. 17. We have had a statement from the company secretary in which it is said that no dividends have been distributed out of the profits to which we have referred. It is clear that the fact that a privately owned company of this kind does not distribute its profits but ploughs in back into the business is irrelevant. It is a profitable company, and in the water industry professional shareholders would be expected to make investments. The court looks at its profitability in the ordinary way, as if it were an ordinary privately held company. It is quite different to Network Rail, where the monies put into the company come from the public purse. 18. We turn to consider one further factor. The company has a record of 160 previous offences. Some of them are minor and represented by cautions. Some of them are strict liability offences. Looked at as a whole, there is a record of persistent offending by this company. 19. In the absence of any explanation as to what the main board of the company has done to reform itself, to eliminate its offending behaviour and to give a detailed explanation of what happened in the incident which was before the learned judge, there is very little mitigation that can be put forward. It is very important - and we wish to make this clear - that in offences of the seriousness of the kind represented by this case it is incumbent on the Chief Executive and main board of the company - particularly one with a serious record of minor criminality which this company has - to explain to the court the cause of its offending behaviour, the current offence and its proposals for protecting the public from such further offending. In other words, as was set out in the judgment of this court in R v Sellafied Limited and R v Network Rail Infrastructure Limited [2014] EWCA Crim 49 , the court wants to know how the company is addressing the purposes which Parliament has laid down for sentencing and preventing further criminal behaviour by the company. 20. We hope, therefore, that this will be the last case which comes before this court where water companies and other similar utilities have not taken much more seriously the criminality of such offences of the seriousness involved in this case. 21. We can see no basis for interfering with the fine imposed by the judge. Indeed, this court would not have interfered with a fine very substantially greater than that imposed upon this company in the circumstances of this case. 22. For those reasons, therefore, this appeal is dismissed. 23. Is there any application for costs? MR WALBANK: There is no application. THE LORD CHIEF JUSTICE: Thank you very much.

```yaml citation: '[2014] EWCA Crim 120' date: '2014-01-23' judges: - MR JUSTICE SIMON - 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} ======

No: 2005/5217/A4 Neutral Citation Number: [2006] EWCA Crim 228 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 15 February 2006 B E F O R E: LORD JUSTICE KEENE MR JUSTICE STANLEY BURNTON MR JUSTICE SIMON - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 99 OF 2005 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR A DARBISHIRE appeared on behalf of the ATTORNEY GENERAL MR P WARNE appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. LORD JUSTICE KEENE: This is an application under section 36 of the Criminal Justice Act 1988 by Her Majesty's Attorney General for leave to refer a sentence to this court because it appears to him to be unduly lenient. We grant leave and we therefore treat this as the hearing of the Reference. 2. The offender, Gary John Flynn, pleaded guilty on rearraignment at the Crown Court at Minshull Street, Manchester, on 7th January 2005 to causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861 . He also pleaded guilty to damaging property. 3. On 7th September 2005 he was sentenced by His Honour Judge Lever to five years five months' imprisonment for the section 18 offence, with no separate penalty for the offence of criminal damage. A consecutive sentence of one month's imprisonment was passed for an offence under the Bail Act, thereby making a total of five-and-a-half years' imprisonment in all. 4. Both the offender and the victim, a man called Vaughan, were residents of a hostel in Altrincham. They were indeed friends. They both spent the evening in question, 23rd March 2004, drinking and smoking cannabis with their girlfriends. However, an argument arose between the two men and a fight started in the corridor outside the room occupied by the offender's girlfriend. It is unclear precisely how it began but it is clear that the offender quickly got the better of Mr Vaughan. By the time Mr Vaughan's girlfriend got into the corridor, Mr Vaughan was slumped against the wall with the offender kicking him to the head and face. She described the offender repeatedly kicking Vaughan in the face with a stamping motion: "He seemed relentless, like an animal or maniac, kicking him three or four times." Mr Vaughan appeared to be losing consciousness. She tried, she said, to get between them but she was pushed away by the offender who returned to punching and kicking Mr Vaughan in the head and face. Another resident heard the offender shouting: "I'm going to fucking kill you. I'm going to slit your throat", and saying that he was going to get a knife. The offender left the corridor and Mr Vaughan's girlfriend tried at that point to get the victim to the lift so as to be able to take him down to the reception area on the ground floor to get help. However, before she was able to get him to the lift the offender returned, brandishing a knife which he put to Mr Vaughan's throat. He refused to allow Mr Vaughan's girlfriend to take Mr Vaughan to the reception. Instead he insisted that they go to the offender's room on the first floor of the building. Once on the first floor the offender began to drag Mr Vaughan towards his room, whilst still holding the knife. He again punched and kicked out at him, kicking him to the head at least once. About three quarters of the way between the lift and his room the offender suddenly stopped the assault. Perhaps suddenly aware of the extent of Mr Vaughan's injuries he seemed to accept the pleas from the girlfriend that an ambulance should be called. The offender then carried Mr Vaughan to the reception area before disposing of the knife. 5. Paramedics arrived and attended to the victim. The offender remained at the scene, still behaving unpredictably, at one point smashing a fish tank in the foyer area. That last action formed the basis of the charge of damaging property. 6. Forensic scientists examined the hostel. Blood splattering was found both in the corridor on the fourth floor where the assault had started and on the first floor. The first floor bloodstaining, which included spatter on the wall and ceiling, indicated two separate sites of assault on that floor. 7. At interview the offender said there had been a "fight between friends" which had got out of control. He said that he had punched Mr Vaughan about six times and that it had lasted two or three minutes. He denied kicking Mr Vaughan or having been in possession of a knife or having continued the assault on the first floor. 8. On arrival at Accident and Emergency it was apparent that Mr Vaughan had sustained traumatic brain injury. A CT scan revealed a large subdural haematoma which was operated on. By 16th April 2004, that is to say some three-and-a-half weeks after the incident, Mr Vaughan was still neurologically very impaired, although he was able to open his eyes spontaneously and to respond to pain. He had spastic quadriplegia with flexion contractures at the elbows and ankle. He was feeding through a tube. 9. The latest medical report indicates that Mr Vaughan is effectively quadriplegic. He is now receiving full-time care in a nursing and residential home, the Matron of which states that all four limbs are in permanent spasm. All food has to be administered to him via a tube directly into the stomach. While he does respond to pain by facial expressions, he is unable to communicate. He is doubly incontinent. He is virtually bed-bound but can be hoisted out of his bed and sat in a wheelchair. All of his personal hygiene has to be done by his carer. In terms of any recovery his condition is not expected to improve. 10. In sentencing the offender the judge described the plea of guilty as an early one and said that he was giving a maximum one-third credit for it. He also noted the offender's violent and difficult childhood and his absence of previous convictions. 11. The offender is aged 22, having been 21 at the date of the offence. The judge's reference to his violent and difficult childhood is borne out by the psychiatric reports on him which refer to his inability to control his aggression. We shall have to return to those reports in due course in this judgment. 12. A pre-sentence report referred to a "potentially significant and extreme risk to members of the public". 13. The Attorney general is of the opinion that the sentence passed, a total of five-and-a-half years' imprisonment, was unduly lenient and that it failed both to reflect adequately the seriousness of the offence and the need to protect the public from the risk posed by the offender. 14. On behalf of the Attorney General, Mr Darbishire draws attention to the fact that this was a deliberate and sustained attack on a man who from the earliest stages was not only defenceless but barely conscious. He contends that it is difficult to conceive of a more serious non-fatal assault. It is also said that the offender pushed aside the attempted intervention and protection of the victim's girlfriend and then continued the assault. Perhaps above all, Mr Darbishire emphasises that the consequences of the attack were as grave as in any offence short of homicide. The result has been the total and permanent destruction of the victim's ability to engage in or enjoy any aspect of normal human life. 15. At the same time, the Attorney General recognises that some mitigating features are present: the absence of previous convictions, the lack of premeditation and the plea of guilty. On the last of those it is submitted by Mr Darbishire that this was not a case which merited a one-third discount for a guilty plea. Our attention has been drawn to the fact that the offender was arraigned in June 2004 and pleaded not guilty. The case was adjourned then to a date in July for trial but that fixture was twice broken. The defence finally indicated to the prosecution that the offender would be pleading guilty in December 2004, shortly before the third date fixed for trial. This was some seven months after the first arraignment. The recent Sentencing Guidelines Council guidelines would suggest that a reduction no greater than one tenth of the term, says Mr Darbishire, should have been made. In all those circumstances it is contended that this was clearly an unduly lenient sentence. 16. As to what the sentence should have been, it is submitted on behalf of the Attorney General that there is abundant evidence that the offender presented a serious risk to the public for an indeterminate time. In his sentencing remarks the judge himself acknowledged what he called the "high danger" to the public. Although the offender does not have previous convictions, there is clear evidence, it is said, of a pattern of violence in the past on the part of this offender towards his family. Mr Darbishire particularly refers to the psychiatric reports on the offender, especially those dated 28th February 2005. These indicate, first, that the offender had been receiving psychiatric help in the past, certainly from late 1998 to mid-1999. Dr Clark, a psychiatrist, writing in April 1999, described the offender as follows: "He is a 16-year-old male with a history of conduct disturbance, substance misuse, assaultative behaviour and deliberate self harm, all of which place him in the highest risk groups for suicide or homicide." Mr Darbishire draws attention to those final words. Another letter from the same psychiatrist says this of the offender: "He acknowledges the use of knives and big sticks in some of his confrontations. His violence is predominantly within the immediate family but he does acknowledge some fights with other young men resulting in a broken nose, not his, and attendance at hospital. He has been in more fights over the last eight to nine months but does acknowledge some occurring at previous schools." A Dr Gowrisunkur, the consultant psychiatrist producing the 2005 reports, states towards the end of his addendum report: "All professionals agree on the high level of risk presented by Mr Flynn to his family at the time, to himself but also to anyone with whom he might be close. Clearly, some of the predicators identified by Dr Clark have unfortunately been fulfilled by Mr Flynn's recent assault." 17. In the light of all this evidence and of the facts relating to the present offence, it is contended on behalf of the Attorney General that there is clear evidence of a high level of risk to others from this offender, a risk of serious violence. Unless there was evidence that there was a finite and predictable end to that period of risk to others the judge should have considered either an extended licence beyond a lengthy custodial term or a discretionary life sentence, and preferably the latter. Mr Darbishire submits that the requirements for a discretionary life sentence are met in the present case. He relies on the psychiatric reports which identified the offender as suffering from impulse control disorder and refers us to the concluding paragraph in the main report. That reads as follows: "Impulse Control Disorder of this severity is difficult to treat and my prognosis is guarded especially if Mr Flynn cannot limit his drug intake and change his lifestyle. However, it is worth pursuing the option of treatment in order to make an attempt to improve the situation. Good prognostic factors include his good level of insight, his expression of remorse, his motivation to seek treatment and the stable relationship he has with his current partner and child." It is therefore submitted on behalf of the Attorney General that there is no evidence that a determinate period would be sufficient to avoid the risk to the public. Indeed, Mr Darbishire's contention is that the evidence points in the other direction. 18. If and in so far as the court is considering a commensurate sentence of finite length, reliance is placed on two authorities: Moore and Feeney [2003] EWCA Crim. 3698 , [2004] 2 Cr.App.R (S) 153 and Desourdy [2003] EWCA Crim 3727 , [2004] 2 Cr.App.R (S) 188. Those are said to provide guidance as to the appropriate length of sentence for a section 18 offence with consequences of the very gravest kind, as in the present case. They indicate, it is said, a sentence of 12 years after a trial or in the range of nine to 10 years after a plea of guilty. 19. On behalf of the offender, Mr Warne, who has taken the brief on behalf of the offender we understand at short notice and for that we are grateful, concedes that the sentence in this case was somewhat light. He acknowledges that an appropriate one at trial may well have been in the order of seven to eight years' imprisonment. But he argues that given double jeopardy and the existence of this court's discretion we should not intervene today. 20. As to the possibility of a life sentence, it is submitted that the judge in the present case did assess the risk to the public and had the same facts available to him as are before this court. Mr Warne points out that the offender is aged only 22, he is in that sense capable of rehabilitation and of course emphasis is placed on the fact that this is his first serious offence. It is noted that we now have available recent reports from the prison where the offender is being held. They contain no adverse comments and no adjudications against him. Consequently, says Mr Warne, there seems to be a marked improvement in his behaviour particularly when compared to the period on remand when he seems to have found himself engaged in seven or eight fights. Given that degree of improvement, it is contended that there should here be a commensurate determinate sentence. Moreover, it is argued that it would be draconian to impose a life sentence without up-to-date psychiatric reports. Mr Warne points out that the reports available to us are dated February 2005 and they do not enable one to assess the degree of improvement which has occurred. 21. As to the length of a commensurate sentence, Mr Warne seeks to distinguish Moore and Feeney and Disourdy . He points out that there was in Disourdy a Newton hearing which must have affected the sentence and he refers us to some authorities where lesser sentences were imposed, although he acknowledges that those other authorities were ones where the consequences for the victim or victims were lesser than those which exist in the present case. Mr Warne acknowledges that it is difficult to argue that the present case is not at or near the top end of the range of seriousness for section 18 offences, but he argues that the judge took into account all relevant matters. Finally, he submits that if a life sentence were to be imposed there is a danger that this might damage the progress which appears to be being made currently by the offender in prison. 22. This court accepts that this was a case where no weapon in the conventional sense of that term was used. However, it has been said more than once that the use of a boot, particularly when directed at the victim's head, is tantamount to the use of a weapon. 23. There were some seriously aggravating features to the present case. Not merely did the offender repeatedly kick and stamp the victim's face and head, but on one occasion he did so in the course of at least a second and distinct episode shortly afterwards in a different location. It was indeed an offence of sustained and brutal violence. It is clear that for much of the time the victim was wholly unable to defend himself. In addition, the offender prevented the victim being taken for help when the latter was already clearly in a semiconscious state. Thirdly, to prevent that happening the offender used a knife to threaten, having gone off and deliberately armed himself with that knife. Fourthly, and of very great significance, there are the consequences of this assault for the victim. He has been reduced by this vicious attack to a condition which effectively robs him of all those things which make life worth living. That condition appears to be permanent. It is, in the view of this court, difficult to conceive of more serious consequences short of death. They resulted from an attack in which, as his plea acknowledged, the offender's intention was to cause really serious bodily harm to Mr Vaughan. That factor takes away any possible mitigation there might have been to be derived from the consumption of drink and drugs. The intent to cause such harm was present. It is said in the written mitigation that the offender eventually desisted from his attack. That is true, but had he continued he might well have found himself facing a murder charge. 24. There is some mitigation available to a limited extent. The offender has no previous convictions. This was not a premeditated offence but resulted from a sudden loss of self-control. Some credit is due for his plea of guilty. We do not, however, share the view of the sentencing judge that this plea merited a one-third reduction in sentence. Given the passage of time since his plea of not guilty at arraignment, and the fact that a trial date had been set three times before he changed his plea, it seems to this court that in the light of the Sentencing Guidelines Council guidance no more than about 15 per cent discount could properly be given on a determinate sentence. We of course take into account the violent and difficult childhood of the offender, as did the judge below. 25. The judge here chose to impose a determinate sentence. Even if that were right we are satisfied that his sentence was unduly lenient. The two most helpful authorities on determinate sentences for section 18 offences with consequences of this kind are those referred to by Mr Darbishire. In Desourdy the appellant and two others attacked a man with the appellant knocking him to the floor and then stamping and jumping on his face. He then dragged the victim down some concrete steps allowing his head to bang on those steps. The victim suffered multiple fractures of the cranium, his brain was badly swollen and part of his spine fractured. The result was that he could not walk unaided, his speech was slurred and he needed help to deal with dressing, washing and attending to his toilet needs. The appellant in that case was aged 22. He changed his plea to guilty on the second occasion set for trial and there was, as has been remarked during argument, a Newton hearing. He was sentenced to 11 years' imprisonment and this court was not persuaded to intervene. The case bears some similarities to the present one, though the tragic consequences there were not quite as serious as in the present matter. 26. Moore and Feeney was a case where this court did intervene and so provides firmer guidance. The two appellants there were convicted after a trial of a section 18 offence. They punched the victim and once he was on the ground kicked and stamped on his head and then left him on a grass verge outside a neighbour's house. The victim suffered a fractured skull and jaw and a severe brain injury which left him in a vegetative state from which he was unlikely to recover. The trial judge imposed a sentence of 15 years' imprisonment which this court reduced to 12 years. One of the appellants was of good character. The other had previous convictions many years earlier. That case of course involved sentences imposed after a trial with no discount for a plea of guilty. Other than that, it bears some considerable similarities to the present case. We do not otherwise see, despite Mr Warne's submissions, that it can properly be distinguished. 27. In the light of those authorities this court is satisfied that a sentence of five-and-a-half years in total was unduly lenient. 28. The next question is what sentence should be substituted for it? The test for the imposition of a discretionary life sentence in cases such as this is set out in Attorney General's Reference No 32 of 1996 [1997] 1 Cr.App.R (S) 261. The court has to be satisfied that it appears that the offender is likely to represent a serious danger to the public for an indeterminate period of time. It is clear to this court that this offender does indeed present a serious danger to the public as things stand at present. This may be his first offence of serious violence but there is clear evidence of violent behaviour on his part in the past, as referred to on behalf of the Attorney General. Indeed, it is conceded by the offender's counsel who refers in his written submission to the offender's "admitted history of violent outbursts." The offender is patently unable to control his anger which exhibits itself in violence. The psychiatric reports on him bear this out. The danger is of serious violence as tragically occurred in the present case. Those reports and the other evidence set out earlier in this judgment, which we need not repeat, show good grounds for concluding that he is likely to remain such a serious danger in the future. For how long that will endure cannot at present be estimated. As Mr Warne accepts, the prognosis is uncertain. That, in our judgment, is the classic situation where an indeterminate sentence is required for the protection of the public. We are satisfied that a discretionary life sentence is justified and required in the present case. That will enable this young man's progress to be monitored carefully which is what the judge below wished to see happen. It may be that he is already starting to make some progress in prison, as the current prison reports suggest, but we do not see that anything useful will be served by seeking a further psychiatric report at this stage. That will no doubt happen as time progresses. 29. We have of course to specify the period to be served as a result of section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 before the offender may require the Secretary of State to refer his case to the Parole Board. That is a period to reflect the need for punishment and deterrence. Given the authorities to which we have referred earlier where determinate sentences were passed, it seems to us that allowing for the late plea of guilty at first instance a determinate sentence of about 10 years' imprisonment ought to have been imposed in this case. To allow for double jeopardy that would have been reduced on this Reference in this court to a term of nine years' imprisonment. We therefore specify the period under section 82A as being one of four-and-a-half years' imprisonment, less time spent in custody before sentence. We are told that his time on remand amounted to 179 days and that of course must be deducted from the four-and-a-half years. 30. The end result of this Reference is that we quash the sentences imposed below. In their place we substitute a sentence of life imprisonment for the section 18 offence with the specified period to which we have referred. No separate penalty will be imposed for the other offences. 31. MR DARBISHIRE: My Lord, may I raise one other matter very shortly? It is simply this. During the luncheon adjournment I referred to the standard form references and advices for the Attorney in cases of this sort. Your Lordships may not know but the standard practice is to draft an advice which contains a review of the relevant authorities and an indication for the Attorney as to what counsel drafting the advice indicates the tariff should have been. May I, so that I have the picture clear, understand from your Lordships indication that this court would prefer rather than a simple indication of which authorities are relied upon, at least in headline form some indication of what range and type of sentence the Attorney representing should have been passed for the guidance of everyone? 32. LORD JUSTICE KEENE: Mr Darbishire, we are not suggesting the Attorney has to specify the length of the determinate sentence which he feels should be imposed, but where a determinate sentence has been imposed and the Attorney is intending to submit that that is the wrong type of sentence and that for example a discretionary life sentence should have been imposed, that ought to be spelt out in the Reference to the court. That aids the court and also of course puts the offender on notice as to the case that he is going to have to meet. 33. MR DARBISHIRE: Indeed. It remains the case that where only a determinate sentence is in consideration generally References as currently drafted will not give any indication as to what the Attorney's submission will be as to the appropriate range of determinate sentence. I wonder whether applying -- I am sorry. 34. LORD JUSTICE KEENE: What we intend to do, Mr Darbishire, as this raises matters of far-reaching importance, for my part I would certainly want to consult with the Vice President of the Court of Appeal (Criminal Division) and perhaps the Lord Chief before we determine that. That is as far as we can go today, I think. If we think that the form ought to be changed so that the Reference does in most cases, even in determinate instances, specify the range of sentence actually being suggested by the Attorney, we will let the Attorney's chambers know. 35. MR DARBISHIRE: I will immediately convey your Lordships' observations about indeterminate sentences as a type. 36. LORD JUSTICE KEENE: Yes, and may I say that would apply to other non-straight sentences, if I may so describe them, ones where an extended licence period is being advocated, for example, or -- 37. MR DARBISHIRE: Wrong in principle would probably cover the case. 38. LORD JUSTICE KEENE: Yes. 39. MR DARBISHIRE: Thank you, my Lord. 40. LORD JUSTICE KEENE: I hope that is of some help.

```yaml citation: '[2006] EWCA Crim 228' date: '2006-02-15' judges: - LORD JUSTICE KEENE - MR JUSTICE STANLEY BURNTON - 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: 200500079/C2 Neutral Citation Number: [2005] EWCA Crim 2996 IN THE HIGH COURT OF JUSTICE COUERT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT ISLEWORTH His Honour Judge McDowall Royal Courts of Justice Strand, London, WC2A 2LL Wednesday, 23 November 2005 Before : LORD JUSTICE LONGMORE MR JUSTICE DAVID STEEL and THE RECORDER OF WINCHESTER HIS HONOUR JUDGE BRODRICK (Sitting as a Judge of the Court of Appeal, Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : Regina - and - Pritpal Sineh Dhillon - - - - - - - - - - - - - - - - - - - - - (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) - - - - - - - - - - - - - - - - - - - - - Mr Piers Mostyn acting for the Appellant Mr Peter Herrity acting for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice David Steel : 1. On the 14 December 2004 at the Crown Court at Isleworth the appellant was convicted before His Honour Judge McDowall and a jury of escape contrary to common law. The jury was unable to reach a verdict with regard to other counts charging him with the offences of dangerous driving, assault occasioning actual bodily harm and criminal damage. 2. On the 16 December 2004 he was sentenced to 8 months imprisonment. With respect to the other counts, the prosecution offered no evidence and formal verdicts of not guilty were entered. 3. He appeals against that conviction by leave of the single judge. 4. The background is as follows. At 07.49 am on 30 September 1998, police officers arrested the appellant as an illegal immigrant. He was thereupon transported to a police station where, following examination by a doctor, he was taken by a police officer to Hillingdon Hospital in order for a suspected knee injury to be X-rayed. 5. It was the prosecution case that, after receiving treatment, the appellant escaped from police custody by leaving the hospital. It was the defence case that the appellant, having received his treatment and seeing no police officers, simply left the hospital and went home unaware that this would be treated as an escape. 6. The evidence was in very short compass. A PC Mitchell said that at 1.00 pm he was told to go to Hillingdon Hospital to take over the custody of the appellant from another officer. (This latter officer was not called to give evidence and indeed PC Mitchell could not remember his name). When he arrived at the A & E waiting area, he said that the appellant was pointed out to him by his colleague. His colleague was said to have observed “that is Dhillon” and the person concerned appeared to respond to his name. 7. PC Mitchell did not stay with the appellant when the latter went in to be seen by the triage nurses and then X-rayed. He had expected to see the Appellant re-emerge into the waiting room following treatment. However, he lost contact with him and, after conducting a search which revealed an alternative exit, reported that the appellant was missing. 8. In his police interview the appellant gave predominantly no comment responses to the questions that were put. However, he expressly denied escaping from police guard. In his oral evidence he said that he had not been aware that he had been under police guard at the hospital. After he had been X-rayed he could see no police officers waiting for him. He therefore went over to where he knew a police officer had been but again could not find anyone and so he left the hospital. 9. The focus of this appeal, reflecting the leave granted by the single judge, was the question whether the summing up adequately directed the jury as to the ingredients of the offence of escape on the unusual facts. 10. It is convenient to begin consideration of the substance of this appeal by seeking to identify the ingredients of the offence of escape at common law which is a relatively unusual offence. Indeed the sections devoted to the offence in the standard text books perhaps lack the degree of particularity needed to assist a trial judge when embarking on such a task. It is at least clear that it is an indictable offence at common law for a prisoner to escape without the use of force from lawful custody: see Archbold (2005) para. 28-191. The following authorities are of some further assistance. 11. First Timmis [1976] Crim.LR 129. The defendant had been stopped as a result of erratic driving and breathalysed. The test proving positive, the defendant was told that we would be taken in custody to a police station and he was placed in a police car. He was then left alone for some considerable time whereafter he got out of the car and walked into a public house on the opposite side of the road where he remained for about an hour. 12. At some stage the police followed him but could not find him, although it was not suggested he was actively seeking to conceal himself. The defendant in due course gave himself up at the police station and he was charged with escape. A motion to dismiss the ensuing indictment was refused. The note of the court’s finding in this regard reads: - “ The general principle was that all persons were bound to submit themselves to the process of the law once lawfully arrested. … Hence it was possible that where a defendant deliberately and with the intention of evading the criminal process, breached his custody, the offence of escape could be committed.” 13. In this regard the editor’s comment is to the effect: - “There seems to be no suggestion that it is an ingredient of the offence that the accused should intend to remain at large permanently nor that he should escape with any particular object in view. In these respects, the direction (in the subsequent trial) might have been too favourable to the accused.” 14. In Dillon [1982] AC 484 , the custody officer had unlocked two cells and the two prisoners occupying them had escaped. He was charged with negligence in permitting them to escape out of custody. At the trial there was no affirmative evidence that the prisoners had ever been lawfully detained. The Crown relied on the fact that the prisoners were in actual detention at the lock-up as raising a presumption that their detention there was lawful. 15. On appeal to the Judicial Committee of the Privy Council, the appeal was allowed. In the judgment of Lord Fraser there is the following passage at 487e. “Their Lordships are of the opinion that it was essential for the Crown to establish that the arrest and detention were lawful and that the omission to do so was fatal to the conviction of the defendant. … The lawfulness of the detention was a necessary precondition for the offence of permitting escape, and it is well established that the courts will not presume the existence of facts which are central to an offence… It has to be remembered that in every case where a police officer commits the offence of negligently permitting a prisoner to escape from lawful custody, the prisoner himself commits an offence by escaping and it would be contrary to the fundamental principles of law that the onus should be upon a prisoner to rebut a presumption that he was being lawfully detained which he could only do by the (notoriously difficult) process of proving a negative.” 16. In E v DPP [2002] Crim LR 737 , a youth court remanded the appellant to a local authority with a requirement that the local authority detain him in secure accommodation. No such accommodation was however available. He was brought back to the Youth Court by a member of the youth offending team but then absconded. He was later convicted of escape. An appeal by way of case stated contended that there was no evidence upon which the justices could properly find that he was in lawful custody. This issue was held to be a question of fact:- “Custody was an English word which should be given its ordinary and natural meaning namely “confinement, imprisonment, durance” subject to any special meaning given to it by statute. For a person to be in custody his liberty had to be subject to such constraint or restriction that he could be said to be confined by another in the sense that the person’s immediate freedom of movement was under the direct control of another…” 17. As regards the constraints involved on the facts, and the defendant’s knowledge of them, the report goes on:- “The order made by the justices in the present case whereby the appellant was remanded was custodial in nature not only did it remand him into the care of the local authority but it also required that he be placed in secure accommodation. Such a remand was so restrictive of the appellant’s liberty that it could properly be said to be custodial in nature. The lawfulness of the regime which was thereafter applied to the Appellant in the period of remand was established by that order. The appellant was at all times fully aware of that fact. …” 18. The references to “direct control” in the earlier passage quoted above was considered in Rumble [2003] 167 JP 203 , where a defendant had surrendered to his bail at a Magistrates Court. There was no usher and no security staff. Following imposition of a custodial sentence, the defendant escaped through the public entrance. It was submitted on an appeal that the defendant was not under “direct” control of anyone. Buxton LJ dealt with this submission peremptorily: - “That argument only has to be stated for it to be seen that it be extremely odd if it were correct. Once a person surrenders at the court as Mr Rumble did and was obliged by law to do, it would be very surprising indeed if the court’s right to control him, and his vulnerability to the offence of escaping, depended upon the precise nature of the physical constraints imposed upon him.” 19. In H v DPP [2003] Cr LR 560, the defendant was remanded to local authority accommodation by a Youth Court without any security requirement. Following the remand the defendant was released from custody into the care of a member of the youth offending team. The defendant was briefly left unsupervised but, having been told not to move, absconded. The defendant was charged with escape. 20. The report records as follows: - “In order to determine whether an order made under section 23 of the 1969 Act was custodial in nature which was a question of fact it was necessary to concentrate on the moment when it was alleged that the defendant absconded. In the instant case the justices had remanded him to local authority accommodation under section 23 without attaching conditions and that sanction gave power to the local authority to detain the defendant. He had been told not to move by the youth offending team member so that it was unrealistic to suggest he did not know he was being detained and that he was not entitled to simply run off. In those circumstances there was ample evidence upon which the justice could have concluded that his immediate freedom of movement was under the direct control of the youth team member and that by absconding he was escaping from her custody.” 21. In our judgment, these authorities demonstrate that the prosecution must in a case concerning escape prove four things: - i) that the defendant was in custody; ii) that the defendant knew that he was in custody (or at least was reckless as to whether he was or not); iii) that the custody was lawful; and iv) that the defendant intentionally escaped from that lawful custody. 22. The judge’s directions on the law relating to escape appear at, or at least amongst, pages 16 to 20 of the summing up. The passage starts at p. 16 as follows: “As far as the law on the fourth count, that is escape, this is a common law offence. In other words, there is no specific Act of Parliament setting out what is an escape and what is not. The first thing, obviously, that the prosecution have to prove so that you feel sure, is that on this particular day in time, Mr Dhillon was in a lawful custody at Hillingdon Hospital. Well, again you have heard that, however it happened in terms of what had happened earlier in that day, then there is no doubt at all that eventually Mr Dhillon was arrested. Although there is some element of dispute as to what he was arrested or told he was being arrested for. There is no dispute, as I say, that he was arrested, that I say he was held at the garage until some other transport turned up, and that he was taken to the police station, presented to the officer called the Custody Sergeant, who has to make the decision on whether he is detained or not, and he was not given bail or otherwise told to report back to the police station on some other occasion. What we do know happened is that a doctor, a force medical examiner, Dr Lauder, came along to have a look at the police who had been involved in this incident, and Mr Dhillon himself. And you remember that yesterday afternoon you had this statement read to you.” 23. The judge then inserted a long section dealing with the earlier counts of assault as regards the nature of any injury sustained by two police officers. He then reverted to the escape count at p. 18 as follows: - “The point is that the doctor, as far as Mr Dhillon was concerned, said that he should be taken to – he ought to be taken to hospital to get an X-ray so that you could rule out any question of a broken bone. Now, escape is not something that has to be anything dramatic like, sort of, suddenly using martial arts skills or digging a tunnel to get away. If you are once in lawful custody, then a simple sort of walking out or taking advantage of some carelessness, would amount to escape. And you can imagine at any location, if at a police station, for example, again hypothetical one, you have been stuck in a cell but someone forgot to close the door properly, so that you can walk out of it, and then someone has carelessly left a door open so you get into the outside. I mean, you are not having to do anything dramatic to get out, you are taking advantage of carelessness, but that would be escape from lawful custody. You know that you are not being invited to leave or told you can go, but to come back in a week’s time for an interview. At that stage you are perfectly well aware that you are detained. Being taken off to a hospital is, obviously, in a slightly difference category, because you are not being kept in a cell. But the circumstances may, I do stress, may, lead you to say, that the police here are not obligingly saying: “Well, we will give you a lift to hospital and when the medics have finished we will give you a run back to whatever address you want to go to. You may think that in the circumstances of this case, the object of the exercise is to have this gentleman taken to hospital to check that he had not got broken bones, and then to bring him back to the police station so that you can continue with enquiries, interviews or anything else that is going on. But, again, and that is a factual matter that you have to be looking at. The defence that Mr Dhillon is raising -- and again I do remind you that it is not for him to make a defence good, it is for you to rule it out -- is to say that: “Yes, I was taken to Hillingdon Hospital. I knew I was going to see the medics. I was not particularly aware of anyone keeping their eye on me. When the medics called me in I was sent for X-ray and then I was tired, I wanted to have a nap, and by the time that I say I was ready to go away, there was no policeman there. I even went to where policeman was, had been, that had brought me there, to see if there was anyone there, no one there.” So, you know, what else was there to do? Just to go away to the address of his choice. Again, that is a matter that factually is a matter for you as to whether that was capable of amounting to an escape, as opposed to, for example, insisting that someone called the police to say: “You arrested me, you haven’t bailed me. Will you please come and pick me up again?” But again, as you can appreciate, the question of an escape does not have to be anything like the “Great Escape” with, sort of, tunnels or trying to, sort, of jump the wire or anything. Simply taking advantage of carelessness, can constitute an escape. It is again a matter for you. So I hope that is making the law plain to what the issues are in this particular case and I am now going to turn to the evidence.” 24. We are bound to say that this last sentence was unduly optimistic if only because of the discursive nature of the direction – partly concerned with the ingredients of the offence of escape but largely concerned with a discussion of relevant (and irrelevant) factual material. Indeed, it represents a good example of the outcome where there has been no discussion about the appropriate directions of law prior to summing up and accordingly no focus on the specific issues that arise on the facts. 25. The shape of the evidence made it clear that there were issues relating to the continuity of the custody following the initial arrest (in particular the hand-over to PC Mitchell) and relating to the appellant’s awareness or otherwise of the constraints on him. It was accordingly particularly important to identify these issues by reference to the make-up of the offence of escape. This, in our judgment, the summing-up conspicuously failed to do. 26. It is true that, later in the summing up, the judge reverted to the escape count. But in discussing the evidence, the issues continued to be analysed in a inordinately diffuse manner: - “Now, members of the jury, I have already dealt with, what I call the law about the escape charge. You have heard again the evidence about how it was -- I have reminded you the evidence about how it was that Mr Dhillon was taken to hospital by the police. Again, it is one of the criticisms about the way the case is prepared, that there is no evidence from the officer who took him there to give, what you call, the continuity to show exactly how things were done. Again, though it is matter for you, but you may think that if one police officer is being given charge of a prisoner, because that is what Mr Dhillon seems to have been, that he is not going to, sort of shove off without making sure that someone is taking over properly, because otherwise he could be in trouble. And, likewise, an officer who is taking over is likely to want to be sure as to know who is the prisoner. Because you will remember that the officer who attended, Mr Mitchell, had had no dealings with Mr Dhillon. So again it is what, as I say, you would expect to happen. But remember the evidence is about what did happen and from that you only have the account of Mr Mitchell, saying that, he turned up and with his colleague, he could not remember his name or anything, pointed out to him in, I think, it was both physically and by word, saying: “That is Dhillon” and that the person responded and his understanding was, his perception was responding to his name. One thing that you, for example, might think it is highly unlikely that in an A & E waiting room, which again, you may or may not have had the experience of being there, liable to be quite busy, that when one policeman’s is not going to arrive and say: “Oh, he’s in here” and then walk off, because that would not really do. It is a matter for you whether you think there is any question of the evidence being less than satisfactory. If you think there is any doubt at all about the man that Mr Mitchell had his eye on being the defendant, Mr Dhillon, then, of course, the evidence becomes to a degree vague. All you are left with then is Mr Dhillon’s account about being at the hospital, finishing with the medics, no police there, so he went -- whether it was his home or some other address, does not matter, I mean, just went on his own sweet way. But again, members of the jury, this is factual assessment about what the officer said happened. If you say that, well, that does make you sure that he got the right man to keep an eye on, you then get to the point about, how did this happen. And Mr Mitchell’s account, effectively, was that he thought that going in to the triage, which is the sorting out whether you need immediate surgery or you can go home or here are some aspirins or painkillers and that is it, the sorting out bit. He was expecting Mr Dhillon to re-emerge into the waiting area, he did not and then discovered to his horror there were other ways out. He had been X-rayed and so on, and he made a bit of a search, could not find anything, and then in his own terms had to contact authority and come back to face the music. Not a case of losing a mass murderer, or anything like that, where you would be frantically on the radio to get all units looking out for someone of a particular description. And again, a matter for you, but in terms of what was involved here, you may be unsurprised that you were not dealing with a police officer actually handcuffed to the suspect and sitting with him all the time and going with him when he comes to see the medics and so forth. It is in the scale of things, was not that kind of a case. But, as I say, that is what the evidence was on that point and the basic clash is between what the officer says, which, is effect, Mr Dhillon taking advantage of his lack of precautions to make good his escape. And again you can understand that Mr Dhillon, on his own account, had still got some unfinished business in this country, before he was going to leave again. Or whether it was someone who just did something, that he was not intending to do any escaping, he was effectively thinking: “Well, no police here, I am sure they will find me again.” Matter for you as a matter of fact what you make of it.” 27. We are left rather breathless by this passage and remain concerned that the jury were not in any sense adequately instructed on the issues. Little or no controversy arose from the initial arrest (and the consequent lawful custody) or indeed from the final “escape” (in the sense of eluding any continuing custody). What was in issue was the question of the continuity of the custody and the appellant’s knowledge of it. 28. Although the judge made considerable play of what might be assumed to have happened on PC Mitchell’s arrival, the jury’s task in assessing continuity was potentially impeded by the absence of any evidence from the police officer who took the appellant to hospital and who was later said to have effected the handover to him (a handover which on any view was relatively informal). There was a live issue as to whether the appellant was still subject to sufficient direct control at the time of his escape two hours later. By the same token, there was an issue as to the appellant’s knowledge since his case was that, whilst he saw the first officer leave, he never saw the second officer arrive and could find no substitute. 29. This was a case arising from events some six years earlier. It raised issues of some difficulty against an unusual factual background. A careful direction on the law and a consequential careful identification of the relevant issues was called for. Taking the summing up both in its constituent parts and as a whole does not, in our judgment, match up to these requirements. We are unable to conclude that the conviction was safe and it must be quashed.

```yaml citation: '[2005] EWCA Crim 2996' date: '2005-11-23' judges: - LORD JUSTICE LONGMORE - MR JUSTICE DAVID STEEL ```

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: 200300221 A3 Neutral Citation No: [2003] EWCA Crim 3110 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SNARESBROOK CROWN COURT HIS HONOUR JUDGE BING Royal Courts of Justice Strand, London, WC2A 2LL Thursday 6 th November 2003 Before : LORD JUSTICE WALLER MR JUSTICE HUGHES and DAME HEATHER STEEL DBE - - - - - - - - - - - - - - - - - - - - - Between : Derrick Davies Appellant - and - The London Borough of Waltham Forest Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr Jonathan Rose (instructed by Law Mooney Lee Cook solicitors) for the Appellant Mr David Groome (instructed by the London Borough of Waltham Forest) for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Waller: 1. On 23 rd November 2001 at the Crown Court at Snaresbrook before His Honour Judge Bing the appellant pleaded guilty to an indictment containing 13 counts. Counts 1-9 were of a similar nature. They all alleged that the appellant “With a view to gain and with a view to sale or distribution for sale, having possession, custody or control in the course of a business, of goods bearing a sign identical to or likely to be mistaken for a registered trade mark, without the consent of the proprietor, contrary to S92(1)(c) of the Trade Marks Act 1994 .” 2. The particulars of each of the offences on counts 1-9 asserted that different items were in the appellant’s possession with a view to sale or distribution bearing a sign identical to certain registered trade marks. Thus for example on count 1 the particulars of offence were: “Derrick Davies on 8 th December 1998 at 44a Argall Avenue, Leyton Industrial Village, London E.10. in the course of business with a view to gain for himself and without the consent of the proprietor you had in your possession, custody or control with a view to sale or distribution for sale a wristwatch bearing a sign identical to, or likely to be mistaken for, a registered trade mark, namely the Adidas mark.” Count 2 related to a blue shirt with a Hugo Boss mark; count 3 a toilet bag with a Burberry mark; count 4 a stripped pique shirt with a Fila mark; count 5 a navy blue zipped jacket with Tommy Hilfiger mark; count 6 a leather jacket with a Kickers mark; a black nylon jacket with the Ralph Lauren mark; count 8 a black nylon jacket with the Nike mark; and count 9 a wristwatch bearing a Reebok mark. Counts 10 and 11 charged offences under S92(2)(c) of the 1994 Act related to packaging material bearing a sign identical to or likely to be mistaken for certain registered trademarks. 3. Counts 12 and 13 alleged offences under S92(3)(b) of the 1994 Act and related to computer discs in the possession of the defendant designed or adapted for making copies of signs identical to or likely to be mistaken for certain registered trade marks. 4. S92 of the Trade Marks Act 1994 provides as follows: “92. - (1) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor- (a) applies to goods or their packaging a sign identical to, or likely to be mistaken for, a registered trade mark, or (b) sells or lets for hire, offers or exposes for sale or hire or distributes goods which bear, or the packaging of which bears, such a sign, or (c) has in his possession, custody or control in the course of a business any such goods with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b). (2) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor- (a) applies a sign identical to, or likely to be mistaken for, a registered trade mark to material intended to be used- (i) for labelling or packaging goods, (ii) as a business paper in relation to goods, or (iii) for advertising goods, or (b) uses in the course of a business material bearing such a sign for labelling or packaging goods, as a business paper in relation to goods, or for advertising goods, or (c) has in his possession, custody or control in the course of a business any such material with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b). (3) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor- (a) makes an article specifically designed or adapted for making copies of a sign identical to, or likely to be mistaken for, a registered trade mark, or (b) has such an article in his possession, custody or control in the course of a business, knowing or having reason to believe that it has been, or is to be, used to produce goods, or material for labelling or packaging goods, as a business paper in relation to goods, or for advertising goods. (4) A person does not commit an offence under this section unless- (a) the goods are goods in respect of which the trade mark is registered, or (b) the trade mark has a reputation in the United Kingdom and the use of the sign takes or would take unfair advantage of, or is or would be detrimental to, the distinctive character or the repute of the trade mark. (5) It is a defence for a person charged with an offence under this section to show that he believed on reasonable grounds that the use of the sign in the manner in which it was used, or was to be used, was not an infringement of the registered trade mark. (6) A person guilty of an offence under this section is liable- (a) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or both; (b) on conviction on indictment to a fine or imprisonment for a term not exceeding ten years, or both.” 5. It will be seen that the counts did not allege in relation to the individual items the subject of counts 1-9 “the selling or letting for hire, offering or exposing for sale of goods which bear a sign” contrary to S92(1)(b). Nor (though significantly) so far as counts 10 and 11 are concerned did the counts allege under 92(2)(b) the using in the course of a business material bearing such a sign for labelling. Nor so far as the computer discs the subject of counts 12 and 13 were concerned was there alleged that any articles had contrary to S92(3)(b) been made, designed or adapted for making copies of a sign. The allegation in all cases as accepted by Mr Groom for the Crown before us was that on a particular day in all cases 8 th December 1998 (the date when the appellant’s premises were raided) the appellant had the particular items in his possession with a view to gain. 6. When sentencing the appellant on 17 th January 2002 the judge said this: “It is common ground that the indictment to which the defendant pleaded guilty is a specimen indictment. The indictment, counts 1 to 9, represent counterfeit watches; counts 2 and 4 to 8 counterfeit garments; count 3 a bag and count 11 a label. The only counts which are not specimen counts are counts 12 and 13 which fully represent the offences in relation to the computer disc. The indictment is a sample of a total of 5,429 counterfeit items, 86,000 counterfeit labels, 11,000 price stickers, some of which prices were in dollars as well as pounds. There were 140,000 counterfeit plastic bags found when the defendant’s premises were raided in December of 1998. The premises were exclusively a dishonest and illegal business devoted to counterfeiting. …..” 7. The judge then identified his approach to sentencing by reference to certain questions. The third question which he posed to himself was: “What was the actual or likely profit?” His answer to that question was (see 4b of the sentencing remarks): “The agreed basis upon which sentence should be passed is that in the period of trading, which was a period of about eighteen months from June 1997 to December 1998, the turnover was in the region of one million pounds. I conclude from that the profits would have been considerable.” He then sentenced the appellant to three and a half years concurrent on each of the counts of the indictment. There was then an offence under the Bail Act for which he passed a consecutive sentence of 6 months making 4 years in all. 8. That sentence followed a Newton hearing at which the Crown were contending that the turnover of the appellant’s business was over £1.5 million and at which a compromise was reached under which it was agreed that the judge should assess the turnover as £1million, the figure appearing in his sentencing remarks. 9. The sentence of imprisonment is not challenged on this appeal. The prosecution had served a notice under S71 of the Criminal Justice Act 1988 giving notice that the court should consider whether it was appropriate to make a confiscation order under the relevant legislation. Once a notice is served S71(1)(a) requires a court to determine first whether the offender has benefited from any relevant criminal conduct. Under subsection 1B subject to subsection 1C (which does not apply in this case) if the court determines that the offender has benefited from any relevant criminal conduct it shall then (a) determine in accordance with subsection 6 below the amount to be recovered in his case by virtue of this section and (b) make an order under this section ordering the offender to pay that amount. Subsection 1D provides: “In this Part of this Act “relevant criminal conduct….. means (subject to section 72AA(6) below) that offence taken together with any other offences of a relevant description which are either- (a) offences of which he is convicted in the same proceedings, or (b) offences which the court will be taking into consideration in determining his sentence for the offence in question.” Subsection 6 requires an order to be made by the court requiring an offender to pay either the benefit or the amount appearing to the court to be the amount that might be realised at the time the order is made whichever is the less. 10. The reference to S72AA(6) is important. Under S72AA if a notice is served pursuant to that section and provided certain conditions are satisfied the court may make assumptions that property in the possession of the defendant has resulted from criminal conduct to which the confiscation provisions will apply. These are called the extended benefit provisions. 11. The court will however only have jurisdiction under S72AA if: “(a) the prosecutor gives written notice for the purposes of subsection of 1A of section 71 above; (b) that notice contains a declaration that it is the prosecutor’s opinion that the case is one in which it is appropriate for the provisions of this section to be applied; and (c) the offender (i) is convicted in those proceedings of at least 2 qualifying offences (including the offence in question); or (ii) has been convicted of a qualifying offence on at least one previous occasion during the relevant period.” 12. Subsection 2 of 72AA provides: “In this section “qualifying offence” in relation to proceedings before the court ….. means any offence in relation to which all the following conditions are satisfied that is say (a) it is an offence to which this part of the Act applies; (b) it is an offence which was committed after the commencement of section 2 of the Proceeds of Crime Act 1995 ; and (c) that the court is satisfied that it is an offence from which the defendant has benefited.” 13. Subsection (6) of 72AA provides: “Where the assumptions specified in subsection (4) above are made in any case, the offences from which, in accordance with those assumptions, the defendant is assumed to have benefited shall be treated as if they were comprised, for the purposes of this Part of this Act, in the conduct which is to be treated in that case, as relevant criminal conduct in relation to the defendant.” 14. So far as benefit is concerned S71(4) provides that: “For the purpose of this part of this Act a person benefits from the offence if he obtains property as result of or in connection with its commission and his benefit is the value of the property so obtained.” 15. The confiscation proceedings before the judge were conducted on the basis that all the conditions by reference to which the court might have jurisdiction under S72AA had been complied with. In particular there was no contest that the court was dealing with two qualifying offences so far as the appellant’s plea of guilty was concerned. There was no contest that the court should be satisfied that the qualifying offences were ones from which the defendant had benefited. There was no contest that that benefit was a result of or in connection with the commission of the relevant offences. 16. Thus it was that the judge in giving his judgment in relation to the confiscation said at 11F: “Simply stated, the law is (1) it is for the prosecution to prove benefit. In this case, it is agreed by both sides that the benefit figure is one million pounds. That figure came about in this way. Prior to sentence, I was invited to hold a Newton hearing to determine the turnover over a period in the specimen indictment in counterfeit trading. The prosecution were contending for a figure higher than one million, the defence was arguing for a figure very much lower. After two days of evidence, the parties each invited me to pass sentence on the basis of a turnover of one million. In fact, this was the figure I would probably have arrived at myself if I had had to decide the Newton issue. Sensibly, both Mr Groom and Mr Rose have agreed, putting legal niceties to one side that one million pounds should be the benefit figure for these proceedings.” 17. Mr Rose who appeared below and appeared for the appellant on this appeal has however argued that any concession made in the court below went to jurisdiction and he should not be bound by it. He submits that on analysis of the indictment there are not two qualifying offences within S72AA in that none of the offences are ones in relation to which the appellant obtained any benefit. He submits that in relation to all counts on the indictment they simply assert that the appellant was in possession of certain items “with a view” to making a gain. He submits that it would have been possible to charge the appellant with selling or otherwise actually gaining from the sale or use of the items the subject of the counts but since the Crown did not choose so to do the position is that no benefit was obtained. 18. The Crown’s submission is that this places too narrow interpretation on the word “benefit”. The Crown stress that S71(4) provides that a person benefits from an offence if he obtains property both “as a result of” or “in connection with” its commission. 19. The Crown relied on two authorities R v David Cadman Smith [2002] 2 Cr App R(s) 144 and R v Wilkes [2003] EWCA 848. In the first the House of Lords were dealing with S71(5) and the question whether the defendant in that case had obtained a pecuniary advantage. The House of Lords ruled that in relation to a conviction for evading duty the defendant in that case had obtained a pecuniary advantage once duty had been evaded even if the goods were thereafter seized by the Customs and thus not sold by the defendant. Lord Rodger of Earlsferry commented at the end of his speech: “I am accordingly satisfied that the decision of the Court of Appeal on this point was wrong. It is worth adding that, if adopted, their interpretation would go a long way to making the confiscation provisions ineffective against smugglers. After all, there would be few, if any, cases where Customs officers will fail to seize contraband goods which they find in the hands of smugglers. The decision of the Court of Appeal would mean that any such case, for the purposes of S71(5), the smugglers would derive no pecuniary benefit from evading the excise duty and so no confiscation order could be made against them. Fortunately the terms of the legislation do not lead to that result.” 20. In Wilkes the Court of Appeal was concerned with S71(4). They followed the reasoning of the House of Lords in R v David Cadman Smith and held that a burglar who takes property from a house which is then immediately seized still obtains a benefit to the extent of the value of the property. Gross J in delivering the judgment of the court and giving the reasons for the court’s view as to the proper construction of the statutory provision said this: “(1) Section 72AA of the Act can be draconian in accordance, we think, with the intention of Parliament. As Lord Rodger observed in paragraph 23 of his speech in Smith (David Cadman) in the House of Lords: “That may not be out place in a scheme for stripping criminals of the benefits of their crime.” (2) The applicability of section 72AA of the Act is triggered by the commission of the qualifying offences; their “success” or otherwise is irrelevant. (3) Once section 72AA is triggered, and if the assumptions are made, the property to be confiscated need not be as counsel for the Crown had put in his skeleton argument, “referable to any particular piece of criminality”, let alone a “successful” outcome of triggered offences; were it otherwise the purpose of the statutory scheme could readily be defeated. (4) The provisions are compatible with convention rights because any serious or real risk of injustice can be avoided either by not making the assumptions or by disapplying them. We turn to the interpretation of S71(4). Viewed in this context we have no doubt that section 71(4) is to be interpreted as meaning what it says without any gloss. When the appellant had completed committing the trigger offences he obtained property – that he was unable to realise that property because of police intervention is irrelevant, as it would have been if the property had been destroyed by fire or in some other accident. ….. ” 21. It follows from the above authorities that the fact that the appellant in the instant case was not charged with having sold or disposed of items bearing false trademarks is not the end of the matter. The question is whether the items that bear false trademarks or which enable false trademarks to be applied to goods are “property” and whether they have been obtained in connection with the commission of the relevant offence. 22. Mr Rose suggested that to decide that these items had been obtained in connection with the offence in this case would lead to the provisions of the Criminal Justice Act 1988 being used in many circumstances where Parliament simply cannot have intended them to apply. He thus for example suggested that in relation to the evasion of duty cases Parliament cannot have intended the provisions to apply to the cigarettes bought outside the country and bought for the purpose of evading duty although loosely it could be said that such cigarettes were property obtained in connection with the commission of the offence. 23. It is unnecessary in our view to deal with the question whether the cigarettes in the evasion of duty case would be property obtained in connection with the commission of the offence of evading duty. This is not a case where the Crown rely on the obtaining of the original garment or watch or computer disc or labelling machine. This is a case in which those items have been adapted either by the application of a false trademark or by their capability to produce false marks. Their value was certainly intended to be enhanced thereby. The reality is that certainly so far as counts 1-9 were concerned these trademarks were being stolen by this appellant and applied to the items. There is very little distinction between that act and the act of the burglar who takes property from a house which is then immediately seized. 24. We accordingly also think that there is no reason to gloss the provisions of S71(4). If one asks whether the wristwatch with the Adidas mark was property obtained by this appellant in connection with the commission of the offence with which he was charged the answer appears to us to be it was. In one sense “with a view to gain” demonstrates that the property bearing the false trademark had a value which was of benefit to the appellant and thus there is no reason why S71(4) should not be construed as to apply to it. 25. Thus as it seems to us the judge did have jurisdiction. There were at least two qualifying offences. There is no dispute that if that be so having regard to the concession made below the appropriate figure for benefit is the £1million. Second Point on Appeal 26. The next point relates to whether the judge was right to hold that the appellant had a 100% interest in a property “Hillcrest” which was occupied by himself and his former wife Susan Cook. She was the registered legal owner. However the judge found that the appellant using the proceeds of his illegal operations provided 100% of the money for the purchase. 27. Mr Rose both before the judge and before us sought to rely on S74(1) and S74(10) which provide: “Definition of principal terms used 74.— (1) In this Part of this Act, "realisable property" means, subject to subsection (2) below— (a) any property held by the defendant; and (b) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Part of this Act. (10) A gift (including a gift made before the commencement of this Part of this Act) is caught by this Part of this Act if— (a) it was made by the defendant at any time after the commission of the offence or, if more than one, the earliest of the offences to which the proceedings for the time being relate; and (b) the court considers it appropriate in all the circumstances to take the gift into account.” 28. It was Mr Rose’s submission before the judge and before us that S74(10) was designed to deal with precisely the situation that has occurred in this case but that by virtue of the fact that this house was purchased prior to the date of the offence in this case the house is not caught by the provisions of S74(10). 29. Mr Groome for the Crown accepted both here and below that if this house was a gift within the meaning of S74(10) then it would not be caught by virtue of the provisions of that Act having regard to the date when the property was transferred to Miss Cook. The judge looked at the matter this way: “The relevant date for the interpretation of section 74(10) must be 8 th December 1998 because that is the date on all the counts of the specimen indictment to which the defendant pleaded guilty. The defendant admitted, for the purposes of sentence, that the indictment was a specimen indictment of offences committed over a period of 18 months, beginning in June 1997. Parliament, in my judgment, cannot have intended to preclude me, in these circumstances, from looking at the true nature of the defendant’s intentions during that period. The events of that period have been the subject of intense scrutiny and cross-examination by the Crown. In my judgment, the answers given by the defendant and his mother as to what occurred at that time are relevant. The Crown rely on the answers given to submit that the evidence is not true that gifts were made. The Crown submit the intention was to disguise his assets by placing them in the name of his wife. In my judgment, the court is entitled to consider whether the evidence is true and to assess the true intentions of the parties. If, on the facts, I was to conclude that there was not a real intention on Davies’s part to make a genuine gift to his wife in the relevant period, I would be entitled to conclude that no gifts were made.” 30. It may be that the judge’s approach at the beginning of that quotation could be criticised. It was in fact not truly relevant if he was performing an exercise under S72(a)(a) whether the indictment was concerned with offences committed over a period of 18 months. Nor in one sense was it by reference to the construction of S74(10) that the point should be decided. But it is clear that he directed himself properly that the true question was whether any genuine gift to the wife had been made. He further quite rightly directed himself that if there was no question of there being a gift then the property was 100% the appellant’s and the gift provisions were of no relevance at all. 31. Mr Rose relied upon the presumption of advancement between husband and wife and on decisions which show that it is not necessarily rebutted in circumstances where the husband has placed property in his wife’s name in order to place it beyond the reach of any future creditors: see Tinker v Tinker [1970] 1 All ER 540, and generally Harwood v Harwood [1991] 2 FLR 274, and Halsbury’s Laws volume 48 at 616. 32. The presumption of advancement can be rebutted, sometimes by quite slight evidence. In many of these cases, the question will be whether there is an honest and genuine transfer intending to give the wife the beneficial interest, albeit motivated by a desire to avoid the property falling into the hands of any future creditors (as in Tinker v Tinker ) or whether the transfer is a sham with the true beneficial interest remaining with the husband. In the present case the judge examined the evidence in great detail and concluded that Miss Cook had not contributed from her own resources or from any gifts made to her to the purchase of “Hillcrest”. He found that: “the proper conclusion to draw from all the evidence is that the defendant had 100 per cent interest in Hillcrest.” 33. In our view this was a finding that was open to the judge on the evidence and there is no basis for reversing it in this court. 34. In those circumstances this appeal should be dismissed.

```yaml citation: '[2003] EWCA Crim 3110' date: '2003-11-06' judges: - LORD JUSTICE WALLER - MR JUSTICE HUGHES ```

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

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 504 No. 202101006 B2 Royal Courts of Justice Friday, 25 March 2022 Before: LADY JUSTICE WHIPPLE MR JUSTICE JEREMY BAKER HER HONOUR JUDGE WALDEN-SMITH REGINA V ELIJAH MORGAN __________ 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 M. SHERRAT QC appeared on behalf of the Appellant. ________ JUDGMENT LADY JUSTICE WHIPPLE: Background 1 On 12 March 20201, in the Central Criminal Court in front of HHJ Rafferty QC, the applicant, who was then aged 20, was convicted unanimously of one count of murder (Count 1) and one count of possession of a bladed article (Count 2). 2 On 19 April 2021 the applicant was sentenced to custody for life with a minimum term of 28 years, less the 408 days he had spent on remand. That was on Count 1. He was sentenced to 30 months’ detention in a Young Offenders' Institution on Count 2 to be served concurrently. His co-accused, Jedaiah Param, was convicted of murder and possession of a bladed article and was sentenced to custody for life with a minimum term of 28 years. 3 The applicant, Mr Morgan, now applies for an extension of time of six days in which to renew his application for leave to appeal against conviction following refusal by the single judge. We are satisfied that a reasonable excuse has been demonstrated for the late filling of this application to renew and we extend time for that purpose. 4 The facts in brief are these. In the early hours of Friday, 6 December 2019, Crosslon Davis (the deceased) and his friend Elhaj Diarrassouba, travelled to Deptford in London and met a group of men. Jedaiah Param was part of the group. 5 At approximately 2.41am, Mr Diarrassouba booked a taxi for Param and another man. Param and the other man got into the taxi. As the taxi started to drive away, the deceased approached the taxi, opened the door and tried to attack the other male passenger with a mallet. The taxi driver attempted to drive away. He drove a short distance before Param and the other man got out and ran in the direction of the deceased. Moments later, four men surrounded the deceased and stabbed him to death before fleeing the scene. 6 The prosecution case was that the applicant was the man in the taxi with Param and that he and Param were two of the four men who stabbed the deceased to death. Part of the evidence relied on by the prosecution was dash-cam footage from the taxi showing two men approaching the vehicle. Param accepted that he was one of the men in the footage, the man on the left. The designated CCTV officer stated that the other man wore distinct trainers that were the same as the trainers owned by the applicant. The prosecution also adduced evidence from PC Barton, a police officer who stated that he recognised the applicant as the man on the right in dash-cam footage. 7 The defence case put forward by the applicant was that he was not present at the scene and was not the person shown on the dash-cam footage. He did not give evidence at trial. 8 The issue for the jury was whether the applicant was present at the scene and whether he was therefore one of the four men who murdered the deceased. PC Barton's Evidence 9 The prosecution relied on evidence from a PC Barton that he recognised the applicant as the second man in the dash-cam footage. PC Barton stated that he had attended a homicide team handover meeting on 9 December 2019. Shortly before the meeting, he had been informed that the applicant had been identified as a person of interest. He believed that the applicant's name sounded familiar, so he conducted a search of the police database to confirm the applicant's identity but did not at that stage view any photographs. 10 Following that search, he attended the handover meeting. It was during the course of this handover meeting that he saw the dash-cam footage for the first time. His evidence was that he immediately recognised the applicant, having had numerous dealings with him, including one incident in April 2016 where he had detained the applicant. PC Barton then obtained a copy of the dash-cam footage and, whilst alone, viewed it again and compared it to the applicant's custody photograph and, following this exercise, he became sure that it was indeed the applicant in the dash-cam footage. 11 In the course of the trial, the judge was asked to rule on the admissibility of PC Barton's identification evidence. Counsel for the defence, Mr Sherrat QC, who appears before us today, submitted that PC Barton's evidence should be excluded under s.78 of the Police and Criminal Evidence Act 1984. Counsel for the prosecution submitted that the evidence should not be excluded on that basis. 12 In a detailed ruling dated 11 February 2020, running to 47 paragraphs, the judge ruled in favour of the prosecution, and admitted the evidence. The judge referred to Attorney General's Reference (No 2 of 2002) [2002] EWCA Crim 2373. She noted that PC Barton was giving evidence that he recognised the applicant and that it was for the jury to assess the reliability of that evidence. She thought the footage, although short, was of sufficient quality to permit an identification: she referred to characteristics of gender, skin colour, facial features, approximate height, build, age and gait, all of which characteristics were visible in the footage. Further, the footage was well lit by the lights of the taxi. She said that she would direct the jury that they needed to exercise caution in relation to identification evidence. She noted that PC Barton said he recognised the applicant when he first saw the dash-cam footage during the course of a police briefing on 9 December 2019 and that he had met the applicant on numerous occasions, referring to the arrest in 2016 and then contact between 2014 and 2018 when PC Barton was the gangs officer in Lewisham. The judge noted that PC Barton could be cross-examined on the extent of his previous acquaintance with the applicant and, indeed, on the process he adopted to research the applicant and confirm the recognition of him. She recognised that there were issues about failure to comply with the PACE codes of conduct, but in her judgment those failings went to weight and not to admissibility. She referred to R v Yaryare [2020] EWCA Crim 1314, which supported her approach. For those reasons, she refused the defence application to exclude PC Barton's evidence. 13 The first ground of appeal before us is that the judge was wrong in refusing this application and that BC Barton's evidence should have been excluded under s.78. 14 At the close of the crown's case, a submission of no case to answer was made on behalf of the applicant. The defence argued that the dash-cam footage was of poor quality and that PC Barton did not interact with the applicant for over three years. Taking these and other elements of the recognition together, it was submitted that PC Barton's identification was based on a fleeting glance and an old memory and that it was not sufficiently cogent to support any conviction by the jury. It was said that PC Barton was unable to identify any distinguishing features that triggered his recognition of the applicant and that PC Barton’s “DIY” facial mapping by comparison with the custody photo carried no weight, because PC Barton was not an expert in facial mapping. It was further suggested that the identification procedure was in breach of PACE Code D in particular, and that the necessary safeguards intended to protect against mistaken identification were absent. It was noted, as indeed it has been before us, that another witness had been able to identify Param, but was unable to give an opinion on the other man shown in the dash-cam footage. In summary, the defence argued that the supporting evidence was not sufficient to allow this case to be left to the jury. The cell site evidence was consistent with the applicant being at his home and there was no evidence of him being with Param at the time, noting that the fingerprint found on the black Volvo could not be dated. 15 Counsel for the prosecution resisted the submission and said the case could safely be left to the jury. They said that the footage was of sufficient quality to allow for identification. Given that PC Barton had experience in the gangs unit and had frequent contact with the applicant, the evidence of immediate recognition was capable of being both reliable and correct. The issues raised by the defence were matters of weight that could be properly assessed by a jury, along with the supporting evidence. 16 In another detailed ruling, this one dated 2 March 2021 running to 12 paragraphs, the judge ruled in favour of the prosecution. She allowed the case to be left to the jury. She said the footage was sufficiently clear and it was for the jury to assess it, and the evidence of PC Barton, along with all of the other evidence. This was a case, in her judgment, where the jury could safely convict on one view of the evidence. 17 The second ground of appeal before us is that the judge was wrong to reject the submission of no case and that the prosecution case, which included PC Barton's recognition evidence, should have been withdrawn from the jury. 18 In the event, the applicant did not give evidence. The judge directed the jury about the need for caution when it came to assessing PC Barton's evidence in terms which do not now give rise to any criticism. The jury returned guilty verdicts against the applicant. The Grounds of Appeal 19 The applicant seeks to appeal to this court on two grounds already outlined. Putting them together, it is said that prejudice was caused by PC Barton's identification evidence. The prejudice was exacerbated by his comparison with the custody photograph in his “DIY” facial mapping exercise. As to the latter, the written grounds also assert that the jury sent a note querying why they had not been told of the applicant's previous arrests and this, it is said, is itself indicative of the prejudice caused to the applicant by allowing to be introduced at trial evidence relating to the applicant’s previous engagement between the police and the applicant in past years. 20 By its written Respondent's Notice, the crown resists these grounds of appeal. 21 The single judge provided comprehensive reasons for refusing leave to appeal in this case, finding no arguable merit in the grounds of appeal. Mr Sherrat now in effect renews before us grounds one and two, as they were before the single judge who addressed them on the papers. 22 We have been greatly assisted by Mr Sherrat QC, who appears pro bono for the applicant this morning, and we thank him for the economy of his submissions. Conclusions 23 We have considered the points raised by Mr Sherrat on behalf of the applicant with care. We should confirm that we have, more than once, looked at the dash-cam footage which lies at the centre of this appeal. 24 We are not persuaded that there is any reason to doubt the safety of this conviction. In brief, we agree with the answers to the various points that were given by the single judge: the trial judge was entitled to conclude that the evidence of PC Barton was admissible and she was right to reject the submission of no case. 25 We too are of the view that the dash-cam evidence was of sufficient quality to permit an identification. We reject the submission that this is a case of a fleeting glance. The dash-cam footage is several seconds long. It could be and it was reviewed by PC Barton multiple times. PC Barton knew the applicant already and this evidence falls squarely in the second category in the Attorney General's Reference No 2, i.e. where a witness knows the defendant sufficiently well to recognise him as the person depicted in the footage. We also note the other evidence which implicated the applicant in commission of this offence, which evidence supported the identification of PC Barton and tended to suggest that the applicant had indeed been close to the scene of the crime that night. Breaches in procedure went to weight and not admissibility. 26 That deals with grounds one and two. 27 We note that in her summing-up, the judge dealt with PC Barton's evidence very thoroughly. We note particularly para.81 – 98 of her directions to the jury. She reminded the jury of PC Barton's evidence that it was on seeing the dash-cam evidence during the course of the meeting that PC Barton recognised the man on the right as the applicant, a recognition of which he was 95 per cent confident at the time. It was only after that that he went and looked at images of the applicant held elsewhere and reviewed the dash-cam evidence again, at which point his degree of confidence increased. This was the evidence PC Barton had given and it was for the jury to consider it alongside all of the other evidence in the case. 28 The judge told the jury that there had been breaches of three paragraphs of the relevant Code of Practice. She noted, in particular, the failure to keep notes, the failure to keep records and the conduct in the “DIY” facial comparison exercise using custody photographs. She told the jury it was a matter for them to consider what effect those breaches of the Code had on their view of the reliability of PC Barton's evidence. 29 The judge reminded the jury of the defence case and of the alleged deficiencies in PC Barton's evidence and she gave them the usual detailed direction on the need for caution when considering the identification evidence that was put forward. That dealt satisfactorily with any risk of prejudice to the jury. 30 Although the point was not pressed at the hearing, we reject the suggestion that the jury was prejudiced by knowing that the applicant had come to the attention of the police before. The judge gave a very clear direction to the jury that the applicant's previous involvement with the police was relevant only to the issue of identification. 31 There is not, and not suggested to be, any deficiency in the legal directions. 32 In all the circumstances and having considered these matters carefully, we refuse permission to appeal this case. ______________

```yaml citation: '[2022] EWCA Crim 504' date: '2022-03-25' judges: - LADY JUSTICE WHIPPLE - MR JUSTICE JEREMY BAKER ```

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: [2020] EWCA Crim 592 Case No. 2020/01046/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION ATTORNEY GENERAL'S REFERENCES UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 30 th April 2020 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( The Lord Burnett of Maldon ) MRS JUSTICE CUTTS DBE and MRS JUSTICE TIPPLES DBE ____________________ R E G I N A - v - CHRISTOPHER MANNING ____________________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Fleet Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) __________________ Mr B Lloyd appeared on behalf of the Attorney General Mr R Morgan-Jones appeared on behalf of the Offender __________________ 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. THE LORD CHIEF JUSTICE: 1. This is an application by Her Majesty's Solicitor General, under section 36 of the Criminal Justice Act 1988, for leave to refer to this court a sentence which he considers to be unduly lenient. 2. The offender is Christopher Manning. He is aged 49 years, having been born on 30 th June 1970. 3. On 24 th February 2020, in the Crown Court at Bristol, the offender, who had previously pleaded guilty to four counts of sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003 (counts 1 to 4), and to one count of Causing or inciting a child to engage in sexual activity, contrary to section 10(1) of the same Act (count 5), was sentenced by His Honour Judge Lambert to a suspended sentence order of 12 months' imprisonment, suspended for 24 months. He imposed a tagged curfew for nine months between the hours of 9pm and 6am, with the purpose significantly to restrict the offender's liberty. In addition, he imposed a Rehabilitation Activity Order for 30 days, which included one-to-one work with an offender manager, and a requirement that the offender undertake the MAP for Change Treatment Programme. A number of ancillary orders were made, some of which we mention. A restraining order was imposed for five years which prevents the offender contacting his victim or her family. A strict Sexual Harm Prevention Order was also imposed for seven years which, amongst much else, provides comprehensive protection for young people and also inhibits the freedom of the offender to use his computer or other devices in the ordinary way. He was ordered to pay £7,500 in compensation, together with £1200 towards the costs of the prosecution. Both sums were paid within a fortnight. 4. The victim has statutory anonymity for life. There must be no reporting of this case which is likely to lead to her identification. 5. Before turning to the facts, we shall identify the principal issue that was raised before the learned judge at the sentencing hearing and was advanced as the main argument in the Final Reference, dated 20 th April 2020. It is no longer pursued. 6. The offence of causing or inciting a child to engage in sexual activity covers potentially a very wide range of conduct and outcomes. The child in this case was 15 years old. The offender was charged with and pleaded guilty to inciting her to have sexual intercourse with him. No sexual intercourse occurred. Before the judge, the prosecution argued that for the purposes of the relevant definitive guideline, the incitement offence should be located within category 1 for harm. That is described in the guideline as: " • Penetrating of vagina or anus (using body or object) • Penile penetration of mouth In either case, by, or of, the victim". 7. It was agreed, for reasons to which we shall return, that culpability fell within category A in this case. In those circumstance, the prosecution argument was that the starting point for the incitement count was five years' custody, with a category range of four to ten years' custody. The contention advanced was that the fact that no such activity occurred should be treated only as a mitigating factor. 8. The judge emphatically rejected that submission. He concluded that it fell within category 3, namely, "other sexual activity", which, when linked with culpability at level A, has a starting point of 26 weeks' custody and a category range of a high-level community order to three years' custody. 9. The principal authorities which bear on this question, most unfortunately, were not drawn to the attention of the judge or set out or referred to in the Final Reference. We provided them to counsel in advance of this hearing. Attorney General's Reference No 94 of 2014 (R v Baker) [2014] EWCA Crim 2752 ; [2016] 4 WLR 121 , concerns an offender who incited a 13 year old girl to engage in sexual activity, namely, penetration of her mouth with his penis. That sexual activity never took place. The issue we have identified was raised in the course of that Reference. In giving the judgment of the court, Sir Brian Leveson (President of the Queen's Bench Division) said this at [34]: "In our judgment, what happened here did not fall within category 1 at all. In the circumstances, because the offending did not proceed beyond incitement, it was 'other sexual activity' within category 3. That accords not only with the judge's rejection of the suggestion that the offender's behaviour justified a starting point of five years but also provides appropriate headroom between the sexual suggestion and any actual activity without necessarily engaging upon the exceptional basis for departing from the Guideline." That offence was a single, high culpability offence. The offender had been sentenced to 180 days' imprisonment, which this court considered to be "entirely appropriate". 10. In R v Cook [2018] EWCA Crim 530 ; [2018] 2 Cr app R(S) 16, the same point was argued, and the position was re-affirmed by Treacy LJ in giving the judgment of this court at [8] by reference to Baker and to a number of other cases, where the same point had been considered. 11. Mr Lloyd, who appears on behalf of the Solicitor General, realistically recognises that in the face of the weight of that authority, the first and principal argument advanced on behalf of the Solicitor General in the Final Reference cannot be sustained. In the alternative, he submits that the custodial term arrived at by the judge was substantially too short and, in any event, should have been longer than two years, even taking account of mitigation and guilty pleas. In those circumstances, he submits, the question of suspending the sentence should not have arisen. The Facts 12. The girl and the offender met through their shared interest in darts. She was and is a talented darts player. She met the offender in October 2017 at a competition in which both were competing. At that time she was only 14 but, because of her exceptional skills as a darts player, she was playing in an adult team. The offender was then aged 47. The girl reached her fifteenth birthday on 15 th July 2018. He became attracted to her. In September 2018, he asked her out via a text message. He had already told her that he "fancied" her. 13. On Sunday 29 th September 2018, they arranged to meet, alone, at a social club. The girl did not tell anyone that she was meeting the offender. On that occasion, they kissed four or five times. It is that conduct which is comprised in count 1. 14. A week later, the offender arranged to meet the girl on an industrial estate. Once more, no one knew she was there. Again, they kissed. On this occasion, the offender placed his hand on the girl's breast, over her clothing. That is the conduct comprised in count 2. 15. They arranged to meet again on Friday 12 th October. By this time, the offender had sent texts which both understood to refer to the possibility of penetrative sex. On that Friday, the offender again kissed the girl and placed her hand over his clothing, on top of his erect penis. That conduct comprised count 3. She withdrew her hand and "felt awkward". 16. That evening, further messages were exchanged during which the offender explained how much he had enjoyed the touch from her. The following morning, at the offender's request, the girl sent him a picture of herself in a bikini. 17. Later that day, they met once again at the industrial estate. They kissed and the victim placed her hand once more on the offender's erect penis through his trousers. That was the conduct comprised in count 4. 18. By this time, the girl's parents were concerned that something was wrong as a result of her odd behaviour at home. They tracked the location of her mobile phone and followed her to the industrial estate. They came across their daughter with the offender in his car. He drove off, but later stopped to let the girl out. 19. The following day, the girl provided a detailed video-recorded statement of what had been going on. 20. Count 5 related to the incitement to engage in penetrative sexual activity which did not take place. The incitement occurred over the period of the substantive offending and was evidenced not only by the escalating activity, but also the content of text messages which showed the offender's clear desire to have penetrative sex with the girl. 21. The basis of plea to count 5, which was accepted by the prosecution, was that the offender's behaviour amounted to intentional incitement to penetrative sexual activity, not in the immediate future, but at some point, before the girl's sixteenth birthday. 22. Evidence before the judge, not only from the girl herself but also from her family, suggested that in the immediate aftermath of these events she had a significant adverse reaction. She selfharmed after these events, and her eating and sleeping were significantly disturbed. She suffered from nightmares. In the weeks that followed these events, her work at school was adversely affected. She saw a mental health nurse and was diagnosed with post-traumatic stress disorder and depression. There had been some problems beforehand. 23. Sexual offending very commonly has an adverse impact on victims. To an extent, that is taken into account in the guideline. But an exceptional impact may, as the guideline itself recognises, be an aggravating feature. The judge referred, albeit obliquely, to the other problems which the victim had and which are referred to in the papers that are before us. The evidence of the immediate impact is contained in two short statements taken less than a month after the conclusion of the events. It provides an insecure foundation to conclude that there was "severe psychological or physical harm" for the purposes of the guideline. 25. The offender had no previous convictions. Material placed before him, led the judge to conclude that the offender was of positive good character. He lived at home with his parents. He had some disabilities and was considered to be naïve and immature. 26. Before us, Mr Morgan-Jones, who appears for the offender, summarised the position by saying that the offender is "emotionally and socially inadequate". Since his teenage years, he has had only three short relationships, but has always remained living with his parents. 27. A psychiatric report identified a generalised anxiety disorder. It appeared to be substantially associated with the immediate difficulties that the offender faced. 28. The judge provided a succinct assessment of the offending. In his sentencing remarks he said this: "Your offending arises from what was initially a virtuous friendship. It should have stayed that way. You and your victim played sport together, but, as you became better acquainted, what was a virtuous friendship turned into a sexual relationship. You were somewhat naïve and not very worldly wise, but you are the adult in all this and there is one person to blame and one person only, and that is you. You took advantage of a 15 year old girl, and [the] victim impact is severe in this case. I also saw elements of manipulation and cunning in what you did, and there was a significant element of grooming behaviour which took place here. …" 29. In sentencing the offender, as was common ground before him, the judge placed the contact offences (counts 1 to 4) in category 3A. He described the culpability as being "well within culpability band A, given the disparity in age, the severity of impact upon your victim and the grooming behaviour that took place. It must be recalled that this was multiple offending as well." 30. Count 5 also fell within category 3A. The judge thus determined to impose concurrent sentences, with the total sentence reflecting the overall criminality. He then explained his sentence in this way: "Given the severity of the harm concerned, I took the firm view that your offending was so serious [that] only a custodial sentence could be justified. I stepped back, wondering in the end, given your risk and prospects of rehabilitation, whether it had to be an immediate custodial sentence. Not without some hesitation, I decided you could be spared immediate custody, but it comes at considerable cost. If this had been a contested case, 15 months' imprisonment would be right for your overall [sentence]. Giving you 20% credit for plea, a somewhat generous assessment, then 12 months would be the right sentence, suspended for two years." 31. Mr Lloyd submits that, taking account of the multiplicity of offending reflected in the five counts, the starting point at which the judge arrived, namely, 15 months' imprisonment, was too low by a substantial margin. He submits that each of these offences was serious within the context of category 3A of the guideline, given the aggravating factors to which the judge referred. Each offence, he submits, committed in isolation, should have attracted a sentence of about two years' custody. In the round, he submits that the starting point should have been about four years' custody, before any reduction for the guilty pleas. 32. Mr Morgan-Jones submits that the judge was right to reject the contention that the incitement count should be sentenced as a category 1 offence. It was his submission before the judge that a suspended sentence order was an available sentence, given all of the circumstances of the case. He reminds us of the mitigating factors to which the judge referred, and in particular to the possibility of rehabilitation. He also submits that the risk assessment in this case was actuarily assessed as being low and continues to be a low risk to members of the public. He accepts that the pre-sentence report described a high risk to "a known child", but the Sexual Offending Prevention Order protects against and mitigates that risk. He submits that the judge was very familiar with the case because he had case-managed it for some time. An early trial had to be adjourned because the offender was in hospital. The judge saw the offender in court on a number of occasions and he also took part in a familiarisation visit by the complainant to the court. 33. Mr Morgan-Jones submits that even if the view is taken that this sentence was in all the circumstances a lenient one, it is not possible to suggest that it was unduly lenient for the purposes of the relevant legislation. 34. The starting point for a category 3A offence is six months' custody. A community punishment may be appropriate, but the range extends to three years' custody. The width of the category range reflects the fact that, as in this case, the circumstances of the offending can range very widely indeed. We see an escalation in the offending. It started with kissing which, in our view, on its own might well not lead to a custodial sentence at all. Although touching the breast over clothing, and then the much more serious invitation to the girl to place her hand on the offender's penis through his clothing would almost certainly do so. 35. All this was part and parcel of a calculated journey upon which the offender had embarked and was seeking to take the girl with him. In the absence of the detection which occurred, no doubt further offences would have been committed. The judge was clearly right to decide that the custodial threshold had been passed. 36. That said, we accept Mr Lloyd's submission that the 15 month starting point was unduly lenient. We do not accept that, taking the five offences together, a starting point of four years would have been appropriate, as he suggested. There were four distinct contact offences and the incitement was serious We consider that the proper starting point in this case should have been in the region of 30 months' imprisonment. 37. The real issue, as it seems to us, is whether it was open to the judge to suspend the sentence, assuming that the custodial term, having regard to all matters, including the guilty pleas, could have been two years or less. The starting point we have identified, when the discount for the guilty plea is applied, would lead to a custodial term of two years. 38. In considering this question, we have regard to the guideline on the imposition of community and custodial sentences. We do not accept that it was wrong in principle for the judge to consider suspending the sentence in this case. There is, for example, a realistic prospect of rehabilitation. 39. Events since the offender was sentenced, which are spoken to in two supplementary reports from the Probation Service, show that he is motivated to address his offending behaviour by engaging in focused work within supervision appointments. He has continued to engage throughout the intervening period with his supervisors. He has started the MAP for Change Course. We would add that at the time of the offending, and indeed of his being sentenced, the offender had been in steady work for many years. His work has been interrupted not only by his offending, but also by the Covid-19 emergency. His employers remain supportive. His mitigation was strong. True it is that the risk that he poses is a factor which would weigh in considering whether a suspended sentence was appropriate; but for the reasons submitted by Morgan-Jones the approach to risk in this case suggests that it is limited. 40. Furthermore, the ancillary orders attached to the suspended sentence in this case are of importance. The curfew in particular, which extends for nine months, acts as a significant restriction on the offender's liberty, albeit, as matters stand and as Mr Lloyd reminded us, the national lock-down would inhibit his movements to some extent anyway. 41. We would mention one other factor of relevance. We are hearing this Reference at the end of April 2020, when the nation remains in lock-down as a result of the Covid-19 emergency. The impact of that emergency on prisons is well-known. We are being invited in this Reference to order a man to prison nine weeks after he was given a suspended sentence, when he has complied with his curfew and has engaged successfully with the Probation Service. The current conditions in prisons represent a factor which can properly be taken into account in deciding whether to suspend a sentence. In accordance with established principles, any court will take into account the likely impact of a custodial sentence upon an offender and, where appropriate, upon others as well. Judges and magistrates can, therefore, and in our judgment should, keep in mind that the impact of a custodial sentence is likely to be heavier during the current emergency than it would otherwise be. Those in custody are, for example, confined to their cells for much longer periods than would otherwise be the case – currently, 23 hours a day. They are unable to receive visits. Both they and their families are likely to be anxious about the risk of the transmission of Covid-19. 42. Applying ordinary principles, where a court is satisfied that a custodial sentence must be imposed, the likely impact of that sentence continues to be relevant to the further decisions as to its necessary length and whether it can be suspended. Moreover, sentencers can and should also bear in mind the Reduction in Sentence Guideline. That makes clear that a guilty plea may result in a different type of sentence or enable a Magistrates' Court to retain jurisdiction, rather than committing for sentence. 43. Returning to the circumstances of this application, in the light of our conclusions, we give leave for the Solicitor General to refer the sentence to this court. We allow the application to the extent only that we substitute for the custodial term of 12 months, a custodial term of 24 months. The sentence remains a suspended sentence. All the other orders made by the judge are unaffected.

```yaml citation: '[2020] EWCA Crim 592' date: '2020-04-30' judges: - ATTORNEY GENERAL'S REFERENCES UNDER SECTION 36 OF THE CRIMINAL JUSTICE - MRS JUSTICE CUTTS DBE - MRS JUSTICE TIPPLES DBE - 'THE LORD CHIEF JUSTICE:' ```

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: 201702741 A3 Neutral Citation Number: [2017] EWCA Crim 526 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 23 February 2017 B e f o r e : LORD JUSTICE SINGH MR JUSTICE NICOL MR JUSTICE JAY - - - - - - - - - - - - - - - R E G I N A v DIPESHKUMAR KRUSHNAKANT - - - - - - - - - - - - - - - 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. Non-Counsel Application (Approved) 1. LORD JUSTICE NICOL: This is a renewed application for permission to appeal against sentence following refusal by the single judge. On 13 March 2017 in the crown court at Lewes the applicant pleaded guilty to two offences. Count 1 conspiracy to defraud contrary to common law; count 2, conspiracy to launder criminal property contrary to section 1 of the Criminal Justice Act 1977. 2. On 19 May 2017 he was sentenced by his Honour Judge Kemp to 27 months on count 1 and to 11 months, consecutive, on count 2, making a total of 3 years and 2 months' imprisonment. 3. Among his co-accused were Naneshbhai Patel, who pleaded guilty to counts 1 and 2 and was sentenced to a total of 5 years and 8 months' imprisonment. It is not necessary for us to detail the four other co-accused who were also charged at the same time. 4. The facts of the offence in brief were these: between 24 July 2013 and 2 February 2015 the applicant and Naneshbhai Patel conspired to defraud HMRC by providing false income tax self assessment forms that misled and deceived the HMRC into transferring sums of money as tax rebates. The conspirators effected the fraud by remotely using access to the self assessment portal through their phones and computers. The conspirators submitted bogus amendments and applications in the names of taxpayers, who were unaware that claims had been made on their behalf. Income tax rebates were then paid in the name of those taxpayers and diverted by the applicant and his co-conspirator. 5. Turning to count 2, the conspiracy to launder criminal proceeds, the facts of that offence were that the money from 21 different submissions for five of the nine hijacked taxpayers could be traced to the applicant. Transfer claims culminating with accounts held by applicant or his wife received over £35,000 which appeared to have been retained or subsequently spent. On five further occasions accounts in the name of the applicant were used to act as buffer accounts for funds which were then paid onwards into accounts held by Naneshbhai Patel. On those occasions the full amount received from the previous link in the chain was not remitted onwards but resulted in the applicant retaining a further £3,400 of the proceeds of the fraud. 6. The applicant was arrested. In interview he stated that he had known Naneshbhai Patel for a long time and that he, the applicant, and Mr Patel regularly lent each other money and that was the explanation as to why money went to and from their prospective bank accounts. 7. The applicant pleaded on the basis that was dated 8 March 2017. The prosecution did not accept that basis so far as count 2 was concerned. A Newton hearing was scheduled but on the day of the hearing the applicant submitted an amended basis of plea which was acceptable. The judge remarked that the applicant had pleaded guilty on the first day of trial, namely 13 March 2017. The judge said that that would be reflected with appropriate credit for those pleas of guilty. He noted the sequence of events concerning the basis of plea to which we have just referred. The judge remarked that the conspiracy to defraud in count 1 was sophisticated, well planned and well executed and had persisted over a seven-month period, resulting in nearly £180,000 being paid out. That was money that had been paid to the Revenue by honest and diligent taxpayers. It was thus a fraud on the public purse. The applicant had also tried to launder money obtained from the initial fraud. 8. In relation to count one the applicant had stated he did not submit any false or bogus claims or hijack any of the individual accounts. The applicant did, however, provide an address which had been used for the furtherance of the fraud. In relation to count 2 the applicant had filed an addendum to his basis of plea in which he acknowledged that over £56,000 of the fraudulently obtained money had been transferred into his bank account of which he had retained some £27,000. The applicant did not accept, however, that he had physically benefited to the extent of either of those sums, but that he had received monies from 21 of the fraudulent submissions for five of the nine hijacked taxpayers. The address which the applicant's wife had by virtue of her employment in the hospital had been used for the purpose of supporting a number of the false claims. The applicant's plea had come at the latest possible stage of the day of trial. Credit would therefore be very limited. The judge assessed the credit as 10 per cent. The applicant was 34 years old. He was a man of hitherto good character, a husband and a father of two young children. The judge had read letters from the applicant and his wife and they made moving reading. The applicant stated in those letters that he was not a criminal but in reality he was and he had now lost his good character. The judge said that the sentencing guidelines had been agreed by all and that the applicant was of medium culpability for his role in both counts 1 and 2. This was on the basis of value, therefore, a category 5B offending, giving the court a sentencing range of between, as the judge said, 18 months and 3 years. In fact, the judge erred in favour of the applicant in that respect. The range for 5B offending, conspiracy to defraud is up to 4 years, not 3 years. The judge said that for the money laundering offence the range was between 6 months and 18 months' imprisonment. Again, the judge erred in favour of the applicant. For the money-laundering offence within category 5B the range goes up to 3 years. The judge said he took the view that the conspiracy to launder the proceeds of the main fraud was an additional operation necessary to conceal those proceeds and therefore the sentences should be consecutive but he would be alive to the totality principle and would keep the sentence as low as he could. He passed the sentences to which we have referred. 9. The applicant seeks to argue two grounds of appeal. The first is that the sentence of 2 years and 3 months' imprisonment on count 1 was excessive, given the minor role played by the applicant and his good character. Second, the applicant argues that the totality of the sentence across both counts was excessive and the sentences on counts 1 and 2 should have been concurrent. 10. In refusing permission the single judge said count 1 involved a serious and sophisticated conspiracy to defraud. The sentence on that count was within the guidelines and did reflect the fact that this defendant played a lesser role than N Patel. He was, nonetheless, a co-conspirator. The judge explained how the offending in count 2, the money laundering of proceeds, was additional to that in count 1 so as to warrant a consecutive sentence. Totality did not require him to make the sentence on count 2 concurrent. He did have regard to totality in limiting the sentence on count 2. The overall sentence could have been lower had the admission of guilt been made at earlier stage. 11. We have reviewed all of the papers in the case but it is sufficient for us to say we entirely agree with the decision of the single judge. Accordingly, this renewed application for permission to appeal against sentence 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: '[2017] EWCA Crim 526' date: '2017-02-23' judges: - LORD JUSTICE SINGH - MR JUSTICE NICOL - 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 apply to the contents transcribed in this document, as stated in paragraph 1 of the judgment, because the case concerned sexual offending and involved children. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202102301/B4 NCN [2022] EWCA Crim 1207 Royal Courts of Justice Strand London WC2A 2LL Tuesday 2 August 2022 Before: VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) (LORD JUSTICE HOLROYDE) MRS JUSTICE MAY DBE MR JUSTICE GOOSE REGINA v DAVID TAYLOR Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MS L KNOTT appeared on behalf of the Appellant. MS C HOWELL appeared on behalf of the Crown. _________ J U D G M E N T (Approved) 1. THE VICE-PRESIDENT: This appellant was a teacher, and latterly deputy head, at a boarding school attended by boys and girls who had shown behavioural problems. He was convicted of three offences of cruelty to boys in his care and a total of nine sexual offences against three girls in his care. He appeals, by leave of the single judge, against one of those convictions, an offence of rape of a girl to whom we shall refer as "C". She and the others who were sexually abused are entitled to the lifelong protection of the provisions of the Sexual Offences (Amendment) Act 1992 . Accordingly, during their respective lifetimes, no matter may be included in any publication if it is likely to lead members of the public to identify any of them as a victim of the offences. 2. All the offences were committed many years ago. The sexual offending was charged under the Sexual Offences Act 1956 . In relation to C, counts 15 and 16 charged offences of indecent assault, contrary to section 14 of that Act , between January 1990 and January 1992, when C was aged between 14 and 16. Count 17 (the subject of this appeal) alleged rape, contrary to section 1 of the Act , during the same period. 3. C was aged 8 when she first attended the school. She was sent there because of her behavioural problems. From the age of 12 she was able to attend a mainstream school for her lessons, but she continued to board at the school until she completed her education at the age of 16. 4. During the relevant period, it was the practice for girls boarding at the school to be given a goodnight kiss by a member of staff. The prosecution case was that the appellant took that opportunity to kiss C inappropriately on the lips and using his tongue (count 15). This began when she was about 14. It progressed to sexual touching on occasions outside school hours, when the appellant would summon C to his classroom, put his hand inside her trousers and digitally penetrate her (count 16). C on these occasions put her hand inside the appellant's trousers and touched his penis. Sexual activity then progressed to at least ten occasions of vaginal sexual intercourse, either in a classroom or at the appellant's home (count 17). That continued until C left the school. She did not remain in contact with the appellant after she had left. 5. C was 42 years old when she gave her video recorded account of the offending. She said: "It was all consensual", adding: "You know, I was young and it shouldn't have happened, but at no time did I say 'no' to him." C also said that from about the age of 15 she was on the pill, but she was not asked to say why it had been prescribed for her. 6. In her evidence to the jury, C repeated that she had not made any complaint about the appellant, and was still not doing so, because: "I said 'yes', I knew what I was doing". 7. The prosecution case was put on the explicit basis that although C believed she had consented to sexual activity, she had not truly consented. She was a vulnerable child, who had been seeing a psychiatrist since she was aged 6 and who had continued to reside at a school with behavioural problems rather than in her parental home. She was in the care of the appellant and had been groomed by him. The prosecution pointed to what was said to be evidence of grooming by the appellant not only of C but also of other girls, which it was alleged showed a pattern of similar behaviour. 8. The defence case was that the goodnight kisses were given in the presence of a female staff member and were non-sexual. The appellant denied that any sexual activity of any kind had taken place. It was put to C in cross-examination that she had had no sexual relationship with the appellant. She reacted with evident surprise. 9. At the conclusion of the prosecution evidence a submission was made that there was no case to answer on count 17. Counsel on both sides put in helpful written submissions, in which reference was made to relevant case law: R v Malone (1998) 2 Cr App R(S) 447; R v Robinson [2011] EWCA Crim 916 ; R v Ali (Yasir) [2015] EWCA Crim 1279 and R v Usman [2021] EWCA Crim 502 . It was submitted on the appellant's behalf that on C's own account she had been an enthusiastic participant who had willingly and actively consented. There was, it was submitted, no evidence of grooming. 10. The judge, HHJ Sjolin Knight, gave a careful ruling. She referred to the case law, noting that it was common ground at the Bar that Ali (Yasir) was the leading current authority on point. In summary, the judge identified the following features of the evidence as being important to her ruling: (a) C was a vulnerable 8-year-old when sent to the school. The fact that she remained there, even when attending a mainstream school for her lessons, indicated both her own continuing problems and the lack of family affection and support for her at the time covered by the indictment; (b) the appellant was 26 years older than C, in a position of trust as deputy head living on site and caring for C and other pupils. It was he who started the sexual contact and he who would summon C to come to him. C did not say anything to suggest she had a crush on him, and she did not make the running at any stage. (c) C's description of the manner in which sexual contact began was very similar to that described by a second complainant and was also echoed by a third. (d) the judge observed that people can be hard on themselves and for some the maxim: "I did that and I have to live with it " enabled them to move on with their lives. 11. The judge added: i. "It is far from uncommon that a young person deprived of family love and support sees abuse as love or at least a price worth paying for affection. The only difference to [a second complainant] is that [the second complainant] has reappraised what happened to her. This conclusion does not require an overwriting of consent validly given at the time but, instead, a cool-headed legal appraisal of the full circumstances and whether they amount in law to consent." 12. We should explain that the reference to a second complainant arose because of a comparison which the Crown drew between that complainant's experiences and those of C. 13. The judge concluded that although it may not be the strongest case, there was sufficient evidence to go before the jury, who could properly find on the evidence that C's avowed consent was not in law consent. 14. In her later directions of law the judge instructed the jury as follows: i. "58. To consent a person needs to know that they have a choice and can say no. Submission - that is, feeling one has no choice but to let the other person do what they want - is not consent. ii. 59. You are entitled to consider all the circumstances when you decide whether a particular complainant was consenting, including what that complainant says, but also their respective ages, that one was a pupil at this boarding school and the other was the deputy head, what had happened between them before the sex (if you accept the complainant's evidence about that) - what you might characterise as grooming the complainant in order to get her to submit to what he wanted to do. iii. 60. Whether a belief in consent in these circumstances would be reasonable is only evidence of whether or not the Defendant genuinely held the belief. The same circumstances mentioned in the preceding paragraph are relevant here, but so is what the Defendant says he believed. In this case the Defendant does not say he had a genuine belief in consent - he denies the sex took place at all." 15. In answer to a question from the jury the judge later added: i. "Having sex with a person isn't rape just because the other person is aged under 16. But just because a complainant says 'I consented', it doesn't mean that was legally recognised consent. The prosecution opened this case to you knowing that C says 'I consented' but they say to you that in all the circumstances that is not legally recognised consent. The defence say the sex just didn't happen." 16. No criticism is or could be made of any of those directions. However, Ms Knott, on behalf of the appellant, points out that the jury were directed that if they acquitted the appellant on count 17, there was no alternative charge to cover that sexual activity with C. She submits that the jury's question suggests a risk that the jury were sure that there was sexual intercourse and sure that it was wrong, but could only attach the label of rape to it. 17. Ms Knott's principal submission is that the judge was wrong to find a case to answer, where C gave clear evidence that she knew what she was doing and was a willing participant. Ms Knott accepts that grooming is capable of vitiating consent, but submits that there was no evidence that C was groomed. She argues that neither the nature of the school and the reasons for C's attendance there, nor the progression from kissing to sexual touching and then to intercourse, amounted to evidence of grooming. She further submits that there must in any event be evidence both of grooming and of its causative effect on a complainant's capacity to understand the decisions she makes. 18. For the respondent, Ms Howell submits that the judge was correct to leave the case to the jury. There was ample evidence of what she refers to the appellant's "predatory and grooming behaviour" towards those in his care, and the jury were entitled to consider all the evidence in the case, including C's demeanour when giving her evidence, to decide whether C was describing true consent, or the grooming of a vulnerable child who later struggled to come to terms with what had happened to her because she did not say "No". 19. That is, of course, a very brief summary of submissions made much more fully, both in writing and orally. We are very grateful to both counsel for their careful preparation of the case and for the skill which each has presented her oral submissions this morning. 20. In Malone (at page 457F), this Court held that the actus reus of rape is sexual intercourse with a woman who does not consent to that act, and that demonstration or communication to the accused of the absence of consent is not part of the actus reus . Roch LJ continued: i. "No doubt in order to obtain a conviction there will have to be some evidence of lack of consent to go before the jury. But what that evidence will be will depend on the particular circumstances of the case..." 21. In Robinson , a 12-year-old complainant gave evidence that she had never told the defendant to stop the sexual activity which took place or told him that she did not want him to do it. The trial judge, rejecting a submission of no case to answer, referred to the evidence of grooming. This court dismissed an appeal against conviction, saying that it was only in the clearest of cases that a judge could conclude that there was no evidence on which a jury could properly convict in a case of this kind. At paragraph 21, Elias LJ said this about grooming: i. "Grooming is not a term of art, but it suggests cynical and manipulative behaviour designed to achieve a particular sexual objective. Not all relationships with underage children can fairly be characterised as involving grooming, although many will. But even where they can, the fact of grooming plainly does not necessarily vitiate consent. Many a seducer achieves his objectives with the liberal and cynical employment of gifts, insincere compliments and false promises. But such manipulative and deceitful methods could not be relied upon to establish a lack of consent whenever the seduction was successful. The situation will often be no different where the complainant is under age. But where the exploitation is of a girl who is of an age where she does not, or may not, have the capacity to understand the full significance of what she is doing, and in particular, where, as here, there was evidence of acquiescence or acceptance rather than positive consent, we think that, as the judge found, it would be open to the jury to conclude that the complainant, perhaps out of embarrassment or some other reason, had in reality unwillingly gone along with the acts which she did not in fact wish to engage in." 22. In Ali (Yasir) the prosecution case at trial was that the defendants had targeted and groomed girls with the aim of using them for sexual purposes. The prosecution case was that the victims became sexually compliant and that any apparent consent on their part was not genuine. The defence case was that there was clear evidence of actual consent. 23. At paragraphs 56-61 Fulford LJ stated the principles to be applied in cases of this kind. At paragraph 56 he said: i. "There are many instances when the complainant's evidence as to whether she consented will determine if there is a case to go to the jury. In our judgment, however, in particular situations such as the present the prosecution is not obliged to call overt evidence from the alleged victim to the effect that he or she did not consent, given it is possible that the circumstances may have limited or distorted the individual's appreciation or understanding of his or her role in the sexual relations and the true nature of what occurred." 24. Fulford LJ then referred to the decision in Malone , and at paragraph 57 he continued: i. "One of the consequences when vulnerable people are groomed for sexual exploitation is that compliance can mask the lack of true consent on the part of the victim. As the judge directed the jury in the summing up in this case, where there is evidence of exploitation of a young and immature person who may not understand the full significance of what he or she is doing, that is a factor the jury can take into account in deciding whether or not there was genuine consent." 25. After referring to the passage which we have cited from paragraph 21 in Robinson , Fulford LJ at paragraph 58 said: i. "Although, as Elias LJ observed, grooming does not necessarily vitiate consent, it starkly raises the possibility that a vulnerable or immature individual may have been placed in a position in which he or she is led merely to acquiesce rather than to give proper or real consent. One of the consequences of grooming is that it has a tendency to limit or subvert the alleged victim's capacity to make free decisions, and it creates the risk that he or she simply submitted because of the environment of dependency created by those responsible for treating the alleged victim in this way. Indeed, the individual may have been manipulated to the extent that he or she is unaware of, or confused about, the distinction between acquiescence and genuine agreement at the time the incident occurred." 26. Finally, Fulford LJ reiterated the principle that a submission of no case to answer in circumstances such as these should only succeeded in clear cases, saying at paragraph 61: i. "In summary, in a case in these circumstances in which a vulnerable or immature individual has allegedly been groomed by the defendant, the question of whether real or proper consent was given will usually be for the jury unless the evidence clearly indicates that proper consent was given." 27. That latter principle has recently been re-affirmed by this Court in Usman . 28. We respectfully adopt and endorse Fulford LJ's statement of the relevant principles in Ali (Yasir) . Where an issue arises as to whether or not a complainant truly consented to sexual activity, her own assertion that she did will of course be weighty evidence for the jury to consider. In some cases, a judge considering a submission of no case to answer may conclude not only that the complainant's assertion is clear and unequivocal, but also that the jury could not properly conclude that she did not truly consent. But such cases will be comparatively rare, because it will generally be a matter for the jury to assess from the evidence as a whole whether they can be sure there was no true consent. To adopt and adapt a phrase used by the judge in the present case, it is generally for the jury to make a "cool-headed appraisal of the full circumstances". 29. We would add that it would be a mistake to think that the decision whether to allow a submission of no case to answer in a case such as this must turn on whether or not the conduct of the accused can be labelled "grooming". As Elias LJ pointed in Robinson , "grooming is not a term of art". It covers a wide range of conduct and, whilst it can no doubt be said that one can recognise it when one sees it, it is an imprecise term. There is no hard border between that which can and which cannot be labelled "grooming". In the present case, accordingly, it is neither necessary nor sufficient to decide whether Ms Knott is correct in her submission that there was no evidence of "grooming". The question is whether, taking the prosecution evidence as a whole, it was properly open to the jury to conclude that there was no genuine consent despite C's own evidence asserting the contrary. In the circumstances of this case, we do not accept that the jury could not properly have identified the appellant's conduct as grooming. But it was not necessary for them to be able to do so before they could be sure that there was no true consent. 30. In the circumstances of this case, we are also unable to accept the submission that there was clear evidence that C did understand the full significance of what she was doing, and did not merely acquiesce to the appellant's wishes under pressure. The important point, in cases such as this, is that even a clear and unequivocal assertion of willing consent by a complainant may have to be seen in the context of other evidence, and surrounding circumstances, which may cause the jury to conclude that the assertion is an unreliable guide to what was actually happening. It must be remembered that the conduct of an abuser may cause his victim not merely to acquiesce but also to perceive her own acquiescence as consent. Conduct which may by described as grooming, or analogous to grooming, is after all intended so to distort the victim's perception as to encourage her to engage in sexual activity which is inappropriate and wrong. In the present case the jury were entitled to regard C's words: "I was young and it shouldn't have happened but at no time did I say 'no' to him" as a telling indication of just such a subversive process having taken place. 31. The judge in her ruling, which we regard as exemplary, identified very clearly the features of the evidence which led to her conclusion that it was a matter for the jury. She was correct, for the reasons she gave, to reach that conclusion. It would have been wrong, and an improper usurping of the jury's function, to withdraw count 17 from them. 32. We should add that we see no basis for thinking that the conviction on count 17 is unsafe because the jury may wrongly have convicted of rape simply because the only alternative would have been outright acquittal, with no lesser alternative conviction being available to them. Jurors can be expected to follow the directions which they are given, and in our collective experience they do so. There is no reason to doubt that this jury would have followed the judge's direction, and returned a verdict of not guilty, if they had not been sure that all the ingredients of the offence had been proved. 33. For those reasons, grateful though we are to Ms Knott for her careful submissions on the appellant's behalf, this appeal fails and must be dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2022] EWCA Crim 1207' date: '2022-08-02' judges: - MRS JUSTICE MAY DBE - MR JUSTICE GOOSE ```

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. No. 2019 02049 A2 Neutral Citation Number: [2019] EWCA Crim 2181 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Friday, 04 October 2019 Before: LORD JUSTICE HADDON-CAVE MRS JUSTICE COCKERILL DBE HIS HONOUR JUDGE BATE - - - - - - - - - - - - - - - - - - - - REGINA v BRIAN EDMUND HEYWOOD REPORTING RESTRICTIONS APPLY: SEXUAL OFFENCES (AMENDMENT) ACT 1992 - - - - - - - - - - - - - - - - - - - - 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 K. BLOUNT appeared on behalf of the Appellant. THE CROWN did not appear and was not represented. - - - - - - - - - - - - - - - - - - - - JUDGMENT 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. MRS JUSTICE COCKERILL DBE: 1 On 16 April 2019, having pleaded guilty before the Magistrates to counts of outraging public decency and a count of sexual assault, the Appellant was committed for sentence to the Crown Court. On 7 May 2019, in the Crown Court at Nottingham, he was sentenced to a total of three years' imprisonment. 2 In addition: a. having been convicted of an offence listed in Schedule 3 of the Sexual Offences Act 2003 , the Appellant was required to comply with the provisions of Part 2 of the Act , (that is notification to the police) for ten years. b. having been convicted of an offence specified in the Schedule to the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009, the Appellant will, or may be, included in the relevant list by the Disclosure and Barring Service. 3 The Appellant’s victims are entitled to the protection of the Sexual Offences (Amendment) Act 1992 . Under the provisions of that Act , where a sexual offence has been committed against a person, no matter relating to that person shall, during their lifetime, be included in any publication if it is likely to lead members of the public to identify them as the victim of that offence. This prohibition will continue to apply unless and until it is either waived or lifted in accordance with the Act . We shall not, therefore, name the victims but shall instead refer to them by initials. 4 In relation to the sentence of imprisonment which the Recorder imposed, the Appellant appeals to this Court by the leave of a single Judge. He contends that the sentence imposed was manifestly excessive. 5 The facts of this case, though unusual and perhaps indeed unique, may be simply stated. They concern five offences committed on four dates over a period of just under two years. 6 The first occurred on 18 September 2016. NB was travelling alone by train from London St. Pancras to Sheffield. During the journey, the Appellant appeared and sat opposite her. He was wearing a T-shirt and tight, Lycra boxer shorts and stretched his legs out blocking NB’s exit to the aisle. She noticed that the Appellant had an erect penis and that he was rubbing himself against the edge of the table, looking directly at her as he did so and making noises denoting pleasure. The episode went on for some time. When anyone walked past, the Appellant would cover his erection with a newspaper. 7 The second date was 29 September 2016. CF was travelling alone on a train from Manchester to Ealing. Again, halfway through the journey, the Appellant sat opposite her. This time, he was wearing a running top and small, tight briefs. He went through a similar performance, which lasted for 20 minutes and included manual masturbation. CF was so upset that she decided to depart the train early. 8 The very same day, DB was travelling alone on a train from London St. Pancras to Nottingham. The Appellant boarded the train about halfway through the journey and sat next to her. He was wearing a T-shirt and very short, thin boxer shorts. Again, the victim noted his erect penis and his direct stare. Again, he covered himself to avoid detection when anyone walked past. DB left the train feeling intimidated and scared. When she left the train, she was concerned that the Appellant might be following her. 9 The fourth incident came on the afternoon of 20 June 2017, when CW was travelling alone from Leicester to Nottingham. The Appellant sat opposite her wearing gym gear and tight running shorts. He constantly adjusted himself with his hand while reading a newspaper. CW could see that he had an erect penis and he was intentionally exposing it to her. She tried to ignore him, but he was constantly fidgeting, and his legs were stretched under the table very close to her. She felt vulnerable and distressed. 10 The final incident, and the most serious, was on the evening of 23 May 2018. EK was travelling alone from Sheffield to London St. Pancras. The Appellant boarded the train about halfway through the journey and sat next to EK. Again, he was wearing a T-shirt and very short running shorts. Again, he stared intensely at EK. When she evaded his glance, the Appellant shuffled close to her – squashing her towards the window. She noticed that he had an erect penis. As on previous occasions, when people walked past, he would cover it with a newspaper. On this occasion, he touched her briefly. EK felt alarmed and disgusted. CCTV has revealed that, after leaving this train, he hid behind a lift on the platform, reached into his bag and put on a new pair of shorts. 11 It was established that the Appellant had been at various stations throughout the East Midlands that day, and that he had made a significant number of journeys backwards and forwards before going to Derby later in the evening and boarding a train to Leeds. He had travelled almost 300 miles on the railway network in one day and was repeating the pattern of exiting the train and changing his shorts. 12 The Appellant was arrested at a train station on 14 June 2018, dressed in shorts. He made no comment in his first interview on 15 June 2018. In a second interview, in January 2019, he acknowledged that he had a problem. He then, as already noted, pleaded guilty and was referred for sentence. The Judge had the benefit of Victim Personal Statements of all the victims, to which I shall refer later. 13 In terms of antecedents, there was a relevant conviction, albeit 18 years ago, when the Appellant committed precisely the same sort offence in relation, on that occasion, to a young girl. 14 In sentencing the Appellant, the Judge noted that he was satisfied that the Appellant’s offending originated in selfish sexual gratification and had nothing to do with stress or any obsessive-compulsive disorder to which he may be subject. He referred to the Appellant’s preparations, the clothing, the railway tickets and his dedicated approach of locating a suitable victim. He found that, given the number of offences that fell to be dealt with, this was ingrained, entrenched behaviour over a number of years. He also noted, having read the Victim Personal Statements of the victims, and the profound impact of the Appellant’s behaviour, that the effect on each of the women he had targeted was serious. He referred to the seriousness of offending: on mainline trains, making his victim in each case a prisoner, effectively, to the activities he wished to commit; the prolonged course of conduct in each case and the determination to disguise what he was doing when other people came by. He noted the number of offences and the escalation evident in the final offence, which involved touching the victim. 15 The Judge concluded that it was difficult to categorise the offences in terms of the sentencing guidelines, because the conduct was so unique it did not sit easily in any sort of grid. The Judge also considered the position taking into account the fact that other people with the Appellant’s proclivity should not be encouraged to behave as he did. 16 The Judge noted the Appellant’s efforts to get help via therapy and Cognitive Behavioural Therapy, and the effect on his wife who was unwell, and on her very elderly mother for whom the Appellant also cared. 17 Bearing all these factors in mind and making allowance for the early plea, the sentences which he imposed were: eight months; eight months consecutive; eight months concurrent, (for the second offence on one day); eight months consecutive; and twelve months consecutive. 18 In submissions before us today, Mr Blount has very clearly put forward the case advanced on behalf of Mr Heywood. He submits that either the Judge’s starting point was too high in relation to each of the offences, or the totality was too high, or both. The main point which he pursued relates to the guidelines. Relying, in relation to the sexual assault guideline, on the relevant guideline for that offence, and for the outraging public decency offences to the analogy of the guidelines for the offence of exposure, he noted that the sexual assault in this case was a very limited one, and which the Crown had only ever suggested was a Category 3A. He reminded us that this was a case where there was no actual exposure and that, by reference to the guidelines for exposure, this was the kind of offending which would suggest a community order. He submitted that this was a case which was not so unique that it should be seen as outside the guidelines – rather, we should see it as analogous. He said that the Judge’s approach, in departing from the guidelines, was compounded by sentencing the offences effectively consecutively, meaning that an overall disproportionate sentence was relied on. 19 Having considered those submissions, we do consider that, as regards the outraging public decency charges, the Appellant cannot complain about the length of term imposed. The analogy with the Exposure Guidelines is not, as the Judge noted, apt in this case. Exposure will normally be fleeting; the victim will have the opportunity to quickly evade the unwanted sight. Here, the situation was markedly different and much more serious. The Appellant had a well-established and sophisticated modus operandi involving planning, both as to tickets, supplies and travelling. Each of the victims was effectively trapped by the Appellant. Each was put in a position of being forced to be present to hear and, to some extent, see as the Appellant gratified himself, as well as deliberately unsettling them by endeavouring to engage their gaze. That this was serious and upsetting to them was apparent to the Judge from the Victim Personal Statements he had, and is apparent to us – both from his sentencing remarks and from the updated Victim Personal Statements which entirely confirm what he said. 20 We were referred by Mr Blount, in the course of submissions and in the grounds of appeal, to the case of R v Pennant [2017] EWCA Crim 1180 on the basis that the result there of two years on appeal assisted the Appellant’s case because that case was one of repeated masturbation and actual exposure. We consider, however, that this case rather tends to support the Judge’s analysis. The difference in terms of what was seen between actual exposure and what the Appellant was doing is minimal; but in Pennant, the Defendant simply perched himself on an electricity box at the corner of the road “ seeming to take an interest in females as they walked by ”. Here, in the present case, these unfortunate women were effectively trapped and unable evade the display which the Appellant chose to make of himself. The Pennant case was therefore a much less serious offence. Further, the three counts there all related to the same day and fell very properly to be sentenced concurrently. 21 In those circumstances, it seems to us that the sentence of eight months for each of the outraging public decency counts was not manifestly excessive. Indeed, the Judge might have taken an even stronger view, as the approach of this Court in R v Smith [2018] EWCA Crim 1510 indicates, that being a case where a 12-month sentence was deemed suitable for persistent but transitory behaviour and 15 months for a brief offence in a pew, albeit that case was, as Mr Blount pointed out in the course of submissions, in the context of greater previous convictions and actual exposure, but the point remains. 22 There might be said to be a question over a sexual assault sentence were that the only one in question. That case was indeed opened by the prosecution on the basis that it was a Category 3A offence. On that basis, the sentencing range was a high-level community order to a year’s custody with a starting point of 26 weeks custody. 23 Here, it seems to us that the Judge may have sentenced as if for a combined set of charges relating to the EW incident of outraging public decency and sexual assault, where only the single charge was put forward and the sexual element of the incident was fleeting and drove the categorisation initially as a Category 3A offence. In those circumstances, it might be said that the appropriate sentence for this offence would not have been higher than 12 months, reduced to 8 months after taking account of plea. However, that is to ignore the important context of the assault and how this offence fits in to the totality of the offending and the criminal behaviour. 24 We are certainly not attracted by the other arguments and, when it comes to totality, to which it is clear that the Judge did have careful regard, the Judge plainly adopted an appropriate approach in looking carefully at which offences were properly to be regarded as being taken together. We cannot accept the submission that he erred in saying that offences which stretched over two years should be largely sentenced consecutively. Further, it is important to look at the matters being sentenced as a whole, the total length of the sentence arrived at. While there is no specific deduction given for the consecutive sentences, it should also be borne in mind the second offence was not given a longer term as might well have been done to reflect the concurrent sentencing of the second and third offences. 25 Overall, it seems to us that the sentence arrived at may have been arrived at by a somewhat unorthodox route, but it certainly cannot be said that the sentence overall is manifestly excessive. On the contrary, it evidences a careful and considered approach to a sentencing exercise in relation to very serious offending of this nature, and which was a difficult sentencing exercise for the Judge because of the unique facts. We cannot accept the submission that it was in any way manifestly excessive and the appeal therefore falls to be dismissed. ____________ CERTIFICATE Opus 2 International Limited hereby certifies that the above is an accurate and complete record of the Judgment or part thereof. Transcribed by Opus 2 International Limited Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 CACD.ACO @opus2.digital ** This transcript has been approved by the Judge **

```yaml citation: '[2019] EWCA Crim 2181' date: '2019-10-04' judges: - LORD JUSTICE HADDON-CAVE - MRS JUSTICE COCKERILL DBE - HIS HONOUR JUDGE 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} ======

Neutral Citation Number: [2022] EWCA Crim 209 Case No: 201903666 C3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SNARESBROOK His Honour Judge Shanks Royal Courts of Justice Strand, London, WC2A 2LL Date: 22/02/2022 Before : LORD JUSTICE EDIS MR JUSTICE TURNER and HER HONOUR JUDGE KARU (sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : JOREL EDGECOMBE Appellant - and - THE CROWN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Oliver Weetch (instructed by Macauley-Smith Solicitors ) for the Appellant Toby Fitzgerald (instructed by the Crown Prosecution Service ) for the Prosecution Hearing date : 19 October 2021 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely by circulation to the parties’ representatives by email and released to BAILII. The date and time for hand-down is deemed to be 10:30am on Tuesday 22 February 2022. Lord Justice Edis : Introduction 1. On 9 September 2019, in the Crown Court at Snaresbrook, before His Honour Judge Shanks, the applicant was convicted at a re-trial (“Trial 2”) of conspiracy to possess prohibited firearms with intent to endanger life (count 1). He had already been convicted (by a majority of 11 to 1) on 3 May 2019, at the earlier trial (“Trial 1”), of a lesser alternative count of conspiracy to possess firearms (count 2). Both counts arose out of the same facts. The jury had been unable to reach a verdict on count 1 at Trial 1, which is why there was a re-rial. The applicant stood trial in Trial 1 alongside Robert Odum Toland (“Toland”), who was convicted of count 1 at that trial. 2. He now applies for leave to appeal against conviction, the single judge having referred the application to the Full Court on grounds 1, 2 and 3, which relate to Trial 1, and ground 9, which relates to Trial 2, and refused leave on the other grounds. The single judge also granted a Representation Order for Mr. Oliver Weetch who represented him at Trial 2. Counsel does not seek leave to pursue any of the grounds of appeal that were refused by the single Judge. 3. He also seeks leave, pursuant to section 23 of the Criminal Appeal Act 1968, to introduce fresh evidence from himself, and from Jane Flanagan and Tomasz Machjer about the instructions given to his representatives before Trial 1. We heard this evidence without having decided whether or not to receive it, in order better to inform that decision. The facts 4. The prosecution case was that the applicant and Toland were involved together in the importation of firearms from a contact of Toland in the United States of America for sale to criminals in this country and that the parties to the agreement intended that they would be used by those criminals to endanger life. 5. They became the subjects of a police surveillance operation. On 6 December 2017, the applicant was seen going into 25 Pinnell Road London SE9, which is in Eltham not very far from Kidbrooke Station. On 8 and 11 December 2017, police intercepted two FedEx parcels containing firearms and ammunition, concealed inside soft toys, which had been addressed to 25 Pinnell Road. The parcels had been scheduled for delivery on each of those two days. Police also conducted observations at the address on both 8 and 11 December 2017 and saw the applicant and Toland together in the vicinity. Call data from their phones confirmed that they were in the area for significant periods of time. 6. On 19 December 2017, a package was delivered to 22 Landmann House, which is on the Rennie Estate in Bermondsey. About 30 minutes later Toland was seen coming out of the address carrying a large bag. He was stopped while driving a car soon afterwards and in the boot of the car was the same bag. It contained firearms and ammunition. The vehicle was registered in the applicant’s name and contained documents addressed to him. The applicant later told police that Toland had been on his way to see him when he was stopped. A telephone was also recovered from the car, which contained a series of WhatsApp messages exchanged between the two men, which included pictures of firearms and discussions about them. The WhatsApp messages also showed that the applicant had provided the Landmann House address to Toland in late August 2017. He had also sent a screenshot tracking a parcel to the address on 1 December 2017. Toland had provided this address to his contact in the USA on 3 October and 12 December 2017. 7. Investigators established that the person in the United States who was responsible for dispatching the FedEx parcels was a Maurice (‘Mo’) Taylor, who would later plead guilty to the illegal export of firearms. Toland had been in contact with Mo by WhatsApp, and these messages included photographs of firearms and a number of addresses including the Landmann House address, the applicant’s home address, and two other addresses linked to him. 8. The applicant said in his police interview that he had known Toland in the United States and had lent him his car for a couple of weeks. He was familiar with the Pinnell Road address, and had keys for the address, because this was his friend Andy’s address and he had stayed there occasionally. He denied that he had known anything about deliveries of firearms to any address and said that he was not involved in any arrangements to import items of that kind. He denied that he had provided the Landmann House address to Toland. He denied that he was interested in firearms or had been conspiring with Toland to import them. 9. To prove the case at Trial 2, the Prosecution relied on: i) The conviction of Toland on count 1 at Trial 1; ii) WhatsApp messages between the applicant and Toland, demonstrating that the applicant was part of the conspiracy and that the conspiracy involved selling firearms to criminals; iii) WhatsApp messages containing two addresses linked to the applicant to which the firearms were to be supplied; iv) Evidence of police surveillance, particularly on 8 and 11 December 2017; v) The fact that firearms and ammunition were intercepted before being delivered to the Pinnell Road address which was associated with the applicant; vi) The fact that firearms and ammunition were found on Toland after being delivered to the Landmann House address (the applicant’s home) on 19 December 2017; and vii) The fact that the applicant did not mention his involvement with cannabis rather than firearms to the police or in his defence statement, mentioning it first in his evidence during Trial 1. 10. The Defence case was that whilst it was accepted that the applicant had been involved in a conspiracy, with Toland, to try to import cannabis from the United States, it was denied that he was involved in a conspiracy to import firearms. 11. In support of the defence case, the applicant relied upon: i) His own evidence, in which he said that he was tracking the packages because they were meant to contain cannabis. He did not think that Toland was serious when he talked about firearms as he thought it would be impossible to import them. In cross-examination, the applicant explained that he had talked to his solicitor about putting the cannabis conspiracy into the defence statement but had been told that the trial was about firearms only and that should be what the defence statement should address. ii) Evidence of Paul Salafia, to support his defence that he was involved in a conspiracy to import cannabis and not firearms; and iii) Evidence that Mo, his co-accused’s contact in the United States, did not know him. 12. Since the applicant’s co-accused had already been convicted at the previous trial, the central issue for the jury (in Trial 2) was whether the applicant was involved, with Toland, in the conspiracy to import prohibited firearms with the intention that they would be used to endanger life. The Grounds of Appeal 13. The grounds of appeal which were referred to the full court by the single judge are as follows:- i) Ground 1 (Trial 1) It is submitted that the applicant’s representatives in the first trial failed to ensure that there was sufficient time in conference to properly understand, explore and prepare the defence. ii) Ground 2 (Trial 1) It is submitted that the applicant’s representatives further erred in the preparation of the Defence Case Statement (dated 9 December 2018). It did not accurately reflect the applicant’s instructions, namely that he accepted that his involvement with his co-accused was in respect of a cannabis conspiracy, whilst maintaining he was not guilty of a conspiracy to import firearms. Further, this deficiency led to him facing criticism on the issue during the trial. iii) Ground 3 (Trial 1) It is submitted that the applicant’s representatives further erred in failing to call a significant defence witness and failed to adduce evidence, which would have supported the defence that the applicant’s only involvement with his co-accused was in the context of cannabis and not firearms. 14. The applicant contends that he told his former representatives about his connection with cannabis before the defence statement was completed but was told it would not be included. He complains that given the complexity of the case and the evidence he was not seen by his trial representatives often enough for them to properly prepare him for trial or explain and analyse the evidence. He says that they further failed to call any evidence that would have supported his defence. In particular, Paul Salafia, who could have given direct evidence of the applicant’s involvement with cannabis and produce WhatsApp messaging between him and Toland which showed pictures of growing cannabis plants. It is submitted that the appellant’s case was ill-prepared, did not accord with the appellant’s instructions, and failed to introduce evidence which would have materially assisted his defence. One of the Grounds for which leave was refused in relation to Trial 2 informs us that Paul Salafia did give evidence at that trial, and complains that the judge did not deal with it in summing up. 15. Ground 9 (Trial 2): The appellant was prevented by the Judge from giving evidence about why cannabis was not mentioned in the defence statement prepared for the first trial. 16. It is submitted that when the applicant was asked, in cross-examination, to explain the failure to mention anything about cannabis in his defence statement, the judge intervened to warn him about the impact of waiving his legal privilege. It is submitted that the judge erred in stopping the applicant from giving evidence on this subject, and observed that by the time the judge intervened he had already given evidence which breached privilege. It is submitted that the interventions meant that the applicant was unable to give full and detailed explanation on this issue, and on which he was productively cross-examined during both trials. It is further submitted that the jury may have been left with a false impression about what the ‘papers’ over which he claimed privilege might include and therefore unfairly formed an adverse view of his evidence and credibility. 17. At the suggestion of the single judge, on 23 October 2020, the Registrar wrote to the representatives from Trial 1 directing as follows: i) All attendance notes of conversations or meetings with the applicant are to be provided to his new legal representatives forthwith or an explanation provided to the Registrar why that has not been done. ii) Your attendance may be required at the appeal hearing and this will be confirmed nearer the time. iii) You are directed to respond to this letter within 14 days confirming that all material required by the applicant’s representatives has been provided or explaining why this has not been complied with (6 November 2020). 18. The Registrar received a reply on 6 November 2020, confirming that all available notes had been sent to the applicant’s solicitors and there was no further material to be disclosed. 19. The applicant seeks to rely on the evidence of two witnesses as fresh evidence, on the basis that they provide relevant and credible evidence to support his account of the meetings with his previous legal representatives before Trial 1, at which he says that he spoke of his involvement with his co-accused in a conspiracy to import cannabis rather than the firearms conspiracy. 20. In view of the criticisms made of trial counsel and solicitors (from Trial 1), the applicant was invited to and did waive his privilege in respect of Mr Piers Kiss-Wilson and Stephen Fidler & Co Solicitors. The responses from trial solicitors and counsel were before the court. The Respondent’s Case 21. Grounds of Appeal 1 and 2 (Trial 1): (1) The inadequate taking of instructions and (2) the issue of cannabis importation not being mentioned in the defence case statement dated 9 December 2018. 22. It is submitted that:- i) the nature and extent of the contact between the applicant and his first representatives is only relevant to when the appellant first mentioned that he had conspired with his co-accused to import cannabis (not firearms) into the United Kingdom from the United States; ii) there is a dispute between the applicant and the lawyers as to when cannabis was first mentioned; iii) the evidence from Mr. Kiss-Wilson and Mr. Fidler is relied on and the court is invited to prefer it to the applicant’s fresh evidence; iv) even if the applicant mentioned cannabis at the pre-trial conference, the principal point able to be made by the Crown, namely that he failed to mention it both at his police interview, and for nearly a year after that interview, would strongly rebut the applicant’s argument in relation to this issue. 23. Ground of Appeal 3 (Trial 1): Failure to call the witness Paul Salafia and introduce WhatsApp messages to his co-accused, which included images of cannabis plants. 24. It is submitted that:- i) Paul Salafia gave evidence (in Trial 2) and said that the applicant had told him he was planning, with his co-accused, to import ‘weed’ from California; ii) even if this evidence had been believed, it did not undermine the allegation that there was a conspiracy between the two men to import firearms; because iii) an interest in cannabis and a desire to import firearms are not mutually exclusive. There was evidence in the case of the applicant encouraging his co-accused to obtain firearms and it is observed that there were no such comments regarding the cannabis images. 25. Ground of Appeal 9 (Trial 2): The appellant was prevented by the judge from giving evidence about why cannabis was not mentioned in the Defence Case Statement. 26. The Respondent invites the court to consider the transcript of the cross-examination of the applicant on the issue, and submits that: i) it was explained that the Crown could potentially call the solicitor and that it was his choice whether or not to give evidence as to what he had said to his first representatives; ii) the judge did not prevent the applicant from giving further evidence concerning the defence case statement but that instead the Judge properly told him that it was his choice and warned him of the potential consequences; iii) the applicant’s choice not to answer further questions may reflect the apparent conflict between himself and his first representatives on this issue. The evidence concerning the Defence Case Statement at Trial 2 27. The passage of evidence relied on is as follows:- Q: ………'The Defendant is aware that this [Defence Case] Statement can be used to cross-examine him at trial if he chooses to give evidence and deviates from it. He understands the importance of it and gives consent for it to be uploaded to the digital system'. That means provided to the Prosecution. Why, when your solicitors drafted that and presented it to you for your signature, did you not say, 'Hang on, no mention on cannabis here and that's the defence that I'll be putting before the Jury'? A. I did. Q. You did? A. Yes. We had a conversation about that – Q. Pause there. I'm going to interrupt you and there's a reason for it. Okay? We have rules – JUDGE SHANKS: Perhaps I should. You do not have to tell us what passed between you and your solicitor but if you do you open it all up and the Prosecutor might be able to get the papers and so on and then ask further questions. Do you understand? It's up to you. A. What papers would...? JUDGE SHANKS: I do not know. I do not know what papers might exist but solicitors usually make a note of things and so on. MR CASEY: Before you say anything may I just summarise what might happen. Okay? Let me speak first. It is probably better that I explain it and if I get it wrong the Judge will correct me. Okay? A. Fair enough. Q. The rules say that clients and their solicitor are protected by a veil of confidentiality. It's called legal privilege. Yes? A. Yes. Q. So I'm not allowed to ask you about any conversation that went on between you and your solicitor. What I can ask you and what I am asking you is that this document submitted in your name doesn't mention cannabis and I can ask you why that is and I understand from your answer is you're saying, 'I did tell my solicitor and it didn't go in there'. Okay? The question I ask next, and this is the question I'm going to ask and you can pause before you answer it, is why did you not insist to your solicitors that they submit the full picture on your behalf before you signed it? And if the answer to that, if the answer to that is, 'Well, I did tell this to my solicitors', the Prosecution may potentially seek to call that solicitor as a witness or seek to look at the papers in your case. Okay? So that's the territory. Okay? The question I ask of you is why did you not make sure that the document submitted on your behalf was full and accurate and [inaudible]? A. I had the conversation about my defence statement. I was instructed, if that's the right word, I was instructed that I was – well, he said – I don't really know how I'm supposed to answer this but I'm confused. JUDGE SHANKS: I wonder if we should – yes. Just hold on. Should we in the absence of the Jury just – sorry, members of the Jury, I think it is important. Obviously you understand that. (12:12:41 - Jury out) 28. There then followed a period of about 10 minutes when the jury was out, and the judge explained to the applicant that he could rely on privilege and refuse to answer questions about what passed between him and his lawyers in connection with Trial 1. Alternatively, he could answer those questions, but that might expose him to risk because he would then lose privilege and the prosecution could investigate the solicitors’ file and perhaps call Mr. Kiss-Wilson. The judge told the applicant that because he was in the process of giving evidence he could not receive advice about this from his counsel. During this exchange, counsel who then appeared for the prosecution reminded the judge that evidence had been given at Trial 1 about this issue, and the applicant had not said that he had told Mr. Kiss-Wilson (who was, of course, there at that time) that the conspiracy was about cannabis and not guns. It was agreed that he could tell the court what his answer was to the question he had been asked in the absence of the jury and the prosecution would not seek to rely on it in the trial. He said:- WITNESS: Right. So when we had the conversation about the cannabis, because it was part of the interview I had with Mr Kiss-Wilson and I asked, 'Why aren't we bringing this up?' because, obviously, this is – he said, 'At the moment', and this is not verbatim but the gist of the conversation was, 'You are being charged with the importation of firearms. Anything to do with cannabis it doesn't...' He said the burden of proof lies with the Prosecution or something like that and at this stage there's no need to bring in another element. And I said, 'Okay'. But, like I said, the conversation did transpire between me and Mr Kiss-Wilson and he was aware of the cannabis before any defence statement was made and before the trial because, as Your Honour remembers, the cannabis came out from the other end not from my own. 29. The discussion continued in that absence of the jury:- JUDGE SHANKS: All right. Well, okay, you have told us what it is. If you want to tell the Jury that it seems to me clear that you run the risk that the Prosecution will explore matters with Mr Kiss-Wilson at least, call for his files and so on and if what you are saying to the Jury about that proves not to be so or is inconsistent it goes down a path, as you see. So it is up to you and it may be up to – well, I suppose the question has been asked. That is the trouble. You cannot very well backtrack if the witness now wants to give that evidence. MR CASEY: If he wants to give that evidence he can. If, alternatively, he says, 'I would prefer not to answer that question', we'll just drop it. JUDGE SHANKS: We will just drop it. All right. But there you are. WITNESS: The conversation did happen and by backtracking it makes me – I don't know what that would be implied. Obviously nothing's been said to the Jury. I don't know what the implications or the adverse effects of what will happen in the Jury's minds about not answering – JUDGE SHANKS: If we do not say anything more about it no one will refer to it again. The Prosecutor will not be able to say, 'Oh look, he dodged that question'. The Jury may well forget about it. But, again, unfortunately I cannot advise you, your barrister cannot advise you so you will have to make a judgment about that. WITNESS: The conversation happened and that's the fact. MR CASEY: Another option, of course, would be to waive privilege and call Mr Kiss-Wilson as part of his own case but – JUDGE SHANKS: Yes, well that will be a matter for him and his lawyers once he has finished his evidence. MR CASEY: We'll press on. JUDGE SHANKS: Well, we will press on. Anyway, you are aware of the risks. You cannot say later, 'Well, I didn't realise that would happen'. All right? You understand. WITNESS: Sorry, ask me the question again. JUDGE SHANKS: I think it is now for you to give the answer that you want to give. It is for you to tell the Jury about this conversation. You have more or less started telling them. I mean any bright Juror will have already seen where this is going. WITNESS: But if I were to continue the conversation – JUDGE SHANKS: Look, if you want to put an end to all this we will pass to the next topic. If you want to tell the Jury what you have just told me – WITNESS: I'm generally confused. JUDGE SHANKS: You run a risk that Mr Kiss-Wilson will be asked about it and say, 'No, I would never advise anyone in those terms'. WITNESS: I don't care if he's asked. JUDGE SHANKS: Okay. WITNESS: Because that conversation happened. JUDGE SHANKS: All right. Well it is your choice. WITNESS: I'd rather just move on to the next topic. JUDGE SHANKS: Would you? 30. The jury returned, and this followed:-... (12:21:54 - Jury in) Cross-examined by MR CASEY (continued) JUDGE SHANKS: Yes. All right. Well, Mr Edgecombe, is there anything you want to add or expand on what you've already said or shall we pass to the next topic? A. There's nothing I'd like to add. Q. Okay. Let's move on. 31. It is relevant to observe that at Trial 1 Toland gave evidence that he, the applicant and Mo were all involved in a conspiracy to import firearms and ammunition into the United Kingdom from the United States of America. His case was that he had not intended to endanger life by doing so. He said that the discussions were originally about importing cannabis, but that a conspiracy to import firearms and ammunition had taken place, and had pleaded guilty to count 2. The applicant’s evidence was that Toland was lying about that. The jury convicted the applicant of the offence in count 2. The judge in Trial 1 directed the jury that the applicant had failed to mention the cannabis conspiracy both in interview and again in the Defence Case Statement. He gave a section 34 adverse inference direction in relation to the interview. The applicant had said that he did not take the interview seriously and that he did not want to admit to a criminal offence, namely the importation of cannabis. In dealing with the Defence Statement, the judge said this in summing up:- “Now, again, he mentioned various reasons why he did not mention it in the defence statement: first of all, again he said he did not really take it seriously because he believed that as an innocent he should not really have to face proceedings; and again he did not want to confess on paper particularly to cannabis dealing of any sort, so why would he tell the prosecution that through the means of this defence statement. Again, members of the jury, if you think he may have had a good reason for not mentioning that then you must not hold his omission against him, but if you think really it is no good reason bearing in mind all the circumstances, what he is charged with, what stage it has reached and all those points, if you are sure there is no good reason you can draw an inference against him if you think that is fair and proper.” 32. It would be improper for counsel to allow such a direction to be given if he knew that, in fact, the applicant had told him prior to the drafting of a Defence Case Statement that the conspiracy concerned cannabis not guns. In those circumstances he would have to explain to the court that the omission was his fault and not that of the applicant. That might be rather a difficult thing to explain, but it would be his duty to ensure that the facts were properly before the court to avoid prejudice to his client. Mr. Kiss-Wilson did not say anything during Trial 1 to deflect the judge from giving this direction. 33. No such direction was given in Trial 2, and the cross-examination set out above from Trial 2 was not referred to in the Summing Up, and neither was the interview of the applicant under caution and the Defence Case Statement. We do not know how this came about, but no complaint is made about it on behalf of the applicant. 34. At Trial 2, the conviction on count 1 of Toland was put in evidence to prove the fact of the conspiracy to import firearms with intent to endanger life. Since there was at least one other conspirator, namely Mo, this did not imply the guilt of the applicant. Although it may have been unhelpful, it was probably not as damaging as the evidence of Toland about the applicant’s guilt which was before the jury in Trial 1, but not Trial 2. The applicant’s conviction from Trial 1 on count 2 was not adduced in Trial 2 to rebut the “cannabis defence”. The evidence concerning the preparation of the Defence Statement 35. We considered the documents which had been disclosed from the file of Stephen Fidler & Co, who had acted for the applicant in Trial 1, and heard oral evidence about the conferences held with the applicant before that trial from four witnesses. 36. The applicant gave evidence before us on this issue. He said that there were two meetings before Trial 1. One with the barrister and one with the solicitor. He met counsel, Mr. Kiss-Wilson on 4 December 2018 at his office. He met the solicitor, Mr. Fidler February in Brent Cross shopping centre. He said that he gave instructions on these two occasions. He said that he discussed the background with Mr. Kiss-Wilson and said that he was trying to import cannabis from America and not firearms. He said that he explained how Toland had proposed to him that a friend could ship cannabis to the UK for a reduced price. He said that he would then sell it onwards to people that I knew. He said that Mr. Kiss-Wilson told him that his only job was to defend him against the charge of conspiracy to import firearms, and he had not beenthe hired to defend against an alleged conspiracy relating to drugs. He said “it is up to prosecution to prove you are guilty” and he did not want to put forth anything that could confuse the jury. I felt I had no choice but to accept that advice. He went into a lot of detail about my history and that was about it. He said that he did not remember seeing the draft proof of evidence created by Mr. Kiss-Wilson dated 7 December 2018. He did remember seeing the Defence Statement in draft, and neither document mentions cannabis. He said he was given an opportunity to correct the Defence Statement. He said that he had questioned counsel about it on the phone and he said he was sure this was the right way to go. He said it was his job to defend me against firearms not cannabis. He met Mr. Fidler in February 2019 after Trial 1 had concluded in December. He had tried reaching Mr. Kiss-Wilson to arrange another meeting to discuss the case and strategy, but he couldn’t get hold of him and he wanted to talk about his concerns about not mentioning cannabis in the Defence Statement. Mr. Machjer arranged this meeting. He said that he, Mr. Machjer and Mr. Fidler were present. Jane Flannagan was there only for part of it. He said that he expressed his concerns about Mr. Kiss-Wilson not being available, and his phone going to voicemail. His main concern was that the evidence about the cannabis had not been put forward, and he wanted him to speak to Toland’s associate in America which he said he would do. He discussed briefly what he had told Mr. Kiss-Wilson, but he said he had faith in Mr. Kiss-Wilson and he said he would not get involved in the way the case was being run. There was no conversation after that. He said that they discussed the cannabis at court during the trial, in presence of the witness Paul Salafia. We had further discussion after that. He pointed out Mr. Kiss-Wilson’s annotations on a copy of the jury bundle which refer to cannabis. It was common ground that there had been conversations about cannabis at Trial 1, which is when the jury bundle would have been available and these notes therefore related to that. 37. When cross-examined, Mr. Edgecombe said the WhatsApp messages between him and Toland were about their agreement to import cannabis. He appeared now to accept that he had seen his proof of evidence soon after his meeting with Mr. Kiss-Wilson and said that he agreed with his assessment that it was not necessary to mention it because the prosecution had to prove he was guilty, and this was the only thing he had to defend him on. He was, though, concerned about the Defence Case Statement when he saw that. He was not sure about his strategy which is why he asked for a meeting with Mr. Fidler. When he was asked why he did not put this in an email or text (he did communicate by these means to some extent) he said he does not use emails or texts, he has his conversations face to face. He said that he did tell Mr. Fidler that the conspiracy was about drugs not firearms. He said that he did not think the prosecution evidence pointed to firearms. He said that he did not have a say in how his defence was going to be presented. They said there was not enough evidence to support my guilt, to prove it beyond doubt. 38. The Defence Case Statement is dated 8 December 2018. The applicant was asked about it and said that he was not happy with it. It does not mention cannabis and explains some of the messages about firearms with these words:- “In relation to specific messages the prosecution rely on to show my involvement in “the conspiracy” these were my way of appeasing him and almost dismissing him for example when I said, “I really like the top one for myself “( the picture of the firearm) I did like the gun but I had no belief that he would actually import them for me.” 39. He said that he was in fact seen by Mr. Fidler at the conference in 2018, not in 2019. He had requested the meeting because Mr. Kiss-Wilson did not answer his phone. He had two witnesses who can confirm as they were at the alleged conference. This was an informal meeting held in a ‘Starbucks’ at Brent Cross Plaza. He was told that Mr. Fidler would go to America to gather a witness statement from Mr. Taylor (“Mo”) to prove he had no connection to the importation, but that was never followed through. He phoned repeatedly to make appointments with Mr Kiss-Wilson, but he never answered those calls. His pre-trial conference with Mr. Kiss-Wilson was the point in which he made his first reference to the importation of cannabis. This was done and noted at the end of that conference. He refuted Mr. Kiss-Wilson’s evidence that, “there were a number of times where he was asked to attend the office but due to work commitments he did not”. 40. He was asked about Mr. Kiss-Wilson’s handwritten notes taken throughout the conference. He said they are incomplete: there are missing pages. He did not think the last page is a document which relates to the conference he had at all. 41. He said that he did not tell the police he was committing a crime (cannabis importation) because he would get charged with it. He thought it best not to implicate himself in a crime. 42. Mr. Piers Kiss-Wilson told us that in 2018/19 he was employed as solicitor advocate for Stephen Fidler & Co, and represented the applicant at Trial 1. He first took instructions from him about 4/12/18 at Stephen Fidler &Co’s offices. The meeting took at least 90 minutes. He took handwritten notes and produced them to new solicitors for the purposes of the appeal. There are 4 pages of handwritten notes. This is the whole note of conference. He then dictated the proof into his iPhone from handwritten notes. There was no mention of importation of cannabis into the United Kingdom. If there had been, he would have noted it and discussed it in detail and discussed it with colleagues and put it in the proof of evidence. He received minor amendments from the applicant for the proof. These did not suggest he had been involved in cannabis conspiracy. He later compiled the Defence Case Statement and the applicant signed it and returned it to him. Next saw him on the day when the trial was first listed at Snaresbrook Crown Court. He did not say anything about the proof or Defence Case Statement not mentioning a conspiracy to import cannabis. Mr. Kiss-Wilson said that he first heard about the cannabis conspiracy in Trial 1. It was mentioned in a number of conferences probably starting before the trial began. These conversations were probably about the WhatsApp messages. There was a specific message about “cally plates” which he said was about Californian cannabis, rather than Californian number plates as was suggested. They did discuss the Defence Case Statement and serving an amended one mentioning cannabis. He advised this was not the best way of fighting the trial. He did not remember the response but the applicant accepted that advice. He did not think that Mr. Fidler had spoken to him separately, although he may have been aware because the applicant wanted enquiries made in America about the addresses where firearms had been shipped from. He was not instructed by him to call any witnesses and he did not do so. 43. In cross-examination, Mr. Kiss-Wilson said that there was a paper file which had largely got email correspondence on it. As far as he was aware everything has been disclosed. He did not recollect having many calls, although there may have been the odd message. He communicated with the applicant by emails. If there had been a call there would have been a note. He said that he only met him on 4 December 2018 to take instructions. He was sure these are the only notes he made at the conference. On that day he did not say anything about a cannabis conspiracy. He said “I may have said you are only on trial for firearms” but this could have been at any stage. I was dissuading him during Trial 1 from serving an amended Defence Case Statement because the defence was unattractive. That decision was tactical. I would have said that the Crown has to prove the case against him, because this is standard generic advice. He said he had never met Tomas Majcher. He did speak to Paul Salafia during Trial 1 on a day to day basis, but he was not called as a witness. There may have been occasions when the applicant could not get in touch with him because he was working. He said that there was no need for any further pre-trial conferences because they knew the issues. Most of the evidence in the prosecution case was agreed, and there was a small number of messages which the applicant had to explain. He described the cut-throat nature of the defence of Toland at Trial 1. He accepted that it would have been better to have further conferences but said that it was hard to get the applicant into the office. 44. Mr. Fidler said that he had met the applicant once and he was not sure if he met him again. He met him at Brent Cross at Starbucks. His notes say this was on 15 December 2018, but this is wrong. He could not say what the right date was. He did not take notes at the meeting. The applicant was there with an existing client with a Polish sounding name, and a female who was there but not part of the discussion. He discussed travelling to America because he had made online enquiries about the address from which packages had been sent. The applicant wanted to know what sort of sentence he would get. His practice would be to speak to Mr. Kiss-Wilson after the meeting, but he did not remember doing so. He said that he did not remember him saying anything about intending to import cannabis not guns. If he had he would have asked him for detail. He would also have asked the Polish man what he knew about it. 45. In cross-examination Mr. Fidler said that he was first asked about this meeting in 2020. He then produced a note with the wrong date, and did not know why. This was an informal meeting, so no note was taken. Nothing arose which required action, there was no need for a note. After speaking to the applicant there was no need to go to America: it was a bogus address. He spoke to the applicant about sentence, but did not remember discussing the evidence. The main problem was a message about guns. He asked him for explanation and the applicant said it was a joke for fun. 46. Tomas Majcher said he has known the applicant for over 10 years, having met him in the United Kingdom. He recommended Stephen Fidler to the applicant. He remembered the meeting at Brent Cross which he said took place on 21 December 2019. He has text messages and a receipt to show date and time. He said that applicant, was at the meeting with him and his partner (Jane Flanagan). The applicant wanted to meet Stephen Fidler about the court case, because he wanted to speak about a cannabis package and generally about the case. He had heard everything which was said. He had made a statement for the appeal dated 15 March 2021. At the meeting the applicant said that he did not expect what was delivered he had expected a cannabis package. Mr. Fidler said he had to investigate more deeply how the package could come from the States and discussed flying there to investigate how it was sent, and who sent it. He also said the applicant had a very good lawyer for the trial. Mr. Machjer said that he never met the lawyer then, but he had called him 20 -30 times afterwards. He said that Mr. Fidler had made a note. There was discussion about witnesses. The meeting may have lasted 40 minutes, at most 1 hour. He did not want to meet JE in his office and I do not understand why. In cross-examination he said that he was not in the country at the time of Trial 2. He heard what had happened from the applicant’s girlfriend. He said that the applicant had first told me about cannabis when he was released from the police station. Discussion 47. One striking feature of this application is that it predominantly relates to Trial 1 at which the applicant was convicted only of count 2 which was later ordered to lie on the file because of his conviction at Trial 2 for the more serious offence in count 1. Count 2 would have been important if it had been adduced as part of the prosecution case in Trial 2, but it was not. 48. Nevertheless, we will consider the application in relation to Trial 1 on its merits. In our judgment it has none. 49. It is obvious that if the applicant told Mr. Kiss-Wilson or Mr. Fidler of the cannabis defence when they met him before Trial 1 the adverse inference direction concerning the Defence Statement should not have been given. It was not given in Trial 2, but the applicant was convicted anyway, so it is hard to attribute any decisive impact to it. However, we are in any event quite satisfied that he did not tell Mr. Kiss-Wilson or Mr. Fidler of it. This is for the following reasons:- i) The applicant was given an opportunity to correct his proof of evidence and draft Defence Case Statement before they were finalised and did not insist that the cannabis defence was included. ii) There is no reason why the lawyers would not have included the cannabis defence in the proof of evidence and Defence Case Statement if they had been told of it. It would involve their client admitting a serious criminal offence, albeit one which is much less serious than the allegations on the Indictment, but that is a fairly common feature of defence cases in this sort of case. iii) When he was asked at Trial 1 why he had not mentioned the cannabis defence in his Defence Statement, he did not say to that jury that this was because of his lawyers’ advice. He said instead that it had been his decision and tried to explain it. If he had said then what he says now, this would have caused a potential difficulty in the trial, but that was not his problem. His problem was to explain something which, on his present account, was easily explained. If he is now telling the truth, he would have expected to get some support from his legal team in defusing what on his version is a bad prosecution point. His conduct in Trial 1 on this issue is quite inconsistent with his present account. iv) We are unable to attach any weight to the evidence of the applicant or his witnesses on this issue where it is inconsistent with that of Mr. Kiss-Wilson and Mr. Fidler. Mr. Kiss-Wilson’s evidence is entirely consistent with such documents as exist, including email traffic. Mr. Fidler’s evidence is rather vague and undocumented, but we prefer it to that of the applicant and his friends. Mr. Machjer was present during Trial 1, and was not called either then or during Trial 2. Since the issue about when the applicant first claimed it was all to do with cannabis was prominent at Trial 1, this is very strange if he is telling the truth now. He says he was “out of the country” during Trial 2, but no details of that claim were given and no application appears to have been made to fix the trial for a date when this apparently important defence witness could attend. The witness statement which was placed before us is dated 15 March 2021, after Trial 2. v) When the applicant told the court what he wanted to say about the omission of the cannabis defence from his Defence Case Statement in the absence of the jury at Trial 1, he mentioned the conversation with Mr. Kiss-Wilson, but not that with Mr. Fidler, see [28] above. Since the conversation with Mr. Fidler was allegedly witnessed, and since the applicant now says he has a very clear memory of it, this tends to undermine his own evidence of what was said, and that of Mr. Machjer. 50. That finding of fact disposes of the sole ground of appeal in relation to Trial 2. The reason he did not tell the jury about the conversations with Mr. Kiss-Wilson and Mr. Fidler about cannabis is that they never happened. The judge clearly told him that if he did give that evidence it could be checked with them and he knew what they would say. Wisely he chose not to do this, and he cannot now complain about how this was handled. 51. In any event, the convictions on count 2 in Trial 1, and count 1 in Trial 2 are plainly entirely safe. 52. In relation to Trial 1:- i) The evidence was overwhelming, and the cannabis defence preposterous. Mr. Fidler’s evidence about his meeting may have been vague and unclear, but there was nothing wrong with his assessment of the case. As he told us, “The main problem was a message about guns”. He might have added that another very significant problem was that two different packages of guns and ammunition were sent to two different addresses, both connected with the applicant. It would be implausibly foolish of the conspirators to choose addresses belonging to someone who was not part of the conspiracy and who was expecting cannabis. ii) It is impossible to suggest that the conviction on count 2 in Trial 1 is unsafe because of the failure to call a defence witness, Paul Salafia. He gave evidence in Trial 2, and that did not turn out well for the applicant. In any event, he was present during Trial 1 and could easily have been called if that is what the applicant then wanted. The only sensible explanation of this is that it wasn’t. iii) The real point about the late disclosure of the cannabis defence arises out of the applicant’s failure to mention it to the police in interview. Part of his explanation for that is implausible, but he does not seek to blame this on his lawyers. He claims instead that he did not mention the cannabis conspiracy because he was not taking the interview seriously. This is very implausible, given the subject matter of the interview. It may be more plausible that he was trying to hide his guilt for the cannabis conspiracy, but that also does not suggest that his conduct at the interview was influenced by his legal advice. 53. In relation to Trial 2:- i) No adverse inference direction was given either in relation to the interview or the Defence Case Statement. ii) The applicant knew from what happened at Trial 1 that he would be asked about why cannabis was not mentioned in his Defence Case Statement and had plenty of time to prepare for that with his new legal team. The question from the prosecution did not take him by surprise, and was dealt with very fairly by the judge. iii) See[52(i)] above. Conclusion 54. For these reasons we refuse to receive the fresh evidence because i) It does not appear to be capable of belief; It does not appear to afford any ground for allowing the appeal; ii) There is no reasonable explanation for the failure to adduce the evidence in those proceedings. 55. We refuse these applications for leave to appeal.

```yaml citation: '[2022] EWCA Crim 209' date: '2022-02-22' judges: - LORD JUSTICE EDIS ```

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 1271 Case No: 201000597/C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 31st March 2011 B e f o r e : LORD JUSTICE MOSES MR JUSTICE MADDISON MR JUSTICE NICOLA DAVIES DBE - - - - - - - - - - - - - - - - - - - - R E G I N A v LENNOX ANDREW MANIFOLD - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of QWordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - Mr A Webster QC appeared on behalf of the Appellant Mr T Mousley QC appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE MOSES: The appellant is a solicitor of many years standing. We think he became a solicitor at least back in the 1990s and built up a practice and was held in great esteem. He was in private practice as a partner in a firm bearing his name, Manifold & Naser. 2. It was alleged that between 2001 and 2006 he had deliberately countersigned passport applications in relation to persons in respect of whom he had declared that he knew the person on the photograph for the purposes of tying in the identity of the person in the photograph with the person making the application. The applications were false and the prosecution case was that in relation to 17 applications he knew that the person in the photograph was not the person in respect of whom the passport application was made. 3. The defendant's case was that he did know the person who produced the form and the photograph and supporting documents. He claimed that he may well have only known them by a street name but there was nothing, neither from his knowledge of those people, nor in any of the material put forward to support the identity of the person who appeared in the photograph, to indicate to him that it was not a genuine application. He contended, not only that he knew each applicant but that he had checked every form and birth certificate. Any mistake was purely accidental. 4. In evidence it emerged that he had countersigned, during that period, a very large number of applications. There was some dispute as to how many. We were told today, by his counsel, Mr Webster QC, that some 150 (the judge referred to some 78). It matters not. But, said the prosecution, it defied belief that he could have made a mistake or been duped on 17 separate occasions. 5. It is unnecessary for the purposes of the ground of appeal that is now advanced to detail the evidence. In relation to all 17 counts the defendant had an answer in which he said that, whilst he accepted that the complainant was false, he had every reason to believe that the person in the photograph was the person making the application. 6. It is however necessary to recall one or two further features of this evidence. There were, as we have identified, some 17 occasions when he was said to have countersigned false applications. 7. He was convicted on a retrial. He was convicted of 14 counts, the verdicts being 11 to 1 on some six counts, unanimous on one, and 10 to 2 on the remainder. 8. There were two co-appellants but they, it is important to recall, were only charged with one count each. A man called Alfresco Jones who was alleged to have made a false application, appeared in a photograph in the application the subject matter of count 3, an application on behalf of a man named Purser, who had since died. He was acquitted of conspiracy to obtain property by deception. 9. A further co-accused was a man called Hutchinson, convicted of count 13, conspiracy to obtain property by deception: they were photographs in an application on behalf of a man called Murdoch but were the photographs of Hutchinson. 10. The defendant's case was that not only had he met both those defendants, but he knew them and had met them on many occasions. Both Jones and Hutchinson, as part of their case, denied ever having met this defendant: their defences were therefore in direct opposition to that of this appellant. 11. He advanced his appeal on a number of different grounds, all of which were rejected by the full court save one. It will however be necessary to refer to one of those grounds relevant to part of this appellant's case. The basis of this appellant's case, on the ground in respect of which he was given leave, is that the directions and summing-up of the judge, Her Honour Judge Hagen, at Bristol Crown Court, where this appellant was convicted on 18th December 2009 were so unbalanced and tilted as to lead to the conclusion that the verdicts were unsafe. 12. This is never an easy ground to advance. It requires this court to form an impression of the summing-up by reading it and carefully analysing it, in circumstances far removed from the actual circumstances at trial. The trial had lasted four weeks. There was detailed analysis in the process of examination and cross-examination of particular features of the evidence. It culminated in a lengthy summing-up by the judge, lasting more than one day. It is therefore not possible to recapture the actual impression that summing-up would have had upon the jury. All that can be said is that they did not have the advantage of reading through it and subjecting it to detailed analysis and assessment, in the light of detailed criticisms in the way that we have done. We have had to form an opinion about that summing-up, looking at it as a whole. 13. Nonetheless, we have been assisted by cogent submissions made by Mr Webster QC, highlighting those features of the summing-up which he submits were unfair and unbalanced. Firstly, he gives what he describes as two glaring examples of the judge misrepresenting points of defence, which Mr Manifold sought to make. By way of background, we should refer to a man called Vendrick Clarke who appears to have been behind the dissemination of documents used to support these false applications on behalf of Jamaican nationals. Not only was he a man who admitted or was convicted of arranging numerous false marriages in order to circumvent immigration controls, he obtained false identity documents and fraudulent false passports. 14. The fact that this was an operation probably set up by Vendrick Clarke was a feature of the case relied by upon the defence. The defence was, in part that there was no evidence of any connection whatever between this defendant and Vendrick Clarke, let alone any share of what must have been the lucrative proceeds received by Vendrick Clarke, distributed to this appellant. The judge, it was said, misrepresented the point that the defence was seeking to make. Many prosecution witnesses admitted to obtaining copies of their own birth certificate and handing them over to Vendrick Clarke. In order to assist in making good the defence point, Mr Webster cross-examined many of the witnesses who had assisted in making false applications as to their previous convictions; pointing out that they were, in many cases, involved in the drug addiction world who had been enticed through their criminality into assisting Clark in his venture. 15. The judge, in directing the jury, missed this point altogether, so it is contended. She reminded the jury that the fact a man had committed a criminal offence did not mean he was not telling truth and went on to say, that the fact that some of the witnesses had previous convictions is something to take into account to decide whether they were truthful or not, if the jury thought it helpful to do so. 16. But that was not the point the defence were making; the point the defence were making was that it looked as though this was all part of machinery or system, set up by Clark in which it appeared that the defendant played no part whatsoever and certainly received no gain. 17. There was, so the defence submitted, a further example of misrepresenting a point the defence wished to advance. Later in her summing-up, the judge referred to the fact that in Jones' case an expert had been called Mr Furlong, a consultant psychologist. Jones, as we have recalled, was a defendant who was said to have assisted in obtaining the false passport, making a false application, the subject matter of count 3. He said he had no knowledge whatever of this defendant, the defendant said he had met him on many hundred or so occasions. 18. Jones called the consultant psychologist to show that his intellectual ability was hampered and limited, that he was not the sort of man to be able to make any application let alone go along to this defendant to ask him to countersign his photograph for the purposes of making an application. That was Mr Furlong's evidence as recounted by the judge to the jury. 19. The defence sought to undermine that evidence in relation to another feature of Mr Furlong's evidence, namely that Jones was suggestible. The defence said that you could see from the way Jones conducted himself in court that that was not a sensible or accurate conclusion. But also, that the fact that Furlong had described him as suggestible cast doubt on the rest of Furlong's evidence. It demonstrated that there was a real doubt as to the reliability of that expert assessment. Again, it was submitted that the judge misrepresented this point by telling the jury that the question of whether Jones was or was not suggestible was not going to help them. 20. In so directing the jury, submitted Mr Webster, the point was effectively withdrawn from the jury. It is true that whether he was suggestible or not was not the point, but an assessment of whether he was suggestible or not went to the reliability of the expert's own assessment. Again, that point was misrepresented. 21. The defence relied, secondly, on the way the judge dealt with the absence of any evidence whatever that this defendant got anything out of these false applications. Here was, as the judge fairly told the jury, a solicitor of the highest reputation who was, if the prosecution case was accepted, prepared to throw everything away, putting himself in the hands of these former criminals and in the hands of serious criminal, setting up false applications for absolutely nothing. There was no evidence that he had anything to gain from this financially or otherwise. 22. The judge, in speaking of what this man, of the highest esteem professionally and socially, as she put it, had to lose, referred to the fact that he now finds himself in the dock, facing serious criminal charges, at the outset of her summing-up but only in the context of telling the jury, correctly, not to allow sympathy to sway their conclusion. When it came to the question of motive she merely put the prosecution case. She reminded the jury that there was no evidence that money had changed hands but also of the prosecution submission that that did not necessarily mean that money did not change hands. Quite what the meaning of that direction was, if there was no evidence of it, is not plain. She then suggested, no doubt at the prosecution's behest, that there may have been some other motive like getting a larger practice, as she put it. All of these may have been fair points, but if they were going to be made, if they were worth making at all, they had to be balanced and set against the counter argument as to the inherent unlikelihood of this man throwing everything away for no apparent gain. 23. A similar criticism is made of her summing-up in relation to inconsistencies. On a large number of occasions when dealing with the particularity of the evidence in relation to particular counts, the judge reminded the jury that in his first trial the defendant had said one thing. For example, and we need only give one example, that in support of an application he had met someone he knew, because he had to deal with he had seen their bank statement, whereas in the second trial he recalled some different document. She correctly reminded the jury of the relevance of inconsistencies, that it was for them to decide whether they were significant or not or whether any inconsistency ought to lead them to treat the account with, as she put it, considerable care. 24. She reminded the jury, during the course of her dealing with particular items of evidence that the prosecution suggested that the inconsistencies in account were the result of the fact that the details this defendant were giving were untrue. For example, in relation to count 8, he had recalled a client who was the person who produced the application and the photograph the subject matter of count 8, as someone who had produced a utility bill and student identification on the occasion of signing, whereas, he said in his first trial, that he had a clear recollection of her bringing a bank statement. She then said this: "Whether you think it has force or not will be for you to decide but he [that is prosecuting counsel] suggested that if you are giving a truthful account it is very easy to remember and to be consistent." She made a number of similar remarks on other occasions. 25. But what she did not ever do was to set those submissions in relation to inconsistency, advanced as they were by the prosecution, against the defence point that this defendant was compelled to recall events that had happened many years ago, in circumstances where they were but 17 in a very large number of applications, in the course of his business. In those circumstances, inaccuracies, absence of recollection or differing recollections on different occasions might be all too understandable without there being any intention to deceive. It was the most natural thing in the world that a defendant, faced with these accusations, might strive to remember concrete events in circumstances where the reality was they were all blurred by absence of time. 26. This was, we must accept, merely a counter argument for the jury to weigh and no doubt a counter argument advanced far more forcibly than we could do, by Mr Webster in his submissions to the jury. But if the judge was going to bother to advance prosecution arguments, there was no reason why she should not counterbalance it by referring to the defence argument or alternatively, leaving, as she might have been better advised to do, the arguments to counsel and not bothering to remind the jury of them at all. 27. There were further examples, so the defence said, of lack of balance. During the course of the evidence she reminded the jury that a witness on whom the defence relied, a Patrick Campbell in relation to count 1, had declined the opportunity to give evidence via a video link and had therefore not given the prosecution the opportunity to cross-examine him. He was someone involved in the production of a birth certificate for the purposes of making a false application in the name of "Colin Briscoe" who said in his statement that he had deceived Manifold into thinking that it was his true identity. 28. It was not this defendant's fault that Campbell would not come to this country. Although the judge had justification for pointing out the difficulties under which the prosecution laboured, she might, with greater balance, submitted Mr Webster, have reminded the jury that it was not the defendant's fault that that was the situation with which they were faced. 29. The judge was criticised in the way she dealt with the other defendant's cases, Jones and Hutchinson, which was said to be more favourable than the way with which his case was dealt with. We reject that submission. It is always difficult for a judge to deal equally with different defendants, particularly where they face only one charge and the other defendant faces 17. We do not detect in the summing-up any unfairness in the detail with which she dealt with those cases. Suffice it to say, that in relation to Jones he denied ever having met this defendant as part of his defence, whereas this defendant said that he had met him in Birmingham some 150 or more times and called a witness, Miss Tongue, who said that she had met Jones in a public house known as the Twin Towers, when he had attempted to approach her, giving him her his name. We do not detect any unfairness in the way the judge dealt with that or in the way she dealt with a witness who although no friend of Hutchinson suggested that Hutchinson was correct in saying that at the time the application on his behalf was made, the subject matter of count 13, when the defendant said he knew Hutchinson, he had never met this defendant. 30. As we have said, it is necessary to put those criticisms of the summing-up in the context of the summing-up and the evidence as a whole. Looking at the summing-up as a whole we take the view that the criticisms we have identified, in relation to lack of balance in the comments as to inconsistency and as to motive are well-founded. The prosecution points about inconsistency and about motive should have been balanced against fair arguments that could have been put the other way. If the judge was going to bother to repeat these comments, she should have at least repeated the comments that could be made in opposition to them. After all, if the judge is going to make comments they must be fair and balanced. In those respects we take the view that the judge failed to achieve this objective. 31. But close analysis of a summing-up is not the essential function of this court. This court has to put those criticisms, well-founded though they be, in the context of facts as a whole. The jury can have been in no doubt, after a trial of four weeks, as to the issue before them. Were they sure that this defendant countersigned photographs as being those of the person applies for the passport? Did he have any foundation for doing so? Or: was the truth that he had failed to check those applications, with the dishonest intention of a false application being made? The jury, as we have said, can have been in no doubt that was the issue. The defendant gave evidence and was adamant on some occasions of the accuracy of his memory as to the supporting documents produced. He was faced with the difficulty that in most of these cases he did not know the true name of the applicant but had known them only meeting him on various occasions either as client or in the gym by street names. The jury rejected his account. They reached the conclusion that they were sure that he had made these applications, or assisted in their being made dishonesty. 32. Looking at the summing-up as a whole, we cannot think, and we do not take the view that the jury were deflected from a fair resolution of that simple issue. The summing-up, though we have criticised it, though in certain respects it was unbalanced, was not of such a low standard and so unfair as to lead to that deflection and tilting of the jury against this defendant. 33. In those circumstances, that being the only ground of appeal, we reject it and we dismiss this appeal. (Submissions Followed) 34. LORD JUSTICE MOSES: It is unnecessary to detail the facts again but worth stressing that this appellant was a highly regarded solicitor whose career has now, as a result of these convictions, come to an end and will inevitably do so. 35. He is now 49. He was sentenced to four-and-a-half years' imprisonment (54 months) on 19th February 2010. The judge rightly pointed out how serious this case was, where a solicitor is prepared to enter into dishonesty it is of great significance. 36. Mr Webster submitted: the reason why sentences of the level of 3 years are passed is because people trusted to countersign the photographs for passports are of a particular status, that this appellant did so, not as part of his work as a solicitor although because he was a solicitor. Thus the fact that he was a solicitor made no difference. 37. We do not agree. The fact that he was a solicitor is of great significance -- it might not have any greater effect on the success or otherwise on the passport application any more than that of a civil servant or anyone else -- but for a solicitor to be prepared to be dishonest is a matter of great consequence. 38. We were referred to two authorities: R v Costley [2007] EWCA Crim 3187 and R v Cheema [2002] 2 Cr App R(S) 79, both of which establish that the business of assisting in or providing false passports is serious, meriting a sentence in the region of 3 years. The judge thought this case was more serious by reason of the position of this appellant. 39. Looking at the facts as a whole we think that a sentence of four-and-a-half years (54 months' imprisonment) was manifestly excessive. We have to bear in mind this appellant's good character. We also have to bear in mind the considerable delay that was no fault of his, save that he pleaded not guilty. There had been a trial, which had to be disbanded through no fault of his own and he had to wait another 10 months for another trial. Of course in part that was his own fault because he pleaded not guilty. Nevertheless, taking those features into account as well as his character, and he is now, as one would expect, doing very well in prison, we think that he can be sufficiently punished by a sentence of 3 years' imprisonment. But we have taken into account the circumstances of the delay and we do not think it right to reduce the sentence further. 40. In those circumstances we shall quash the sentence of 54 months' imprisonment, and substitute for that a sentence of 36 months' imprisonment. His appeal against sentence is therefore successful.

```yaml citation: '[2011] EWCA Crim 1271' date: '2011-03-31' judges: - LORD JUSTICE MOSES - MR JUSTICE MADDISON - MR 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: 200903116/A5 Neutral Citation Number: [2009] EWCA Crim 2302 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 HOOPER MRS JUSTICE SWIFT DBE HIS HONOUR JUDGE MORRIS QC (Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - R E G I N A v ALAN LESLIE BIRKETT - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - Miss R Faux appeared on behalf of the Appellant - - - - - - - - - - - - - J U D G M E N T 1. MRS JUSTICE SWIFT: This is an appeal against sentence by leave of the single judge. 2. On 6 February 2009, at Preston Crown Court, the appellant, who is 46 years old, pleaded guilty at the earliest opportunity to an offence of arson, being reckless as to whether life was endangered. On 29 May 2009, he was sentenced by Mr Recorder Farley QC to imprisonment for public protection pursuant to section 225 of the Criminal Justice Act 2003 (as amended) with a minimum term of two years less 226 days spent on remand. 3. The appellant, who was an alcoholic, lived in a council flat in Barrow-in-Furness. The flat was on the ground floor of a two storey block of about 30 flats. On the evening of 13 October 2008 he was at home with Barry Miller, also an alcoholic, who was homeless and who had been staying with the appellant for some months. They had been drinking throughout the day, in particular strong cider and strong lager. They were both drunk. 4. In the early evening, Miller began to fall asleep. Meanwhile the appellant had become argumentative. He tried to set fire to a duvet in the front room with a cigarette lighter. He said several times, "I want it over and done with." Miller threw a glass of cider over the duvet and extinguished the flame. The appellant then moved to a corner of the room where there was a television, ostensibly to put on a DVD. He set light to the curtains with a second lighter. Miller tried to drag the curtains down to put out the flames but was unable to do so. The room began to fill with smoke. The appellant continued to say, "I want to get it over with." Miller called 999. 5. A neighbour, Mr Donald, had seen the fire. He also alerted the fire brigade and then went to assist. The appellant opened the door and claimed that the television had blown up. Miller was on the sofa. Mr Donald told them to get out and extinguished the fire by wetting a chair cover and applying it to the flames. The fire brigade attended and the police arrived shortly afterwards. Miller made a complaint and the appellant was arrested. He gave a no comment interview. 6. The fire damage was limited to the side of the room near the television. It did not extend to the flat above which was occupied at the time by an elderly lady. Miller reported suffering some smoke inhalation together with shock and distress at what had happened. 7. Since 2002 the appellant has had 28 court appearances for 39 offences, mainly offences of being drunk and disorderly, using disorderly words or behaviour and breaches of Anti-Social Behaviour Orders. He has served three short sentences of imprisonment during 2004 and 2005 for breach of Anti-Social Behaviour Orders and a Bail Act offence. He has not been convicted of any offence specified for the purpose of the dangerousness provisions of the Criminal Justice Act 2003 . The offence of arson was committed during the currency of an Anti-Social Behaviour Order. 8. There was before the court a report dated 12 April 2009 from a consultant forensic psychiatrist, Dr Green, instructed by the defence. She described how the appellant's life had taken a downturn when his marriage ended in 2002. He became depressed and alcohol abuse became a severe problem. He made some attempts to take his own life. It was at that time that his offending started. All his offences have been associated with alcohol. He underwent detoxification and rehabilitation in 2004 but lapsed until 2006 when he had a further period of abstinence before again resuming drinking. At the time of the offence with which we are concerned he was drinking heavily and was low in mood. 9. The appellant's recollection of events was hazy but he maintained to Dr Green that the ignition of both the duvet and the curtains had been accidental. Dr Green elicited no previous history of fire setting or pathological interest in fires. She suggested that it could be that, while he was drunk, the appellant had started the fire in response to feelings of depression and anger at the life he was leading. At the time of her examination he was detoxified and talking with some insight about his alcoholic problems. 10. Dr Green acknowledged that the offence had the potential to place other individuals at risk and expressed the view that the likelihood of the appellant reoffending was directly related to whether or not he started to abuse alcohol once again on release from prison. She said that he would benefit from alcohol abuse programmes. 11. The pre-sentence report described the tension which had developed between the appellant and Miller and the appellant's feeling that he was at breaking point by reason of the continued presence of Miller and his associates at the flat. He found them intimidating and frightening. On the day of the offence they had argued about the state of the flat. 12. The appellant insisted that the fire had started accidentally. The author of the report did not accept that account and believed that the appellant had set fire to the property because he felt depressed and angry at his circumstances. He considered that the appellant had the potential to pose a serious risk of harm to the public through the commission of further offences of this nature and would continue to do so unless he engaged in interventions to address the risk of reoffending and the risk of harm he posed. He suggested that it was imperative that he was placed in an environment with access to appropriate offending behaviour programmes in a consistent and prolonged manner. 13. In an addendum to the pre-sentence report the author indicated that the appellant did not meet the local criteria for an alcohol treatment requirement and would not be suitable for management of his alcohol problem within the community. 14. A letter from the appellant explained the circumstances behind the offence. He said that at the time of the offence he felt intimidated and threatened by Miller but insisted that his lighter had come into contact with the curtain by accident. 15. In sentencing the appellant, the Recorder noted that he wanted to lead a law-abiding, useful life but, looking at the offence and the appellant in his present state, he presented a significant risk of serious harm to members of the public. He considered that there had to be a sentence of imprisonment for public protection. The notional determinate sentence would be four years, making a minimum period to be served of two years, less the 226 days he had already served. 16. The relevant provisions of section 225 of the 2003 Act provide: "This section applies where -- (1)(a) a person aged 18 or over is convicted of a serious offence committed after the commencement of this section, and (b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. ... 3. In a case not falling within subsection (2) [that deals with sentences of custody for life], the court may impose a sentence of imprisonment for public protection or, in the case of a person aged at least 18 but under 21, a sentence of detention in a young offender institution for public protection if the condition in subsection (3A) or in subsection (3B) is met." 17. Subsection (3A) is not applicable to this case. Subsection (3B) provides: "The condition in this subsection is that the notional minimum term is at least two years." 18. In her written submissions and in her oral submissions before us today, Miss Faux submits that the sentence of imprisonment for public protection was wrong in principle. The notional determinate sentence of four years after a guilty plea meant that the Recorder's starting point after a trial must have been six years. She submits that a sentence of six years was manifestly excessive in the circumstances. She argues that the Recorder should have adopted a lower starting point. If he had done so, the conditions set out in section 225 (3B) would not have been met and it would not have been open to him to impose a sentence of imprisonment for public protection. 19. Miss Faux went on to submit that the Recorder should not have assessed the appellant as dangerous. Finally she argued that if, contrary to her submission, the Recorder's starting point was not manifestly excessive and his finding of dangerousness was justified, an extended sentence would have afforded the public sufficient protection. 20. The central point in this appeal is whether the Recorder's starting point of six years after a trial was manifestly excessive. We remind ourselves of the words of the Lord Chief Justice in the case of R v C and others [2008] EWCA Crim 2790 . He said: "11. ... an order of imprisonment for public protection may not be imposed under condition (3B) unless the offence justifies the specified notional minimum term, even if there is a significant risk of serious harm. 12. In such cases, courts will no doubt ensure that longer than appropriate sentences are not imposed in order to avoid the restriction created by condition 3B. Section 153(2) of the Criminal Justice Act 2003 remains in force, and any custodial sentence must. '... be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it.'" 21. The offence in this case was committed at a time when the appellant was drunk and when he was depressed and angry about his predicament. It was an one-off offence and could have been viewed as a cry for help. It did not result in injury to any person and the damage which was done to the property was limited in scope. There was no suggestion that the appellant had a previous fascination with fire. The fire was set at a time when another person was present and could have been expected to take action to put it out. 22. In those circumstances, we take the view that the Recorder’s starting point of six years after trial was manifestly excessive. We consider that the appropriate starting point would have been four and a half years after a trial so that the proper sentence, giving credit for the plea, would have been one of three years. That being the case, the requirements of section 225 (3B) were not met and it would not have been open to the court to impose a sentence of imprisonment for public protection or an extended sentence. We therefore quash the sentence of imprisonment for public protection and substitute a determinate sentence of three years, giving the same discount for the number of days spent on remand before sentence. To that extent the appeal is allowed.

```yaml citation: '[2009] EWCA Crim 2302' date: '2009-10-21' judges: - LORD JUSTICE HOOPER - MRS JUSTICE SWIFT DBE - HIS HONOUR JUDGE MORRIS QC ```

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

Case No: C4/2005/01537 Neutral Citation Number: [2006] EWCA Crim 6 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT, KINGSTON-UPON-THAMES HIS HONOUR JUDGE BINNING Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday, 20 th January 2006 Before : LORD JUSTICE PILL MR JUSTICE NEWMAN and MR JUSTICE LLOYD JONES - - - - - - - - - - - - - - - - - - - - - Between : LINDA ROSENBERG Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal WordWave Limited 190 Fleet Street, London EC4A 2AG Tel No: 020 7421 4040 Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - MR N VALIOS QC & MISS P ROSE for the Appellant MR J CARMICHAEL for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pill: 1. On 10 February 2005 in the Crown Court at Kingston-upon-Thames before His Honour Judge Binning and a jury, Linda Rosenberg was convicted of possessing a class A drug with intent to supply (Count 1), possessing a Class A Drug with intent to supply (Counts 2 and 3) and possessing of a class A drug (Counts 4 to 6)). On Count 1, she was sentenced to four years imprisonment, on Counts 2 and 3 to six years imprisonment concurrent and on each of Counts 4 to 6 four months imprisonment concurrent. The total sentence was one of six years imprisonment. A co-accused Iola Ann Griffiths was acquitted on Counts 1 to 3. 2. Rosenberg appeals against conviction on five grounds, which can be summarised as two, by leave of the single judge. On two further grounds, she seeks leave to appeal, following refusal by the single judge. The single judge also refused leave to appeal against sentence and that application is renewed. 3. The prosecution case relied in part on CCTV footage from a camera the appellant’s neighbours Mr and Mrs Brewer had on their property and directed towards hers. Following reports from Mrs Brewer, police attended the appellant’s premises on 21 January 2004. They found a quantity of heroin, cocaine and crack cocaine. The appellant was also found to be in possession of about £2000.00. The prosecution relied on the video evidence which appeared to show the appellant engaged in unwrapping packets of drugs in the house, handing objects (possibly drugs) to others and being shown how to use a “crack bottle”. Clingfilm and foil were found under a coffee table. 4. The co-accused was found in the house at the time of the search. Drugs were found underneath her on the sofa and hanging out of her trousers. Scientific evidence showed the appellant’s fingerprints and DNA on incriminating items recovered during the search. 5. The appellant contended that the packages of drugs did not belong to her and that they had been brought in to the premises. As to the £2000, the appellant said that it was the proceeds of sales of cars. She had withdrawn the cash to pay for new windows and other building work. 6. Two interviews were conducted on the late evening following the search. Before the search, her lodger, Mr Arthur, had come into the house with a number of people, including a girl (Griffiths) carrying a plastic bag. As they arrived, she went to the lavatory and spent 10 to 15 minutes there. She did not know what the bag contained. She had never taken drugs and described herself as “anti-drugs”. Shown a small plastic device with a burn on it, the appellant said she believed it to be a device for blowing paint to achieve a spray effect. It has been on her coffee table for some time. She was an artist by trade and thought it would be useful for her work. She had withdrawn from her bank a total of £6000.00 to pay for building works on her house which she claimed had been re-mortgaged (subsequently confirmed). 7. Those interviews took place in the presence of the appellant’s solicitor. The appellant had been told of the allegation against her, based on what was found in the search, but she had not been told of the existence of the video. 8. Having been shown the video, she was re-interviewed. She said that wrapped in the clingfilm, which she had been handling, were cheese and pate. It was demonstrated that her visit to the lavatory had lasted only forty-five seconds but she said that she believed it had taken fifteen minutes. A bottle with foil on top of it shown in the video she thought was a normal drink bottle and did not know what was happening with it. The cutting motion observed on the video was her cutting cheese and it was a piece of cheese that she was observed handing to someone else. The video showed her to have been smoking a pipe. She said she could not remember doing so. 9. At a further interview, she said that she had not invited the other people to her home; they were not her friends. If the officers had not found the cheese, it was because it was in the refrigerator. She knew nothing about the crack pipe. 10. There was a history of serious ill-feeling between the appellant and Mr and Mrs Brewer. There had been allegations of criminal behaviour on both sides, some of which had resulted in court proceedings. The Brewers had made a police officer, Sergeant Cook, aware of the fact that they had a video camera trained on the appellant’s house and that they were taping events there. Sergeant Cook warned them that this amounted to a violation of the appellant’s right to privacy but nevertheless received the video tapes from them when offered. 11. In her evidence, the appellant said that she was aware that the Brewers were videoing her movements inside the house. She had reported this to the police. In her evidence, she gave explanations, consistent with her innocence of drugs offences, for what could be observed on the video. She was concerned as to whether people were bringing drugs into her house and she tried to keep an eye on the situation. This had involved conducting various experiments with what she found there and she concluded that the substances were chemicals relating to brewing “hooch”. When she confronted her lodger, Mr Arthur, he confirmed that and also mentioned that medication for cancer had been left at the house. The co-accused was trying to plant drugs on her. Mr Brewer also had a motive to plant drugs. The appellant said she had lived in the house for thirty three years and had never had drugs there. She had been a Mormon since 1982 and had worked with Alcoholics Anonymous. 12. Mr G Crew gave evidence that he had worked for the appellant and that she had never been involved in drugs. He spoke of damage to her property caused by Mr Brewer. The witness said that he had introduced the tenant, Mr Arthur, to the appellant and was aware that Arthur was involved with drugs. 13. The co-accused gave evidence that she had only been to the appellant’s house on one previous occasion. On that occasion they had smoked crack upstairs but the appellant was downstairs. She said that, on 21 January 2004, the appellant was a party to a discussion as to how to assemble the crack pipe handling bottle. She took no drugs to the premises. There was a discussion about testing the drugs. She had only gone to the appellant’s house because free drugs were on offer. She would have been interested in finding customers in order to obtain free drugs. The appellant had tried to persuade her to blame Mr Arthur for the offences. 14. At the trial, it was sought to exclude the video evidence. It was submitted that the surveillance on the appellant was directed by the police either directly or tacitly. There was a breach of the Regulation of Investigatory Powers Act 2000 (“ the 2000 Act ”) which had been enacted to provide in domestic law protection of the right to respect for private life conferred by Article 8 of the European Convention on Human Rights. The police failed to inform the appellant of the surveillance being conducted on her property. 15. From contemporaneous documents, there is no doubt that in December 2003, Mr Brewer was informing Sergeant Cook of events in the appellant’s property and the fact that they were being filmed. On 8 January 2004, Mr Brewer promised to deliver tapes to the police saying that he would think by now: “You have evidence a plenty in order to obtain a warrant”. On 14 January 2004, Sergeant Cook thanked Mr Brewer for tapes and stated: “Our DCI has been informed and applications are now on the go”. On 18 January, Sergeant Cook told Mr Brewer that plans were “afoot” and that the involvement of other individuals as well as the appellant was being looked into. 16. The defence sought to exclude the video evidence at the trial. When considering the application, the judge accepted the evidence of Sergeant Cook that he had warned the Brewers that they were breaching the appellant’s Article 8 rights. The Brewers had denied that. The judge held that the police had not evaded the provisions of the 2000 Act . He did not “conclude that the police encouraged any breach by Mr Brewer of Mrs Rosenberg’s human rights, as opposed to their using the fruits of Mr Brewer’s enthusiasm.” An application to exclude the evidence under Section 78 of the Police and Criminal Evidence Act 1984 (“ the 1984 Act ”) was also refused. It was not dissimilar “to a passer-by peering in a window and seeing a crime”, it was held. The judge also stated that it seemed to him that the video would have been admissible at the behest of the co-accused Griffiths as contradicting the appellant’s assertion that it was Griffiths who took the drugs to the property. 17. On behalf of the appellant, Mr Valios QC submits that the evidence ought to have been excluded. The evidence demonstrated encouragement by the police of the Brewers’ surveillance by CCTV of and into the appellant’s home and the conduct should be treated as that of the police. Since no authorisation had been given for such intrusive surveillance, the 2000 Act had been circumvented by the police. Further, to admit the evidence was a breach of Section 78 and of the right to a fair trial under Article 6 of the Convention. The surveillance was contrary to and not authorised by the 2000 Act . 18. While the police were complicit in the surveillance to the extent that they knew of it and were prepared to use it in a criminal prosecution, it cannot in our judgment be regarded, for the purposes of the 2000 Act , as police surveillance. The police neither initiated it nor encouraged it. We would accept that the degree of police involvement could be a factor in deciding on admissibility under Section 78 . Nor does the warning which the judge found was given to Mr Brewer about it convert it into police surveillance. The warning may have been a sensible piece of advice given the history of trouble between the appellant and the Brewers but it does not convert the police acceptance of the videos into a breach by them of Article 8, or of the Act . If a civil action were to be possible by the appellant against the Brewers for a breach of Article 8, it might be relevant but that is a concept quite distinct from the present one. 19. Moreover, in her evidence at the trial, the appellant accepted that she knew “the video was there” and knew “that Mr Brewer was looking inside my house”. 20. In our judgment, there could in the circumstances be no breach of Section 26 of the 2000 Act because the surveillance was not “covert” within the meaning of Section 26 (9) (a) which provides that: “Surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place”. Mr Valios relies on the fact that the camera itself was concealed in a dome at the top of a high pole, but that the appellant knew its use was for observation of her activities is clear. 21. The camera was of the most ostentatious type and it cannot be said that the surveillance was carried out in a manner calculated to ensure that the appellant was unaware that it may have been taking place. Reliance has been placed on behalf of the appellant upon the 2000 Act rather than Article 8 itself. However, if there had been a breach of Article 8(1) in the absence of a breach of the statute, the police could in our view have relied on the proviso in Article 8(2) that the surveillance was necessary for the “prevention of crime”, which in this case was serious crime. 22. Even if there was a breach of Article 8, in our judgment the judge was entitled to admit the evidence and was not required to exclude it under Article 6 or Section 78 of the 1984 Act . The consequences of a breach of Article 8 in this context were considered in R v P [2000] 1 AC 146 . If there were to have been a breach of Article 8, importance should be attached to any such breach in determining an application to exclude evidence but the admissibility of unlawfully obtained evidence is to be determined by reference to Article 6 and Section 78 rather than Article 8. It is necessary in a democratic society for all relevant and probative evidence to be admissible to assist in the apprehension and conviction of criminals and also to ensure that their trial is fair. It remains necessary to engage in the exercise of reviewing and balancing all the circumstances of the case. In this case , they included intrusion, but intrusion which was openly practised, the complicity of the police in the surveillance, as described, and the seriousness of the crime involved. In our judgment, the judge was entitled to admit the evidence and its admission did not render the trial unfair. 23. The second submission made on behalf of the appellant is that, before interviewing the appellant, the police ought to have disclosed to her the existence of the video footage to be relied on. It is submitted that the first and second interviews should be excluded on that ground. Further, it is submitted, the appellant was at a disadvantage when interviewed after sight of the video by the fact that she had given the earlier interviews. The later interviews should also be excluded as tainted by the earlier ones. What the appellant sought to avoid were the contradictions between the evidence given at trial and the accounts given in the third and fourth interviews and the resulting comment under S34 of the Criminal Justice and Public Order Act 1994 . Any advice given by the solicitor before the first and second interviews would have been given in ignorance of fundamental evidence, it is submitted. Full and proper advice could not be given in the absence of full disclosure. 24. In his ruling permitting admission of the interviews, the judge stated: “But counsel have not put before me any rule that shows that the prosecution have to disclose their full hand, if I can put it like that, and make clear to a defendant exactly the evidence they have. It seems she was told very clearly exactly what the interview was about and she could take her own course on that”. 25. In our judgment, the judge was entitled to make the ruling he did. The appellant’s house had been searched and incriminating material found. Before interview, she was told the nature of the case against her. The police were not at that stage obliged to disclose the extent of the evidence against her. 26. Comment was not made at the trial upon the difference between the first and second interviews on the one hand and the third and fourth on the other. The comment complained of is that upon the difference between the later interviews and the evidence at trial. Even if, contrary to our finding, the contents of the video should have been disclosed before the interviews, that in our judgment would not have been a sufficient ground for excluding the third and fourth interviews, given after observation of the videos and the opportunity to obtain advice. We do not accept the submission that the admission of the later interviews deprived the appellant of a fair trial. 27. Leave to appeal is sought on the basis of the trial judge’s refusal to permit the defence to call the evidence of Mr C P A Norman, a clinical psychologist, who in his written report referred to her depression and anxiety. She had scored “slightly high” on the schizoid dimension. It is not suggested that she suffered from a medical condition. It is submitted that the witness could have explained to the jury why the appellant was so garrulous and why she answered questions in a roundabout way. They might have given more weight to her evidence had they heard Mr Norman. 28. The judge ruled against admissibility stating: “I am going to let the jury evaluate her evidence, which is their task. They will make of it what they will”. When summing-up, the judge stated: “It is obvious that the mannerisms of witnesses differ and some have more obvious personalities than others. It has been obvious to us all that Mrs Rosenberg was very anxious to answer her questions fully and indeed counsel and I on a number of occasions – perhaps to characterise it as a reprimand was a little high – but certainly attempts were made, successful or otherwise, to restrain her answers at times if only to avoid a certain amount of repetition. But please don’t hold the way in which she gave evidence against her. What you do, as I am sure you appreciate, is take into account what people said and how they said it. But however someone gives their evidence, with whatever emphasis, it is whether what they are saying is true or may be true from a defendant’s point of view that matters. So, as I say, I am sure you won’t be put off her merely by her manner. But just consider what she said and how she said it and ask yourselves, as you do in relation to any witness, is what they are saying accurate and truthful?” 29. In our judgment, the judge was entitled to exclude the evidence of the psychologist and the judge’s direction was adequate and fair. 30. The issue of the appellant’s credibility and reliability in this case was not beyond the normal comprehension of a jury. They were well able to assess the credibility and reliability of a witness who was garrulous. Such as assessment is not outside their range of experience. They received appropriate guidance from the judge. Moreover, there was nothing unfair about the judge’s conduct of the trial when she was giving evidence. 31. For the reasons given, leave to appeal on the further grounds is refused and the appeal against conviction is dismissed. Sentence 32. The appellant is now 61 years old. She has previous convictions,- predominantly for offences of dishonesty. She had none for drugs. The appellant has served sentences of imprisonment, including a 26 month sentence imposed in 2001. 33. Counsel refers to the appellant’s age and lack of previous convictions for drug offences. There was no evidence of past dealing. 34. When refusing leave, the single judge stated: “Following a trial the sentence was not manifestly excessive”. We have regard to the bracket within which sentences for offences such as these are normally placed upon conviction. We agree with the single judge’s observation and the application is refused.

```yaml citation: '[2006] EWCA Crim 6' date: '2006-01-20' judges: - LORD JUSTICE PILL - MR JUSTICE LLOYD JONES ```

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

Neutral Citation Number: [2012] EWCA Crim 2669 Case No: 201203994 D3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM ISLEWORTH CROWN COURT HHJ Oliver T20127024 Royal Courts of Justice Strand, London, WC2A 2LL Date: 11/12/2012 Before: LORD JUSTICE TREACY MR JUSTICE MACKAY and HIS HONOUR JUDGE McCREATH (Recorder of Westminster) - - - - - - - - - - - - - - - - - - - - - Between : Ali Reza Sadighpour Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms Dickason-Mitra (instructed by Registrar of Criminal Appeals ) for the Appellant Mr Douglas-Jones (instructed by Crown Prosecution Service ) for the Respondent Hearing dates : 27th November 2012 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Treacy: 1. On 20 th January 2012 in the Crown Court at Isleworth this Appellant pleaded guilty to possession of an identity document, namely a false French passport, with improper intention contrary to Section 4(1) and (2) of the Identity Documents Act 2010. Leave to appeal against conviction has been granted by the single judge. 2. The Appellant was sentenced to 12 months imprisonment with time on remand ordered to count towards sentence. As a result of receiving that custodial term he is liable to automatic deportation pursuant to Section 32 of the UK Border Act 2007. 3. The Grounds of Appeal assert that the Appellant pleaded guilty having not been advised of the defence available under Section 31 of the Immigration and Asylum Act 1999, in circumstances where it is argued that he had a reasonable prospect of successfully relying upon such a defence. The Appellant’s Case 4. The Appellant asserts that he fled Iran on 24 th December 2011 in fear of his life, following an incident during which he was attacked by the Basij (Morality Police) for expressing anti-government sentiments. This was against a background of his having previously been involved in anti-regime activities whilst a student at the university of Tabriz, which had led to his arrest and detention by the Iranian authorities for 3 months in 1999. He had also been tortured at that time. He also claims to have been checked or detained on occasions since 1999. 5. He said that after the incident with the Basij he spent a brief initial period in hiding in Iran and was then smuggled into Turkey on 24 th December 2011 by an agent whom he paid. Other agents took him to Istanbul and, from there, by air to Tanzania where he arrived on 30 th December 2011. He had obtained a visa for Tanzania. 6. He then travelled to Zambia, where he stayed for a few days. Then he flew with an agent to London Heathrow airport on 5 th January 2012. He did not claim asylum on entering the UK, but was taken by the agent by train to Liverpool. 7. He says he was held at a house in Liverpool which he was not allowed to leave. He was told to remain in a room whilst his papers were organised before being transferred further. He says he was told by the agent that he could only claim asylum in Canada, and while in Liverpool had to pay a further $2,500. 8. He then travelled back with the agent to Heathrow Airport in order to travel on to Canada. He was arrested at Terminal 3 in possession of a false French passport attempting to board a flight to Canada. When taken to the police station at the airport he was found to be in possession of $5,500 cash. He claimed asylum there for the first time. 9. In interview with the police he was represented by a solicitor. He had the assistance of a Farsi interpreter. He says he told the solicitor the full circumstances of his fleeing Iran and his arrival in the UK. The solicitor put forward a prepared statement; otherwise he made no comment to questions put. 10. In the prepared statement he admitted arriving in the UK five days earlier, having fled Iran because his life was in danger. He said he was fleeing to Canada to get as far away from Iran as possible. He said he had not claimed asylum on his initial arrival in the UK as he did not know what to do and had been told to follow the agent’s instructions. Immigration and Asylum Act 1999 and the Guilty Plea 11. The Appellant says that he pleaded guilty not having been advised by his solicitor or his counsel of any potential defence that he might have had under Section 31 of the 1999 Act which gives effect to Article 31 of the Refugee Convention 1951. 12. The Appellant has waived privilege in relation to his previous legal advisers. It is clear from a consideration of the contemporaneous documentation and letters from the solicitors instructed and counsel who appeared before the Crown Court that although the Appellant had given an account which was potentially capable of raising the defence under Section 31, he had been given no advice about his entitlement to the protection of that section, and had been told that he had to plead guilty to the charge. 13. The Crown accepts that the Appellant’s previous legal representatives failed to advise him about the possibility of availing himself of the Section 31 defence and that they should have done so. It is clear from the judgment of this court in R v Makuwa [2006] EWCA Crim 175 that it is open to anyone charged with an offence under Section 4 of the Identity Documents Act 2010 to raise an issue that he or she is entitled to the protection of Section 31. 14. Section 31 of the Act provides as follows: “31(1) It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he – (a) presented himself to the authorities in the United Kingdom without delay; (b) showed good cause for his illegal entry or presence; and (c) made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom. (2) If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country… (6) “Refugee” has the same meaning as it has for the purposes of the Refugee Convention. (7) If the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is taken not to be a refugee unless he shows that he is.” 15. As Makuwa shows, to avail himself of a Section 31 defence the Appellant would need, initially, to satisfy an evidential burden that he was a refugee (i.e. a person “who has left his own country owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”). That wording appears in the Refugee Convention, Article 1. 16. If a Defendant satisfies the evidential burden the Crown would have to prove that he was not a refugee. 17. However, this initial part of Section 31 has to be read subject to a point raised by Section 31(7) and considered below. 18. If the Crown fails to disprove that the Defendant was a refugee, it then falls to a Defendant to prove on the balance of probabilities (a) that he did not stop in any country in transit to the United Kingdom or, alternatively, that he could not reasonably have expected to be given protection under the Refugee Convention in countries outside the United Kingdom in which he stopped; and, if so: (b) to prove that he presented himself to the authorities in the UK without delay; (c) to show good cause for his illegal entry or presence in the UK; and (d) to prove that he made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom. 19. In R v AM and Others [2010] EWCA Crim 2400 the court stated that it was critical that those advising Defendants charged with an offence to which Section 31 of the 1999 Act might apply should make clear the parameters of the defence (including the limitations and potential difficulties) so that the Defendant can make an informed choice as to whether or not to advance it. 20. It is common ground that there was a failure to give such advice to this Appellant, although he had advanced factual matters capable of raising such a defence. Thus, when he tendered his guilty plea, he had not made an informed choice as to that plea. 21. This court recognised in Boal [1992] 95 Cr App R 272 that a guilty plea tendered in circumstances where a possible line of defence has been overlooked, may be one which the court will be prepared to set aside on appeal if the circumstances are such that the court regards the conviction as unsafe. See also R v AM & Others (above), at paragraphs 11 to 14. 22. That, however, is in no way conclusive of this appeal. It is necessary for us to consider whether had the applicant availed himself of the Section 31 defence, there were good prospects of it succeeding. 23. In Boal (above), the court said: “Only most exceptionally will this court be prepared to intervene in such a situation. Only, in short, where it believes the defence would quite probably have succeeded and concludes, therefore, that a clear injustice has been done.” 24. In Dastjerdi [2011] EWCA Crim 365 at paragraph 10 those words were repeated. We note that in AM & Others (above), although the court cited Boal at paragraph 13, at paragraph 27 it spoke in terms of “no reasonable prospect of a defence under Section 31 succeeding”. The First-Tier Tribunal’s Decision 25. There have been developments in the Appellant’s case since he was sentenced at the Crown Court. Having made a claim for asylum on the day of his arrest, the Appellant went through an asylum screening interview on 15 th March 2012, and then an asylum interview on 24 th April 2012. A deportation order was signed on 28 th August 2012 and the Appellant’s asylum and human rights applications were refused on 28 th August 2012. 26. The Appellant appealed those decisions to a First-Tier Tribunal (Immigration and Asylum Chamber). At the hearing the Appellant gave evidence and was cross-examined. He was supported by Dr Juliet Cohen, a forensic physician specialising in victims of torture and Sheri Laizer, an in-country specialist on Iran. Some supportive documentary evidence was also provided. 27. On 25 th October 2012 the First-Tier Tribunal upheld the deportation order and dismissed the Appellant’s appeal under the Refugee Convention and under Articles 2 and 3 ECHR. It also dismissed the Appellant’s claim for humanitarian protection and acknowledged that an appeal under Article 8 ECHR was not pursued. 28. The decision of the First-Tier Tribunal is, of course, in no way binding upon us. However, that decision may have consequences by reason of the provision of Section 31(7), and it can inform our assessment of the prospects of the Appellant on any retrial at the Crown Court were we to quash his conviction. 29. The standard of proof before the Tribunal is a standard lower than a balance of probabilities. The standard in asylum cases in relation both to the likelihood of persecution and the establishment of past and future events is a reasonable degree of likelihood or a real risk that the applicant could be persecuted for a Convention reason if returned to his country of nationality. 30. In addition, the Tribunal, in accordance with practice, directs itself that great care must be taken before rejecting as incredible the account of an anxious and inexperienced asylum seeker, and this can only be done when justified in the circumstances of the case. 31. The decision of the First-Tier Tribunal is a closely reasoned analysis of the evidence given by this Appellant and his witnesses. The Tribunal accepted his account of detention and torture in 1999, but rejected claims that he had been subjected to repeated detentions thereafter and, importantly, that he had had to flee following an incident outside his shop in December 2011. It found that the Appellant had fabricated this incident and gave a number of reasons. It found that he had decided to seek a better life in the West. It found that he had not been forced to flee to Turkey illegally as opposed to leaving lawfully using his own passport. 32. Although Dr Cohen’s evidence to the effect that the Appellant was suffering from post-traumatic stress disorder was accepted as having been given in good faith, and although it was accepted that he had been detained and tortured in 1999, Dr Cohen had conceded that the credibility of the Appellant was a matter for the Tribunal. The Tribunal did not accept his evidence of more recent ill-treatment or incidents affecting him. 33. Ms Dickason-Mitra, the Appellant’s counsel, urged us to view the Tribunal’s decision as having been predicated upon or seriously influenced by the fact that the Appellant had pleaded guilty to the offence in the Crown Court. We reject that argument. It is clear from reading the decision that the Tribunal’s findings were based on a close analysis of the evidence in the case rather than the fact of the guilty plea. 34. Having made findings adverse to the credibility of the case put forward by the Appellant, the Tribunal commented that the Appellant had been convicted of an offence involving deception of immigration authorities. This does not support counsel’s argument. It is an undisputed fact that the Appellant must have practised deception on various immigration authorities during his journey; it is the deception that matters, not the conviction, and in any event the true question is whether there was a justification which could relieve the Appellant of the consequences of his admitted deception. 35. We are therefore satisfied that it is appropriate to have regard to the Tribunal’s decision in assessing the Appellant’s prospects under Section 31 on any retrial. After all, the Tribunal is a properly constituted judicial body. Its members have particular specialist experience in dealing with matters pertaining to immigration and asylum. The Appellant was able to deploy his full arguments and call relevant witnesses. The evidence was fully tested. Both parties made their respective submissions, and a fully reasoned judgment was reached. 36. As already stated, paragraph 31(7) provides if the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is taken not to be a refugee unless he shows that he is. 37. Ms Dickason-Mitra submitted that this provision had no effect at all on the initial situation established as to a Section 31 defence in Makuwa (above). Her contention was that if the matter were remitted for retrial, the Appellant would merely have to satisfy an evidential burden in relation to the question of whether he was a refugee, and if he did so, the Crown would have to disprove that contention. Ms Dickason-Mitra says that this is demonstrated by the use of the word “shows” in Section 31(7) which is the same verb used in Section 31(1). 38. The Crown, however, argues that Section 31(7) should be read as imposing a burden of proof on the balance of probabilities on the Defendant to show that he is a refugee. It argues that once the Secretary of State has refused to grant a claim for asylum, the situation is different from that pertaining in a situation where a defendant appears before a criminal court in the absence of such a decision. 39. Mr Douglas-Jones drew support from Makuwa (above), at paragraph 25, where the court, in holding that Section 31(1) imposed an evidential burden on a Defendant in relation to refugee status, contrasted the position with the situation described in Section 31(7): “The fact that the statute casts a burden on the Defendant under these circumstances to show that he is a refugee tends to support the conclusion that he does not bear that burden under other circumstances.” 40. We agree. Were Section 31(7) as the Appellant contends, merely to reiterate a requirement to satisfy an evidential burden, even when the Secretary of State had refused an asylum claim, the provision in Section 31(7) would be wholly redundant. It plainly is not, and is apt to cover the situation where there has already been due consideration of the applicant’s claim to refugee status on the merits. 41. True it is that the word “show” or “shows” is used in Section 31(1) and (2), but in our judgment it is being used in a neutral way without defining the standard of proof. As Makuwa indicates, in Section 31(1) the word “show” covers both the situation where there is an evidential burden on the applicant and also where he has to prove matters on the balance of probabilities. 42. Ms Dickason-Mitra submitted that a jury would not necessarily take the same view of the Appellant and his experts as the Tribunal did. She appeared to submit that the Tribunal findings should not be afforded weight because it would have been a sceptical audience hearing the matter in the context of a deportation appeal. We do not think that this is the correct approach. What we must do is analyse the prospects of success on any retrial as stated above. 43. Ms Dickason-Mitra also laid some stress on the fact that the Appellant would, at trial, have the support of his two experts. The difficulty with that submission is that the assessment of the Appellant’s case would depend principally on his own credibility. Whilst the Tribunal accepted that his account of what happened in 1999 was credible and thus consistent with Dr Cohen’s evidence, it was unable to accept his account of events in more recent times which he said had caused him to leave Iran. 44. Neither of the two experts could assist to any great extent in relation to that matter. Each had conceded to the Tribunal below that the assessment of the Appellant’s credibility in that respect was not for them, but for the Tribunal. At the hearing below the Secretary of State was able to point to a number of considerations which called into question the Appellant’s account. Those were accepted by the Tribunal and formed part of its detailed reasons. There is no reason to think that prosecuting counsel at trial would not make the same or similar points to good effect. 45. It should be remembered that the Appellant failed on what may be called the refugee question before the Tribunal, even though the Tribunal was applying a standard below the balance of probabilities, and exercising the additional caution referred to. The Appellant’s failure to satisfy that relatively low threshold before the Tribunal which, as will be remembered, made a positive finding of fabrication against him, shows us that even if the evidential burden standard initially imposed by Section 31(1) were to apply, the Appellant would be unlikely to satisfy it, and that in any event the Crown would have strong prospects of disproving it. If that were so the defence under Section 31(1) would fail. 46. This analysis applies without invoking Section 31(7) at all. If, as we have concluded, that subsection operates to impose a balance of probability burden on the Appellant in relation to refugee status, the Appellant’s prospects of success are considerably further diminished. Our Conclusion 47. We return to the approach which this court must take. We should remind ourselves that to go behind a guilty plea is an exceptional step. In our judgment, whether we ask whether the defence would quite probably succeed or whether we put the question in terms of there being a reasonable prospect of a Section 31 defence succeeding, we are quite satisfied for the reasons given above that this Appellant would not satisfy either test in relation to refugee status were this matter to be retried. 48. That finding is in relation to the primary issue of whether he was a refugee. As Section 31 shows, there are other requirements which a Defendant must show on the balance of probabilities in order to make good his defence. Those provisions were generically referred to at the hearing before us as delay provisions. The Tribunal made no specific finding adverse to the Appellant in relation to those matters, and even if it had, we would not have concluded that a jury would necessarily have rejected the Appellant’s case relating to his intention to go to Canada after stops in intermediate countries. 49. As was accepted by the House of Lords in R v Asfaw [2008] UKHL 31 , [2008] 1 AC 1061 , a person who is genuinely in transit does not necessarily lose the protection of the Refugee Convention and thus of Section 31. The question of whether a person was genuinely in transit and/or acted promptly in presenting himself to the authorities and making a claim for asylum is plainly a fact-sensitive one. 50. True it is that the Tribunal made a finding that the Appellant, as an Azeri, could reasonably have claimed asylum, if he needed to, in Turkey. We recognise that there is force in the Respondent’s argument that this was a finding of a specialist Tribunal. However, we have concerns arising from the lack of information before us on the point, and the absence of information as to the reasons underlying concessions made in other cases before this court where individuals have fled from Iran via Turkey. In those circumstances, and not without hesitation, we are unwilling to dismiss the Appellant’s prospects on this specific ground. 51. However, those considerations only arise if the Appellant could surmount the initial hurdle in relation to the question of whether he was a refugee or not. Accordingly, they cannot avail him. 52. For these reasons we conclude that the circumstances for regarding this conviction as unsafe after the Appellant’s plea of guilty are not established. It follows that the appeal must be dismissed.

```yaml citation: '[2012] EWCA Crim 2669' date: '2012-12-11' judges: - LORD JUSTICE TREACY - HIS HONOUR JUDGE McCREATH ```

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 1569 Case No: 200803469 D1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BRADFORD CROWN COURT Mr Justice Grigson T20077483 Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/07/2009 Before : LORD JUSTICE AIKENS MR JUSTICE HOLMAN and HHJ BEVAN QC - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - Dawood Khan Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Nicholas P Askins for the Appellant Mr Richard Mansell QC for the Respondent Hearing date: 15 th July 2009 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Aikens 1. On 23 May 2008, before Grigson J and a jury, the appellant was convicted of the murder of a young man called Nazeer Ahmed. The victim was bludgeoned with a cricket bat in the sitting room of a house in Keighley that he shared with the appellant and some other young men. He died soon after. The attack occurred just after 3pm on 31 May 2007. 2. On 30 June 2008, the appellant, who was then aged 21, was sentenced by Grigson J to life imprisonment with a recommendation that he serve a minimum term of 10 years, less time spent on remand. 3. The appellant raised two defences at his trial. The first was that he did not kill Nazeer Ahmed, because he was elsewhere at the time the attack occurred. The appellant’s second defence was that if he did attack and thereby cause the death of Nazeer Ahmed, then he did so when suffering from diminished responsibility within the terms of section 2(1) of the Homicide Act 1957 , (“ the 1957 Act ”), so that he should only be convicted of manslaughter. By its verdict, the jury rejected both defences. 4. At the trial the prosecution led evidence from a large number of witnesses of fact, who dealt with matters both before and after the time of Nazeer Ahmed’s death. The only expert evidence for the prosecution on the appellant’s mental state at the time of the attack was contained in a statement of a consultant psychiatrist, Dr GP Bray, which was read to the jury. Dr Bray had been responsible for the appellant’s care since his arrest on 31 May 2007. Dr Bray’s evidence was that the appellant was suffering at the time of the killing from paranoid schizophrenia. 5. The defence called Dr Francesca Harrop, a consultant forensic psychiatrist. Her evidence was that the appellant was suffering at the time of the killing from schizophrenia or schizo – affective disorder. She stated that he was suffering from an abnormality of the mind for the purposes of section 2(1) of the 1957 Act and would meet the criteria for diminished responsibility. 6. At the conclusion of the evidence for the defence, on 20 May 2008, leading counsel for the appellant, Mr Davey QC, made a submission to the trial judge that the charge of murder should be withdrawn from the jury. He made this submission on the assumption that the Crown had proved, to the criminal standard, that the appellant had killed Nazeer Ahmed with the necessary intent to kill or cause grievous bodily harm. Mr Davey’s submissions were: (i) that there was uncontradicted evidence that the appellant suffered from an abnormality of mind induced by disease; and (ii) that there was no medical evidence on which a reasonable jury could conclude that the defence had not proved (on a balance of probabilities) that this abnormality of mind had substantially impaired the appellant’s mental responsibility for his acts in doing the killing of the victim. 7. Grigson J rejected the application and gave a short judgment. He accepted that there was unchallenged medical evidence that the appellant suffered, at the time of the killing, from an abnormality of mind that was induced by disease. Therefore the issue, on the defence of diminished responsibility, was whether the appellant’s “ [mental] responsibility was substantially impaired”. The judge said that was a matter of fact “... and it is always a matter for the jury”. He said that he was not familiar with any authority which says that in the present circumstances “… the judge should effectively withdraw an issue of fact from the jury”. He distinguished the case of R v Bailey (1978) 66 Cr App R 31 , to which Mr Davey had referred. After speeches he summed up to the jury. No complaint is made of the terms of his summing – up, either on the law or the facts. 8. Subsequently, on 27 June 2008, Grigson J was asked by the defence to certify that the case was fit to appeal, pursuant to section 1(2)(b) of the Criminal Appeal Act 1968 . Grigson J did so (noting that the test was only whether the issue was arguable), on the following ground: “In the absence of any challenge to the expert medical evidence that the appellant’s mental responsibility for the killing was (substantially) impaired by his mental illness, should the charge of murder have been withdrawn from the jury?”. 9. Before us, the appellant sought the leave of the full court to argue a second ground of appeal, namely that the jury’s verdict, in so far as it related to the issue of diminished responsibility, was unsupported by the evidence and was therefore unsafe. In his helpful Outline Argument which was submitted to the court before the hearing of the appeal, counsel for the Crown, Mr Richard Mansell QC, submitted that the two grounds raised the same question: viz. was there evidence before the jury on which they could safely reject the defence of diminished responsibility and convict of murder. We accept that the two grounds are different ways of examining the same question. Therefore, at the outset of the hearing of the appeal, we gave leave to Mr Askins, who appeared for the appellant, to argue this second ground as well. 10. At the conclusion of the hearing of the appeal, we asked both counsel to send us confirmation in writing of various references to the summing up on which they wished to rely concerning evidence of witnesses of fact to which the judge had referred. We stated that when we had considered those references we would inform them of whether the appeal was to be allowed or dismissed. (This was necessary because if we allowed the appeal and substituted a verdict of manslaughter by reason of diminished responsibility, arrangements would have to be made to hear Dr Bray on the issue of sentence). We duly received the references. On Friday, 17 July 2009 we announced that the appeal would be dismissed for reasons which we would hand down later. These are our reasons. The Law 11. It was common ground before us that the appeal must be approached on two bases. First, that the Crown had satisfied the jury, to the criminal standard of proof, that the appellant had committed the acts which caused the death of Nazeer Ahmed and that when he did so he intended either to kill him or to do him grievous bodily harm. Secondly, that for the appellant to be able to rely on the defence of diminished responsibility, it was for him to satisfy the jury, on a balance of probabilities, of the matters set out in section 2(1) of the 1957 Act. 12. Section 2(1) of the 1957 Act provides: “2(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes, or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.” 13. In the leading case of R v Byrne [1960] 2 QB 396 , the Court of Criminal Appeal considered the correct interpretation of section 2(1) of the 1957 Act. Two aspects of the reserved judgment of Lord Parker CJ in that case are relevant to the present appeal. First, he gave an explanation of the meaning of the words “ abnormality of mind” in section 2(1) . He said, at page 403, that the phrase “ abnormality of mind” was: “…wide enough to cover the mind’s activities all its aspects, not only the perception of physical acts and matters and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment.” 14. Lord Parker stated, on the same page, that the issue of whether the accused was suffering from any “ abnormality of mind” was a question for the jury. Medical evidence on that question would be of importance, but the jury was entitled to take into consideration all the evidence, “…including acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence if there is other material before them which, in their good judgment, conflicts with it and outweighs it.” 15. However, Lord Parker also stated that the aetiology of the abnormality of the mind would seem to be a matter to be determined on expert evidence. 16. Secondly, he referred to the other key words in section 2(1), viz. “.. substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing”. Lord Parker said (at page 403) that this phrase: “…points to a consideration of the extent to which the accused’s mind is answerable for his physical acts which must include a consideration of the extent of his ability to exercise will power to control his physical acts”. 17. Lord Parker said that the issue of whether the abnormality of mind was such as substantially impaired the mental responsibility of the accused for his acts in doing or being a party to the killing was “… a question of degree and essentially one for the jury.” He continued, at page 404: “Medical evidence is, of course, relevant, but the question involves a decision not merely as to whether there was some impairment of the mental responsibility of the accused for his acts but whether such impairment can properly be called “substantial”, a matter upon which juries may quite legitimately differ from doctors. Furthermore, in a case where the abnormality of mind is one that affects the accused’s self – control the step between “he did not resist his impulse” and “he could not resist his impulse” is, as the evidence of this case shows, one which is incapable of scientific proof. A fortiori there is no scientific measurement of the degree of difficulty which an abnormal person finds in controlling his impulses. These problems which in the present state of medical knowledge are scientifically insoluble, the jury can only approach in a broad, common sense way”. 18. As we understand Lord Parker’s statements on the interpretation of the statutory words that we have quoted, which he reinforced on the same page when dealing with the direction of the trial judge in that case, he focused on two things in particular. (They both assume that it is demonstrated that the defendant suffered from an abnormality of mind induced by one of the causes identified in the sub – section). First, the degree to which the defendant comprehended what physical acts he was doing, or what he was omitting to do in relation to the killing. Secondly, the degree to which the defendant had (at that time) any power to exercise control over his actions or omissions in doing or being a party to the killing. Scientific understanding of how the mind works and the extent to which states of mind and physical responses to them have physical or chemical causes have undoubtedly advanced considerably since Lord Parker made those statements. But we venture to suggest that, even today, it is impossible to provide any accurate scientific measurement of the extent to which a particular person who is suffering from an “abnormality of mind” resulting from one of the causes set out in the parentheses in section 2(1) could understand or control his physical impulses on a particular occasion. In other words, there is no simple scientific test of whether a defendant’s “ mental responsibility for his acts and omissions in doing or being a party to the killing” is “ substantially impaired”. It was not suggested that there was either in evidence at the trial of the present appellant or in argument on this appeal. 19. In Byrne, the court did not elaborate particularly on the interpretation of the word “ substantially” in section 2(1). It was addressed in a number of other cases, but in particular by the Court of Criminal Appeal in R v Lloyd [1967] 1QB 175. Giving the judgment of the court, Edmund Davies J approved the direction of the trial judge, Ashworth J, who had told the jury that 'substantial' did not mean total, ie. the mental responsibility need not be totally impaired, nor did it mean trivial or minimal. It was something in between and Parliament had left it to juries to decide on the evidence, whether the mental responsibility of the defendant was “ substantially impaired ”. 20. We must refer to some other decisions on the relationship between medical and other evidence when the defence of diminished responsibility is raised. In R v Matheson [1958] 1 WLR 474 , three doctors called for the defence at the trial had stated that the defendant was suffering from an abnormality of mind due to arrested or retarded development and that this abnormality of mind substantially impaired the appellant’s mental responsibility for killing a 15 year old boy. The jury convicted of murder. The argument on appeal was that there was no evidence to contradict that of the doctors. The Court of Criminal Appeal allowed the appeal and substituted a verdict of manslaughter by reason of diminished responsibility. Lord Goddard CJ said, at page 478: “While it has often been emphasised and we would repeat that the decision in these cases as in those in which insanity is pleaded, is for the jury and not for doctors, the verdict must be founded on evidence. If there are facts which would entitle a jury to reject or differ from the opinions of the medical men, this court would not, and indeed could not, disturb their verdict, but if the doctors’ evidence is unchallenged and there is no other on this issue, a verdict contrary to their opinion would not be “a true verdict according to the evidence”. 21. In the case of R v Bailey (1978) 66 Cr App R 31 , which was in fact heard by the Court of Criminal Appeal in October 1961, the court followed the decision in Matheson. Mr Askins, for the appellant on the present appeal, relied strongly on this case, as had Mr Davey QC before Grigson J. 22. Mr Mansell, for the Crown, relied on the Privy Council decision of Walton v The Queen [1978] AC 788 . In that case the defendant had shot someone in a car. His defence at the trial in Barbados was diminished responsibility, but the jury found (unanimously) that he was guilty of murder. He was sentenced to death. The Barbadian statute used precisely the same wording as the English Act of 1957. At the trial there had been uncontradicted medical evidence that the defendant suffered from an abnormality of mind which substantially impaired his mental responsibility for his acts. On appeal to the Privy Council, it was argued that this meant that the jury was bound to accept that the defence had been established and that the trial judge should so have directed the jury. 23. The Advice of the Judicial Committee was given by Lord Keith of Kinkel. He referred to the cases of Matheson, Byrne and Bailey. At page 793 F he said: “These cases make it clear that upon an issue of diminished responsibility the jury are entitled and indeed bound to consider not only the medical evidence but the evidence upon the whole facts and circumstances of the case. These include the nature of the killing, the conduct of the defendant before, at the time and after it and any history of mental abnormality. It being recognised that the jury on occasion may properly refuse to accept medical evidence, it follows that they must be entitled to consider the quality and weight of that evidence”. 24. Lord Keith said that, in that case, the jury were entitled to regard the medical evidence as “ not entirely convincing”. Furthermore, it had before it the evidence of the defendant’s conduct before, during and after the killing. He concluded that the jury was entitled to find that the defence of diminished responsibility had not been established, on a balance of probabilities. 25. Mr Mansell also relied on the decision of this court in R v Eifinger [2001] EWCA Crim 1855 . The defendant had killed a publican, for whom he had worked and who was a friend. The defence of diminished responsibility was rejected by the jury and he was convicted of murder. On appeal there was no complaint about the terms of the summing up, but it was argued that the conviction was unsafe. The Court of Appeal noted that the views of the doctors had been based on statements given to them by the defendant alone and so were not entirely independent. It said that the jury had evidence about the circumstances surrounding the killing and the defendant’s actions afterwards which explained its verdict. The appeal was dismissed. 26. We have also examined the more recent decisions of R v Dietschmann [2003] 1 AC 1209 and R v Wood [2009] 1 WLR 496 , which both concerned aspects of the defence of diminished responsibility. They do not, in our view, specifically assist with the issues raised on this appeal. The Evidence at the trial 27. The appellant, who was from Afghanistan, lived at 32 Rupert Street, Keighley with Rizwan Ali, Gulab Khan (who was the appellant’s cousin), the deceased and Ajay Rajput, who was from India and a cricketer. Rizwan Ali, the deceased and Gulab Khan all had keys to the house although there was some dispute as to whether Gulab Khan had both front and back door keys. Rizwan Ali gave evidence that Gulab Khan and the appellant shared a key. He also said that, some weeks before 31 May 2007, the appellant had gone to London in search of work but when he returned he had seemed a little different. 28. Gulab Khan’s evidence was that the appellant had mental health problems and he had been in hospital two or three times when he was young and lived in Afghanistan. He gave evidence that the appellant had said to him, after he had returned from searching for work in London, that the police were after him. The appellant had stopped eating and he had said that someone was “ doing black magic on him”. Gulab Khan said that he had taken the appellant to be blessed by an Imam in the hope it would help his mental health problems. He said that when he left the house for work on the morning of 31 May 2007 he had left one of his two mobile phones in the bedroom he shared with the appellant. He had also left his front door key for the appellant, who had said he was going in search of work that day. The appellant confirmed in his evidence that he had taken Gulab Khan’s mobile phone, together with some of Gulab Khan’s money; although he said that he had not taken Gulab Khan’s key. 29. Ajay Rajput, who said he returned to 32 Rupert Street at about 3.30 to 3.45 pm, went to the front door of the house and opened it with his key. That evidence was confirmed by another witness, who lived across the street, Peter Holdsworth, who said that he saw Ajay Rajput unlock the door. It was Ajay Rajput who discovered Nazeer Ahmed, who had been attacked but was still alive at that point. 30. Another witness, also called Rizwan Ali, described a man, who it was accepted was the appellant, standing by a shop, called Nadeem Foodstore, which was in a nearby street to Rupert Street. He was trying to get a taxi to Cardiff and Rizwan Ali helped him. He also saw the appellant buying a drink in the shop; he failed to take his change. He seemed to be panicky and frightened. The witness asked the appellant if he had relatives in Cardiff and he said he had. Another witness, Azim Nazir, saw the appellant come out of the store and saw him telephoning for a taxi to Cardiff. When a car turned up, the appellant did not have enough money so he offered the driver cash plus a mobile phone. He pleaded with the driver to take him to Cardiff. 31. Mohammed Umar Hussain gave evidence that he turned up at the foodstore in his car with his friend, Mudasser Mahmood. They told the appellant that they were going to Birmingham and he agreed to go there. Umar’s evidence was that the appellant borrowed his (Umar’s) mobile phone in the car and made some calls. Mudasser Mahmood’s evidence was that he had asked the appellant why he wanted to leave and he answered that he had had an argument with a friend. 32. Three witnesses gave evidence that they noticed nothing unusual about the behaviour of the appellant on 31 May 2007. However, others gave evidence of odd behaviour, such as walking up and down at the corner of Rupert Street earlier in the afternoon; his state of extreme agitation at Nadeem Stores and evidence of bizarre behaviour in the car journey (including a request for a chapter of the Koran to be read to him) before it ended at a service station where the appellant was arrested by police. Dr Bray said in his statement that the appellant was unfit to be interviewed at the time of his arrest on 31 May as “ he was found to be bizarre, very suspicious and out of touch with reality”. 33. In his evidence, the appellant described his history of mental illness which had started when he was young and lived in Afghanistan. He had been in hospital three times there. His symptoms included agitated behaviour and headaches. He denied that he felt unwell on the day of the killing. However, he also gave evidence that during the journey to the service station he was suffering from mental illness. He denied he had locked the door on leaving the house at 12 noon. He said that when he saw police in Rupert Street he went to Nadeem stores to buy a drink. He did wish to go to Cardiff but also had a friend in Birmingham. He accepted that, in the car, he borrowed the driver’s mobile phone to make calls to his cousin and his cousin’s friend to tell them he was coming and that they should find him a place to stay. 34. The appellant was cross – examined about violent attacks that he had made on health care workers in the hospital where he had been detained after his arrest. He was ambivalent about what he could remember, but also said that he had no control over this. This evidence had been introduced by the Crown to demonstrate that the appellant was prone to attacking people, even if he had no motive to do so. The Crown appreciated that the introduction of this evidence might assist the jury to conclude that the appellant was suffering from diminished responsibility at the time of the attack, if the jury concluded that the appellant had, indeed, attacked Nazeer Ahmed. 35. We have already noted that the medical evidence for the Crown was a statement from Dr Bray. He said that the paranoid schizophrenia from which the appellant was suffering was: “ characterised by the false belief that [the appellant] is being controlled by magic and hearing the voices of ghosts talking to him and his false beliefs that he is being killed by poisoning from food. His condition is responding to medication”. 36. The judge summarised the evidence of Dr Harrop, including that which we have already referred to above. He continued, at page 58 of the summing up: “She confirmed that a person suffering from this mental illness can commit acts of unprovoked violence. Such a person would have little or no control over their actions; no obvious or reasonable explanation for their actions. “One cannot tell” she said “what the patient is experiencing. He may be hearing voices.” The Ruling of the judge at the close of the evidence 37. In his short ruling on 20 May 2008, the judge stated that if the jury was satisfied that the appellant was responsible for the injuries that led to the death of Nazeer Ahmed and that the appellant intended to kill or cause grievous bodily harm, it must convict unless convinced by the defence, on a balance of probability that he not only suffered from abnormality of mind induced by disease, but also that his responsibility was substantially impaired. He said that the cases demonstrated that the issue of whether a defendant’s mental responsibility for his actions was substantially impaired was a matter for the jury. He also stated the reverse proposition, ie. that there was no authority which stated that in a case where a defendant put forward a defence of diminished responsibility and argued that no jury properly directed could, on the evidence, convict of murder, a judge should withdraw the count of murder from the jury at the close of the evidence. He therefore ruled that he should not withdraw the charge of murder from the jury. The arguments on appeal 38. Mr Askins founded his argument on two elements. First, the fact that it was accepted by the prosecution at the trial that the appellant was suffering from an abnormality of mind which arose from disease, viz. schizophrenia or schizo – affective disorder. Secondly, the uncontradicted evidence of Dr Harrop that the appellant’s mental condition of schizophrenia or schizo-affective disorder “would” substantially affect his mental responsibility for his actions. (Mr Askins submitted that the witness’ use of the conditional reflected the fact that the appellant denied killing the deceased). Mr Askins argued that the general proposition established by R v Galbraith [1981] 1WLR 1039 applied equally to the situation in this case. He argued that there was no difference in principle between a trial judge ruling that the prosecution case contained such weaknesses that no jury, properly directed could safely convict and a trial judge ruling that the evidence called by the prosecution could not justify the rejection of uncontradicted expert medical evidence called by the defence which showed that the mental responsibility of the appellant was, at the time of the actions which casued the death of the victim, substantially impaired. He submitted that R v Brown (Davina) [2002] 1 Cr App R 5 confirmed that a trial judge is entitled to intervene, even at the end of a defence case, to withdraw a case from the jury where he concludes that no reasonable jury, properly directed, could safely convict the defendant of the charge before them. In that case Longmore LJ reviewed the authorities and held that this power did exist, although it would doubtless be “ very sparingly exercised”. 39. On his second ground, Mr Askins submitted that if it was concluded that the judge had no power to withdraw the case from the jury, then the verdict in this case was unsafe. He argued that the evidence adduced by the Crown could not possibly outweigh the evidence of Dr Harrop. 40. Mr Mansell accepted that the authorities established the general proposition that where the medical evidence on diminished responsibility was all in favour and there is no other evidence on which a jury could reasonably conclude that the defendant had failed to establish the defence of diminished responsibility, a conviction for murder must be regarded as unsafe. However, he emphasised that the authorities also demonstrate that the jury is entitled to consider the quality and weight of the medical evidence and also all the evidence on the facts and circumstances of the case. He submitted that Dr Harrop’s evidence that the appellant’s abnormality of mind “ would” substantially diminish his mental responsibility for the killing was necessarily conditional, given the appellant’s primary defence of alibi and the fact that Dr Harrop was not asked to comment on other evidence, from the defendant and other witnesses, as to his physical and mental state during the day of the killing. On the evidence of both the appellant and other witnesses, there was ample material for a jury to conclude that the appellant had not proved, on a balance of probabilities, that his mental responsibility for killing Nazeer Ahmed was substantially impaired. Therefore, the judge was correct not to withdraw the murder charge from the jury and the verdict was safe. Analysis and Conclusions 41. Ground One. The judge was correct to approach the application to withdraw the murder charge from the jury on the premise that the jury would be satisfied that the appellant had caused the injuries that led to Nazeer Ahmed’s death and that the appellant intended to kill or to cause grievous bodily harm. As Lord Tucker stated in the Advice of the Privy Council in Elvan Rose v The Queen [1961] AC 496 at 508: “ A man may know what he is doing and intend to do it and yet suffer from such abnormality of mind as substantially impairs his mental responsibility”. The jury then had to deal with the issue of the defence of diminished responsibility. It had to be satisfied by the defence that the diminished responsibility has been proved on a balance of probabilities. 42. We would be prepared to accept that there may be very exceptional cases where the defence of diminished responsibility is raised by the defence but contested by the Crown in which a judge would be entitled to withdraw the charge of murder from the jury at the close of the evidence. It seems to us that, on the authorities to which we have referred, there is no legal principle that would prevent a judge from taking such a course if the proper criteria could be met. However, whilst that course is theoretically possible, we think that it would only be in very rare cases that the proper criteria would be satisfied. A trial judge would have to be satisfied that the evidence, both medical and factual, was such that no reasonable jury, properly directed, could conclude that the defendant had failed to prove, on a balance of probabilities, that (i) the defendant suffered from an abnormality of mind which arose from one of the causes set out in section 2(1) of the 1957 Act, and (ii) that this abnormality of mind substantially impaired the defendant’s mental responsibility for his acts (or omissions) in doing, (or being a party to) the killing. In a case where the defence of diminished responsibility was being advanced by a defendant and was being actively challenged by the Crown, it seems to us highly unlikely that a trial judge could reasonably reach such a conclusion. 43. In the present case we are quite satisfied that the judge ruled correctly that the question of whether the appellant had proved, on a balance of probabilities, the defence of diminished responsibility, should be left to the jury. There were serious issues of fact for the jury to consider, which we will set out in discussing the second ground of appeal. 44. We dismiss the first ground. 45. Second Ground. There was uncontradicted evidence that the appellant was suffering from an abnormality of mind induced by disease. The issue for the jury on diminished responsibility was whether the appellant’s mental responsibility was substantially impaired by that abnormality of mind for his acts which led to the killing of the victim. It is clear from the decisions that we have cited above that when a jury has to consider this latter question it must weigh all the relevant evidence, medical and factual. Whilst there was clear evidence from Dr Harrop that the appellant’s abnormality of mind “ would” substantially impair his mental responsibility, that is as far as she could reasonably go, because of the appellant’s case that he did not attack Nazeer Ahmed at all. 46. Once the jury had concluded that the appellant had attacked Nazeer Ahmed with the relevant intent, then, given that it was accepted he had an abnormality of mind induced by disease, the jury had to look at all the evidence to decide whether the mental responsibility of the appellant was substantially impaired in his doing the acts which led to the victim’s death. It had to weigh up the evidence to decide on the extent to which the appellant comprehended the physical acts he did and the degree to which he had the power to exercise control over his physical acts. 47. We accept that there was evidence, apart from that of Dr Harrop, that the appellant was in a schizophrenic state at the time he attacked the victim. There was the evidence of the appellant’s history of mental illness and his belief that someone was working black magic on him for some weeks before the 31 May 2007. There was evidence from witnesses that he had walked up and down Rupert Street before the killing; that he was in a state of extreme agitation at Nadeem Stores; that his behaviour in the car became increasingly bizarre. There was also his own account to the police in interview that on the day of the killing he was not well and felt dizzy. Dr Bray said that the appellant was unfit to be interviewed on arrest because he was bizarre, very suspicious and out of touch with reality. The appellant gave evidence that he was suffering from mental illness during the car journey. 48. However, against that evidence the jury had to weigh much other evidence which suggested that, to a greater or lesser extent, the appellant comprehended what physical acts he was doing in attacking the victim and that he had the power to exercise control over his actions. There was the evidence that showed that he had locked the front door after the attack; that he sought out a lift to Cardiff and was prepared to go to Birmingham to get away; that he made calls to relatives in Cardiff to warn them of his arrival; that he said that he was leaving Keighley because he had had an argument with a friend. The appellant also gave evidence at the trial denying that he felt unwell on the day of the killing. 49. The jury had to decide whether the appellant’s mental responsibility for his acts was substantially impaired by considering all this evidence in a “broad, common sense way”. The jury had to examine both “ the medical evidence and the evidence on the whole facts and circumstances of the case ”: Walton v The Queen (supra). It took 5 hours and 16 minutes in doing so. In our view there was ample evidence on which the jury could conclude that it was not satisfied, on a balance of probabilities, that the abnormality of the mind of the appellant substantially impaired the mental responsibility of the appellant in doing the acts which it found he did. Its verdict is safe. 50. Therefore, we must reject the second ground. The appeal is, accordingly, dismissed.

```yaml citation: '[2009] EWCA Crim 1569' date: '2009-07-27' judges: - LORD JUSTICE AIKENS ```

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 1049 Case No: 2015 05064 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Liverpool Crown Court His Honour Judge Hatton Royal Courts of Justice Strand, London, WC2A 2LL Date: 28/7/2016 Before : LORD JUSTICE SIMON MR JUSTICE HADDON-CAVE and HH JUDGE ZEIDMAN QC - - - - - - - - - - - - - - - - - - - - - Between: The Queen Appellant and Keith Anthony Palmer Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Kennedy Talbot QC and Ms Charlotte Kenny for the Appellant Mr Oliver Cook for the Respondent Hearing date: 7 July 2016 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Simon 1. This is an appeal by the prosecution from the ruling of HHJ Hatton, sitting at the Crown Court at Liverpool and made on 10 October 2015, refusing to make a confiscation order against the respondent, Keith Palmer. 2. On 25 June 2014, the respondent had been convicted by the Liverpool and Knowsley Magistrates Court of an offence of engaging in licensable conduct otherwise than in accordance with a licence. 3. The particulars of the charge identified the conduct as the operation of a security business, Lock Up Security Ltd, other than in accordance with a licence issued under the Private Security Industry Act 2001 (‘PSIA’), contrary to s.3(1) and (6). 4. Following his conviction he was committed to the Crown Court for sentence and for consideration to be given to the making of a confiscation order. 5. On 6 October 2014, Judge Hatton sentenced the respondent to a term of 3 months imprisonment, suspended for 12 months, with a requirement to carry out 100 hours of unpaid work. 6. The prosecution appeal is brought under section 31(2) Proceeds of Crime Act (‘POCA’) 2002. This provision empowers this court either to confirm the decision of the Crown Court or, if it finds the decision to be wrong, either itself to proceed under section 6 of the POCA or direct the Crown Court to proceed afresh, see section 32(2). 7. Section 3 of the PSIA provides: 3. Conduct prohibited without a licence (1) Subject to the following provisions of this Act, it shall be an offence for a person to engage in licensable conduct except under and in accordance with a licence. (2) For the purpose of this Act a person engages in licensable conduct if – (a) he carries out any designated activities for the purpose of, or in connection with, any contract for the supply of services … … (3) In this Act ‘designated activities’ means such of the activities of a security operative as are for the time being designated for the purposes of this section by an order made by the Secretary of State … … (6) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both. 8. In his ruling, the judge recorded that the respondent had been convicted of an offence contrary to section 3(1) of the PSIA, which involved him trading between 25 March 2010 and 27 March 2012 as the sole principal of Lock Up Security Ltd. He required a licence for some of the activities which he had undertaken and did not hold such a licence. He identified the offence as one of strict liability. He rejected the respondent’s argument that it would be an abuse of the process of the court to make such an order; however he identified another issue which arose from the decision of this court in McDowell and Singh [2015] EWCA Crim 173 , [2015] 2 Crim App R (S) 14, where the confiscation order of Singh was quashed on the basis that the criminal conduct was the failure to obtain a licence. In circumstances where his trading receipts were obtained as a result of trading activity as a scrap metal dealer that was lawful in itself, the court quashed a confiscation order based on his receipts. In the judge’s view, there was no basis for differentiating between the trading of Singh and the respondent. The respondent’s trading activity was not criminal conduct from which benefit accrued. 9. Mr Talbot QC, for the prosecution, submitted that the judge was wrong to hold that McDowell and Singh precluded the making of a confiscation order against the respondent. He argued that the case of Singh was different and distinguishable. In the present case, the respondent had been convicted of an offence contrary to section 3(1) of the PSIA. That was a provision which plainly criminalised engagement in licensable conduct and not simply the failure to obtain a licence. In contrast, Singh had been prosecuted under the Scrap Metal Dealers Act 1964; and, as explained at [58] of the judgment in that case, the relevant provision of the 1964 Act did not create or define a prohibited activity for which authorisation might be obtained upon application. Additionally, unlike the position of Singh , where registration or licensing was automatic, in the present case the licensing authority had to apply a fit and proper person test before issuing a licence. 10. He submitted that the present case was analogous with McDowell , who had been convicted of an offence contrary to the Trade in Goods (Control) Order 2003, which made it an offence to engage, without a licence, in conduct prohibited by article 4 of the 2003 Order: being knowingly concerned in the supply, delivery, transfer, acquisition or disposal of controlled goods (arms). The court held that the underlying transactions were, on analysis, prohibited and unlawful. As such, the income from such transactions were caught by POCA. 11. For the respondent, Mr Cook submitted that the judge was fully entitled to refuse a confiscation order under section 6 of POCA, the respondent’s criminal conduct was sufficiently close to the conduct in Singh to justify his conclusion. The ‘suitable persons’ test under the Scrap Metal Dealers Act 1964 was similar and analogous to the fit and proper person test under the PSIA. 12. In our view, the starting point of any analysis is the interpretation provision in section 76 of POCA: Conduct and Benefit (1) Criminal conduct is conduct which- (a) constitutes an offence in England and Wales, or (b) would constitute an offence if it occurred in England and Wales. … (4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct … 13. The issue in this type of case is whether the conduct in question, from which a benefit is derived, is ‘criminal conduct’ within the meaning of POCA. 14. In McDowell and Singh (above) Pitchford LJ, giving the judgment of the court, carried out a thorough analysis of the facts and the law; and it is convenient to identify some of the points raised by that case. 15. First, the argument of McDowell was that his criminal conduct comprised trading while unlicensed, and in Singh that his criminal conduct comprised trading while unregistered. Each claimed that his ‘benefit’ was acquired from lawful (albeit unlicensed or unregistered) trading not from criminal conduct (see [2(ii)] and [3(1)]) 16. Secondly, the court considered two authorities, del Basso [2010] EWCA Crim 1119 , [2011] Cr App R (S) 41 and Sumal and Sons (Properties) Limited v. London Borough of Newham [2012] EWCA Crim 1840 , [2013] 1 WLR 2078 ; and summarised its view at [34]: In our judgment these decisions of the court further demonstrate the importance of identifying the criminal conduct of the offender at the first stage of the assessment. It is not sufficient to treat 'regulatory' offences as creating a single category of offence to which POCA is uniformly applied. We respectfully agree with the conclusion of the court in Sumal that the question whether benefit has been obtained from criminal conduct must first depend upon an analysis of the terms of the statute that creates the offence and, by that means, upon an identification of the criminal conduct admitted or proved. It may be that, as in Sumal , the wider statutory context of the offence will assist to answer the critical question: what is the conduct made criminal by the statute – is it the activity itself or is it the failure to register, or obtain a licence for, the activity? In our judgment, there is a narrow but critical distinction to be made between an offence that prohibits and makes criminal the very activity admitted by the offender or proved against him (as in del Basso ) and an offence comprised in the failure to obtain a licence to carry out an activity otherwise lawful (as in Sumal ). 17. On this basis, the relevant question will be whether section 3(1) of the PSIA created an offence that prohibited and made criminal the activity proved against the respondent (as in de Basso ), or an offence that comprised the failure to obtain a licence to carry out an activity otherwise lawful (as in Sumal ). This was described in McDowell and Singh as the ‘narrow but critical distinction’. 18. Thirdly, the question where benefit has been obtained from criminal conduct must first depend on the proper interpretation of the statute which creates the offence, and by that means identify the criminal conduct which has been proved or admitted. 19. Fourthly, for this reason it will not necessarily be helpful to look at other statutes and other factual circumstances in order to answer, by analogy, the question that arises in any particular case. It is the wording of the statute in question that matters. 20. We turn then to the statutory provisions which apply in the present case: the PSIA, some of whose terms we have set out above. The preamble describes it as ‘an Act to make provision for the regulation of the private security industry’. Section 1 establishes a regulatory authority (the Security Industry Authority) (‘the Authority’). Section 3 and subsection (1) sets out conduct which is prohibited and criminal ‘except under and in accordance with a licence’. The designated activity, as defined in section 3(3) was manned-guarding, which was designated as such by the Private Security Industry Act 2001 (Designated Activities) Order 2006 [SI 2006/426]. Section 7 requires the publication of ‘Licensing Criteria’ by the Authority; and section 7(3) specifies that the applicable criteria, (a) shall include such criteria as the Authority considers appropriate for securing that the persons who engage in licensable conduct are fit and proper persons to engage in such conduct. 21. Section 8 is a provision which deals with the grant of licences to engage in licensable conduct. Section 8(3) contains the Authority’s power to refuse to grant a licence, section 8(6) the power to impose conditions and section 8(7) its power to charge a fee for the grant of a licence. 22. In our view the statutory intent is clear: engagement in licensable conduct is an essential element of the offence under section 3(1). The section criminalises engagement in this conduct and not a failure to obtain a licence. 23. Furthermore, we see no reason in principle why it should make a difference whether an activity is unlawful by reason of a statutory prohibition except in a case of persons who have been granted a licence (on the one hand), or whether an activity which is otherwise lawful is prohibited by statute unless one has a licence (on the other). The result is the same: the activity is prohibited and the conduct is therefore ‘criminal conduct.’ 24. In the present case section 3(1) makes clear that ‘it shall be an offence for a person to engage in any licensable conduct’, with an exception where it is engaged in accordance with a licence. It follows that the engaging in licensable conduct (manned-guarding) without a licence amounted to criminal conduct, within the meaning of section 340(2) of POCA. 25. Although (for the reasons we have given) we do not think it will be helpful to look at other statutory provisions and what may appear to be factually analogous situations, it is right that we address briefly the judge’s view that the conduct in the present case was ‘akin’ to the conduct of Singh in McDowell and Singh . 26. The case of McDowell concerned arms dealing. Arms dealing is, by statute, prohibited conduct. Article 4(2) of the Trade in Goods (Control) Order 2003 [S1.2765/2003] prohibits the export of ‘controlled goods’ such as aircraft, accessories and ammunition without a licence. Article 4(8), however, provides an exception in that the Secretary of State may grant a licence ‘authorising any act otherwise prohibited under this Order’ (emphasis added). Thus, the 2003 Order makes it a criminal offence for anyone to engage in arms dealing without a licence. McDowell did not have a requisite licence and therefore his conduct in dealing in these controlled goods was consequently unlawful. 27. The Singh case concerned scrap metal dealing. Scrap metal dealing is not prohibited conduct . Section 1 of the Scrap Metal Dealers Act 1964 (‘SMDA 1964’) did not make scrap metal dealing an offence in itself. However, section 1(1) provided that ‘no person shall carry on business as a scrap metal dealer… unless [their particulars] are for the time being entered on the register …’ (emphasis added). Section 1(7) made it an offence for a person to carry on business as a scrap metal dealer without being registered, since it provided: (7) Any person who carries on business as a scrap metal dealer in contravention of subsection (1) of this section, or who fails to comply with the requirements of subsection (5) shall be guilty of an offence … (emphasis added). 28. On this basis Mr Talbot submitted that the words of section 1(7) of the SMDA 1964 made clear that it was not the failure to register which was the criminal offence or activity, but the carrying on of business as a scrap metal dealer without registering. The conduct of carrying on business as a scrap metal dealer without being registered constituted an offence. The court concluded that the failure to register provision in section 1(5) of the SMDA 1964 was an ‘alternative means’ of committing the offence under section 1(7) of ‘carrying on business’ illegally, whereas in fact section 1(5) created a separate offence of failing to notify a change of circumstance. In any event, the provisions of section 1(5) could not affect the clear words of the first part of section 1(7). 29. To the extent that he was inviting us to decide that the case of Singh was wrongly decided, we must decline his invitation. The SMDA 1964 has now been replaced by the Scrap Metal Dealers Act 2013 so the particular case of Singh is of historical interest only. The present case is, however, an illustration of the dangers of an approach by reference to analogy rather than the analysis set out in [34] of McDowell and Singh . 30. For present purposes, it is sufficient for us to restate our clear view that section 3(1) of the PSIA created and defined a prohibited act and criminalised the activity of engagement in licensable conduct, not simply failing to obtain a licence. 31. For these reasons we allow the appeal and remit the matter to the Crown Court to proceed afresh with the Prosecution application.

```yaml citation: '[2016] EWCA Crim 1049' date: '2016-07-07' judges: - LORD 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} ======

Neutral Citation Number: [2007] EWCA Crim 2290 Case Numbers: 2007/01764/B5 (1) and 2007/01455/A7(2) IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CENTRAL CRIMINAL COURT (1) ON APPEAL FROM NEWCASTLE CROWN COURT (2) Royal Courts of Justice Strand, London, WC2A 2LL Date: 22/10/2007 Before : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION MR JUSTICE PITCHERS and SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - Between : R -v- P (1) R -v- Blackburn (2) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Andrew Mooney (Solicitor Advocate) (instructed by Law Mooney Lee & Cook ) for the appellant ‘P’ Mr Jonathan Rees (instructed by CPS) for the Crown (1) Mr Christopher Knox ( instructed by Graeme Cook) for Blackburn Mr Toby Hedworth QC (instructed by CPS) for the Crown (2) Hearing dates: 17 th July 2007 and 10 th October 2007 - - - - - - - - - - - - - - - - - - - - - Judgment President of the Queen's Bench Division: 1. This is the first occasion when this court is required to address sections 71 -75 of the Serious Organised Crime and Police Act 2005 (SOCPA). These provisions, which came into force on 1 April 2006, created a statutory framework which formalised and developed well established common law principles, formerly embraced in the well understood phrase – “Queen’s Evidence”. R v P – The Facts 2. P was arrested in 2004 for offences arising from the importation of controlled drugs and remanded in custody. While awaiting trial, he instructed his solicitor to contact police officers investigating the murder of X, which occurred some years earlier. As a result, in early 2005, a meeting was arranged between the applicant and a senior investigating police officer. During the course of the meeting P provided information relating to the murder. He also provided information about the unrelated criminal activity of a major drug dealer. 3. In due course P pleaded guilty to conspiracy to supply a controlled drug of class C (cannabis resin). In July 2005 in the Central Criminal Court, he was convicted of two further conspiracies relating to the supply of class A drugs (crack cocaine). These convictions arose from his original arrest. 4. Shortly before the sentencing hearing, a “text” was prepared on P’s behalf which informed the judge of the information which P had provided in the course of the meeting in early 2005. The text stated that no police operation had been instigated as a result of the information provided by P, and he had not placed himself at any exceptional risk in supplying the intelligence. There was nothing to indicate that he would be willing to assist the police in the future. 5. In the light of all the information available to the judge, total sentences of 17 years imprisonment were imposed. 6. Thereafter two separate processes were under way. P appealed against sentence and he also contacted the police again. He provided information relating to a current murder investigation. At a subsequent meeting he agreed to give evidence against those persons alleged by him to be responsible for the murder of X, as well as detailing the criminal offences which he had personally committed. The effect of these conversations were incorporated in a further “text” prepared by a senior police officer for the purposes of P’s appeal against sentence. In February 2006 this court reduced the total sentence from 17 to 15 years imprisonment. Subsequently a confiscation order was made under the Proceeds of Crime Act for fractionally under £1 million. 7. The next chapter in this case begins with the coming into force of SOCPA 2005 on 1 April 2006. Following the earlier discussions, P entered into a written agreement with a prosecutor specified for the purposes of section 71 of SOCPA 2005 . The agreement is signed by the specified prosecutor, and P himself, in the presence of his solicitor. It may be valuable to set out its terms, so that a typical example will be publicly available. Save only for redactions to avoid possible identification, the agreement is provided in full. “1. The parties to this agreement are: • P c/o Z, Solicitors, and • Y, a Crown Prosecutor and a specified prosecutor under section 71(4) and 73(10) of the Serious and Organised Crime and Police Act 2005 . 2. It is hereby agreed that P will assist the investigator and/or prosecutor in relation to the investigation being conducted by the Metropolitan Police into the murder of X and associated offences. 3. Assistance under the terms of this agreement will include the following: (a) P will participate in a debriefing process. He undertakes during the process, which will be tape recorded and conducted following a caution, fully to admit his own involvement in any crimes. (b) P will plead guilty to and/or ask to have taken into consideration such of the offences he has admitted as agreed with/stipulated by the prosecutor; a schedule of offences admitted by P is attached to this agreement at Annex ‘A’. (c) P must provide the investigator with all facts, statements, documents, evidence or any other information available to him relating to the said investigation and offences, and the existence and activities of all others involved. (d) P shall maintain continuous and complete co-operation throughout the investigation of the said offences and until the conclusion of any court proceedings arising as a result of the investigation. Such co-operation includes but is not limited to P (i) Voluntarily and without prompting, providing the investigators with all information that becomes known to him or available to him relating to the said offences, in addition to any such information already provided; (ii) Providing promptly, and without the prosecutor using powers under any section of the Act , all information available to him wherever located, requested by the investigator in relation to the said offences, to the extent that it has not already been provided; (iii) Complying with any agreement with, or instructions from, the Witness Protection Unit or other agency (including the Probation Service in relation to release on licence) as to his residence and travel arrangements (to include foreign travel and/or possession of travel documents) after his release from custody; (e) P will attend court as required by the prosecutor and give truthful evidence in any court proceedings whatsoever arising from the investigation and the said offences, clarification of which has already been given to his solicitors and agreed by him. 4. Y will ensure that full details of the assistance provided by P under the terms of this agreement are placed before any court before which P appears for sentencing; a copy of the above details will be made available for prior examination by his solicitors. 5. Y will also ensure that, in relation to the term of imprisonment currently being served by P, full details of the assistance provided by P under the terms of this agreement are placed before the Crown Court in accordance with the provisions of Section 74 Serious Organised Crime and Police Act 2005 ; a copy of the above details will be made available for prior examination by his solicitors. 6. Nothing in this agreement will affect the liability of P for any confiscation order made under the provisions of the Proceeds of Crime Act 2002 (or similar legislation). 7. Failure to comply with the terms of this agreement may result in any sentence of the court that P may receive • In relation to the offences admitted under this agreement or • In consequence of any referral to the Crown Court under paragraph 5 above, being referred back to the court for review pursuant to section 74 of the Act .” 8. P was removed from the prison where he was serving his sentence. He was relocated at a secure unit. The debriefing process began in May 2006 and concluded at the end of the year. A number of interviews under caution took place. They resulted in the production of four witness statements signed by P. They described (a) his own criminal activities, (b) the murder of X, (c) the alleged commission of a serious drugs offence and (d) his comments on transcripts of covert tape recordings of conversations between himself and others which had taken place during 2004, and formed part of the evidence against him at his 2005 trial. 9. As a result of his own admissions during the debriefing sessions, P was then charged in a further separate indictment with a number of offences. He appeared at the Central Criminal Court on 9 March 2007. He pleaded guilty to an indictment containing 13 counts of criminal activities in connection with the supply of drugs, largely class B (cannabis) but also one count of being concerned in the supply of class A drugs (cocaine) and another for allowing premises to be used for the purposes of such supply. These offences went back to February 1983 and varied in their seriousness, but taken together undoubtedly constituted serious criminality. Nine further offences were admitted and taken into consideration. The TICs include an incident of theft of a motor car which took place between 1970 and 1974 and theft of a plant during 1991. Although there are some serious offences in the list of TICs, the major criminal activity was encompassed in the counts in the indictment. The minor, virtually historic offences of theft, provides an indication that P was expected to and did admit such criminal activity that he could remember. The second matter before the Judge was a reference back under section 74(3) of SOCPA by the specified prosecutor for a review of the sentence of 15 years imprisonment, as substituted by the Court of Appeal for the original sentence. 10. The judge was supplied with witness statements which set out the nature and extent of the assistance provided by P in accordance with his written agreement. As a result P placed not only himself personally, but his family at considerable risk. He will need the support of the Police Witness Protection Unit for the rest of his life. In summary P had i) Given extensive information about his own criminal activities and the criminal activities of his associates. The extent of his own criminal activities would “never had been realised without his making a full and frank admission”. Checks of the information he had given about others had largely been substantiated, and none had been undermined. ii) In relation to the inquiry into X’s murder P identified two suspects and provided further details about the circumstances. This information led to a reopening of an old investigation and this had revealed further information, as well as the uncovering of criminal offences committed by those allegedly concerned in the murder. P agreed to give evidence at any subsequent trial. It was said that the investigation into the murder would not have reached “such an advanced stage” without the information from P. iii) Quite apart from the murder of X, P provided further information about the criminal activities of others, in respect of an alleged conspiracy to murder. The information enabled the police to ensure the safety of the intended victim. P agreed to give evidence if required to do so. 11. Faced with this information, the Judge imposed concurrent sentences of 4 years imprisonment on each count of the 13 count indictment. He reviewed the sentence of 15 years imprisonment, and substituted a sentence of 5 years imprisonment. In accordance with the written agreement, the confiscation order was unaffected. Both groups of sentences were to run concurrently, but as P had not been on remand for the matters dealt with on the indictment, the 4 year sentence started on the day it was imposed. P had, in the meantime, been serving the 5 year sentence. In the result the date of P’s eventual release will be determined not by the reduced sentence imposed on the review, but by the sentence following his recent guilty plea to the indictment. 12. P’s application for leave to appeal against both sentences was referred to the full court by the Registrar. In view of the issues of principle which arose leave was granted, and we proceeded to decide the appeal. Blackburn – The Facts 13. On 9 March 2007, having pleaded guilty, and entered into a written agreement with a specified prosecutor pursuant to section 73 of SOCPA, Blackburn appeared in the Crown Court at Newcastle before Simon J and was sentenced to a total of 4 years imprisonment, less 162 days spent on remand. He was sentenced to 30 months imprisonment for assisting an offender and 18 months imprisonment, to run consecutively, for conspiracy to supply controlled drugs. 14. He sought leave to appeal against sentence. This was referred to the full court by the Registrar. In view of the issues which required to be examined, leave to appeal was granted. 15. This case concerns the execution by shooting on 24 May 2006 of David Rice. On that date Mr Rice was parked in a car park in South Shields. He was in the driver’s seat of his car, waiting the arrival of a man called Steven Bevens. He was also in possession of a large quantity of cash. A black car pulled up next to him. It contained two front seat occupants, both wearing balaclavas. The passenger shot Rice a number of times with a semi-automatic handgun, fitted with a silencer. Already badly injured, Rice tried to escape, scrambling across to the passenger side of his car, and out of the door. The gunman left his car, walked to the back of Rice’s car, and cold bloodedly shot him again, and then once again, at point blank range, shot him through the head to make sure he was dead. The car drove away, and after a short distance, the two men abandoned it, setting it on fire to destroy the evidence. They transferred to an orange van, with Blackburn as the waiting driver. 16. Both Rice and Bevens worked for a man called Foster. The Crown’s case is that Foster was the gunman and Bevens the driver of the car which pulled up beside Rice’s car. Foster and Bevens met in prison while serving sentences for conspiracy to supply drugs, and they subsequently worked together importing and distributing drugs. Rice’s role involved collecting drugs from Foster, or his partner, and fetching and carrying money. Foster started to distance himself from Rice because he, Foster, believed that Rice told his partner that Foster was involved with another woman. 17. On the morning of 23 May Bevens was twice in contact with Rice. Foster returned to the United Kingdom from Majorca using a false passport early in the morning of 24 May. On the afternoon of the shooting Rice asked a friend to help him count £6000 in cash, and said he was meeting Stevie. Bevens telephone Rice at 3.43. At 3.50 Rice called his friend and asked him to bring the money to him. Thereafter Rice drove to the car park where he was shot dead. £6000 in cash he had taken to the meeting place, together with an additional £2000 in cash was later found in his car. 18. Blackburn’s involvement in the case arose because the police knew that he possessed an orange van of the type used as the getaway vehicle. Initially he claimed to have sold it and denied any knowledge of the killing. He was arrested on 3 August. In interview he admitted that he knew Foster and Bevens, having met them in prison. He explained his involvement with Foster in connection with Foster’s drug activities. He also explained that on 24 May, he was contacted by Foster and told to go to an address in Doncaster to collect £2000 which Foster owed him. When he arrived Foster was there with Bevens. Foster said that he needed the orange van to shift some gear in the North East. He was offered £100 to drive it. He agreed. He travelled to Sunderland where he met Foster and Bevens. They told him to wait while they went to collect the gear they needed. About half an hour later two masked men ran to the van. He recognised their voices. They were Bevens and Foster. Foster was carrying a handgun, and shouted “drive drive drive” which he did. In the car he heard Bevens discussing the wounds Rice had received as a result of the shooting. When he stopped at a service station, Foster removed his telephones, broke them and threw them out of the window. With Blackburn’s assistance, they were later recovered by the police. Blackburn heard further discussion between Foster and Bevens about the shooting. He asked Foster why someone had been shot, but the only response he received was “who dares wins”. Bevens carried two bags which contained clothing, as well as the gun. 19. A few days later, while Blackburn and his girlfriend were abroad, he was contacted by Foster who told him to return home. Foster had arranged for some of his associates to collect Blackburn’s van. In due course Blackburn took the van to an industrial estate near Grimsby. Two men took it away. 20. On 28 September 2006 the appellant entered into the SOCPA agreement. On 10 October 2006 he pleaded guilty on the following basis, accepted by the Crown. As to the murder offence, he had no prior knowledge of any offence of violence, much less a murder by shooting. On being told to drive off he realised that a shooting had taken place, but was unaware it was fatal until later. He facilitated the disposal of telephones, which he later helped the police to recover. The payment he received was, as he described in his police interviews, very modest. As to the drug conspiracy, he accepted taking cash to Amsterdam on Foster’s behalf, and collecting two large holdalls containing cannabis which he delivered to a trawler skipper. 21. On 27 and 29 October 2006 Blackburn provided a witness statement describing his knowledge of the circumstances surrounding the death of Mr Rice. Thereafter he was called by the prosecution and gave evidence at Bevens’ trial for murder. After he had been cross-examined for about an hour, Bevens changed his plea to guilty. Blackburn’s evidence was critical to Bevens’ conviction. Indeed without it the charge against Bevens would have been discontinued. Simon J concluded that Blackburn had given truthful evidence. The assistance given to the prosecution in connection with the murder of David Rice speaks for itself, but, in addition to the evidence at trial, Blackburn’s witness statement enabled the prosecution to obtain a European Arrest Warrant in respect of Foster. In relation to the drug related conspiracy, the judge believed that Blackburn’s role was that of a trusted courier in a well resourced conspiracy in relation to cannabis. The significant mitigation was that the information about it came entirely from himself, in fulfilment of his agreement to assist the prosecution. The Common Law 22. There never has been, and never will be, much enthusiasm about a process by which criminals receive lower sentences than they otherwise deserve because they have informed on or given evidence against those who participated in the same or linked crimes, or in relation to crimes in which they had no personal involvement, but about which they have provided useful information to the investigating authorities. However, like the process which provides for a reduced sentence following a guilty plea, this is a longstanding and entirely pragmatic convention. The stark reality is that without it major criminals who should be convicted and sentenced for offences of the utmost seriousness might, and in many cases, certainly would escape justice. Moreover the very existence of this process, and the risk that an individual for his own selfish motives may provide incriminating evidence, provides something of a check against the belief, deliberately fostered to increase their power, that gangs of criminals, and in particular the leaders of such gangs, are untouchable and beyond the reach of justice. The greatest disincentive to the provision of assistance to the authorities is an understandable fear of consequent reprisals. Those who do assist the prosecution are liable to violent ill-treatment by fellow prisoners generally, but quite apart from the inevitable pressures on them while they are serving their sentences, the stark reality is that those who betray major criminals face torture and execution. The solitary incentive to encourage co-operation is provided by a reduced sentence, and the common law, and now statute, have accepted that this is a price worth paying to achieve the overwhelming and recurring public interest that major criminals, in particular, should be caught and prosecuted to conviction. The Statutory Framework 23. Section 71 of SOCPA addresses possible immunity from prosecution of an offender who provides assistance in the investigation or prosecution of an offence. Features of critical importance, echoed later in the legislation are, first, that the process requires the involvement of prosecutors specified and identified in the legislation, and, second, that an individual who is given an immunity notice will be deprived of its benefits unless he complies with its conditions. However, as we are not here addressing immunity from prosecution, section 71 does not arise for further analysis in this judgment. Much the same applies to the provisions in section 72 which enable a specified prosecutor to provide an individual with an undertaking that any information provided by him will not be used in evidence. This is a “restricted use undertaking”, and again does not arise for immediate consideration. 24. Section 73 now governs the arrangements for a reduction in sentence for a defendant who in specified circumstances has provided assistance. It provides: “(1) This section applies if a defendant- (a) following a plea of guilty is either convicted of an offence in proceedings in the Crown court or is committed to the Crown court for sentence, and (b) has, pursuant to a written agreement made with a specified prosecutor, assisted or offered to assist the investigator or prosecutor in relation to that or any other offence. (2) In determining what sentence to pass on the defendant the court may take into account the extent and nature of the assistance given or offered. (3) If the court passes a sentence which is less than it would have passed but for the assistance given or offered, it must state in open court- (a) that it has passed a lesser sentence than it would otherwise have passed and (b) what the greater sentence would have been. (4) Subsection (3) does not apply if the court thinks that it would not be in the public interest to disclose that the sentence has been discounted; but in such a case the court must give written notice of the matters specified in paragraphs (a) and (b) of subsection (3) to both the prosecutor and the defendant. (5) Nothing in any enactment which- (a) requires that a minimum sentence is passed in respect of any offence or an offence of any description or by reference to the circumstance of any offender (whether or not the enactment also permits the court to pass a lesser sentence in particular circumstances), or (b) in the case of a sentence which is fixed by law, requires the court to take into account certain matters for the purposes of making an order which determines or has the effect of determining the minimum period of imprisonment which the offender must serve (whether or not the enactment also permits the court to fix a lesser period in particular circumstances), affects the power of a court to act under subsection (2). (6) If, in determining what sentence to pass on the defendant, the court takes into account the extent and nature of the assistance given or offered as mentioned in subsection (2), that does not prevent the court from also taking account of any other matter which it is entitled by virtue of any other enactment to take account of for the purposes of determining- (a) the sentence, or (b) in the case of a sentence which is fixed by law, any minimum period of imprisonment which an offender must serve. (7) If subsection (3) above does not apply by virtue of subsection (4) above, section 174(1) (a) and 270 of the Criminal Justice Act 2003 (c.44) (requirement to explain reasons for sentence or other order) do not apply to the extent that the explanation will disclose that a sentence has been discounted in pursuance of this section. (8) In this section- (a) a reference to a sentence includes, in the case of a sentence which is fixed by law, a reference to the minimum period an offender is required to serve, and a reference to a lesser sentence must be construed accordingly; (b) a reference to imprisonment includes a reference to any other custodial sentence within the meaning of section 76 of the Powers of Criminal Courts (Sentencing) Act 2000 (c.6) or Article 2 of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160). (9) An agreement with a specific prosecutor may provide for assistance to be given to that prosecutor or to any other prosecutor. (10) Reference to a specified prosecutor must be construed in accordance with section 71 .” 25. Section 74 introduces a new process, a “review” of a sentence which has already been imposed. The section provides: “(1) This section applies if- (a) the Crown Court has passed a sentence on a person in respect of an offence, and (b) the person falls within subsection (2). (2) A person falls within this subsection if- (a) he received a discounted sentence in consequence of his having offered in pursuance of a written agreement to give assistance to the prosecutor or investigator of an offence but he knowingly fails to any extent to give assistance in accordance with the agreement; (b) he receives a discounted sentence in consequence of his having offered in pursuance of a written agreement to give assistance to the prosecutor or investigator of an offence and, having given the assistance in accordance with the agreement, in pursuance of another written agreement gives or offers to give further assistance; (c) he receives a sentence which is not discounted but in pursuance of a written agreement he subsequently gives or offers to give assistance to the prosecutor or investigator of an offence. (3) A specified prosecutor may at any time refer the case back to the court by which the sentence was passed if- (a) the person is still serving his sentence, and (b) the specified prosecutor thinks it is in the interests of justice to do so. (4) A case so referred must, if possible, be heard by the judge who passed the sentence to which the referral relates. (5) If the court is satisfied that a person who falls within subsection (2)(a) knowingly failed to give the assistance it may substitute for the sentence to which the referral relates such greater sentence (not exceeding that which it would have passed but for the agreement to give assistance) as it thinks appropriate. (6) In a case of a person who falls within subsection (2)(b) or (c) the court may – (a) take into account the extent and nature of the assistance given or offered; (b) substitute for the sentence to which the referral relates such lesser sentence as it thinks appropriate. (7) Any part of the sentence to which the referral relates which the person has already served must be taken into account in determining when a greater or lesser sentence imposed by subsection (5) or (6) has been served. (8) A person in respect of whom a reference is made under this section and the specified prosecutor may with the leave of the Court of Appeal appeal to the Court of Appeal against the decision of the Crown Court. (9) Section 33(3) of the Criminal Appeal Act 1968 (c.19) (limitation on appeal from the criminal division of the Court of Appeal) does not prevent an appeal to the Supreme Court under this section. (10) A discounted sentence is a sentence passed in pursuance of section 73 or subsection (6) above. (11) References- (a) to a written agreement are to an agreement made in writing with a specified prosecutor; (b) to a specified prosecutor must be construed in accordance with section 71 . (12) In relation to any proceedings under this section, the Secretary of State may make an order containing provision corresponding to any provision in- (a) the Criminal Appeal Act 1968 (subject to any specified modifications), or (b) the Criminal Appeal (Northern Ireland) Act 1980 (c.47) (subject to any specified modifications). (13) A person does not fall within subsection (2) if- (a) he was convicted of an offence for which the sentence is fixed by law, and (b) he did not plead guilty to the offence for which he was sentenced. (14) Section 174(1) (a) or 270 of the Criminal Justice Act 2003 (c.44) (as the case may be) applies to a sentence substituted under subsection (5) above unless the court thinks that it is not in the public interest to disclose that the person falls within subsection (2)(a) above. (15) Subsections (3) to (9) of section 73 apply for the purposes of this section as they apply for the purposes of that section and any reference in those subsections to subsection (2) of that section must be construed as a reference to subsection (6) of this section.” 26. Section 75 addresses important procedural issues arising in the context of the section 74 review process. It addresses the circumstances in which the court may make an order excluding the public from such hearings, and prohibiting the publication of reports or the whole or part of any relevant proceedings. It must be considered as part of the new context, following the implementation of SOCPA, that reviews based on post-sentence assistance are no longer decided in private by the Home Office and the Parole Board. It provides: “(1) This section applies to- (a) any proceedings relating to a reference made under section 74(3) , and (b) any other proceedings arising in consequence of such proceedings. (2) The court in which the proceedings will be or are being heard may make such order as it thinks appropriate- (a) to exclude from the proceedings any person who does not fall within subsection (4); (b) to give such directions as it thinks appropriate prohibiting the publication of any matter relating to the proceedings (including the fact that the reference has been made). (3) An order under subsection (2) may be made only to the extent that the court thinks- (a) that it is necessary to do so to protect the safety of any person, and (b) that it is in the interests of justice. (4) The following persons fall within this subsection- (a) a member or officer of the court; (b) a party to the proceedings; (c) counsel or a solicitor for a party to the proceedings; (d) a person otherwise directly concerned with the proceedings. (5) This section does not affect any other power which the court has by virtue of any rule of law or other enactment- (a) to exclude any person from proceedings, or (b) to restrict the publication of any matter relating to proceedings.” Discussion 27. The essential feature of the new statutory framework is that the offender must publicly admit the full extent of his own criminality and agree to participate in a formalised process. The formalities have their own immediate purposes, and are intended to avoid some of the problems to which the previous processes could sometimes give rise. These were often “private” arrangements between the police and the criminal, revealed of course to the court, but exposed to the potential for corruption and criminal double dealing, and even if not in any way corrupt, nevertheless subject to the perception of possible corruption. In other words the formalities ensure that the decision to enter into the agreement with a criminal is specifically and separately considered by an identified prosecutor and should avoid later questions to which any kind of “private” arrangements can be subject. 28. Section 73 addresses sentencing decisions following assistance provided by the defendant. The structure in effect confirms well understood principles. At a later stage in this judgment we shall identify some of the features likely to arise for consideration, but for the moment record that, provided they admit their own criminality in full, the process is not confined to offenders who provide assistance in relation to crimes in which they were participants, or accessories, or with which they were otherwise linked. At the end of this process the sentence actually imposed may be appealed to this court in the usual way. 29. Section 74 is concerned with the new process by which a “review” of the sentence passed in the Crown Court is reviewed in a judicial process on a reference back to the court by a specified prosecutor. The responsibility for considering whether any reduction in sentence should follow a post-sentence agreement within SOCPA is vested in the Crown Court. This reverses the former practice in relation to post-sentence assistance which was formerly left to the Home Office and the Parole Board ( R v A [1999] 1 CAR(S) 52; R v K [2003] 1 CAR(S) 6) and creates a statutory scheme which expressly entitles the Court to take account of relevant events after conviction and sentence. Section 74(2) identifies three post-sentence situations in which the sentence being served by the defendant is susceptible to review. In particular, the review process can arise following a sentence discounted for assistance, if the defendant reneges on the written agreement which produced the original reduction, and provides an important safeguard against dishonest manipulation of the process by the defendant. It may also arise for the defendant who was not previously offered to provide assistance, and decides, after all, to do so. In each situation specified by s. 74(2) the defendant may be re-sentenced in the Crown Court, and where possible, this decision should be made by the judge who passed the original sentence. At the conclusion of the review, his decision may then be reconsidered in this Court. 30. Where the review arises from the defendant’s failure or refusal to provide assistance in accordance with the written agreement, the sentencing judge will already have in mind the sentence which would have been passed “but for the assistance given or offered”. This sentence should be readily ascertained from the sentencing remarks where the judge, in compliance with section 73(3)(b), has identified, as he normally should, the sentence which would have been imposed but for the assistance given or offered. We doubt whether, save exceptionally, it would be right for the sentence indicated at that stage to be subject to any reduction, but equally, as section 73(5) provides, it should not be increased by way of punishment for a defendant who has backed away from the agreement. Non compliance is not a separate crime, nor indeed an aggravating feature of the original offence; the penalty is that the defendant will be deprived of the reduction of sentence which would have been allowed if he had complied with the agreement. Instead he will normally serve the appropriate sentence for his criminality in full. 31. When a review is under consideration after sentence, the specified prosecutor will no doubt be astute to the risk that a professional criminal may be seeking to manipulate the system for his own purposes. One question which will normally require to be addressed is why the offer to give assistance has been delayed, and another, whether the delay may have diminished its value. Again, however, unlike the current arrangements by which discounts for a guilty plea should normally be reflective of the time when it was tendered, for the purposes of a review, any discount should continue to reflect the extent and nature of the assistance given or offered. Unless the delay has diminished the value of the assistance, the defendant should not be penalised by a lesser reduction, but if it has, only to a proportionate extent. 32. The review process is directed towards a sentence which has already been imposed. There are no transitional provisions. It may take place “at any time” after the legislation came into force, whether the original sentence was imposed before or after the implementation of SOCPA. In particular, nothing in the legislative structure suggests that sentences imposed before that date fall outside the ambit of section 74 , and indeed in our judgment SOCPA provides a comprehensive framework of general application for reviews of sentences, whenever imposed, and whenever the crime or crimes in question were committed. 33. P’s appeal raises a specific question relating to the involvement of this court. The original 17 year sentence was reduced to 15 years when this court exercised its powers under section 9 of the Criminal Appeal Act 1968 . The jurisdiction to conduct a review of sentence on the basis of post-sentence assistance is vested in the Crown Court. Its decision on the review is subject to appeal to this court. Therefore the review itself is not an appeal against sentence, whether imposed in the Crown Court or this Court. It is a fresh process which takes place in new circumstances. Accordingly the process of review is not inhibited by the fact that this court has already heard and decided an appeal against the original sentence, whether the sentence is varied on appeal or not. This Court may be required to address either a sentence imposed in the light of the written section 73 agreement, or a review conducted in accordance with section 74 , or, as here in the case of P, where the assistance provided may impinge on both decisions. 34. The legislation does not abolish a well understood feature of the sentencing process. There will be occasions when a defendant has provided assistance to the police which does not fall within the new arrangements, and in particular the written agreement. He is not thereby deprived of whatever consequent benefit he should receive. The existing “text” system, verified in the usual way, (as to which see R v X [1999] 2CAR 125: R v R [2002] EWCA Crim 267 ) may still be used, where appropriate, either before sentence is imposed in the Crown Court, or indeed at the hearing of an appeal against sentence. In summary, pragmatism still obtains. The investigative process is not to be deprived of the assistance derived from those who are, for whatever reason, unable or unwilling to enter into the formalised process envisaged in SOCPA, but they must take the consequence that any discount of sentence may be correspondingly reduced, simply because the value of assistance provided in this form is likely to be less, and is in any event less readily susceptible to a safeguarding review under s. 74(2) than it would if provided under the formal arrangements now available under s. 73. 35. No new powers in relation to publicity arise in relation to sentences imposed in the context of a written agreement under s. 73. The publicity provisions in s. 75 are directed to reviews under s. 74 . While it is crucial to the entire process that the identity of those who provide assistance should, so far as practicable, be concealed, it is simultaneously fundamental to our criminal justice system that sentences should be imposed in open court, after public hearings. As reviews produce a decision of the court relating to sentence, unless absolutely necessary, the normal principle that sentences must not be imposed or reduced or altered after private hearings, privately ordered, should so far as possible be applied to them. 36. In the review process section 73(4) and (7) enable the court, first, not to disclose, save to the prosecutor and the defendant, that a sentence has been discounted, and second, allow the court to disapply section 174 of the Criminal Justice Act 2003 , which requires the court to explain the reasons for its sentences. Reality must be faced. Professional criminals appreciate the likely range of sentence if they are convicted, and more important, they will quickly discover the purpose of any review process. A post-sentence reduction following a s.74 review will convey, at the very least, that something very unusual has happened, and criminals are perfectly well able to ask themselves why a reduction has been ordered, and then form their own conclusions. That said, actual knowledge will turn suspicion into confirmed fact. By section 75 the court is empowered to exclude the media and its representatives from the review. The power should be used with great caution, particularly where the review arises under s. 74(2) following failure to fulfil an agreement to provide assistance. In any event where practicable alternatives are available, they should if possible, be adopted. For example, it may be possible to anonymise the proceedings. It may also be possible to admit authorised representatives of the media subject to an order prohibiting publication of the whole or any specific aspect of the proceedings without the approval of the court. Alternatively, if the media has been excluded from any part of the hearing, the court may be able to provide information about the outcome of the review, together with a brief summary of the reasons for the decision, sufficient, even if brief, to enable the public to understand it, without disclosing any relevant identities. To the fullest extent it can, it should. In any event a full transcript of the entire hearing of the proceedings should be prepared immediately after its conclusion, and retained in appropriate conditions of secrecy by the specified prosecutor, and kept available for further directions by the court in relation to publicity if and when the public interest so requires, at least until further order by the court, and in any event until the end of the sentence. The sentencing decision 37. SOCPA does not include any direct provision suggesting the level of discount appropriate to be provided to the defendant who enters into and performs the SOCPA agreement. The general principles are well established in a series of decided cases. These include R v Sinfield [1981] 3CAR (s) 258, R v King [1986] 82 CAR 120, R v Sivan [1988] 87 CAR 407, R v Debbag and Izzet [1990-1] 12 CAR (S) 733, R v X [1994] 15 CAR (S) 750, R v Sehitoglu [1988] 1 CAR (S) 89, R v A and B, R v K and R v R, cited earlier, R v A [2006] EWCA Crim 1803 , and R v Z [2007] EWCA Crim 1473 . 38. The first principle is obvious. No hard and fast rules can be laid down for what, as in so many other aspects of the sentencing decision, is a fact specific decision. 39. The first factor in any sentencing decision is the criminality of the defendant, weight being given to such mitigating and aggregating features as there may be. Thereafter, the quality and quantity of the material provided by the defendant in the investigation and subsequent prosecution of crime falls to be considered. Addressing this issue, particular value should be attached to those cases where the defendant provides evidence in the form of a witness statement or is prepared to give evidence at any subsequent trial, and does so, with added force where the information either produces convictions for the most serious offences, including terrorism and murder, or prevents them, or which leads to disruption to or indeed the break up of major criminal gangs. Considerations like these then have to be put in the context of the nature and extent of the personal risks to and potential consequences faced by the defendant and the members of his family. In most cases the greater the nature of the criminality revealed by the defendant, the greater the consequent risks. The vast majority of the earlier authorities were decided before the arrangements for calculating the discounts for a guilty plea were formalised, as they now have been by statute ( s.152 of the Powers of Criminal Courts (Sentencing) Act 2000 and s. 144 and s. 174 (2) (d) of the Criminal Justice Act 2003 ) and the definitive guidelines, Reduction in Sentence for a Guilty Plea, issued by the Sentencing Guidelines Council, and in particular the statement of purpose in paragraphs 2.1 – 2.6. When it applies, the discount for the guilty plea is separate from and additional to the appropriate reduction for assistance provided by the defendant ( R v Wood [1997] 1 CAR(S) 347). Accordingly, the discount for the assistance provided by the defendant should be assessed first, against all other relevant considerations, and the notional sentence so achieved should be further discounted for the guilty plea. In the particular context of the SOCPA arrangements, the circumstances in which the guilty plea indication was given, and whether it was made at the first available opportunity, may require close attention. Finally we emphasise that in this type of sentencing decision a mathematical approach is liable to produce an inappropriate answer, and that the totality principle is fundamental. In this Court, on appeal, focus will be the sentence, which should reflect all the relevant circumstances, rather than its mathematical computation. 40. The SOCPA procedure requires the defendant to reveal the whole of his previous criminal activities. This will almost inevitably mean that he will admit, and plead guilty to offences which would never otherwise have been attributed to him, and may indeed have been unknown to the police. In order for the process to work as intended, sentencing for offences which fall into this category should usually be approached with these realities in mind and, so far as section 73 agreements are concerned, should normally lead to the imposition of concurrent sentences. In the review process in relation to a defendant who is already serving his sentence, and who enters into an appropriate agreement to provide information, in which he discloses his previous criminal activities, he will come before the court, as P did, to be sentenced for the new crimes he has disclosed, as well as for a review of the original sentence. When the original sentence is reduced, it has already been running, while the sentence for any new offence will run from the date it was imposed. As we emphasised in the previous paragraph, in this context too, the totality principle is critical. 41. We were asked to consider the possibility of a discount in an exceptional case which, in effect, was that the defendant would not serve any sentence at all. We cannot envisage any circumstances in which a defendant who has committed and for these purposes admitted serious crimes can or should escape punishment altogether. The process under sections 73 and 74 does not provide immunity from punishment, and, subject to appropriate discounts, an effective sentence remains a basic characteristic of the process. Issues of immunity are addressed in section 71 . What the defendant has earned by participating in the written agreement system is an appropriate reward for the assistance provided to the administration of justice, and to encourage others to do the same, the reward takes the form of a discount from the sentence which would otherwise be appropriate. It is only in the most exceptional case that the appropriate level of reduction would exceed three quarters of the total sentence which would otherwise be passed, and the normal level will continue, as before, to be a reduction of somewhere between one half and two thirds of that sentence. The instant appeals P 42. Both on the review of the original sentence, and when assessing sentence for the offences to which P pleaded guilty following the briefing process, the Judge, following the pre-SOCPA authorities, decided that a reduction of two thirds should follow. Although we disagree with the submission on P’s behalf that the assistance provided by him, and the risks he ran and will now be running, merited a discount which would have provided for his immediate release, in the light of the considerations we have addressed, this case, involving important assistance to the investigation of a murder in which he himself was not involved, directly or indirectly, might without injustice, have attracted a somewhat higher discount. Approaching the problem on the basis of totality, the sentence on the review will be left at 5 years. However the 4 year sentence for the offences disclosed by P himself which could not otherwise have been prosecuted to conviction, and followed entirely from P’s obligation under the SOCPA process to disclose his entire criminality, will be reduced to 3 years’ imprisonment to run from 9th March 2007. To this extent, this appeal succeeds. Blackburn 43. Simon J approached the discount in Blackburn’s case in the same way. Blackburn gave damning evidence against a man who had participated in the execution of David Rice. Bevens was convicted of his murder. Blackburn, will, if necessary, give evidence against the man who shot Rice. However, Blackburn was very close indeed to the offence, and plainly linked to it by the evidence available to the police well before he offered to provide assistance. On the other hand it was accepted by the prosecution, and Blackburn fell to be sentenced, on the basis that his participation in Rice’s death did not begin until after he was murdered by others. The drug offences which he admitted in the debriefing process were linked to his criminal activities with the man who allegedly shot Rice, but were, as the Crown accepts, limited to cannabis. Approaching this sentencing decision on the basis of totality, we have concluded that the sentence of 4 years’ imprisonment did not entirely reflect the appropriate discount for the assistance given by Blackburn, and the overall starting point was probably a little too high. The overall impact is that we shall reduce the sentence of 4 years’ to a total of 2 ½ years’ imprisonment. This sentence will be achieved by ordering that the sentences on both counts will run concurrently. To this extent, the appeal will be allowed.

```yaml citation: '[2007] EWCA Crim 2290' date: '2007-10-22' judges: - MR JUSTICE PITCHERS - 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: [2009] EWCA Crim 2130 Case No: 2008/6419/C4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 8 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 MARCUS MCAULEY - - - - - - - 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 B Hayhurst appeared on behalf of the Appellant Miss M Currie appeared on behalf of the Crown - - - - - - - J U D G M E N T 1. LORD JUSTICE KEENE: On 24th October 2008 at Inner London Crown Court, before His Honour Judge Campbell, the appellant changed his plea to guilty of having an article with a blade or point contrary to section 139(1) of the Criminal Justice Act 1988 . On 14th November 2008 he was sentenced by the same judge to 26 weeks' imprisonment suspended for 12 months with a supervision requirement of 12 months. He now appeals against both conviction and sentence by leave of the single judge. 2. The change of plea to which we have referred came about because of a ruling by the judge and it is that ruling which forms the basis of the appeal against conviction. 3. Section 139 makes it an offence to have an article with a blade or which is sharply pointed in a public place, subject to an exception which is immaterial for present purposes. But subsection (4) of that section provides a defence. It reads: "It shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article with him in a public place." That is a defence which a defendant has to establish but the burden on him is to prove it simply on the balance of probabilities. 4. The defence statement in the present case indicated that the appellant accepted that he was carrying a knife on the date in question, 7th May 2008, and that it was in a public place but that he would contend that he had a good reason for carrying it. The good reason was that he had been seriously attacked on 19th January 2008 in Soho by a particular man, by whom he had then been approached on 2nd May 2008 at Brixton Tube Station and by whom he had then been threatened. The defence case statement went on to say that the appellant understood this man to have been out on bail as at May 2008 and that "as a consequence following the incident on 2nd May 2008 Mr McAuley took the knife with him on 7th May as he was travelling through Brixton, an area he knew his assailant frequented, and was in fear of his assailant and that he might be attacked by him." 5. The prosecution's witness statements indicated that it was in the South London area that the appellant had been stopped and searched by the police and the knife found. The record of interview showed that he had told the police that he was carrying the knife having been stabbed and threatened by a man. The man was on bail and the appellant had seen him on at least one occasion. 6. The appellant was arraigned at the Crown Court on 24th October 2008 and initially he pleaded not guilty. But the judge drew counsel's attention to this court's decision in the case of Bown [2003] EWCA Crim. 1989 , [2004] 1 Cr.App.R 151 , where it was held that it is for the judge to decide whether as a matter of law the evidence is capable of amounting to the defence of having a "good reason" for having a bladed article in a public place. The court in Bown had drawn a distinction between whether the evidence is capable of being seen by the jury as a good reason and whether, if it is so capable, it in fact amounts to a good reason, the latter being a question for the jury to determine - see paragraph 16 of that case. 7. In the present case the judge in effect invited submissions straightaway on the basis of the defence case statement without the calling of any evidence. Proceeding on the basis of the facts as set out in that defence statement, namely that the appellant had been seriously assaulted in January and then on 2nd May (five days before his arrest) had been threatened by the same assailant outside Brixton Tube Station (an area he knew the assailant frequented), the judge ruled that fear of attack in those circumstances could not amount to a "good reason" under section 139(4) . He added: "If this was a good reason, knife carrying could be carried out by virtually anybody in the Brixton area." And so he indicated that the jury would be told, if it went to a jury, that this did not amount to a defence in law. In the light of that ruling the appellant changed his plea to one of guilty without any jury having been sworn. 8. Mr Hayhurst on behalf of the appellant submits that the judge was wrong so to rule and that the defence of good reason should, after the calling of evidence, have been left to the jury. He refers to some authorities decided under the Prevention of Crime Act 1953, section 1 , the offensive weapon provision, which is a section containing a statutory defence of "reasonable excuse". The defence of "good reason" under the 1988 Act has been held to be akin to that of "reasonable excuse" under the 1953 Act , despite some degree of academic criticism of such an approach - see Emmanuel [1998] Crim.L.R 347 where this court held that the judge should have left a defence of good reason under the 1988 Act to the jury where the defendant said that he had the knife for self-defence following an incident half an hour earlier. Again, in cases like Jolie [2004] Cr.App.R 44 this court has seen no distinction between "good reason" in the one statute and "reasonable excuse" in the earlier one (paragraph 18). 9. This leads Mr Hayhurst to submit that the decision in Evans v Hughes (1972) 56 Cr.App.R 813 , a decision on section 1 of the 1953 Act , is nonetheless relevant in the present case. There the Divisional Court presided over by the then Lord Chief Justice held that it could be a reasonable excuse that the person with the offensive weapon was anticipating an imminent attack and so carried the weapon for his own defence. The court went on to add that the Act was not intended to sanction the permanent or constant carrying of a weapon merely because of some constant or enduring supposed or actual threat or danger to the carrier. The threat must be, it was said, an imminent particular threat. 10. It is now contended on behalf of the appellant that the judge here ought to have allowed the jury to determine whether there was in the circumstances of this case such a threat and consequently a good reason. Mr Hayhurst emphasises that, although the original attack had been back in January, that attack had been a serious one and the threat of a further attack by the same man had been made only five days before the appellant had been found with the knife. He refers to and relies on also the House of Lords' decision in Wang [2005] UKHL 9 . 11. For the Crown, Miss Currie submits that the judge was entitled to rule out the possibility of a defence of "good reason". She contends that there was no good reason here and she draws our attention to a number of other authorities which have held, following Evans v Hughes , that a mere concern about being in a violent neighbourhood does not amount to a good reason for carrying a knife or a reasonable excuse for carrying an offensive weapon. She also suggests that if the defence had not liked the judge's ruling they should have pressed to call evidence before a further ruling was given by the judge. 12. It seems to this court that, from the authorities already referred to, it could amount to a "good reason" under section 139(4) if the appellant was carrying the knife for his own protection and that he could show on the balance of probabilities that he was in fear of an imminent attack. The judge's ruling here amounts to saying that the facts as he understood them to be could not as a matter of law amount to a fear of an imminent attack. 13. That may be, at first sight, an understandable conclusion but we bear in mind what was also said in Bown at paragraph 18, namely that a court should be slow to rule that the evidence is, as a matter of law, incapable of amounting to the defence under section 139(4) . The words "good reason" are both very general words and very ordinary ones, being words which Parliament must have intended would normally be applied and interpreted by a jury or other fact-finding tribunal such as Justices. The reference in Evans v Hughes to "imminent attack" does not write those words into the statute and it remains for a jury to determine how imminent, how soon, how likely and how serious the anticipated attack has to be to constitute a good reason for possession of the bladed article. It may be that a threat five days beforehand from an earlier assailant would be held by a jury not to suffice, but we do observe that in the Evans v Hughes case the Divisional Court was not prepared to interfere with the Magistrates' decision that there was a reasonable excuse where the defendant had been attacked seven or eight days earlier and remained in fear. The Divisional Court did indeed say that this was a "borderline" case, but it did indicate by its decision that it was open to the Magistrates to find that it was a reasonable excuse. 14. In those circumstances it seems to us that it could have been properly open to a jury, properly directed, had the facts proved to be what the judge assumed them to be, to decide that "good reason" under section 139(4) had been shown. We conclude therefore that it was wrong in this case for the judge to rule as he did and thus to deprive the appellant of the possibility of establishing such a defence, even though we accept that the evidence in favour of the defence may have been thin. 15. In any event, we would also add that it would normally be wise in such cases for a judge not to rule before hearing the evidence, because that evidence may turn out to be to some extent different from and certainly more detailed than that suggested in the documents. The evidence may turn out to be more in a defendant's favour or possibly in the prosecution's favour, but it will usually be better to hear the evidence and then to rule (if appropriate) whether the evidence is capable at law of being held by a jury to amount to a "good reason". 16. In the circumstances we have set out it follows that the judge's ruling here in our view was wrong and that the appellant is entitled to have his conviction quashed as being unsafe. It follows that this appeal is allowed. 17. Is there any application by the Crown? 18. MISS CURRIE: We would be asking for a retrial, my Lord. 19. LORD JUSTICE KEENE: Do you want to say any more about why that is appropriate in this case? 20. MISS CURRIE: Because knife carrying is considered to be very serious and because of the very large increase in knife carrying it is in the public interest that all these matters be tried and determined in a court of law. 21. LORD JUSTICE KEENE: He got a suspended sentence, did he not, with a supervision requirement of 12 months? 22. MISS CURRIE: Yes. 23. LORD JUSTICE KEENE: The supervision requirement of course has already effectively taken place, has it not, because this was November last year when it was imposed? 24. MISS CURRIE: Yes. 25. LORD JUSTICE KEENE: Of course the more serious element in the sentence was the suspended prison sentence. 26. MISS CURRIE: Yes. 27. LORD JUSTICE KEENE: What do you want to say about a retrial, Mr Hayhurst? 28. MR HAYHURST: Only on the more serious element, the suspended sentence, again that was for six months for 12 months which again would expire in November so we are nearing the end of that as well. Bearing in mind the age of this matter, going back to May of last year and in essence the amount of time that it has taken for this matter to be listed at this court, I would say that-- 29. LORD JUSTICE KEENE: You mean that virtually eleven months have now passed? 30. MR HAYHURST: Yes. 31. LORD JUSTICE KEENE: Do you want to say anything further about that, Miss Currie? 32. MISS CURRIE: It is regrettable that it has not been dealt with earlier, I suppose, than this. It means it has dragged on for a considerable period of time. 33. LORD JUSTICE KEENE: That may be, but we have to deal with the situation as it is and not as perhaps one would ideally like it to be. 34. MISS CURRIE: That is right, my Lord. But in fact it will not be listed very early either because if it goes back to Inner London they are listing now for next July. 35. LORD JUSTICE KEENE: Thank you very much. (Pause) No, Miss Currie, I am afraid we do not think it is appropriate that there should be a retrial in this case, bearing in mind that the appellant has in effect served 11 out of the 12 months period, both in relation to supervision and the suspension of the sentence. So there will not be a retrial here.

```yaml citation: '[2009] EWCA Crim 2130' date: '2009-10-08' judges: - LORD JUSTICE KEENE - MR JUSTICE BLAIR - HIS HONOUR JUDGE ROGERS QC ```

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2021] EWCA Crim 204 CASE NO 202002478/A2 Royal Courts of Justice Strand London WC2A 2LL Tuesday 9 February 2021 LORD JUSTICE POPPLEWELL MR JUSTICE SPENCER THE RECORDER OF RICHMOND UPON THAMES HIS HONOUR JUDGE LODDER QC (Sitting as a Judge of the CACD) REGINA V GEORGE ANDRONACHE __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MISS C ALLISON appeared on behalf of the Appellant _________ J U D G M E N T 1. MR JUSTICE SPENCER: This is an appeal against sentence brought by leave of the single judge. 2. On 16 September 2020 in the Crown Court at Peterborough, the appellant, who is now 32 years old, was sentenced by Mr Recorder Fields to a term of three years' imprisonment for two offences of causing serious injury by dangerous driving, contrary to section 1A of the Road Traffic Act 1988. The appellant had pleaded guilty and was afforded credit of 20 per cent for his pleas, as to which no complaint is made. He was disqualified from driving for a period of 54 months and until he passes an extended driving test. The lead sentence of three years was imposed on count 1, where the injuries the victim had sustained were the more serious. There was a concurrent sentence of 12 months' imprisonment on count 2, where the victim's injuries were less serious. 3. The appellant also pleaded guilty to driving otherwise than in accordance with a licence, contrary to section 87 of the 1988 Act, for which the judge imposed no separate penalty. He also imposed no separate penalty on count 3, possessing an offensive weapon. We need say no more about that offence. 4. The sole ground of appeal is that the sentence of three years' imprisonment was manifestly excessive. The single judge refused leave on a further ground of appeal, that the sentence should not only have been shorter but should also have been suspended. That ground is not renewed. 5. The sentence of three years' imprisonment after credit of 20 per cent for plea means that the judge's starting point was three years nine months after trial. The maximum sentence for a single offence of causing serious injury by dangerous driving is five years' custody. The issue in the appeal is whether, for these two offences, a sentence of three years nine months (before credit for plea) was manifestly excessive. 6. The appellant was a man of good character. He is a Romanian national and has lived in this country for a number of years. He is married with a young child. He had no driving convictions. He held only a provisional UK driving licence and was therefore required to be supervised by a qualified driver. On the day in question, when the offences were committed, the person in the car with him was not qualified to supervise him as he had not held a UK licence for three years. That gave rise to the offence of driving otherwise than in accordance with his licence. Nor was the car displaying L-plates. 7. The appellant was working at the DHL packaging factory in Wisbech, Cambridgeshire. So were the two victims of the offences and indeed all the eyewitnesses. The offences took place just after the end of the night shift at around 6.15 am on Tuesday 16 July 2019. The appellant had just completed his shift. He walked out of the factory and crossed New Bridge Lane to where his car was parked, a Hyundai Tuscan. It was parked almost opposite the factory entrance. The appellant and a work colleague, aged 21, who was notionally supervising his driving, stood outside the vehicle for a while smoking. The weather was bright and sunny. 8. We have seen CCTV footage showing the appellant and his colleague getting into the vehicle and the vehicle driving off along the road. A number of pedestrians were around, leaving the factory, and several vehicles. The road is a single carriageway with a 30 mph speed limit. On the appellant's left as he drove off there was a narrow footpath and a high hedge. On the opposite side of the road there was a wider footpath. Vehicles were parked half-on and half-off that footpath and pedestrians were walking along the footpath. 9. The CCTV footage was from a camera on adjoining premises and does not show the subsequent collisions. There was eyewitness evidence, however, from another Romanian factory worker sitting in a car parked behind the appellant's car when the appellant drove off. That eyewitness describes hearing the appellant's wheels spinning and looking up to see him starting "with big speed". The appellant's vehicle travelled a short distance up the road, probably around 50 metres, and then veered to the opposite side, heading at an angle straight towards vehicles parked on the other side of the road. 10. The appellant's vehicle first struck a parked Nissan Qashqai a glancing blow. It then struck a second vehicle parked close behind the first, a Ford Fiesta belonging to the first victim Radmila Roblesova. Her vehicle was partly on the pavement, parked facing the appellant's oncoming vehicle. She was standing by the driver's door of her car on the carriageway about to get in. She was struck by the appellant's vehicle which effectively pinned her against her vehicle causing her very serious injuries. Such was the speed of the appellant's vehicle and such was the force of the collision that the Ford Fiesta was pushed back a distance of 12 metres. The Ford Fiesta struck the second victim, a pedestrian who had been walking along the footpath, Irena Tilbury. She was walking home from the factory having completed her shift. Because the Ford Fiesta was parked half on the pavement, Miss Tilbury had to walk out into the road to get round it. As she did so she saw the appellant's vehicle coming diagonally across the road straight towards her. She describes it as travelling at great speed. She started running but the Fiesta was pushed into her by the force of the collision with the appellant's vehicle. She too suffered serious injuries. 11. The appellant's vehicle then veered back onto the left-hand side of the road and ended up in the hedge. The airbag had inflated. Technical evidence confirmed that the speed of the vehicle at the point when the airbag inflated was at least 28 mph. The inference must be that the speed was even higher before that at the time of the collisions. There was no evidence that the appellant had braked at all. 12. The appellant was able to walk away from the crash. He remained at the scene. He walked over to Miss Tilbury who was lying on the verge. She asked him what he had done. He said: "I just lost control." 13. The police were soon on the scene. When asked for his explanation, after caution the appellant said that he had started the car and put it in first gear; he could not remember if he changed into second gear, he then felt something "catch the direction of his car" and he could not control it. He hit the first car on both doors before hitting the second car. He did not see the lady as his airbags had activated. He was not aware of any mechanical defects with his vehicle, which had been MOT tested the previous month. He said he had no medical conditions that might have affected his driving. He was taking no medication. He was tested for alcohol and drugs, all with negative results. 14. Miss Roblesova was taken by air ambulance to Addenbrooke's Hospital in Cambridge. She suffered life-threatening injuries. There were serious internal injuries to the liver, the kidney and the lung. There was a right pneumothorax and a right haemothorax. There were complex sacro-pelvic fractures, a spinal fracture, fractures of the left tibia and fibula and fractures of the right sixth to twelfth ribs. She was transferred to the neuro-critical care unit. She underwent a total of six operations. She was in hospital for several months. Her left leg is now permanently shorter than her right leg. In her impact statement, made six months later, she described continuing neurological pain in her lower body. She will require further surgery and there will be long-term pain and suffering in the spine and pelvis and probably permanent neurological deficit in both legs. She was 29 years old at the time and used to go to the gym three times a week. She was now wholly dependent on her boyfriend. At the time of her impact statement she was confined to a wheelchair whenever her boyfriend took her out. She would never be able to return to her pre-accident work at the factory which involved standing on the production line for nearly 12 hours every shift. It was uncertain what employment she would ever be able to hold down. She was fearful of roads. She had nightmares and struggled to sleep. 15. Miss Tilbury's injuries were fortunately less serious but still severe and debilitating. She was taken to hospital at King’s Lynn. She suffered a fractured right wrist which was in plaster for six weeks and caused her a great deal of pain. Her back was put in a back slab. At the time of her impact statement six months later her wrist was still weak and swollen and painful if she tried to lift anything. She had a cut to the top of her head which was glued. Her left thumb was swollen and bruised and she lost strength in it. She had pain in her back which was extremely uncomfortable and required injections of pain relief. She was now very scared whenever she heard a car going fast or revving its engine. She was very nervous crossing roads, especially having to walk three miles to the factory each day for work. She was off work for around three months and reliant for that period on her husband to do all the household chores. 16. The appellant was formally interviewed by the police under caution on 23 October 2019. He said that he started driving up the road in a straight line and then felt the car go to the right. He tried to fix it, as he put it, but he could not do so as the steering wheel was not responding. He said that at the time of the collision his speed was a maximum of 10 mph. The vehicle suddenly veered to the right and he was unable to correct it. He had not had time to brake. He did not know that as a learner driver the supervisor in the car with him had to have held a licence for three years. He said he did not display L-plates because his wife also drove the vehicle and he did not want people to think his wife was a learner driver. 17. There was a pre-sentence report. The appellant expressed remorse when interviewed by the probation officer but frequently sought to minimise and excuse his behaviour. He could not explain what had happened to cause the collision and was still suggesting that the accident occurred as a result of mechanical issues with the vehicle. The author of the report expressed her belief that the appellant had been showing off in driving in this way, although the appellant refuted that suggestion. He had continued to work at the factory full time. He and his wife had borrowed large sums of money to pay for their wedding and for the baptism of their daughter, and to pay for medical expenses for an elderly family member in Romania. 18. In mitigation, his counsel, Miss Allison, submitted to the judge that the appellant was genuinely remorseful and deeply regretted the suffering he had caused the victims. The appellant and his wife had come to this country for a better life. They worked full time on opposite shifts at the factory. They had no family in this country and no close friends to help with childcare. The debts they had incurred were very considerable. 19. In opening the facts of the case, prosecuting counsel suggested that these could be regarded as Level 3 offences under the equivalent Sentencing Council Guideline for Causing Death by Driving. That was also the submission made to the judge by Miss Allison on behalf of the appellant. 20. In passing sentence, the judge observed that the appellant's aggressive and dangerous driving that morning had changed the lives of his victims for ever. For absolutely no reason which had ever been satisfactorily explained the appellant pulled away from the kerbside with wheel spinning acceleration. Unable to control his vehicle he had clipped one vehicle and then Miss Roblesova's Fiesta, pinning her between the two vehicles. The judge observed that the appellant's speed at impact was not less than 28 mph and must therefore have been much higher even over the short distance he had driven. That was clear evidence of his extreme acceleration as he set off from the kerb side. The episode may have been short, the judge said, but it had devastating results. Only at a comparatively late stage had the appellant accepted that the fault of the collision was entirely his own, rather than some mechanical defect in his vehicle. The judge accepted that the appellant was a hard-working man and a loving husband and father. The impact of the custodial sentence on his family, emotional and financial, would be considerable. The judge took into account that the appellant was a man of good character and that he would be serving his sentence in the harsher prison conditions caused by the pandemic. 21. We note that the judge did not indicate in his sentencing remarks that he accepted counsel's joint submission that it should be regarded as a Level 3 case. The sentence the judge passed clearly suggests he did not accept that analysis. 22. In her written submissions, Miss Allison argued that by reference to the causing death guideline this was indeed a Level 3 case. There was a brief but obvious danger arising from a serious, dangerous manoeuvre with a failure to have proper regard to vulnerable road users, namely pedestrians. For an offence of causing death by dangerous driving the starting point under the guideline for Level 3 is three years' custody with a range of two to five years. Miss Allison submitted that with a proportionate reduction to reflect the fact that this was not a causing death case, the proper starting point here was around 12 months' imprisonment, increased slightly to reflect the aggravating factor of two seriously injured victims and the provisional licence offence. 23. In her written submissions, Miss Allison helpfully drew our attention to the leading case of R v Dewdney [2014] EWCA Crim 1722 , [2015] 1 Cr.App.R (S) 5 in which Treacy LJ giving the judgment of the court gave guidance on the approach to sentencing for what was then the new offence of causing serious injury by dangerous driving. He confirmed that it was helpful to have regard to the guideline for causing death by dangerous driving in assessing the level of offending. He observed that because the maximum penalty was only five years, compared with 14 years for causing death by dangerous driving, there will of necessity be a degree of compression in the sentences available to the court to reflect different types of dangerous driving causing seriously injury. 24. Miss Allison also referred us to other examples of cases where this court has reduced sentences for this offence which she submitted may assist in gauging the proper level of sentence in the present case. In R v Jenkins [2015] EWCA Crim 105 , [2015] 1 Cr.App.R (S) 70 , the defendant had pleaded guilty to causing serious injury to two victims. The judge imposed two consecutive sentences of three years' imprisonment. This court held that consecutive sentences were wrong in principle and took four-and-a-half years as its starting point for the two offences before credit for plea. It was a worse case than the present in that the defendant had been driving at 90 to 100 mph in a 30 mph area, showing off and thrill-seeking. The driving was deliberate and prolonged. He held only a provisional licence and was uninsured. He had a bad motoring record. 25. In R v Howsego [2016] EWCA Crim 120 , the defendant pleaded guilty to a single offence of causing serious injury by dangerous driving and also aggravated vehicle taking and other associated motoring offences. He drove at excessive speed on the wrong side of the road and collided with an oncoming vehicle. He was drunk. He had previous driving convictions and was disqualified at the time. The judge took a starting point of four years before credit for plea. This court determined that the correct starting point after trial before any mitigation was in the region of three-and-a-half years. 26. In her oral submissions, which were most attractive and focused, Miss Allison submits that in the present case the judge must have started at around four years before allowing credit for the appellant's personal mitigation in reaching a sentence of three years nine months before credit for plea. She submits that this was simply too high. 27. We have given all these submissions the most careful consideration. The cases Miss Allison has cited to us are not guideline cases, they are merely examples. Each case necessarily turns on its own facts. In giving leave the single judge expressed doubt as to whether this could properly be described as Level 3 offending, whilst accepting that it was at least arguable that the judge's starting point was too high. 28. We agree that this was not a Level 3 case. We think it was plainly within Level 2. This was driving that created a “substantial” rather than merely a “significant” risk of danger. It was driving characterised by greatly excessive speed as the appellant drove off, such speed that he lost control and drove across the road into parked cars and pedestrians with catastrophic consequences. The starting point under the guideline for Level 2 where a single death is caused is five years' custody with a range of four to seven years. Here it was a grossly aggravating factor that there were two victims who were seriously injured, one of them very seriously indeed with life-changing results. It was also an aggravating factor that the appellant was a provisional licence holder, driving unaccompanied by a qualified supervisor and without L-plates. This aggressive high speed driving took place when there were pedestrians and cars around at a busy time of day with people leaving and arriving at the factory as one shift ended and another began. Like the sentencing judge we regard this as a very bad case of its kind. 29. As the authorities acknowledge, because of the five-year maximum there is bound to be compression or bunching at the upper end of the range, not least given the wide variety of circumstances and factors which may make any given case particularly serious. We think that even with the limited mitigation of the appellant's good character and remorse and his personal circumstances, the judge's starting point of three years nine months properly reflected the seriousness of the case and the aggravating features identified, in particular the fact that there were two victims who were seriously injured. 30. Despite Miss Allison's valiant submission, we are unable to conclude that the sentence was manifestly excessive and the appeal must therefore be dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2021] EWCA Crim 204' date: '2021-02-09' judges: - LORD JUSTICE POPPLEWELL - MR JUSTICE SPENCER - HIS HONOUR JUDGE LODDER 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: 200600821/A9 Neutral Citation Number: [2006] EWCA Crim 1160 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday, 10th April 2006 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE LEVESON MR JUSTICE FULFORD - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 19 OF 2006 (ALAN HOYLE) - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS Z JOHNSON appeared on behalf of the ATTORNEY GENERAL MR C RANKIN appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice 1988 Act, to refer a sentence said to be unduly lenient. We grant leave. 2. The offender is 22 years of age having been born on 10th February 1984. On 8th February 2005 he pleaded not guilty at a plea and directions hearing, as also did his co-accused, Daniel Reynolds. The trial was set for May but was then adjourned because a significant witness failed to attend court. A second trial date was fixed and then adjourned because the co-accused had absconded. 3. On 3rd October 2005, on the third trial date, the co-accused, Reynolds, pleaded guilty to robbery and assault occasioning actual bodily harm and he gave evidence during the trial of the offender. The jury failed to agree and were discharged. A retrial began on 18th January 2006, and again, Reynolds gave evidence for the Crown. The offender was convicted on this second trial on 20th January 2006. He sentenced on that date by His Honour Judge Lever, at Manchester Crown Court, to 3 years' imprisonment for robbery on count 1 and 4 years concurrently for wounding with intent on count 2. 4. In summary, the offender and co-accused entered the ground floor room in a hostel occupied by the victim. The victim was visibly vulnerable; he walked with a stick. They demanded money. When the victim refused, the offender produced a knife and threatened the victim with it. Thereupon the victim was punched and kicked as he sat on his bed. 5. The co-accused searched the room for items worth stealing and, while that was occurring, the offender repeatedly stabbed the victim in various parts of his body. As it turned out, the injuries were superficial. The offender and the co-accused left. The victim was taken to hospital. 6. In a little more detail, the victim was a Mr Clynes, who was 44 years old. He walked with a stick and had other disabilities. He had his own room in the hostel, in Oldham, where he had been living for about 18 months. 7. On 18th November 2004, at about 9.30 in the evening, he was watching television. The offender and co-accused barged into the room and asked for a light. Mr Clynes gave them a light. The two men made small talk. After four or five minutes, Mr Clynes said that he was going to bed and asked them to leave. They did. Mr Clynes was still wake and sitting on his bed when, about quarter of an hour later, the two men returned. Again they walked straight in without invitation and Reynolds said: "I want some fucking money". Mr Clynes refused. Mr Reynolds began to search his pockets and punched him in the face. The offender produced a knife and held it to Mr Clynes' face, pointing it to each side of his mouth and saying: "I'm going to cut you from ear to ear to give you a permanent smile." Reynolds and the offender both punched and kicked Mr Clynes in the face and locked the bedroom door. 8. The offender told Reynolds to search the room for items to steal. Whilst he was doing that, the offender stabbed Mr Clynes in his right arm, both legs, left foot and right hand. In all there were 29 stab wounds. Mr Clynes bled profusely. The offender continued to attack Mr Clynes, despite Reynolds telling him to stop. The offender was laughing as he did so. He left the room, announcing that he was going to wash his hands. There were stolen an Abbey National bank card, a benefit book and a wallet. Other residents at the hostel came to Mr Clynes' aid. He had collapsed. An ambulance was called. He was taken to hospital. The numerous superficial stab wounds were treated with steri strips and stitches. He stayed in hospital for two nights. 9. In consequence of this attack, Mr Clynes fears for his personal safety and is particularly upset by wondering why it was that he was targeted. 10. The offender was arrested four days later, on 22nd November. In interview, he denied the offence and claimed never ever to have been to the hostel. 11. The offender has previous convictions, in particular, in 2001, for racially aggravated assault, for which he received a community punishment order and, in 2002, for possession of an offensive weapon, a lock-knife, in a public place, for which he received a curfew order. He also received community rehabilitation orders and a sentence of 3 months' detention for three offences of burglary, in 2003. At the time of these offences he was subject to a community rehabilitation order and an antisocial behaviour order. It is therefore apparent that the judge who passed sentence was wrong in describing the offender as having no previous convictions for violence. 12. Reynolds was sentenced to 21 months' detention. In that respect he was, no doubt, extremely fortunate. He had, however, pleaded guilty to these offences and had, on two occasions, given evidence for the prosecution. Furthermore, on the evidence of Mr Clynes, Reynolds was by no means the prime mover in these activities and had tried to stop the offender from stabbing the victim. Furthermore, Reynolds had no previous convictions for violence and there was a psychological report upon him which described how he was easily led. 13. On behalf of the Attorney-General, Miss Johnson draws attention to what she rightly submits are a considerable number of aggravating features. First, the victim was targeted and vulnerable. Secondly, he was in his home. Thirdly, the attack took place at night. Fourthly, the events were unprovoked. Fifthly, the violence used was gratuitous and sadistic and involved the use of a knife brought for the purpose. Next, there were two attackers acting together. Next, considerable injuries and distress were caused. Next, the offender ignored the co-accused's plea to stop stabbing the victim. Finally, there are the previous convictions for assault and possession of a knife to which we have referred. 14. Miss Johnson draws attention to the single mitigating feature which appears to be present, namely the offender was only 20 at the time of these offences. 15. A number of authorities are referred to in the Reference. They include Attorney-General Reference Nos 32 and 33 of 1995 (1996) 2 Cr App R(S) 346, Attorney-General's Reference No 89 of 1999 [2000] 2 Cr App R(S) 382, Attorney-General's Reference No 4 of 2004 [2005] 1 Cr App R(S) 108 and Attorney-General Reference Nos 38 and 39 of 2004 [2005] 1 Cr App R(S) 267. 16. The submission which Miss Johnson makes, which is not resisted by Mr Rankin on behalf of the offender, is that these authorities indicate that the sentence below ought to have been within the bracket of 8 to 10 years for this type of offence and the sentence passed ought to have been towards the top of that bracket. 17. Mr Rankin, on behalf of the offender, submits that the judge was, following the trial, best placed to assess the appropriate sentence in relation to this offender. There are two comments to be made on that generally acceptable proposition so far as the circumstances of this case are concerned. First, as we have already said, the judge sentenced on the erroneous basis that the defendant had no previous conviction for violence. Secondly, the learned judge expressly, in his sentencing remarks, indicated that a higher sentence would have been appropriate but, in view of prison overcrowding he was not going to impose the higher sentence which, it may be, he first had in mind. That approach was misconceived. It is true that the learned judge did not have the advantage of the observations made by the present Lord Chief Justice, Lord Phillips of Worth Matravers in the case of R v Scarth (21st March 2006) which was reported in The Times on 28th March 2006. In the course of giving the judgment of the Court, the Lord Chief Justice said this: "The fact that prisons are overcrowded may, for that reason, be a relevant factor when the sentencers decision is on the cusp, so that there is a real issue as to whether a community sentence can be justified rather than a custodial sentence." The learned Lord Chief Justice also, however, said that over- crowded prisons are not a material factor when one is dealing with a case of such gravity that there can be no question that a significant term of imprisonment is called for. That reflects the approach enunciated by the former Lord Chief Justice, Lord Woolf, in R v Kefford [2002] 2 Cr App R(S) 495. 18. Mr Rankin draws attention to the period of 14 months or so which had elapsed between the commission of these offences and the date on which the offender was sentenced. The reasons for that lapse of time have already emerged from what we have said in relation to the course which events followed in the Court below. Mr Rankin draws attention to a wing report from the prison where the offender is incarcerated which describes him as "courteous and polite" to staff and fellow prisoners. Mr Rankin says that today, at least, the offender accepts responsibility for what he did. Finally, Mr Rankin relies on the principle of double jeopardy, that is to say that the offender is being sentenced a second time. 19. In our judgment, the sentence passed in the court below was plainly unduly lenient. We would have expected a total sentence of the order of 10 years. Taking into account double jeopardy, the sentence which we pass on count 1 in the indictment, the count of robbery, is one of 6 years in place of the 3 years imposed by the learned judge, and on count 2 8 years in place of the 4 years imposed by the learned judge. The total sentence therefore becomes one of 8 years' imprisonment.

```yaml citation: '[2006] EWCA Crim 1160' date: '2006-04-10' judges: - (LORD JUSTICE ROSE) - MR JUSTICE LEVESON - MR JUSTICE FULFORD ```

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

Case No: 200904417/A5 Neutral Citation Number: [2009] EWCA Crim 2857 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 8th October 2009 B e f o r e : LORD JUSTICE MOSES MR JUSTICE OPENSHAW HIS HONOUR JUDGE ROOK 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 71 OF 2009 (ANDREW SYMES) - - - - - - - - - - - - - - - - - - - - - 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 appeared on behalf of the Attorney General Mr I Halliday appeared on behalf of the Offender - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE MOSES: This is a reference, under section 36 of the Criminal Justice Act 1988 , in which the Attorney-General applies for leave to refer a sentence, which, in her submission, was unduly lenient. We have already indicated to Mr Evans, on behalf of the Attorney-General, that we shall give leave. 2. The essential point of the application is that the trial judge who also sentenced this respondent failed to follow the guidelines applicable to the offence, gave no specific reasons as to why she did not follow those guidelines and in giving her reason for the sentence, failed to demonstrate that there were good reasons for departing from the relevant guidelines. 3. The offender is 47 years old, born on 18th February 1962. As frequently occurs in cases of this nature, he is a man not only of good character in the sense that he has never been in trouble before, but of positively good character, having worked in a responsible job throughout his life and having earned the trust and approbation of both those who know him and of those with whom he works. They are anxious still to employee him. 4. He was, unfortunately, however, guilty of five sexual assaults, contrary to section 3 of the Sexual Offences Act 2003 in respect of the young daughter of the lady with whom he was living. 5. The judge, Her Honour Judge Hagen, at Bristol Crown Court, conducted the trial, since the offender disputed that he was so guilty, adjourned sentence, following the preparation of a pre-sentence report and then passed the sentence which is the subject matter of the reference. The sentence that was passed was one of 12 months' imprisonment, suspended for 2 years concurrent on each of the five counts. The respondent was also made the subject to a supervision requirement for 2 years and a requirement to attend the Thames Valley Sex Offenders Programme. He was placed on the Sex Offenders Register for 10 years. 6. The respondent started to live with the mother of the child in 2006. She had two daughters and the victim was the youngest, born on [a date in] 1994. The offences came to light in September 2008 when finally and reluctantly the young girl told her mother that the respondent had been touching her. She was interviewed by the police shortly after and the offender left immediately, never going back to live with the family. 7. The offences she described in interview and at trial were offences whereby usually in drink or drunk, the offender would climb into her bed, wearing boxershorts and then, whilst she was wearing her pyjamas, hug her, fondle her breasts, put his hand beneath her pyjama bottoms and rub her vagina with his fingers. When she told him to go, or if he was alerted to a noise, he would stop. No allegation of penetration was pursued. 8. Two of the offences occurred when the girl was 11, three was when she was 13. 9. The dilemma she faced in fearing the breakup of the family and of getting him into trouble was demonstrated in her answers during interview. Her mother, who has never since lived with this offender, describes the affect on the family and the trauma caused to her young daughter in her victim impact statement. Throughout, the offender denied the offences. 10. A pre-sentence report described his good character and the risk, despite his denial of further sexual offences being low, although inevitably drawing attention, in the light of his denial, to his lack of insight. 11. The judge was referred to the relevant guidelines. Those guidelines contain a number of features applicable to this case. One of the factors indicating a more than usually serious degree of harm is the fact that these sexual assaults took place on the same victim, on repeated occasions, namely five -- the third of the features identified in the guideline Sexual Offences Act 2003 Definitive Guideline. Further, the guideline makes it clear at page 15 that it relates to sentencing in respect of someone who is a first-time offender. It was agreed that the relevant guideline is the one headed "sexual assault of a child under 13" and that the nature of that activity is one that merits a starting point of 2 years custody, with a sentencing range of 1 to 4 years. It is of note that that guideline does not take into account the seriously aggravating feature of breach of trust. 12. The judge, in making her sentencing remarks, makes no specific reference to the relevant guideline although it is plain that Mr Halliday, who has conducted the respondent's case both there and before us with conspicuous skill and frankness, had referred her to that guideline. This case, therefore, underlines the importance that a judge should refer to the relevant guideline in her sentencing remarks and explain the reasons why, if a decision has been made to depart from those guidelines, she is not following them. That has the merit not only of explaining and avoiding the sad consequences of an application such as this but also providing the discipline that every judge needs in reaching a decision explaining the reasons for it. 13. The judge announced her conclusion and rightly identified that the victim was a young vulnerable child, that the effect of these offences was to destroy the family and it amounted to a gross breach of trust. All of that was entirely correct. But she erred in her identification of the mitigating factors. First of all, she pointed out that there was only one complainant and not a number of complainants. Of course it would have been worse had there been a number, but the fact that there were, as properly described in the guideline, repeated offences against one complainant was an aggravating, not a mitigating feature. Further, although she rightly identified that there was no risk of re-offending, it minimised the gravity of the offence to describe what had happened as no more than drunken groping. It was, as the guideline indicates, far more serious than that. 14. Against those features, as Mr Halliday has so well reminded us, the impact of this on this man has been and will continue to be severe. If he goes to prison he will lose his job. He has brought shame upon himself from which it will be difficult for him to recover. But this court has, on frequent occasions, emphasised the importance of the consistency which the guidelines are designed to maintain and that there must be good and cogent reasons, particularly in cases of sexual offences for, departing from them. In our judgment, despite the clear features of mitigation and the extra impact, our conclusion is there was no basis for departing from the guideline in this case. 15. The correct sentence on all these five offences to run concurrently was, we suggest, one of 2 years' imprisonment. Because of the impact of allowing this application by the Attorney-General, it is appropriate to reduce that to reflect that impact and we do so by reducing the sentence of 2 years' imprisonment, the appropriate sentence, to one of 15 months' imprisonment to run concurrent on each count. There was no justification for suspending this sentence. 16. MR EDIS: My Lords, I understand the offender is present and can therefore surrender. 17. LORD JUSTICE MOSES: The sentence will start from today. 18. MR HALLIDAY: May I briefly address the court on that issue? My client is present in court today, as has been said, therefore he is in a position to surrender to that sentence, if your Lordship so directs it. He does invite me to address the court and invite the court for seven days in which to surrender to this sentence. First of all, as I have already indicated, he has prepared a letter of resignation for his employers. He would like to attend his resignation in person. Secondly, as I have mentioned, he is currently living with his father, 79 years of age in ill-health. His father has a medical appointment which he hopes to attend on 12th October. 19. LORD JUSTICE MOSES: When? 20. MR HALLIDAY: When is the 12th? Next Monday my Lord. 21. LORD JUSTICE MOSES: Where would he surrender to if he does not surrender today? 22. MR HALLIDAY: Any place of the court's choosing, back to Bristol Crown Court or the local police station. 23. LORD JUSTICE MOSES: Do you have any observations on that? It is difficult to refuse, he has shown such responsibility turning up today. 24. MR EDIS: I have no submissions to make about it at all my Lord. (The Bench Conferred) 25. LORD JUSTICE MOSES: There is a particular aspect of this of which I am reminded and we are very worried about. That is the risks to himself of which those who have seen him speak. I am deliberately talking in code. You know what I am talking about. 26. MR HALLIDAY: I take your Lordships point entirely. If anything, that is likely more a live issue once incarcerated rather than before. At present under the doctor, he is under medication. 27. LORD JUSTICE MOSES: He has somebody with him today. 28. MR HALLIDAY: Whatever thoughts had crossed his mind are currently under control. 29. LORD JUSTICE MOSES: Very well. We will order that he surrender at Bristol police station. The appointment is on Wednesday, is it, if we said Thursday. 30. MR HALLIDAY: On Wednesday. 31. LORD JUSTICE MOSES: We are to say Wednesday then. Weston-super-Mare police station, by 10.30 on the Wednesday morning. All right? 32. MR HALLIDAY: I know my client is grateful for that accommodation.

```yaml citation: '[2009] EWCA Crim 2857' date: '2009-10-08' judges: - LORD JUSTICE MOSES - MR JUSTICE OPENSHAW - HIS HONOUR JUDGE ROOK QC ```

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

Neutral Citation Number: [2008] EWCA Crim 425 No: 2007/6449/A5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 19 February 2008 B e f o r e : LORD JUSTICE HOOPER MR JUSTICE BLAKE DAME HEATHER STEEL DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v MK - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr F Ferguson appeared on behalf of the Appellant Miss K Tompkins appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. DAME HEATHER STEEL: On 8th October 2007 in the Crown Court at Luton the appellant, who is 23 years of age, pleaded guilty to an offence of administering a poison or noxious substance, that being Methadone, so as to endanger the life of a 3-year-old child, contrary to section 23 of the Offences Against the Person Act 1861 . On 13th November 2007 he was sentenced to a period of four-and-a-half years' imprisonment with a direction that 164 days served on remand should count towards his sentence. He appeals against that sentence by leave of the single judge and this morning is represented by Mr Ferguson. 2. Briefly the facts of the offence are these. The appellant lived in Luton with his extended family. On 30th May 2007 he was responsible for the care of a 3-year-old child, K, both the child's parents being at work. He had cared for the child on previous occasions and the child was variously described in the papers as his nephew. 3. At about 3.30 in the afternoon the appellant called an ambulance. Paramedics found K unconscious and in respiratory arrest. Oxygen by the mouth was applied and he was taken to a hospital in Luton. At about 4.00 pm the appellant telephoned K's father and informed him that his son was in hospital. He said he did not know the cause of K's sudden illness. Because the appellant had said that K was not too bad and he was in a stable state, the boy's father worked until the end of his shift and then went to the hospital at about 7 o'clock in the evening. About at about 6.00 pm the appellant also made efforts to contact K's mother. When she asked him "What have you done to K?" the appellant hung up the telephone on her. 4. K was in a serious condition. It was decided to move him to Great Ormond Street Hospital. The appellant stayed at the hospital in Luton until K was removed to Great Ormond Street at which point the appellant left. He told K's parents he was going to go home and pack to move to Poland. When he was challenged the appellant denied that any illegal drugs or substances had been taken or ingested by K. At Great Ormond Street Hospital, K was ventilated and intubated using paralysing medication. He was given intravenous fluid, antibiotics, anti-viral medication and anti-seizure medication as he was suffering convulsions. He underwent a CT scan and an ECG. Samples of blood and urine were taken and swabs were taken from his throat. On 1st June, two days later, he underwent a lumbar puncture, with the risks that go with that procedure, to determine whether the cause was a viral infection of the central nervous system. 5. It is clear from the mother's victim impact statement that they stayed at the hospital with the child for about 10 days and that he was unconscious for some two days. 6. The appellant was arrested and from 30th May to 1st June he was interviewed. In interview he denied that K had been given any unlawful substance, in particular Methadone. 7. The clinical diagnosis made by a toxicologist, Mr Humphries, on a blood sample was found to be consistent with a life-threatening dose of Methadone being administered, that being no less than 10.5 milligrams. A further analysis was made by Dr Flannagan of a different blood sample taken at a different time which revealed between 7.5 to 9.4 milligrams of Methadone. It was the opinion of each of the experts that the dose administered was life-threatening. That dose could have caused the death of K had he not received the appropriate medical care in time. It was the appellant's assertion that he had given the child no more than half a teaspoon of Methadone. 8. In his basis of plea document, the appellant said that he had planned to go to Poland. He needed a two week prescription of his Methadone. That being dispensed depended on him providing a urine sample that was negative for illegal drugs but positive for Methadone. The appellant thought he could use K's urine sample to ensure it was positive for Methadone by supplying it to him through a carton of apple juice. 9. There was no medical report before the court dealing with the child's prognosis. The mother's impact statement indicated that a doctor had told her that K would suffer from side effects during his adolescence, but he was currently not subject to any ongoing treatment and had no further appointments either at the hospital or with his doctor. 10. Before the judge passed sentence he had a copy of the appellant's antecedents which revealed two previous convictions in 2006 for theft and there was before the court a pre-sentence report prepared by Jenna Robinson. The court also had the benefit of submissions made by Mr Ferguson and a document setting out the basis of the plea. 11. In sentencing the judge took account of the plea of guilty and gave the appellant full credit for that plea. The judge went on to set out that he was to be sentenced in accordance with the written basis of his plea and he set out the essence of that basis of plea document. The judge very carefully identified both the aggravating and the mitigating features which apply to this case. The judge said: "I accept, as I have to, because that is the basis upon which you pleaded guilty, that you did not realise that the ingestion of the quantity of Methadone you gave to the child would cause anything more than perhaps drowsiness and certainly not the very serious effects that it did cause. You, however, are 23 years old and you have a history of drug addiction and a moment's mature reflection ought to have been sufficient to cause you to appreciate that you were taking a significant risk. Bearing in mind that you were in charge of a 3-year-old child, you ought to have taken time to reflect and consider the possible consequences of your actions. What you did was to go ahead, apparently without giving the matter any real thought, because, of course, you were more concerned with your own selfish desire to obtain Methadone to take away with you. The Methadone which you administered to that child resulted in a life-threatening condition." The judge went to say: "I accept in your favour that when you appreciated how seriously ill the child was and this was all too apparent to you by reason of the state you saw him in, you sent for an ambulance. Had you not done that he might well have died. However, when the ambulance arrived and later at the hospital, throughout which time it was all too clear to you that he was in a very serious condition, you did not assist those treating him by telling them what you had done. The result was that the doctors were very much in the dark as to the cause and it may well be that that child's suffering was prolonged by reason of your failure. At the very least, you were taking again a very substantial risk with the well-being of that child by not disclosing what had happened." The judge identified the three aggravating features as being, first of all, the abuse of trust which involved using a 3-year-old child for his own thoroughly selfish purposes. Secondly, the life-threatening condition which resulted from the appellant's actions. Thirdly, the most serious aggravating feature identified by the judge was the appellant's failure to tell the doctors and ambulance team what he had done. He was concerned with his own self preservation and not with alleviating the obvious suffering of the child. 12. The mitigating features are set out as his plea of guilty and the fact that the appellant had no intention to cause the child injury but apparently had no foresight that that might be the result. The judge indicated that an appropriate sentence after a trial in respect of this indictment would have been six-and-a-half to seven years and allowing full credit the sentence he passed was four-and-a-half years' imprisonment. 13. The grounds of appeal which have been submitted by Mr Ferguson are that the sentence was manifestly excessive, insufficient account was taken of the appellant's age, his relative good character and that it was too severe in all the circumstances. 14. In submissions made this morning, Mr Ferguson draws our attention to the basis of plea document which was accepted by the judge. He brings to the attention of this court that the appellant did not foresee the consequences of his actions. Our attention was drawn to paragraph 10 of the basis of plea document which reads: "When I gave K the Methadone, I thought that he might become sleepy but I did not think that it would make him ill. I only gave him a small amount." Miss Tompkins was invited by the court to consider recklessness as it applied to this case and it is quite clear from the findings of the judge that he was satisfied that recklessness applied. The way in which the court interpreted the appellant's role was: "I realise my actions could have caused harm and nevertheless I went on to administer the Methadone to this child". It is relevant in considering this that in the basis of plea document at paragraph 17, the appellant set out: "I realise that what I did was irresponsible and stupid. I deeply regret my actions. Other than remaining silent I took no steps to conceal what I had done." 15. This court has considered with great care the submissions made on behalf of the appellant and all the material which is before the court. The case was a very serious and very difficult one. In our view the offence was significantly aggravated by the appellant's failure to alert the authorities to the reason for the child's life-threatening illness. The sentence of four-and-a-half years was entirely appropriate in all the circumstances of the case, bearing in mind that this was a clear case of recklessness. The judge was most careful to consider all the relevant matters in considering his sentence. The sentence that he passed was not wrong in principle, nor was it manifestly excessive. This appeal is dismissed.

```yaml citation: '[2008] EWCA Crim 425' date: '2008-02-19' judges: - LORD JUSTICE HOOPER - MR JUSTICE BLAKE ```

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

No: 200900802/A4 Neutral Citation Number: [2009] EWCA Crim 1059 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 12th 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 GORDON ROBERT MASTERSON - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr R Eaton (Solicitor-Advocate) appeared on behalf of the Appellant Mr A Bull appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE OUSELEY: On 5th November 2008 the appellant pleaded guilty to arson being reckless as to whether life was endangered. On 20th January 2009 His Honour Judge Alexander QC at Northampton Crown Court sentenced him to five-and-a-half years less time spent on remand. He appeals with leave on the grounds that that sentence was manifestly excessive. 2. By 28th September 2008 the appellant, who was 31, was in both financial and personal difficulties. The mid-terraced house which he owned on a mortgage in Corby and where he started the fire had been bought with his partner who had left him a year before for his best friend. She had stopped paying her share of the mortgage for at least 6 months. His wages had been halved and he faced imminent redundancy and the eventual repossession of his house. 3. On 28th September 2008, the night in question, he had returned late from a wedding, where he had been drinking heavily with his current girlfriend. They had had an argument. She left for her home nearby. He started smashing up the cupboards in the kitchen and when she returned and asked him about it he threw her out. 4. Just after midnight, as one of his next door neighbours was going to bed, she heard a banging noise from his house, looked out and although she saw nothing the banging noise continued. After a pause, but while she continued looking, she eventually saw smoke coming from the kitchen back extension of the appellant's house. Realising that a fire was started, she went to the appellant's neighbour on his other side, where two adults and two teenage children were asleep. She got them out of the house. Someone, not the appellant, called the fire brigade. 5. The appellant, before leaving the house, had set fire to it in four places. He had set two fires in the living room, one in an arm chair and one in two bean bags. The other two fires were in the kitchen, on the work tops. Importantly, the gas hob had been turned on but was not ignited but it caused a buildup of gas which could easily have caused an explosion, likely to cause serious injury or death to the fire service, neighbours, or members of the public or would-be rescuers. Although there was no suggestion that accelerants were used, the fires were started by burning paper or cloth. 6. At around 1.50 am the appellant telephoned his girlfriend and told her that he had set fire to his house. She returned and found the property on fire with the fire brigade already in attendance. Thinking that the appellant might still be inside, she tried to enter the property but was stopped by the fire officers, who then used her key to gain entry to search for and rescue the appellant, if he were there, and to tackle the fire. When the appellant's girlfriend returned home the appellant arrived, gave her his dog and then returned to his own house. He told the fire officer it was he who had started the fire and then waited for the police. 7. The fire service termed this a developing fire, which without intervention would have spread to the remainder of the property and to adjoining properties. These terraced houses shared a common roof void. The developing fire took 25 minutes to bring under control. Had it fully developed, they too would have been put at risk from the possibility of flashover and backdraft. Serious damage was caused. If someone had been present, they would have been killed. 8. When interviewed, the appellant fully admitted starting the fire but said that because of the alcohol he had consumed there were parts of what happened that he could not remember, including the starting of the fire in the kitchen and leaving the gas on. He said he had started the fires after stewing over his argument with his girlfriend and set the fires on the spur of the moment. 9. The appellant has no relevant other previous convictions. The pre-sentence report referred to the emotional strain of the breakup with his former partner and the financial strains that he was under, to which we have referred. It assessed Mr Masterson as presenting a medium risk of harm to the public. The likelihood of re-offending was assessed as low to medium. He was not likely to re-offend immediately but should he do so the consequences could be serious. He did not have a pro criminal attitude, nor a fascination with fires. His offending behaviour was linked to the disinhibiting effects of alcohol and the way he made decisions. In the language of the PSR his offending was "clearly linked to his inappropriate thinking skills". 10. The sentencing judge also had the benefit of a psychiatric report. This too identified that Mr Masterson's consumption of alcohol was a serious part of his coping with what the psychiatrist described as a chronic adjustment order with depressed mood. The fire had been set in the context of this alcoholic intoxication, an argument with his partner, low mood and negative emotional responses to the various stresses he faced. He was more likely to engage in such offending behaviour in the future in similar circumstances and the risk factors, in particular the way he consumed alcohol and approached decision making, needed to be addressed. 11. In the submissions which form part of the grounds of appeal it is pointed out by Mr Eaton that the sentence imposed by the judge implied a starting point, after a trial, of 8 years and 3 months. A number of other decisions are referred to in the grounds, which indicate that for reckless arson, in general terms, after a trial, a sentence of around 6 to 7 years is towards the top end. 12. There are a number of significant features to be borne in mind in the setting sentence here. Although no one was in the house when the fire was set, it was a mid- terraced house with a common roof void and the appellant knew that his neighbours, including children, were likely to be asleep in their homes. Among the seats of fire was one in the kitchen where the gas taps were on, creating the scope for an unpredictable, serious explosion which could kill the fire service, rescuers or neighbours. He, although expressing remorse afterwards, did not contact the fire brigade himself and appears not to have told his girlfriend until after someone else had alerted the fire brigade. The fire was discovered fortuitously through a neighbour being alerted to something odd happening at the house by the banging. The fire brigade, rescuers, the girlfriend and the neighbours were put at risk. 13. But the appellant has no previous convictions for anything like this. He has no fascination with fires. He pleaded guilty at the earliest opportunity but he also turned up at the scene and admitted to setting the fire. No grudge lead to this incident. Limited weight only, however, can be given to the financial and emotional stresses which he was under. These are common enough in these offences, and no weight at all can be given to the fact that he was drunk. 14. Having considered all those factors, we have come to the conclusion that, following a plea of guilty, a sentence of five-and-a-half years was not just high but manifestly excessive and should be reduced. We have come to the conclusion that it should be reduced to 4 years less time served on remand. To that extent this appeal is allowed.

```yaml citation: '[2009] EWCA Crim 1059' date: '2009-05-12' 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} ======

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 1790 IN THE COURT OF APPEAL CRIMINAL DIVISION No. 202203255 A1 Royal Courts of Justice Friday, 16 December 2022 Before: LADY JUSTICE CARR MRS JUSTICE CUTTS HIS HONOUR JUDGE JEREMY RICHARDSON KC ( RECORDER OF SHEFFIELD ) REFERENCE BY THE ATTORNEY GENERAL UNDER Section 36 Of The Criminal Justice Act 1988 REX V SA REPORTING RESTRICTIONS APPLY: Section 45 of The Youth Justice and Criminal Evidence Act 1999 __________ Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] _________ MR B LLOYD appeared on behalf of the Solicitor General. MS N CARTER appeared on behalf of the Offender. _________ JUDGMENT LADY JUSTICE CARR: Introduction 1. This is an application by His Majesty's Solicitor General for leave to refer a sentence imposed in the Crown Court at Woolwich which he regards as being unduly lenient. We give leave. 2. The Reference arises out of the physical abuse of a nine-year-old by his father in circumstances which we shall come to explain. It is not clear to us what precise consideration was given at the Crown Court to the necessity or otherwise of an order under sections 45 or 45A of the Youth Justice and Criminal Evidence Act 1999. At the outset of the hearing before us we made an order under section 45 granting anonymity to the boy and his siblings who gave evidence in the trial, to whom reference has been made in the course of this hearing and to which reference will be made in our judgment. The order will apply until the children's eighteenth birthdays. 3. In consequence, the boy victim will be described by us as E, and his siblings by other letters as appropriate. The welfare of the children demands that they be not named. They are of school age and the emotional harm likely to be caused to them by naming them in a case of this kind is plain and obvious. So nothing may be reported which may lead to the identification of any of the children. We specifically prohibit the naming of the area of London where this crime occurred, although the fact that the case was heard in the Crown Court at Woolwich may be reported. In consequence of this order, the name of the offender will also have to be anonymised. 4. We emphasise the importance of clarity in terms of considering and/or the making of any order under sections 45 or 45A that the outset of proceedings in the Crown Court, usually at the PTPH, and at the latest at the commencement of the trial. We do not seek to set out any principles as to when it is appropriate to make an order, but there is a statutory regime to be followed. 5. The offender is now 66 years old. On 10 June 2022, the sixth day of his trial before His Honour Judge Mann KC (“the Judge”), he pleaded guilty to cruelty to a person under 16 years, contrary to section 1(1) of the Children and Young Persons Act 1933. As we have indicated, the victim of the offence was his son, then aged nine. 6. On 12 October 2022 the offender was sentenced to a suspended sentence order, comprising a custodial term of 22 months, suspended for 12 months, with a two-month electronic curfew between the hours of 7.00 p.m. and 7.00 a.m. The offender was also ordered to pay £500 in compensation to E and costs in the sum of £250. A victim surcharge was applied. 7. On 22 January 2021 the offender had assaulted E by repeatedly striking him with metal rods and a belt. After the physical assault was over, the offender told E to stand in a corner in the living room with his arms raised above him in what is known as a "stress position". The incident took place at the family home and lasted for several hours. It was witnessed directly by one of E's siblings (Y); another sibling (Z) was upstairs at the time but heard E's cries of pain. When E's mother (“the mother”) returned home, she took E to hospital and the matter was reported to the police. 8. Police subsequently conducted a video-recorded interview with E, Y, Z and the mother. The offender was charged with offences of child cruelty in respect of each child. The cross-examination of the children was pre-recorded, pursuant to section 28 of the Youth Justice and Criminal Evidence Act 1999. 9. As indicated, the offender pleaded guilty child cruelty in respect of E (count 2). The counts in relation to the other children were directed to lie on the file. 10. For the Solicitor General it is submitted that the Judge fell into error by concluding that the adjusted term fell within the range of sentences where the question of suspension became relevant and/or in deciding to suspend that sentence. The facts 11. The offender was born in Lagos, Nigeria, and moved to the United Kingdom in 1990. At the relevant time he was living in London with the mother, his stepdaughter (Z), aged 17, and his two biological children, E and Y. The mother also had two adult sons who did not live with them. On 22 January 2021 and during a period of national lockdown, E was at home with his sisters during the day. The mother had been informed by E's school that E had not been attending his online school classes for the last two days. This resulted in E being told that he would not be allowed to play computer games for some time. The mother then left the home to visit her eldest son. 12. The offender came home from work to find E using the computer. The mother telephoned him and told him about E’s non-attendance at school. The offender then repeatedly struck E across the back using metal sticks or rods which he retrieved from a basket next to the television in the living room. He also used his belt repeatedly to strike E on the back, arms and shoulders. E cried very loudly. Y witnessed the assault. Z was upstairs at the time and heard his cries. When the physical assault had come to an end, the offender told E to hold a metal stick above his head and face the garden. E remained in this stress position for some two hours. 13. The mother came home on 24 January 2021 to find E still in pain. She saw the marks on his body. She confronted the offender who admitted what he had done at that stage but did not accept that his actions were wrong. 14. The mother took E to hospital where he was found to have multiple horizontal bruises across his back and arms, linear in appearance and consistent with the use of a metal stick-like implement. He also had bruising to his shoulders and his head, as well as cuts to his hands. The metal sticks that had been used by the offender were provided to the police subsequently. 15. The offender was arrested on 25 January 2021. He said at that stage that he felt very remorseful but, when interviewed, denied assaulting E or any of his children with a stick or belt and denied putting E in a stress position. Instead, he blamed his wife. He said that E and the siblings had fabricated these allegations, orchestrated and encouraged to do so by his wife. He said that his wife was upset with him over citizenship and the entry of her family into this country. 16. Having been charged, the offender was remanded on bail with conditions which included a qualifying (electronically-monitored) curfew. He pleaded not guilty throughout the pre-trial period, and the trial commenced on 10 June 2021 with cross-examination of the children under section 28 procedures. The case was then listed for further hearing between 6 and 10 June 2022. The recorded evidence of the children was played to the jury and the mother gave live evidence. After the prosecution had closed its case, the mother discovered text messages that the offender had sent to her in January 2021 in which he had warned her and E not to say anything about what had happened to E. The offender then offered a guilty plea to Count 2 on a full facts basis. On the sixth day of trial he was re-arraigned on Count 2, and pleaded guilty. The sentencing process 17. The case was adjourned for sentence and came before the Judge for sentence on 12 October 2022. The material or information before the Judge included the following. 18. In terms of antecedents, the offender had only one previous conviction for common assault, dating back to 1996, but we note that that conviction was for an assault in respect of his first wife. He received a community order with a requirement to carry out 80 hours unpaid work. 19. Further, there was a Pre-Sentence Report dated 27 July 2022 in which it was recorded that the offender maintained his innocence. He had only pleaded guilty, he said, to save his job. He denied assaulting E. He denied using a belt. He had only gently tapped E twice on the shoulder and the injuries had in fact been caused by the mother. He stated that his wife had instructed the children to manufacture false accounts against him. He demonstrated no empathy or concern for the welfare of his children, nor any remorse. 20. There was also a Victim Personal Statement prepared by the mother. In that statement she set out the impact of the offending and the court proceedings on her. She described the negative impact on her health and on her emotional state, her difficulties sleeping, the fact that she had been physically sick from stress and was crying a lot. She could not believe that the offender had made up a story about her. She referred to her past relationship with the offender, but also how her bond with her children had become stronger and that the children were now much happier with the offender not living with them. 21. The Judge sentenced the offender on a full facts basis, noting the fact that the suggestion of innocence made by the offender to the probation officer had not been maintained at the sentencing hearing. He said there would be no credit for the offender's guilty plea, that plea having been entered two thirds of the way through trial. As for impact on the victim, the Judge recorded that he had been informed that E did not wish to describe the impact on him because he was still too traumatised. The Judge stated: "[...] There is nothing to say the extent to which, if at all, E had any sort of psychological damage, but just common sense that he must have been very upset about it and those sorts of feelings against one's parents can be very long-standing and can affect the rest of your life, and so you must bear responsible for that [....]" 22. The Judge placed culpability in Category A of the Sentencing Council Guideline on Child Cruelty. The offender had used a weapon to strike E multiple times and it was a prolonged incident that went on for hours, with another form of cruelty involving the requirement for E to stand in the stress position. Harm was placed as falling between categories 1 and 3. 23. The Judge went on to state this: "This offending can be rightly regarded as one-off and out of character for you and unlikely to ever be repeated because the children are not with you now. So you have also your good character and you [...] have no access to your children. That may change in the future. I recognise that. I have to bear in mind that there is no suggestion that you are generally a danger to children. This offence occurred within the home circumstances and on the evidence is unlikely to be repeated. There was evidence during the trial that you were assaulting other children in your family and generally being abusive, but you are not charged/you have not been convicted of those, but I say that because you must recognise, that as you probably do now, that is not the way to behave within the context of your family or at all. I accept that this was not done because you are a bad person or that you were trying to be malicious but because you were concerned about the welfare of your children, and I also accept that in all other respects E was looked after well, well-educated and very well brought up. I have to put all of that in the equation." 24. The Judge did not specifically refer to any aggravating factors when passing sentence, but did refer to mitigating factors, which he identified as the offender's age, his previous good character, the fact this was an isolated incident, that there was no evidence that E had suffered prolonged psychological damage and that the incident had been born out of concern for E's welfare. 25. The Judge concluded that the custody threshold was passed but that a custodial sentence was capable of suspension, particularly in light of the curfew under which the offender had been placed. He had, as we have indicated, been on bail with a qualifying curfew throughout the proceedings. Specifically in this regard, the Judge said this: "I also have to take into account the amount of time you have spent on curfew because  ̶ qualifying curfew, because you have done the equivalent of two years. So if I were to sentence you today to two years' imprisonment, you would almost certainly walk straight out. I need to bear that in mind. I cannot sentence you twice. I cannot give you a double sentence just to make sure you go to prison. That would be quite wrong. I have to look at the sentence I would have passed. So how do I approach this? Well, first of all, does this pass the custody threshold irrespective of all the other factors? Yes, of course it does. So I start with the conclusion that this passes the custody threshold. I am going to have to consider other matters, such as your age and previous good character, whether or not this offence is ever likely to be repeated and I have to consider the guidelines for dealing with these sorts of offences (pleas), and whether there is a possibility of rehabilitation. Given the isolated nature of the offence, it seems to me that it would be wrong to conclude [that this] is not a sentence which is capable of being suspended, and I pause there because I add, and I add for the second time in case anyone was considering this-- reading about this sentence and why I have taken the decision I have. I also have to take into account the amount of time the defendant has spent on qualifying curfew and so because of that I-- I conclude that the most appropriate way to deal with you is as follows [...]" 26. The Judge went on to impose the suspended sentence order to which we have already referred. The Solicitor General's submission 27. Mr Lloyd for the Solicitor General recognises that the Judge correctly determined that the offending fell within Category 2A of the relevant Guideline, but submits that a term significantly longer than 22 months' imprisonment was merited. The starting point for a Category 2 offence is 3 years’ custody, with a range of 2 to 6 years' custody. The Judge did not specifically refer to any aggravating factors increasing the seriousness of the offence. Those factors merited, in Mr Lloyd's submission, a significant uplift from the starting point of 3 years. 28. So far as mitigating factors were concerned, the fact that this was an isolated incident born out of concern for the welfare of E was not properly to be treated as a positive mitigating factor. The Judge himself recognised that there was evidence during trial of assault or general abusive behaviour involving other children in the family. So far as motivation was concerned, this was merely a question of an absence of a further aggravating feature, as opposed to positive mitigation. In the alternative, Mr Lloyd submits that too much weight was given to these factors by the Judge. 29. In short, it is said that the downward adjustment to 22 months, taking into account all aggravating and mitigating factors, was simply far too great. It did not reflect the overall seriousness of this offending. 30. For the offender, Miss Carter submits that the Judge, who was well placed to sentence the offender having observed him over the course of a six-day trial, followed a considered and balanced approach and that the final sentence that he imposed could not properly be described as unduly lenient. She submits that he was entitled to accept her submissions at the time to the effect that this offence could be distinguished from other culpability A offending. It was said that the offender did not have deliberate disregard for E's welfare but rather wanted to instil in him proper standards. His offending was not of a sadistic or cruel nature. E and his siblings were clearly otherwise well looked after and provided for. All of this, coupled with the offender's good character, justified the custodial term of 22 months. 31. It was then well within the judge's discretion, submits Miss Carter, to impose a suspended sentence, bearing in mind at this stage additionally the significant amount of time spent by the offender on curfew. If we were to conclude that the sentence below was unduly lenient, Miss Carter invites us to give anxious consideration to maintaining a suspended sentence but with more onerous conditions. Discussion 32. References under section 36 of the Criminal Justice Act 1988 are made for the purpose of the avoidance of gross error, the allaying of widespread public concern at what may appear to be an unduly lenient sentence, to the preservation of public confidence in cases where a Judge appears to have departed to a substantial extent from the norms of sentencing generally applied by the courts in cases of a particular type (see Attorney General's Reference No. 132 of 2001 (R v Johnson) [2002] EWCA Crim 1418; [2003] 1 Cr App R (S) 41 at [25]). We remind ourselves that the hurdle is a high one for appellate interference to be justified. The sentence in question must be not only lenient, but unduly so. 33. There is rightly no criticism made of the Judge's assessment of this offending as Category 2A offending, carrying a starting point of 3 years' custody with a range of 2 to 6 years. 34. There were, however, multiple aggravating factors which, in our judgment, appear to have been overlooked. First, and significantly, there was the presence of other children. This was a significant factor on the facts here, given that one eight-year-old sibling was actually in the room when the offending took place and another in a position to hear E's distress. This was to witness the punishment of one child, instilling fear in others of similar treatment so far as they were concerned. 35. Additionally, there was the failure to seek medical help, and also significantly, the fact that the offender wrongly sought to blame others. There was also his attempt to conceal his offending in the form of the text messages sent to the mother. 36. By way of mitigation there was the offender's limited previous offending history and the fact that this was an isolated incident, albeit that we accept Mr Lloyd’s submission that in reality this was not a question of a positive mitigating factor but at best neutral. It is, beyond that, difficult to see what significant, if any, further mitigation there was by reference to the offender's age or the lack of offending on other children or the offender’s motivation. 37. In terms of lack of evidence of long-term psychological damage to E, as the Judge commented, as a matter of common sense, real trauma to E must have been caused. The level of harm was, in any event, addressed in the question of categorisation of harm, as opposed to being a question of mitigation. 38. On the face of his sentencing remarks, the Judge appears to have been concerned as to how to recognise the time spent by the offender on curfew. The Judge should not have been distracted by that factor, at least at the outset; it was not relevant to the question of determining the correct length of custodial sentence. It would be a question of credit under section 325 of the Sentencing Act 2020, in due course, subject to the question of suspension. 39. The starting point of three years for this Category 2A offending, thus, fell to be increased significantly to take account of the aggravating factors that we have identified. These factors merited an increase of up to at least three and a half years. With mitigation, that term could not be reduced, in our judgment, to a term of less than 3 years. The potency of mitigation available generally was, in our judgment, reduced materially by the offender's denial of guilt until so late in the day and, for example, his repeated denial of guilt to the author of the Pre-Sentence Report. 40. In our judgment, the offending warranted a custodial term of not less than three years. There was no proper basis for the Judge to have reached a custodial term outside the range for Category 2A offending. In such circumstances, suspension was not an option. 41. For all these reasons, and seen in this light, the term that the Judge imposed was not only lenient, but unduly so. Conclusion 42. For these reasons, we allow the Reference. The sentence of 22 months' imprisonment will be quashed and replaced by a sentence of three years' imprisonment. The offender will receive full credit for half the time that he has spent under curfew if that curfew, as we understand it did, did qualify under the provisions of section 325 of the Sentencing Act 2020. On the information before us, the relevant total period is 340 days. If this period is mistaken, the court will order an amendment of the record for the correct period to be recorded.

```yaml citation: '[2022] EWCA Crim 1790' date: '2022-12-16' judges: - LADY JUSTICE CARR - MRS JUSTICE CUTTS - HIS HONOUR JUDGE JEREMY RICHARDSON 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: [2009] EWCA Crim 1033 Case No. 2008/03752/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 19 March 2009 B e f o r e: LORD JUSTICE GOLDRING MR JUSTICE KEITH and MR JUSTICE NICOL __________________ R E G I N A - v - JOHN NEVINS __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) __________________ Mr D Heraghty appeared on behalf of the Applicant Mr H Rowland appeared on behalf of the Crown ____________________ J U D G M E N T LORD JUSTICE GOLDRING: I shall ask Mr Justice Keith to give the judgment of the court. MR JUSTICE KEITH: 1. On 20 May 2008 at Ipswich Crown Court, the applicant pleaded guilty to four counts relating to his failure to comply with various obligations imposed on him by the Fire Precautions Act 1971 (" the Act "). He asked for two further offences to be taken into consideration. On 17 June 2008, he was sentenced by Judge Holt to fines totalling £145,000. He was ordered to pay the fines within 28 days, with a total of 54 months' imprisonment in default of payment. He was also ordered to pay a sum to the Legal Services Commission in respect of his own costs under a recovery of defence costs order. In addition, he was ordered to pay the sum of £49,988 towards the costs of the prosecution also within 28 days. He now renews his application for leave to appeal against the level of the fines and the order for the payment of the costs of the prosecution, leave to appeal having been refused by the single judge. 2. The offences all relate to a hotel which the applicant acquired in the early part of 2003. In July 2003, an application under the Building Regulations was lodged on behalf of the applicant with the Building Control Department of the local planning authority. That application sought approval to convert the function room on the ground floor of the hotel into three bedrooms. There was to be a fire escape corridor. Although the Building Control Department consults with the local fire authority over such an application, there was nevertheless an obligation on the applicant to give notice of the proposal to the local fire authority. He did not do so. 3. That would have been only a technical breach of the Act , as the advice on appeal rightly points out, but a subsequent inspection of the hotel in January 2004 revealed that the function room had been converted otherwise than in accordance with the original proposal. It had been converted into two bedrooms. There was no corridor. There was no means of escape from one of those bedrooms, except through the other bedroom. It was the applicant's failure to notify the fire authority of that proposal which formed the basis of count 1. The advice on appeal does not address that issue. On this count, the applicant was fined £10,000. 4. Following this inspection, the local fire authority wrote to the applicant reminding him of his obligation to notify it before any building works took place in the hotel in the future. However, on a further inspection of the hotel in May 2006, it was observed that part of the landing on the second floor had been converted into a bedroom. The local fire authority had not been notified of the proposal to carry out those works. The inspection revealed that there was no fire detector in the bedroom; that the walls between the bedroom and the adjacent corridor were unlikely to be fire resistant for the 30 minutes required; and that the door to the bedroom was not fire resistant to the required standard either. This new bedroom also affected the means of escape from five bedrooms on the second floor. That was regarded as so potentially dangerous that a prohibition notice was served prohibiting the use of the whole of the second floor. The prohibition notice was withdrawn only after remedial steps had been taken, although the defence say that it was withdrawn as soon as combustible materials had been removed from the bedroom, and that the prosecution have exaggerated the dangers created by the construction of the additional bedroom. It was the applicant's failure to notify the local fire authority of his proposal to carry out these works which formed the basis of count 2. On this count, the applicant was fined £75,000. 5. The two other counts to which the applicant pleaded guilty were counts 4 and 7. Unlike counts 1 and 2, they did not relate to the applicant's failure to notify the local fire authority of his proposal to carry out works. They related to his failure to comply with the requirements imposed by the fire certificate issued by the local fire authority. During the inspection of the hotel in January 2004, it was noted that the rear stairs, which comprised part of the escape route from the first and second floors, did not have any artificial lighting to allow people to leave the building safely in the event of a fire, and that although a light fitting with a bulb had been installed on the ground floor where the unauthorised conversion of the function room had taken place, there was no light switch to operate it. 6. The mitigation here was that the inadequacy of the lighting had not been mentioned before, even though the hotel had frequently been inspected, and that the inadequacies of the lighting system were swiftly rectified. It is also said (although it is difficult to see how this can mitigate the actual breaches of the fire certificate) that the hotel was equipped with an emergency lighting system which was activated in the event of a disruption to the power supply. Those breaches of the fire certificate formed the basis of count 4. On that count, the applicant was fined £10,000. 7. Finally, during a period of almost two years between March 2004 and January 2006, the fire alarm system was not tested adequately. It is true that the alarm records showed that from October 2004 at any rate the system was tested quarterly, but to comply with the fire certificate it had to be tested weekly. Again, although fire extinguisher checks were carried out annually, they had to be checked monthly to comply with the fire certificate. The mitigation here was that there was no evidence that the fire alarm system was not working. Those breaches of the fire certificate formed the subject of count 7. On that count, the applicant was fined £50,000. 8. The two offences which the applicant asked to be taken into consideration related to other breaches of the fire certificate. The door to the boiler room was not fire resistant, and the door to the kitchen, which provided a means of escape in the event of a fire, was not kept unlocked. 9. There were a number of aggravating features about this series of offences. First and foremost, people were put at risk. It is no answer to say, as is said on the applicant's behalf, that there never was a fire, nor even an increased risk of fire as a result of these breaches. That, no doubt, is true, but the case against the applicant was never put on the basis that there was an increased risk of fire as a result of these breaches, but that the breaches made it less easy for people to escape safely in the event of a fire. In addition, the offences were not about things which the applicant had overlooked through carelessness. The judge found that these were deliberate failures to comply with the requirements in order to save costs. In particular, the offence which the judge rightly regarded as the most serious in terms of putting the hotel's guests at risk (count 2) was committed despite a recent reminder from the local fire authority of the applicant's obligation to notify it before embarking on any building works. Indeed, it is acknowledged that one of the unattractive features of the applicant's behaviour was his reluctance to co-operate with the local fire authority. 10. The applicant was not without previous convictions. He is now 60 years old. He received a suspended sentence in his thirties for an offence of conspiracy to defraud. He went to prison for two years in his forties for offences of deception. In 2006, he received a suspended sentence for being involved in the management of a company when disqualified from doing so. Nor did the applicant have the mitigation of timely pleas of guilty. He had originally pleaded guilty at the magistrates' court, but had then successfully applied to change his pleas to not guilty and had elected to be tried at the Crown Court. The subsequent pleas of guilty at the Crown Court came very late in the day. 11. There is no question but that these were very substantial fines for offences of this kind. But the applicant is a man of considerable wealth. The net value of assets which he jointly owns with his wife was put at over £13,000,000, and his own assets were estimated to be in excess of £10,000,000. As the single judge said when refusing the applicant leave to appeal, there is no point in imposing fines on the rich unless they are large enough to hurt. 12. However, the mere fact that the applicant had the ability to pay substantial fines did not mean that they had to be calculated by reference to his assets. The authorities, in particular R v ESB Hotels Ltd [2005] 2 Cr App R(S) 56, show that in the case of corporate defendants, it is their pre-tax profits rather than the company's turnover which should be taken into account, and therefore presumably rather than their assets as disclosed on the balance sheet. The pre-tax profits for the applicant's business for the two previous years were £218,557 and £240,000. The judge is criticised for not taking the pre-tax profits of the business into account, but looking at his sentencing remarks, it is apparent that he did just that. It is also said in the supplementary grounds of appeal that the judge failed to reflect in the fines which he imposed the fact that the applicant's wife had a share in the business, and that something less than the whole of the pre-tax profits of the business should have been attributed to the applicant. But it is not said that the judge was told what his share of the business was. In any event, as we shall see, the applicant was prosecuted because he was the occupier of the premises for the purpose of the Act . 13. At the end of the day, as was said in R v F Howe & Son (Engineers) Ltd [1999] 2 Cr App R(S) 37 at p. 43, "the important thing is to assess the gravity of the breach", and in that context "it is often helpful to look at how far short of the appropriate standard the defendant fell". In this case the sentencing judge said: "In my judgment, your failing to meet what you should have done was woeful over a period of more than two years, and the potential for risk of serious injury to your guests whilst they slept in your hotel was considerable." 14. We have looked at comparable cases to see whether these fines were so out of kilter with what a man with the resources of the applicant, running a business with the sort of pre-tax profits which his business had, might expect to pay by way of fines for breaches which fell so far short of the appropriate standard. There is, of course, a real danger in comparing the facts of one case with the facts of another, especially as the overwhelming majority of the reported cases relate to companies and not individuals. In any event, the cases in which an appellate court has reduced the fines imposed by the lower court have tended to be where the lower court was thought to have taken something immaterial into account, or not to have taken something material into account, or to have got the facts wrong. That cannot be said of this case. In the end, we have concluded that the fines here, though very heavy, were not manifestly excessive. 15. We turn to the order for costs. That was challenged on a variety of grounds in the original grounds of appeal and in the supplementary grounds, but we need only address one because it is the only one that was advanced today. It is said that the costs claimed by the prosecution represented its entire costs, despite the fact that the applicant's wife and daughter had originally been charged as well, only for the prosecution ultimately to offer no evidence against them. 16. The prosecution's explanation for not continuing to proceed against the applicant's wife and daughter is that the person said to be liable for failing to comply with the obligations imposed by the Act is the occupier of the premises to which the requirements of the Act related. Since the hotel had been run "by different vehicles at different times", the officers responsible for this prosecution were uncertain who the occupier was for the purposes of the Act . That uncertainty could have been removed if the applicant had volunteered that which he was later to admit, namely that he was the occupier of the premises for the purposes of the Act . However, he did not attend the interview at which questions designed to elicit who the occupier was were asked. Indeed, when his daughter was interviewed, she did not say that he alone was the occupier. She said that he and his wife were. Accordingly, it had been necessary for the applicant's wife and daughter, as well as the applicant, to have been charged initially. The case was withdrawn against the applicant's wife and daughter when the applicant pleaded guilty at the magistrates' court. But when he successfully applied to change his pleas and elected trial at the Crown Court, the proceedings had to be recommenced against the applicant's wife and daughter because it was not then known whether or not the applicant would in due course acknowledge that he alone was the occupier of the premises. In the circumstances, we see no basis for saying that the judge was wrong to conclude that the applicant should have to pay the whole of the prosecution's costs. 17. For these reasons, therefore, this renewed application for leave to appeal against sentence and the order for costs must be refused. MR ROWLAND: My Lord, I hesitate to ask, but may I mention the question of costs in relation to this application? LORD JUSTICE GOLDRING: Yes. MR ROWLAND: There are costs and they amount to quite a lot of money. LORD JUSTICE GOLDRING: Would you first of all like to tell us what our powers are, please, and where it is set out? MR JUSTICE KEITH: It is section 18(2)(a) of the Prosecution of Offences Act 1985 . MR ROWLAND: I am grateful. MR JUSTICE NICOL: It does require you to specify a figure -- or rather if we are to accede, it requires us to specify a figure. MR ROWLAND: My Lord, yes. On a time basis alone, bearing in mind the preparation work -- which has not been doubled up -- on a time basis alone and with the costs of the officers involved as well, it comes to £5,477. LORD JUSTICE GOLDRING: Do you have a document setting that out? MR ROWLAND: My Lord, I have. LORD JUSTICE GOLDRING: It does not set out your hours at all, does it? MR ROWLAND: My Lord, no, it does not. MR JUSTICE NICOL: Why are fire officers' costs appropriate as part of the appeal to this court? MR ROWLAND: My Lord, the position as far as the fire officers involved is concerned is that there was an advice on appeal submitted and grounds submitted. MR JUSTICE KEITH: I am sorry, I did not catch that. MR ROWLAND: There was an advice on appeal submitted and grounds submitted. Instructions had to be taken in relation to those to allow preparation of the documents that you have seen. They also liaised with the court office here, and it is in respect of those matters that they have shown the time. MR JUSTICE KEITH: What were the grounds of appeal on which the instructions of individual fire officers needed to be taken? MR ROWLAND: My Lord, in relation to the nature of the risk that had been identified and specific matters which are set out in the skeleton argument relating to the specifics of the allegations. MR JUSTICE KEITH: All of that would have had to have been done for the hearing before the judge. MR ROWLAND: My Lord, not quite because, with respect, the way in which the grounds were put needed specifically to be answered because those were matters which had not been raised before the judge. MR JUSTICE NICOL: But if they are not raised before the judge and there is not an application to adduce fresh evidence, is the fact that they were not raised before the judge and there is not an application to adduce fresh evidence not the end of the matter? MR ROWLAND: My Lord, it is not a question of fresh evidence. It is more a question of the interpretation of the way in which the matter was being put by the applicant at that time. LORD JUSTICE GOLDRING: How many hours of legal work does this involve? What is the hourly rate that this involved? MR ROWLAND: The hourly rate is £150 an hour. LORD JUSTICE GOLDRING: And the number of hours? MR ROWLAND: I am afraid I did not prepare the schedule myself. LORD JUSTICE GOLDRING: No doubt there are some disbursements in this as well. MR ROWLAND: No, there are not. LORD JUSTICE GOLDRING: There are not? It is all time? MR ROWLAND: Yes. LORD JUSTICE GOLDRING: The number of hours? MR ROWLAND: It would be seventeen hours approximately -- something like that. LORD JUSTICE GOLDRING: Including, no doubt, the taking of instructions and the drafting of the skeleton in relation to factual matters to which you have just referred? MR ROWLAND: My Lord, yes. There was the preparation of the case summary for the appeal, which I think was heavily relied on. MR JUSTICE KEITH: There were two documents that you produced. One was in response to the original grounds of appeal. The other was in response to the supplementary grounds of appeal. Are there any other documents which have been produced which you could show us? MR ROWLAND: My Lord, yes. There was a detailed case summary which was sent both to the defence and to the Court of Appeal. MR JUSTICE KEITH: The Registrar sought a document from you for the purposes of preparing a case summary for us? MR ROWLAND: My Lord, I cannot say that he sought it from me. I sent it to him. MR JUSTICE KEITH: You volunteered it? MR ROWLAND: I did, because of the technical nature of the allegations. MR JUSTICE KEITH: Yes, I understand that, though in fact the case summary prepared by the court really comes from the transcript of your opening. Everything that I saw in the case summary prepared by the Registrar came from the opening. I have not seen anything in the summary which came from another document, which I now know was the document you provided. MR ROWLAND: I do not know, my Lord. That may be the case. LORD JUSTICE GOLDRING: Thank you very much. Let us see what Mr Heraghty has to say about it? MR HERAGHTY: My Lords have made a number of the points I would have made. As far as I am aware, the Criminal Appeal Office did not require the involvement of the respondent in the proceedings thus far. Thus far it has solely been an application for leave to appeal, and of course the court had everything it needed to decide the issues. Whilst there are technical aspects to this, the fact is that there was a sentencing hearing and a transcript of it and nobody can go behind that. My Lord, it is helpful to have the respondent here, of course, but, as I understand it, it was not absolutely necessary. LORD JUSTICE GOLDRING: It is often extremely helpful, though, to the court. MR HERAGHTY: Yes, of course. MR JUSTICE NICOL: And the statutory power does expressly extend to an application for leave. MR HERAGHTY: The statutory power to order prosecution costs? MR JUSTICE NICOL: To order prosecution costs. MR HERAGHTY: Of course it does. LORD JUSTICE GOLDRING: Thank you very much. ( The court conferred ) LORD JUSTICE GOLDRING: As it seems to us, taking into account today's hearing, the fact that some of what was done was unnecessary and that some of what was done was fire officers' costs which are not appropriate, the overall figure of £2,000 seems to us to be an appropriate figure and a figure that we consider to be just. MR ROWLAND: My Lord, thank you. _________________________________

```yaml citation: '[2009] EWCA Crim 1033' date: '2009-03-19' judges: - LORD JUSTICE GOLDRING - MR JUSTICE KEITH ```

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: 200604891/A6 Neutral Citation Number: [2006] EWCA Crim 3335 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Friday, 8th December 2006 B E F O R E: LORD JUSTICE KEENE (PRESIDENT OF THE QUEEN'S BENCH DIVISION) MR JUSTICE WALKER THE RECORDER OF BIRMINGHAM (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 101 OF 2006 (P) Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) MR C AYLETT appeared on behalf of the ATTORNEY GENERAL MR F LIVESEY appeared on behalf of the OFFENDER J U D G M E N T 1. LORD JUSTICE KEENE: This is an application, under section 36 of the Criminal Justice Act 1988 , by Her Majesty's Attorney-General for leave to refer a sentence to this Court because it appears to him to be unduly lenient. We grant leave and we treat therefore this as the hearing of the Reference. 2. The offender was at the time of sentence aged 17. He pleaded guilty on 4th September 2006, at Barrow Crown Court, to two offences, one of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861 , and the other, on a separate indictment, to assault occasioning actual bodily harm, contrary to section 47 of that Act. 3. He had three days earlier, on 1st September 2006, been dealt with by the Barrow-in-Furness Youth Court for an offence of affray and on that occasion had been made subject to a 12 month supervision order, with conditions including one making him subject to an intensive supervision and surveillance programme (ISSP). 4. In the light of that, Her Honour Judge Lunt, in the Crown Court on 4th September, decided to defer sentence for the two offences in question until 23rd February 2007, that is to say for a period of about 6 months. She stated in the course of the sentencing process that the magistrates, by making their order on 1st September had "somewhat tied my hands" and that perhaps one should see if the ISSP was going to work. She made it clear that if the offender failed to comply with the ISSP, or committed any other offence she would impose a custodial sentence in due course, but that if he complied in full and committed no further offence during that 6 months, she would pass a sentence which would not mean that he would lose his liberty at once. 5. "Deferral" of sentence is itself a sentence for the purposes of the Criminal Appeal Act 1968, section 50 and so is subject to the procedures whereby the Attorney-General can refer a sentence to this Court because he believes it to be unduly lenient (see Attorney-General's Reference No 22 of 1992 (1993) 14 Cr App R(S) 435). 6. The facts of the two offences can be briefly described. The earlier in time was the assault occasioning actual bodily harm. On 24th December 2005 the offender, along with two other young men, attacked a man called Robert Taylor in the town centre of Barrow, in the early hours of the morning. It was a prolonged attack. The victim was kicked to the face and body and when he tried to escape via a nightclub he was refused entry and was then attacked again by the offender and one of the other two. Again he was kicked. He ended up with a cut to his left eye, a number of bruises, abrasions to the centre of his forehead and grazes to his knees and elbows. 7. The section 18 offence arose out of events on 9th April 2006, when he was on bail. The victim in this case was a man called Glen Turner. A dispute had arisen between his 15-year old son, Sam, and the offender's family. It was said that threats had been made to Sam Turner. In any event, on the day in question Glen Turner and two friends went to a house in Ramsgate Crescent to speak to a man called Atkins, who was believed to be behind the threats. In fact the offender was in the house. There was no trouble inside the premises, but Glen Turner heard someone shouting from outside and he went out. While he talking to a man outside, the offender ran out of the house, with what was thought to be a baseball bat but seems now to have been a large piece of wood. Glen Turner had his back to him. The offender ran up to him and struck him over the back of the head with the wood. There was one blow struck. It was clearly struck with some force because Mr Turner fell to the ground and, according to a number of witnesses, was rendered unconscious. There had been no violence in the incident before this, but the basis of the plea, accepted by the Crown, was that the offender reacted on the spur of the moment to the presence of the men. 8. Glen Turner was taken to hospital. He suffered a fracture of the right cheekbone, a laceration to the forehead and an injury to the right eye. That last injury proved to be especially serious. It consisted of damage to the optic nerve, which has meant an irreversible 80 per cent loss of vision in that eye. That in turn has meant that Mr Turner cannot drive and has to change his job and his life has clearly been very seriously affected. 9. The offender pleaded guilty to both these offences on 4th September 2006, the day fixed for the trial of the section 18 offence. He had been on bail for those offences at the time of the affray, for which he was sentenced by the Youth Court three days earlier. Put shortly, that affray charge came about because he was involved then, in July 2006, in a fight outside a pub, during which he struck a man, again, with a piece of wood. 10. The offender was born on 25th February 1989. Despite his youth, he has accumulated a number of previous convictions, apart from the affray and the two offences with which we are concerned today. Some of those are offences of violence. In 2003 he was convicted of three offences of common assault. In 2004 he was convicted of a public order offence. 11. The Attorney-General takes the view that the deferral of sentence in the Crown Court was an unduly lenient sentence which failed to take account of the seriousness of the offences, particularly the section 18 offence. That, Mr Aylett, for the Attorney-General reminds us is a serious specified offence for the purpose of sections 226 and 228 of the Criminal Justice Act 2003 . Both the section 47 offence and indeed the affray are specified offences under that Act. 12. There was material, here, it is submitted, indicating that this offender presents a significant risk to members of the public of serious harm by the commission of further specified offences. Deferring sentence holds out the prospect, as was made clear by the judge, of a non-custodial disposal, if the offender behaves well during the 6 months of deferral. That is wrong in principle, contends Mr Aylett, for so serious an offence as grievous bodily harm inflicted with intent. This was a vicious attack with a weapon, with very serious consequences for the victim. Moreover, the offender was on bail for the actual bodily harm offence at the time, as indeed he was at the time of the affray on 19th July. Mr Aylett draws attention to the fact that that affray, again, was one where the offender used a weapon, a piece of wood on that occasion with nails in it. He did so despite the serious consequences of his earlier attack in April on Glen Turner. Those have to be added, it is said, to his previous convictions for common assault. 13. Consequently, on behalf of Attorney-General it is submitted that the judge here should not have deferred sentence but should instead passed either a sentence of detention for public protection under section 226 of the 2003 Act or an extended sentence of detention under section 228 . Mr Aylett recognises that there was also the possibility of a detention and training order but that comes very much as a last resort in the Attorney's case. 14. On behalf of the offender Mr Livesey submits that this was an unusual case, given the making of the ISSP. It is not surprising, he says, that the Crown Court considered the possibility of allowing that earlier order to take effect. If the order is allowed to stand and the matter comes before Judge Lunt in late February, she will be able to take into account all the matters now relied on by the Crown. The latest report on the offender since his appearance in the Crown Court is very relevant. Mr Livesey draws attention to the fact that it notes that the offender has increasingly begun to work with the social workers rather then against them. With his difficult family background it is not surprising that it took some time for him to respond to the order. Such reoffending as there has been since the order was made has not consisted of violence to the person. It is emphasised that the offender is still young and therefore the intensive supervision may prove to be successful. 15. If the sentence were to be held to be unduly lenient, then it is contended that an indeterminate sentence would be unusual and inappropriate for someone of this age. A detention and training order would be adequate here. 16. We say at once that this is a case where the judge should not have seen her hands as being tied by the magistrates decision to go for a supervision order with an ISSP. That decision had been made only three days before. It had scarcely taken effect. The magistrates had not been dealing with offences of the gravity with which the Crown Court judge had to deal. The judge therefore should have approached this sentencing task untrammelled by the magistrates' decision. 17. Nor, in our judgement, was deferral the right decision in the circumstances of this case. The Sentencing Guidelines Council in its advice, "New Sentences: Criminal Justice Act 2003 ", suggests at paragraph 1.2.7 that deferral should be predominantly for a small group of cases at either the custody threshold or the community sentence threshold. While that advice was given in respect of adult offenders it is relevant, in our view, also to young offenders. Any deferral of sentence clearly involves the message that compliance with whatever is required of the offender during the period in question will lead to a lesser category of sentence, in this case a non-custodial one, as the judge made clear. Deferral in a case like the present would therefore only be appropriate if a non-custodial sentence was a proper and realistic possibility on the facts of the case. We cannot see that that was the situation which existed when the decision to defer was made in early September. 18. True it is that this young man had some mitigation. The pre-sentence report provided to the Youth Court and available to the Crown Court reveals a difficult upbringing with a background of domestic violence, and with him suffering from attention deficit hyperactivity disorder. He experienced a number of exclusions from school and had been unemployed since leaving school in July 2005. The PSR referred to his history of physical aggression because he has difficulty controlling his impulses. 19. So far as the section 18 offence is concerned, the basis of plea was that he struck only one blow and did so in reaction to the presence of the men. Above all he has his age, 17, as an important mitigating factor as well as his pleas of guilty. 20. However, having said that, this Court cannot accept that at first instance a non-custodial sentence was an appropriate possibility. The judge rightly described the two offences and the affray as three very bad incidents of violence, in two of which he used a piece of wood as a weapon. So they were and so he did. 21. The section 18 offence is, of course, particularly grave. As this Court pointed out in the Attorney-General's Reference Nos 59, 60 and 63 of 1998 [1999] 2 Cr App R(S) 128, a section 18 offence involves a deliberate or intentional causing of serious injury. The use of a weapon, including a baseball bat or a piece of wood is an aggravating factor. In giving that judgment, Lord Bingham CJ, went on to say this at page 131: "Sentencers must, however, always bear in mind that the welfare of the young offender is never the only consideration to be taken into account. When an offender, however young, deliberately inflicts serious injury on another there is a legitimate public expectation that such offender will be severely punished to bring home to him the gravity of the offence and to warn others of the risk of behaving in the same way. If such punishment does not follow, public confidence in the administration of the criminal law is weakened and the temptation arises to give offenders extra-judicially the punishment that the formal processes of law have not given. When we speak of the public we do not forget the victim, the party who has actually suffered the injury, and those close to him. If punishment of the offender does little to heal the victim's wounds, there can be little doubt that inadequate punishment adds insult to injury." 22. In the present case the offender had, in effect, armed himself with a large piece of wood. With it, he struck a heavy blow to the head of a man who, because he had his back turned, could not defend himself. His plea accepts that he deliberately inflicted serious injury. That was what for the victim resulted: near blindness in one eye. Even with an offender of this age, who has pleaded guilty, we are satisfied that an immediate custodial sentencing was called for in this case at first instance. The deferral of sentence was unduly lenient. 23. Of course it has to be recognised that by today the ISSP has been running for three months. Half the period of deferral has passed and this Court faces a new situation. We take into account the fact that he has been under that programme for that length of time. We also have the benefit of a further report on the offender, dated 7th November 2006; it covers therefore the first 2 months of the order made by the Crown Court. To summarise its contents, it records various breaches by the offender during the month of September. Those included theft, verbal abuse to those involved in the programme, failure to attend sessions and then on 30th September, threats of violence, which led to the officer in charge at the attendance centre refusing to have him back. During the second month he is said to have improved and to have shown a more positive attitude. In the opinion of the social worker writing the report one can be cautiously optimistic. 24. We deal with this because this Court's task is not finished when it concludes that a sentence passed at first instance was unduly lenient. We have to exercise our own discretion as to what should now be done. We have therefore considered whether, in the light of what has happened since the 4th September, the deferral decision though inappropriate then should now be allowed to stand. We have concluded that it should not. For one thing, it is clear that the offender has not complied with the terms set for him by Judge Lunt. He has in fact broken the terms of the supervision order and it would seem therefore that she would be likely to impose a custodial sentence if the matter came back to her in February. But quite apart from that, the limited progress made so far under the order does not seem to this Court to justify allowing it to run its course. We intend for the reasons we have indicated to substitute a custodial sentence. 25. We take into account all the information before us. In the light of the offender's record of offences of violence, the assaults, the affray, the assault occasioning actual bodily harm, and the section 18 offence, we are satisfied that there is a significant risk to members of the public of serious harm from further specified offences. 26. In those circumstances, we have considered whether this is a case where detention for public protection under section 226(3) is required. We have concluded that it is not, and that the protection of the public in the case of this young man can be achieved by an extended sentence under section 228 . He is still only 17 years old and has the capacity for change and personal development. In deciding on the length of that extended sentence, we make allowance for double jeopardy and in particular for the fact that he has been at liberty and is now about to lose it. The conclusion which we have reached is that there should be a sentence of detention on the section 18 count of a two-and-a-half years custodial term and an extension period of two-and-a-half years also. 27. That will make a total period of 5 years. That means that he will be subject to licence of course during the extension period. We impose no separate penalty on the assault occasioning actual bodily harm count. The offender must surrender to custody forthwith. The custodial term which we have imposed is to run from when he does so.

```yaml citation: '[2006] EWCA Crim 3335' date: '2006-12-08' judges: - LORD JUSTICE KEENE ```

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: 2008/3088/A9 Neutral Citation Number: [2008] EWCA Crim 2153 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 23 September 2008 B e f o r e : LORD JUSTICE DYSON MR JUSTICE DAVIS MR JUSTICE BURNETT - - - - - - - - - - - - - - - - - - - R E G I N A v MOHAMMED BELAID - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - Mr G King-Underwood appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE BURNETT: This is an appeal against sentence arising from a number of thefts, but limited to the imposition of an anti-social behaviour order in addition to concurrent terms of imprisonment. 2. On 6th May 2008 the appellant was sentenced by His Honour Judge Robbins at Southwark Crown Court to four concurrent terms of 30 months' imprisonment on three counts of theft and one of handling stolen goods. The appellant was a long-term heroin and crack addict. For years he had funded his habit by stealing. His modus operandi was to steal bags or their contents in public places where they had temporarily been put down. He targeted his victims at railway stations and in bars and cafes. It is a familiar and depressing picture which results in none of us being able to set down bags in such places without keeping a constant eye on them for fear that someone like the appellant will steal them or dip into them. 3. The facts of the cases before Judge Robbins can be very shortly stated. First, at about 7.30am on 5th February 2007 the first victim put his bag down in a food court area at Euston Station. He noticed nothing suspicious, but when he went to pick it up it had gone. In his bag was his laptop, a notebook and other property valued at about £900. The appellant was eventually identified from CCTV footage. 4. Secondly, at roughly the same time but on 28th July 2007 another passenger at Euston, this time having got on the train, put her bag down in order to assist another passenger. When she went to pick it up it had gone. She lost her credit cards, cash, her mobile phone and other bits and pieces to the value of about £300. Again the appellant was seen through CCTV footage. 5. Thirdly, at just after 10 o'clock in the evening on 6th September 2007 the appellant was seen by plain clothes police officers entering a public house in Dean Street and then acting suspiciously. He was followed to another pub where he was seen to dip his hand into a bag. He was soon thereafter stopped and was in possession of a lady's chequebook. That formed the subject matter of the handling count. 6. Fourthly, at about 10 o'clock in the morning on 20th September 2007 the appellant entered another pub, this time in Poland Street, and targeted an empty table with bags beneath it. He stole one of them. 7. His antecedents show a long history of similar offences, together with much else. Whilst we do not have a complete transcript of the ASBO proceedings, it is clear from the observations of the judge dealing with this aspect that many of the offences were committed in mainline railway stations. Judge Robbins made the order in the following terms: "From the end of his sentence the defendant is prohibited from the following. From entering, remaining on, or alighting a train and entering the following mainline stations: London Paddington, London Euston, London St. Pancras, London King's Cross, Marylebone, Blackfriars, Liverpool Street, Cannon Street, London Waterloo, St. Pancras International, Waterloo East, Moorgate, London Bridge, Charing Cross, Victoria and Fenchurch Street stations, except in order to use the underground system." The ASBO was expressed in terms to run for three years from the date of the appellant's release. 8. As is well-known, ASBOs were introduced by the Crime and Disorder Act 1998 and ordinarily are made by magistrates on application by way of complaint. In those circumstances there is no conviction and they are civil in nature, albeit that breach of an ASBO amounts to a criminal offence. Section 1C of that Act, introduced by amendment through the Police Reform Act 2002 , enabled ASBOs to be made following conviction for any offence. The section as material reads as follows: "(1) This section applies where a person [the offender] is convicted of a relevant offence. (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." The words "harassment, alarm and distress" are not further defined in the Act but they represent the three ways in which Parliament considered that someone might act in an anti-social manner. 9. Mr King-Underwood, who appeared on behalf of the appellant, submitted in writing that the appellant's actions, however reprehensible, did not amount to anti-social conduct for the purposes of the 1998 Act . He says that the appellant's way of offending involves the surreptitious removal of property. The victims do not even know he is there. He does not harass them or alarm them. On the contrary, he tries to operate undetected. The distress that victims of this type of crime suffer, if it is distress rather than annoyance or anger, is that suffered by the victim of any theft and that, he submits, is not what ASBOs are designed to tackle. In support of that submission Mr King-Underwood referred us to the judgment of Scott Baker LJ in R (Mills) v Birmingham Magistrates Court [2005] EWHC 2732 Admin , which concerned an ASBO imposed upon an habitual shoplifter from chain stores. 10. Whether the approach identified by Scott Baker LJ reads over to the facts of this case is something that we do not need to decide because, for reasons which we will explain, we are quite satisfied that this ASBO must be quashed. 11. Mr King-Underwood has drawn our attention to the decision of this court in R v Lee Kirby [2005] EWCA Crim. 1228 and submits that even if the circumstances might theoretically open up the possibility of an ASBO in this case, it was wrong in principle to impose one here. An ASBO is only ever appropriate if it is necessary to protect people from further antisocial acts. In Lee Kirby this court emphasised the need for there to be a demonstrable necessity for such an order. In the case before it the defendant had received a sentence of imprisonment of 25 months. At paragraph 7 of the judgment of the court, David Clarke J said this: "Where a substantial custodial sentence is being imposed at the same time, on release from which the offender will be on licence and liable to recall, it should not generally be assumed that there is such a necessity. The need must be considered against the background of the facts of each individual case." That is a potent factor in the case before us. The appellant received a sentence of 30 months' imprisonment. For 15 months, or thereabouts, after his release he will be on licence and subject to recall. That will provide protection against reoffending at least as powerful as an ASBO. His licence conditions, which may be crafted to deal with residual risk in the light of all that is known at the time of his release, are likely to be more effective than an ASBO. A further factor is in our judgment important. The appellant's offending is driven by his drug dependency. That dependency will be the subject of attention whilst he is serving the custodial part of his sentence. He may of course revert to drug abuse on release, but there is a real possibility that he will break free of drug addiction whilst in prison. 12. The appellant has of course been a pest for many years and we sympathise with the desire of the sentencing judge to deal with him, but it is to be observed that the appellant's way of stealing has habitually extended from railway stations to bars, pubs and cafes. If he were to return to that way of life, banning him from mainline stations would be likely to displace his activities, rather than curtail them, to his other chosen spots or even to the underground to which the ASBO would allow him to travel through mainline stations. 13. For all these reasons we do not consider that it can be said that the ASBO was necessary in this case and we quash that part of the sentence.

```yaml citation: '[2008] EWCA Crim 2153' date: '2008-09-23' judges: - LORD JUSTICE DYSON - MR JUSTICE DAVIS - MR JUSTICE BURNETT ```

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

No: 201704863/A4 Neutral Citation Number: [2017] EWCA Crim 2313 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 21 December 2017 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE WHIPPLE MR JUSTICE GOOSE REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - - - - - - - - - - - R E G I N A v AARON DEAN BARLEY - - - - - - - - - - - - - - - - - Mr R Buckand QC MP (Solicitor General) appeared on behalf of the Attorney General Mr J Hankin appeared on behalf of the Offender - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - J U D G M E N T This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. 1. LORD JUSTICE HOLROYDE: In the spring of 2016 Mrs Tracy Wilkinson found Aaron Barley sleeping rough outside a supermarket in her home town. For convenience, and meaning no disrespect, we shall refer to him by his surname. Barley, then aged 23, had in fact recently been released from prison. Out of the kindness of her heart and her desire to help others, Mrs Wilkinson took him to her family home and gave him a meal. 2. The Wilkinson family at that time comprised Mrs Wilkinson; her husband, Peter; their daughter Lydia, then aged 18 and a university student; and their son Pierce, then aged 13. They treated Barley with great kindness and generosity. They provided him with money, meals and, at times, accommodation. They initially paid him for odd jobs around their home, where he became a regular visitor, and then found him employment. Barley told Mr Wilkinson that he just wanted somebody to give him a chance. The Wilkinsons certainly did that. But about a year later Barley brutally murdered Mrs Wilkinson and young Pierce and attempted to murder Mr Wilkinson, upon whom he inflicted serious injuries. 3. For his crimes of murder and attempted murder Barley was on 4th October 2017, in the Crown Court at Birmingham, sentenced to life imprisonment. The learned judge ordered that he serve a minimum term of 30 years. 4. Her Majesty's Solicitor General now applies, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer that sentence to this court as unduly lenient. We grant leave. 5. We summarise the grim facts of the case to the extent to which it is necessary to do so for the purposes of this hearing. Barley experienced an unhappy childhood. His natural parents died when he was a child. He suffered sexual and physical abuse. He was brought up by foster parents and at times in care homes. He has been assessed as being of normal intelligence, but his education was badly disrupted. Expert evidence from a number of psychiatrists and a neuropsychologist was agreed that he suffers from an emotional unstable personality disorder, probably explained by the unsettled and traumatic circumstances of his childhood, causing him to be prone to what have been described as "behavioural explosions" when he feels he is slighted or abandoned. His medical history shows that he was diagnosed with attention deficit hyperactivity disorder and prescribed medication when he was only about 8 or 9 years old. At other times in his young life he had been diagnosed with post-traumatic stress disorder, depression and latterly the personality disorder. He had been prescribed over the years various forms of anti-psychotic, mood-stabilising and antidepressant medication. 6. Barley had previously been convicted on 14 occasions of a total of 21 offences. The offences involved both dishonesty and violence. Some as a juvenile offender resulted in custodial sentences. His most serious previous offence, and his first sentence in an adult court, was an offence contrary to section 20 of the Offences Against the Person Act 1861, against a former partner, for which in August 2012 he was sentenced to 44 months' imprisonment. We do not know the details of that offence but we can and do infer from the sentence of 44 months, following a guilty plea to an offence which carries a maximum of 5 years' imprisonment, that it must have been a serious example of its kind. It was after his release from that sentence that he was taken in and helped by the Wilkinsons. 7. With the assistance of the Wilkinsons, Barley for a time lived at a hostel, but he ate each evening at the Wilkinsons' home. Mr Wilkinson then assisted him to obtain full-time employment and helped him find accommodation for which Barley was to pay out of his wages. After a time, however, Barley stopped attending work. He fell into dispute with his landlord and was evicted from his flat. His employers tried to assist him but he then left his job without notice. 8. In October 2016 Barley was arrested and charged with offences of theft and assaulting a police officer. He was bailed by the police. He went to the Wilkinsons' house, where he was found asleep on their drive. Once again they helped him. They allowed him to live in their home for 2 weeks before he found other work and a new flat. But again, he soon stopped turning in for work and was eventually sacked. He ceased contact with the Wilkinsons, but it seems that he began to socialise and drink in the area near their home. 9. About a week before the murders, Mrs Wilkinson reported to a friend that she had seen Barley and another man looking over her fence and that Barley had made death threats to her. 10. In the early hours of 30th March 2017 Barley gained entry to the garden of the Wilkinsons' home. Footage later recovered from CCTV cameras showed that he moved around the garden and around the Wilkinsons' parked cars in a manner which made it obvious that he was trying not to be seen. He remained there for several hours, during which time he removed a light coloured jacket which he had been wearing. That left him in dark clothing. He covered his trainers, which were of a bright colour, with dark coloured socks. He had a balaclava or hat. 11. During the time he was lurking in the garden Barley went into a garden shed. That was at about 00.44 in the morning. He emerged armed with a hammer. An hour or so later he tried unsuccessfully to get into the house through a window. He then hid behind bushes until at about 7.30 that morning he saw Mr Wilkinson taking the dog out for the regular morning walk. It is important to note that in the hours which had passed up until that point the CCTV footage shows that Barley had been awake and moving around. This is not a case of his having simply fallen asleep and eventually woken up in the morning. 12. When Mr Wilkinson left, Barley went into the house and armed himself with one or more knives from the kitchen. In her sentencing remarks the learned judge summarised what then happened in the following terms: "Once he had gone out, you entered the kitchen and removed at least one knife from the kitchen. You went upstairs and stabbed both Mrs Wilkinson and Pierce multiple times in what were violent and sustained assaults involving severe force. The stabbing injuries led to the collapse of Pierce's lungs and one wound almost divided his spinal cord. Mrs Wilkinson has at least 17 stab wounds consistent with a violent assault, some penetrating a depth of 10 to 15 centimetres. You stabbed her through the bedding and the dirty footprints that you left on the sheets suggest that you climbed on the bed to carry out your attack. You abandoned one knife on her bed. I have no doubt that you intended kill each of them. When Mr Wilkinson returned just before 8 o'clock in the morning and went to open the kitchen door he was confronted by you, dressed in black, wearing gloves and a balaclava. You stabbed and slashed at him too with a knife. Some of the attack was again caught on the security camera footage as you drove Mr Wilkinson into the garden, your right arm clearly raised above you, knife in hand. As he pleaded with you, you responded, 'Die, you bastard'. For whatever reason, you then suddenly left, driving off in the Land Rover Discovery parked on the front driveway." 13. The learned judge went on to record that Mrs Wilson had managed to telephone the police. Emergency services attended. Mrs Wilkinson was found dead. Pierce was alive, but it was not possible to save his life. Mr Wilkinson, for his part, underwent surgery for two incised wounds in the abdomen and two in the bowel. He spent a week in critical care in hospital, suffering enormous pain, and received multiple stitches. As at the time of sentencing, Mr Wilkinson had only recently been able to return to part-time work. He is left with permanent scarring. 14. Barley drove away from the house in one of the Wilkinsons' cars. He drove in a dangerous manner before eventually crashing and being arrested. One of the knives which he had used in his attacks was found in the front footwell of that car. 15. On arrest Barley showed no remorse. On the contrary, he said that he was pleased that he had got two victims but was upset that he had not got Mr Wilkinson. He threatened to do the same to the police. 16. He pleaded guilty at an early stage to the attempted murder of Mr Wilkinson. He always accepted that he had killed Mrs Wilkinson and Pierce Wilkinson, but the expert evidence to which we have referred was properly obtained in order to establish whether any partial defence was available to the two charges of murder. When the expert evidence concluded that no such defence was available, Barley promptly pleaded guilty to those charges. The learned judge concluded that he was entitled to receive credit for those guilty pleas on the basis that they had been entered at the first reasonable opportunity. 17. The only apparent explanation for these savage attacks, each of which was intended to kill, is that Barley, who has a history of blaming others for his misfortunes, for some reason felt that he had been let down by the Wilkinsons, and by Mr Wilkinson in particular. It is acknowledged by counsel on Barley's behalf that there was no objective basis for any such belief. 18. Thus on that morning Barley ended two lives, but he blighted many more. In the very moving personal impact statements which we have read, Mr Wilkinson, Lydia Wilkinson and other members of their extended family have set out very clearly the anguish which they have suffered and will continue to suffer. We quote only very brief extracts. Mr Wilkinson expresses in his statement his uncontrollable emotion due to the "vile, callous, barbaric and cowardly act" of Barley. He says: "We cared for Aaron, welcomed him and we showed him love and respect which he had never received anywhere else. The repayment was for him to destroy my family for no reason whatsoever". Lydia Wilkinson, away at university on the morning of the killings, received the dreadful news that her mother and brother had been murdered and that her father had been taken to hospital in a critical condition. She travelled home not knowing whether her father would live. It fell to her to carry out the awful task of identifying the deceased. Unsurprisingly she describes that in her statement as a memory which will stay with her forever. In the statement, which she herself read in the court below, she says that grief has ruined her. Another member of the family with 30 years' experience as a social worker describes the crimes as having caused her to lose her faith in humanity. Mr Wilkinson's father speaks of the deep distress suffered by him and his wife. 19. We have very well in mind those statements, and the knowledge that the authors of them are very far from being the only persons harmed by Barley's crimes. We offer our sympathy to the bereaved. We are sure they will understand that no sentence of the court ever can be, or is intended to be, in any sense a valuation either of the lives of the deceased or of the suffering of those who have been bereaved. 20. The learned judge clearly took great care in considering her sentences and she set out her reasoning with clarity and compassion in her detailed sentencing remarks. She rightly identified a number of serious aggravating features. First, the very significant degree of planning and premeditation. At page 5D she said: "You broke into the grounds of the house in the very early hours. You emerged from the garden in black disguise even covering your coloured trainers with black socks. You wore gloves and a balaclava. You took care to remove your cream jacket and hide it under a car. You lay in wait for hours. It has been suggested on your behalf that your killing of Mrs Wilkinson and Pierce was opportunistic. You have said in the past that you only intended to kill Mr Wilkinson at the outset and decided to kill Mrs Wilkinson and Pierce only when you were apprehended or startled in the house by someone upstairs and you panicked. I am sure that either by the time you walked so purposefully into the house as can be seen on the footage, or at the latest after you had armed yourself and were standing in the kitchen you had formed the intention to kill Mrs Wilkinson and Pierce." Secondly, the judge referred to Barley's abuse of his knowledge of the Wilkinson's family home, a knowledge which he had only gained because of their extraordinary kindness and generosity to him. Thirdly, she pointed to Barley's lack of remorse and to his expression of regret that he had not also killed Mr Wilkinson. She said: "You knew that you were destroying the family, it was what you intended". 21. Fourthly, the learned judge referred to the previous convictions. 22. As to mitigating factors, the learned judge identified Barley's relatively young age and the badly disrupted childhood and childhood trauma which had led to the personality disorder to which we have referred. 23. The learned judge considered, as she was required to do, the provisions of schedule 21 to the Criminal Justice Act 2003. She said that she had considered carefully, by reference to reported case law, whether it was necessary to make a whole life order: that is, an order for life imprisonment with a direction to the effect that Barley should never be released. She said of this issue at page 6H: "The seriousness of these offences involving two murders and an associated attempted murder, with multiple aggravating features that I have identified, could be said to be exceptionally high. However, principally because of your youth, I am not satisfied the considerations of just punishment and deterrence require a whole life order. The correct starting point in determining the minimum term, not to be applied mechanistically, is thirty years. I bear in mind the principle of totality and the need to pass sentences which reflect the seriousness of the offences and the overall criminality of your offending the round. Having regard to your overall offending, all the aggravating features and the mitigating features in your case including your youth and background, a minimum term of thirty-five years is in my judgment appropriate before giving credit for your guilty pleas. After such credit of five years the minimum term in each case is therefore thirty years." The learned judge went on to make the appropriate allowance for the period of time which Barley had spent remanded in custody before sentence. 24. In relation to the offence of the attempted murder of Mr Wilkinson, the learned judge rightly placed it in the highest category of seriousness under the relevant guideline. For such an offence, standing alone, a determinate sentence of the order of 30 years' imprisonment would be appropriate. She found, unsurprisingly, that Barley is a dangerous offender as that term is defined for sentencing purposes. She imposed a discretionary life sentence with a minimum term of 10 years, again subject to the appropriate reduction for time spent on remand in custody. The learned judge took care to explain the effect of her sentencing. 25. The Solicitor General submits that this was a case in which just punishment and retribution required the imposition of a whole life order. He makes that submission in relation to all three offences, acknowledging that the statutory provisions to which we shall shortly come relate specifically to cases of a mandatory sentence of life imprisonment for murder, but submitting that by parity of reasoning a similar result should be reached in the case of the charge of attempted murder. As a secondary and alternative submission, in case his first submission has not been accepted by this court, the Solicitor General submits that in all the circumstances of this case a minimum term substantially in excess of 30 years was necessary to reflect the scale of the harm caused and the level of Barley's culpability. 26. In addition to those points specifically mentioned by the learned judge in the passage which we have just quoted, the Solicitor General points to the following aggravating features. First, the fact that the murders involved an invasion of the Wilkinsons' family home coupled with a profound breach of trust in committing those crimes in the very home where he had been cared for by his victims. Secondly, the particularly brutal and savage nature of the stabbings. Thirdly, and associated with the point just mentioned, the terror which the victims must have experienced. The Solicitor General points out that as a matter of common sense one of the two victims of murder must have been aware of the attack upon the other. Next, the Solicitor General points to the fact that one of the victims of murder was a child aged only 13. Next, he points to the impact, not only on the immediate family, but on the extended family, the many friends of the deceased and the local community generally. 27. Above all the Solicitor General points to the combined gravity of the three offences taken together. All three offences would inevitably be dealt with by concurrent sentences. It was therefore necessary for the minimum term on the murder charges properly to reflect the overall gravity of the offending. The Solicitor General submits, with respect to the learned judge, that she did not give sufficient weight to those matters. 28. In his written response and in the oral submissions which he has made today on behalf of Barley, Mr Hankin QC concedes that the learned judge fell into error in imposing a minimum term which was unduly lenient in its length. He argues however that she was correct to conclude that in all the circumstances a whole life order was not required. He makes the important concession which he does, because he accepts the argument of the Solicitor General that the minimum term imposed failed to give sufficient weight to the combination of offences and the combined gravity of them. As to the issue of whether a whole life order was called for, he makes these submissions. First, by reference to case law, to which we shall shortly come, he submits that this could not be regarded even as a borderline case, and therefore its seriousness was not so exceptionally high as to require a sentence of imprisonment for life. Secondly, accepting that the offences were brutal in their execution but not accepting the submission of the Solicitor General that they could properly be described as "sadistic", Mr Hankin submits it was nonetheless too great a step to regard those offences as calling for Barley to be imprisoned with no realistic prospect of release at any time in his life. Next, he argues that the case does not fall squarely into the terms of relevant provisions of schedule 21, in particular because the initial intention of Barley may have been limited to killing Mr Wilkinson, so that, submits Mr Hankin, any real planning and premeditation was directed towards the associated offence of attempted murder rather than the offences of murder. 29. Next, Mr Hankin points to the young age of Barley, which he submits is important in two respects. First, because the impact of a whole life order will be so much more severe for a young man of that age than for an older offender. Secondly, because of the need for the courts, when dealing with comparatively young offenders, always to take into account the possibility of a lesser level of maturity, insight and understanding than in the case of a mature older adult. 30. Next, Mr Hankin points to the mental health issues which we have summarised. Lastly, he urges the court to take into account the fact that admissions were made and guilty pleas entered. He readily and properly acknowledges that this is a dreadful case. But, he submits, the court must properly set it in the context of other yet more serious offences which are on occasions seen. 31. We are grateful to all counsel for their extremely helpful submissions. We have reflected upon them. 32. The sentence for murder is fixed by law. It is one of life imprisonment. The effect of section 269 of the Criminal Justice Act 2003 is that a court when imposing a mandatory life sentence for murder must specify the minimum term which must elapse before the early release provisions, in other words the provisions relating to release on licence, can apply. The minimum term is the period which the court considers appropriate, taking into account the seriousness of the offence or offences. 33. By section 269(4): "(4) If the offender was 21 or over when he committed the offence and the court is of the opinion that, because of the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, no order should be made under subsection (2), the court must order that the early release provisions are not to apply to the offender." 34. Section 269(5) is the statutory provision which requires the court to have regard in determining the minimum term to schedule 21 to the Act. That schedule provides three different starting points. By paragraph 4(1): "4(1) If— (a) the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and (b) the offender was aged 21 or over when he committed the offence. the appropriate starting point is a whole life order." 35. In paragraph 4(2) examples are given of cases which would normally fall within that provision. Of relevance for this case, and relied upon by the Solicitor General, is paragraph 2A(i): "The murder of two or more persons where each murder involves ... a substantial degree of premeditation or planning." By paragraph 5(1): "5(1) If— (a) the case does not fall within paragraph 4(1) but the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is particularly high, and (b) the offender was aged 18 or over when he committed the offence. the appropriate starting point, in determining the minimum term, is 30 years." 36. Again, examples are given. They include, in paragraph 5(2)(f), "the murder of two or more persons". 37. For an adult offender whose case does not fall within either of the paragraphs the appropriate starting point is one of 15 years. 38. Unless a whole life order is imposed the court, having selected the appropriate starting point, should then take into account all relevant aggravating and mitigating factors, in so far as they have not already been taken into account in selecting the starting point, and make an appropriate adjustment to the starting point, whether upward or downwards. 39. We must pause to mention important features of the minimum term. First, it is precisely what it says: the minimum number of years which must pass before the murderer can even be considered for release on licence. Secondly, even when the minimum term expires, release on licence does not follow either immediately or as a matter of course. The Parole Board must make a careful assessment of whether the protection of the public requires the continued detention of the murderer. He will only be released when the Parole Board is satisfied that it is safe to do so. Thus a prisoner may be detained long beyond the expiration of his minimum term and perhaps even for the rest of his life. Thirdly, if and when a murderer is released, he remains subject to the conditions of his licence for life. If he reoffends he may at any time be recalled to continue serving his life sentence. 40. It is these features of the life sentence which provide the public with the necessary protection for the future. Thus the minimum term is intended to be the appropriate term by way of punishment and retribution. It is not necessary for a court to increase that term in order to protect the public. 41. In R v Jones and Ors [2006] 2 Cr App R(S) 19, at paragraph 10 the Lord Chief Justice said: "A whole life order should be imposed where the seriousness of the offending is so exceptionally high that just punishment requires the offender to be kept in prison for the rest of his or her life. Often, perhaps usually, where such an order is called for the case will not be on the borderline. The facts of the case, considered as a whole, will leave the judge in no doubt that the offender must be kept in prison for the rest of his or her life. Indeed if the judge is in doubt, this may well be an indication that a finite minimum term which leaves open the possibility that the offender may be released for final years of his or her life is the appropriate disposal. To be imprisoned for a finite period of 30 years or more is a very severe penalty. If the case includes one or more of the factors set out in paragraph 4(2) it is likely to be a case that calls for a whole life order, but the judge must consider all the material facts before concluding that a very lengthy finite term will not be a sufficiently severe penalty." 42. Then at paragraph 15 the court went on to say that the court should consider the fact that an offender has pleaded guilty to murder when deciding whether it is appropriate to order a whole life term. Mr Hankin, in his submissions, relies upon those passages. 43. In R v Oakes and Ors [2013] QB 979 , a constitution of this court emphasised that the decision as to whether a whole life order is necessary is a discretionary aspect of the judge's sentencing decision: see paragraph 12. Later in the judgment, the court referred to the frequently-expressed principle that a whole life order will very rarely be made and remains a sentence of last resort for cases of the most extreme gravity. At paragraph 29 the Lord Chief Justice put it in this way, that a whole life order - "is reserved for the few exceptionally serious offences in which, after reflecting on all the features of aggravation and mitigation, the judge is satisfied that the element of just punishment and retribution requires the imposition of a whole life order. If that conclusion is justified, the whole life order is appropriate: but only then. It is not a mandatory or automatic or minimum sentence." 44. These principles were reiterated by the then Lord Chief Justice in the subsequent cases of R v Reynolds [2015] 1 Cr App R(S) 24 and R v Simpson-Kent [2017] EWCA Crim 990 . It is because of the need to give close attention to the precise circumstances of the individual case that we have regrettably found it necessary to recite distressing details of the facts of this case. 45. Applying the principles which we have set out to the present case, the learned judge below concluded that the circumstances did not require imposition of a whole life order. Her decision does not of course mean that these were anything other than truly dreadful crimes. It was a conclusion that this was not one of the rare and exceptional cases in which such an order was necessary. We have no doubt that she was entitled to come to that conclusion. Having reflected carefully on the matter we are unable to accept the Solicitor General's submission that the sentences were unduly lenient because the only sentence properly open to the judge was a whole life order. 46. We should add for completeness that even if we had been persuaded of that argument in relation to the counts of murder, we would not have accepted the submission that a similar sentence was necessary on the charge of attempted murder, as to which, in our view, rather different considerations would apply. 47. As to the length of the minimum term, we think that the learned judge was correct in all the circumstances of the case to allow the full credit for the guilty pleas which is permissible. That credit is limited to 5 years. The issue accordingly is whether the minimum term of 35 years before that deduction was made was unduly lenient. 48. We are persuaded that it was. In a difficult sentencing exercise, we are persuaded that the learned judge did fall into error. First, we take the view that she should have given even more weight than she did to the many and grave aggravating features, including not only those specifically mentioned in the sentencing remarks, but also the other points identified by the Solicitor General to which we have referred. We do not accept the submission that these crimes, terrible as they were, are properly to be described as "sadistic"; but the brutality of the stabbings and the terror which the victims must have felt were very grave aggravating features. 49. The element of planning and premeditation was, in our judgment, very strong. Even if it be the case, as to which we make no finding, that Barley had not always planned to murder all three of his victims, he certainly had that intention by the time he entered the house and selected one or more knives suitable for his dreadful purpose. But even looking at the matter on the basis on which Mr Hankin invites us to do, we see no force in his argument that the planning and premeditation was in reality directed to the associated offence. We can see that an argument along those lines might carry some weight in a very different case where, for example, a meticulously-planned high value burglary was chanced upon by a night watchman, who was there and then killed. But in this case - whether he always intended to kill all three, or whether for some of the time he intended only to kill Mr Wilkinson - Barley was lying in wait in the garden with murderous intent. His planning and preparation were directed to carrying out murder. In those circumstances, we are unable to accept this part of Mr Hankin's submissions. 50. As to mitigation, the learned judge correctly identified the factors. However, the comparatively young age of the offender was a feature to which, as it seems to us, the learned judge had already given full weight when she made her decision not to impose a whole life order. It was the factor which she specifically mentioned when explaining that decision. It follows, in our judgment, that the only significant features of mitigation, to be set against the aggravating features when determining the minimum term, were the limited extent to which Barley's personality disorder lessoned his responsibility and culpability for the offences, and the fact that he has always admitted responsibility for the deaths and the attempted murder and pleaded guilty to each other offence at the first reasonable opportunity. 51. Those are undoubtedly factors properly to be weighed in the balance. But in our judgment, they could carry only limited weight. First, whatever his psychological problems, Barley was able to and did plan his attack, equip himself carefully for it and carry it out mercilessly. Secondly, his initial acceptance of responsibility for the killings was in the context of boasting and expressing regret that he had not done more than he did. 52. Weighing those factors in the balance, we accept the Solicitor General's submission that particular weight must here be given to the combination of offending, including as it did the murder of one adult, the murder of a child and the determined attempt to murder another adult. We are driven to the conclusion that the minimum term was unduly lenient. Having considered all the relevant circumstances we conclude that, before giving appropriate credit for the guilty pleas, the minimum term should have been one of 40 years. It follows that when credit is appropriately given, the sentences for murder should have carried a minimum term of 35 years less the days spent on remand. 53. Accordingly, we allow this Reference. We quash the sentences imposed below in relation to counts 1 and 2, and substitute for them increased sentences of life imprisonment with a minimum term of 34 years and 178 days, that period being calculated from the date when sentence was passed in the court below. We are not persuaded that there is any ground to increase the sentence imposed on count 3, which will accordingly remain as passed below. 54. LORD JUSTICE HOLROYDE: Mr Solicitor and Mr Hankin, we are very grateful to you both and those assisting you for your submissions. Is there any matter that remains to be dealt with? 55. THE SOLICITOR GENERAL: No. Thank you, my Lord. 56. LORD JUSTICE HOLROYDE: We would not wish to leave the case without expressing our admiration for the manner in which those to whom the case means so much have listened to this lengthy judgment. We are very grateful to you.

```yaml citation: '[2017] EWCA Crim 2313' date: '2017-12-21' judges: - LORD JUSTICE HOLROYDE - MRS JUSTICE WHIPPLE - MR JUSTICE GOOSE ```

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

Neutral Citation Number: [2010] EWCA Crim 1150 Case No: 2008/00131 D4 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT MAIDSTONE MR JUSTICE GOLDRING T20067360 Royal Courts of Justice Strand, London, WC2A 2LL Date: 25/05/2010 Before: LORD JUSTICE HOOPER MR JUSTICE DAVID CLARKE and MR JUSTICE OPENSHAW - - - - - - - - - - - - - - - - - - - - - Between: Peter Connolly Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr A J Arlidge QC and Mr J Anders for the Appellant Mr M Austin-Smith QC for the Respondent Hearing dates: 19 February & 12 May 2010 - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE HOOPER: 1. At the conclusion of the hearing we announced our conclusion that the appeal against conviction was dismissed. We now give our reasons. 2. On 10 December 2007 the appellant (“Connolly”) was convicted of the murder of 18 year old Christopher Alaneme (count 1) and of wounding 29 year old Mark Davies, aged 29,with intent to cause grievous bodily harm (count 2). Both offences were committed shortly before midnight on Friday 21 April, 2006. 3. The attack on Mark Davies started at about 23.56.20 and was over by about 23.56.34. These timings were obtained from CCTV cameras, although Davies himself was not caught on the CCTV at the moment of the attack. Mark Davies was stabbed five times, four in the chest and one in the buttock next to the anus. Mark Davies was so drunk that he had no memory of the attack. 4. The attack on Christopher Alaneme, which took place a few yards away from where Davies was attacked, probably started during the attack on Davies. Alaneme was stabbed once in the abdomen, causing a wound from which he was to die. It is likely that he was stabbed after Davies had been stabbed. 5. Both Davies and the deceased and others involved in the incident were residents of Sheerness. 6. Although in theory there could have been more than one knife involved in the incident (the pathologist could not exclude that) and more than one knifeman, the overwhelming probability was that only one knife was used and only one person used it. No witnesses saw a knife during the incident and no knife could be seen on the CCTV footage. 7. The appellant had gone to Sheerness that evening from Peckham, with four friends, Terence Beaney, Andrew Giblin, Sean Duhig and Gerry Duhig. All had consumed large quantities of alcohol and drugs had been taken by some. All five were charged with murder. 8. Sean and Gerry Duhig were acquitted of murder on the direction of the judge at the close of the prosecution case. The judge ruled that the jury could not properly be sure that they had used, or were aware of, the knife. They were not charged on count 2. 9. Beaney and Giblin were acquitted of counts 1 and 2 by the jury. It seems likely that they were acquitted because the jury could not be sure that they had used, or were aware of, the knife. 10. In the light of the verdicts the jury must have been sure that Connolly had the knife and used it to stab both victims. 11. There was, and this is not disputed, sufficient evidence to convict Connolly. Connolly admitted in evidence that he was in the vicinity of the two incidents and admitted that he had been involved in a struggle with Christopher Alaneme – indeed he could not have denied it. Evidence from a forensic scientist established that Connolly’s DNA was found on Alaneme’s left glove. Furthermore Connolly’s DNA was found in blood staining on Alaneme’s left index finger. Since Connolly was bleeding from the lip, the judge said – no doubt correctly – that as a matter of common sense the blood on Alaneme’s glove and finger must have resulted from contact between Alaneme’s glove and Connolly’s wet blood. This, as the prosecution put it, "demonstrated contact between the two men in circumstances of violence". Moreover, the prosecution argued that such a deposit of blood could only have resulted either from two blows delivered by the Alaneme himself (the first blow to cause an injury or cut to spill the blood and the second to deposit it on the glove), which the appellant denied, or alternatively, a single blow from Alaneme following upon an earlier injury caused during the course of his violent contact with Davis, which conclusion would implicate the appellant in the attack upon Davis. 12. The evidence against Connolly included: a) Evidence that he had confessed whilst in a car returning to London after the incident; b) evidence from Beaney and Giblin that Connolly had a knife earlier that evening; c) adverse inferences from his failure in interview to give the account which he was to give in evidence; d) evidence that he had left the scene and gone on the run for two weeks; e) evidence from which the jury could infer that he had deliberately got rid of the clothes he was wearing and the mobile phone he was carrying at the time of the attack (all of which could well have been bloodstained); and f) evidence from which the jury could infer that he pretended that he had been wearing on the night other clothes which had similarities to the clothes he was wearing on the night. 13. As to e) and f), good quality CCTV images showed that Connolly was wearing a polo shirt with coloured hoops, the well-known Lacoste crocodile logo on the left breast, and a couple of black buttons fastening the neck opening. Later on that evening at the time of the incident, he had put on a black jacket, but underneath one can still clearly see the Lacoste hooped T-shirt. 14. When Connolly surrendered at Wimbledon police station on May 5 2006, he brought with him a holdall containing clothing, including a Lacoste polo shirt, which he suggested was the polo shirt he had been wearing at the time; it had the same coloured hoops, with the Lacoste crocodile logo, but a close examination showed that the logo was in a different place to that shown on the shirt in the photographs, and furthermore, there was a different arrangement of buttons. Consequently, the shirt which Connolly had brought to the police station was not the shirt which he had been wearing at the time of the incident. The jury were invited to draw the inference that the shirt he had been wearing at the time was bloodstained, and therefore he had disposed of it and later he, or someone on his behalf, had gone out and bought a similar Lacoste T-shirt, hoping to pass it off as the one he had been wearing at the time, which, of course, would not have tell-tale bloodstains on it. 15. As far as his mobile telephone is concerned, Connolly is seen using it immediately after the incident. It may reasonably be supposed that the person who had a knife to the deceased would have blood on their hands. If this was Connolly, there would be blood upon his mobile phone. Consequently, he would have a compelling reason to dispose of it. There is no record of the use of this phone afterwards. The jury were invited to conclude that Connolly had disposed of it, because it was bloodstained. 16. The ground of appeal on which leave was given concerns only a narrow issue in the trial, albeit one of importance. That issue related to CCTV footage which, the prosecution claimed, was consistent with Connolly being involved in the attack on Davies, an attack which, undoubtedly, took place just outside Bar One. Mr Arlidge QC submits that the judge should not have allowed the prosecution to make this point. 17. The prosecution had CCTV footage which showed without doubt Connolly and the other four coming towards the area where the attacks were to take place and what the five were wearing. CCTV footage also showed Davies sitting outside Bar One, getting up and moving out of sight of the camera to the spot where he was to be attacked. 18. The appeal concerns CCTV footage from a camera inside Bar One (“Bar One interior camera”). That footage principally showed what was happening inside Bar One but there were a few shadowy images of what was occurring outside Bar One, visible to the camera through the windows and door of Bar One. 19. It gives some idea of the complexity involved in understanding the images filmed by the Bar One interior camera that it took over two hours of painstaking explanation by Mr Austin-Smith QC to demonstrate to us the prosecution’s case. By taking all the CCTV footage and evidence from witnesses such as the Bar One doorman, he demonstrated what he described as a logic trail leading to the conclusion that Davis was attacked in an area hidden from the camera by the exterior wall of Bar One between about 23.56.20 and about 23.56.34. 20. He relied upon the evidence of a Mr Bryant to support the prosecution’s case that three men were involved in the attack on Davies, one of whom was wearing what he described as black or navy blue clothing. 21. Central to Mr Austin-Smith’s logic trail was the inference, which he asked the jury to draw, that whoever attacked Davies must have been a member of the Peckham group. There was no evidence to suggest, so he submitted, that Davies had been attacked by a local person. 22. Mr Austin-Smith relied upon evidence which showed, and this was not contradicted, that the Duhig brothers were on the other side of the road when Davies was attacked. Indeed they did not face trial on the Davies count. That left, so he submitted, three possible attackers on Davies, namely the other three members of the Peckham group. 23. During the trial Mr Austin-Smith invited the jury to conclude that the CCTV footage showed that two men near where Davies must have been could be identified by their clothes as Beaney and Giblin. Indeed both Beaney and Giblin made limited admissions in evidence that the prosecution was right in this assertion. The CCTV footage also appeared to show that Giblin was attacking Davies. 24. There was, so the CCTV footage shows in about five different shots before, during and after the attack on Davies, a third man wearing on his top clothes which appear to be black or dark. Connolly, of the three, was the only one wearing a black top. It was impossible to identify the third man as Connolly from his facial features, which were completely indistinct. One frame could be interpreted as showing that man with a raised arm. 25. Mr Austin-Smith pointed to the evidence of a witness, Henry Cooper, who had a good view of the incident from the upstairs floor of Bar One and whose evidence supported the case that only three men were involved in the attack on Davies and that all three afterwards went over to where Alaneme was already involved in a scuffle with the Duhig brothers and joined in. That Connolly was involved in some way in the attack on Alaneme was not disputed. 26. Mr Arlidge QC relied on the fact that Cooper had no independent memory of the evening and that the jury had to rely on his statement taken at the time. 27. He contested the submission that no-one other than members of the group of five would have been involved in the attacks on Davies and Alaneme and pointed to the fact that Christopher Alaneme and his friends were seriously impaired by alcohol and that his friends had a history of violence. 28. He pointed to evidence of eye witnesses from which it could be concluded that more than the five were involved in the attacks. 29. There was, we add, an added complexity in that the person’s trousers appear light coloured whereas Connolly’s were not. Mr Austin-Smith explained this by reference to the fact that the lower part of the windows through which the images were being captured was frosted. 30. If the man in dark clothing seen on the CCTV very close to the point where Davies was being attacked was consistent with being Connolly, that offered some limited support to the case against Connolly. If the CCTV images showed that Connolly was not the man in dark clothing, then that would be powerful exculpatory evidence in favour of Connolly. If he was not involved in the attack on Davies (and his evidence was that he was not) then it could not have been he who stabbed Davies. Given that in reality there was only one knife and only one knifeman, he would not be guilty of the murder of Alaneme. 31. Having considered the logic trail put forward by Mr Austin-Smith we have no doubt that a reasonable jury was entitled to follow that trail. The jury were entitled to conclude, in the light of all the evidence in the case, that Davies had been attacked by members of the Peckham group and that the Duhig brothers were not involved. That left three candidates and the evidence that three men were involved. Given their admissions and the CCTV footage the jury were entitled to conclude that Beaney and Giblin were involved in some way in the attack on Davies. They were entitled to conclude that the third man was Connolly. 32. We turn to what happened at the trial. 33. On 16 November 2007, towards the close of the prosecution’s case, the prosecution submitted to the judge that the prosecution should be permitted to establish that the CCTV footage was consistent with Connolly being involved in the attack on Davies. 34. The judge ruled: Mr Arlidge, as I have said, does not suggest the CCTV should be excluded. He submits that Mr Austin-Smith should not be permitted to make the assertion regarding Mr Connolly, to do so would now be unfair. Such a suggestion has never before been made by the prosecution. An expert witness who was served was, in the end, not relied upon by the prosecution, never made such a suggestion. The image in question is not at all clear. It is not at all easy to discern a movement such as that suggested by Mr Austin-Smith. Had he known that such a suggestion was to be made, he would have instructed an expert to deal with it. It is now too late for we are at the end of the prosecution case. With a little hesitation, I have concluded that it would not be right in the circumstance for Mr Austin-Smith now to make the point he wishes in respect of Mr Connolly. It is too late. 35. After Beaney had given evidence the prosecution repeated the earlier unsuccessful application on Thursday 22 November. 36. The judge ruled: Mr Austin-Smith has reopened the point raised previously in respect of ‘the man in black,’ as we have referred to him, who can be seen on a careful viewing of the CCTV from inside Bar One. Mr Connolly was dressed in black. Mr Austin-Smith has raised the point again for a number of reasons. First, he submits that things have changed since the ruling. Mr Beaney has given evidence, and been cross-examined. He has accepted that this was an incident involving only the five from Peckham and the five from Sheerness, or may be taken so to have accepted on one reading of his evidence. Two of those from Sheerness, the Duhig brothers, were on the other side of the street. That leaves the three defendants of those from Peckham, on that possible interpretation of his evidence. On one possible view of what Mr Beaney said, Mr Giblin can in effect been seen as the man, on the face of it, striking down to someone in the position of Mark Davis. Second, it is, submits Mr Austin-Smith, a possible interpretation of the CCTV in the light of Mr Beaney’s evidence that at the time Mr Giblin was inflecting the last blows in the direction of Mark Davis, Mr Beaney, while nearby, was not physically joining in. At the time of the possible blows, the man in black, Mr Connolly, was running off. Mr Connolly is about to give evidence. Mr Austin-Smith submits that, in the light of what Mr Beaney has said, and a proper viewing of the CCTV evidence, the man in black cannot simply be ignored. On one view, the fact that Mr Beaney and the man are seen as they are on the CCTV might help them. In any event, this is evidence, submits Mr Austin-Smith, which the interests of justice require should be fully ventilated. The jury have the CCTV, it is in evidence; they might well ask about the man in black. Mr Arlidge has not changed his stance. He submits that this evidence should be excluded to the extent of any observation or cross-examination regarding the man in black. Nothing has changed since the ruling. It is now too late. He will take the risk of the jury taking an adverse view of this evidence as far as his client is concerned. I have to say that, having seen the CCTV as it was carefully gone through by Mr Austin-Smith in cross-examination of Mr Beaney, the position regarding it has become clearer. The figure in black can clearly be seen. I have already remarked on one possible view of the evidence that only the three people from Peckham were in the area of Bar One. I have already remarked upon one possible view of Mr Beaney’s evidence, and his comments regarding Mr Giblin. It seems to me that this obviously intelligent jury is unlikely to miss the man in black on the CCTV. It is in evidence anyway. It is not satisfactory simply to leave it, and pretend, as it were, that the man in black is not there. It is, as it seems to me, in the interests of justice, viewing it in the round, that the nettle is grasped. That means that Mr Austin-Smith may be permitted to cross-examine upon the man in black. He may comment upon what can be seen. If, of course, he makes bad points, they will soon be apparent to this, as I say obviously intelligent jury. 37. Mr Arlidge applied for the jury to be discharged and an adjournment until Monday to see whether it was possible to obtain expert evidence. On Monday the judge was told that it would take three weeks to obtain a report. The judge refused any further adjournment and the trial continued. 38. Mr Arlidge assured us that he first fully understood that the prosecution were going to submit that Connolly could be identified from CCTV images as the third man involved in the attack on Davies shortly before 16 November. He described what the prosecution were seeking now to do, in so far as Connolly was concerned, as a “significant change”. 39. Mr Austin-Smith disputed that there had been a significant change but accepted the assurance given by Mr Arlidge. Notwithstanding that acceptance, both parties spent time on the history of the case to resolve whether there was, or was not, a significant change. Not without some reluctance we shall rehearse the arguments. 40. The prosecution had obtained and served before trial an expert report. The expert had viewed the CCTV images and identified a person on one still image as consistent in appearance with Connolly. It was agreed by the parties that the expert would not be called. 41. Mr Austin-Smith’s speaking note for his opening address to the jury in relation to the Bar One interior camera reads as follows: You may also be helped by some footage from inside Bar One, looking out through the windows, in which activity on the outside can be seen. See JB p77 [RJB/35] in which you can seen the direction the camera is pointing. [ PLAY CCTV FROM INSIDE BAR ONE ] In the following series of photographs JB p78-98 [RJB/59-79] an attempt has been made to clarify it for you by removing all foreground action inside Bar One and just leaving the important parts, namely what is happening outside. We may have to look at those in detail in the course of the trial. In a further attempt to assist you, the footage from inside and outside have been matched so that you can see both at the same time. [ PLAY COMPOSITE CCTV ] These taken together confirm that something is happening outside and the presence of people with clothing consistent with Giblin JB p84 [RJB/65], Connolly JB p88 [RJB/69] and Beaney JB p89 [RJB/70], but the prosecution do not suggest that this footage is sufficiently clear to make any positive identifications, let alone to be sure as to what the figures depicted are actually doing. But it may go some way to confirming the other evidence available to you. 42. The image referred to (RJB/69) in the last paragraph was one second after the image to which the expert referred (RJB/67). 43. During the trial a great deal of work was done by the prosecution team on the Bar One interior camera footage and on about 30 October it was realised that much more could be obtained from an analysis of the footage that had been so far realised. That led to the application to the judge on 16 November to which we referred earlier. 44. In our view there was, as Mr Arlidge submits, a significant change or development in the case against Connolly. Indeed the judge must have reached that conclusion when ruling on 16 November that it was too late for the prosecution to make the point that the CCTV footage, particularly that from the interior camera in Bar One, showed, in the light also of other CCTV footage and of other evidence, that Connolly was involved in the attack on Davies. 45. Mr Arlidge points out that in his ruling of 22 November, the judge made no further reference to the lateness of the application. If it was too late on 16 November, he submits it was even later on 22 November. 46. Mr Arlidge submits that the judge was right on 16 November and wrong on 22 November to allow the prosecution to make the point. This court should acknowledge the judge’s error and order a retrial. 47. In our view the judge was entitled to change his mind, given the developments in the case. Indeed, with a good deal of hindsight, it can be said that he was probably wrong to rule against the prosecution on 16 November, because although there had been a significant change or development, a fair trial could have been ensured. The judge could have allowed the prosecution, using a police officer very familiar with the images having looked at them many, many times and on specialist equipment, and/or counsel to identify for the jury the shadowy images seen through the windows and door of Bar One on the CCTV footage of the interior camera and explain the prosecution’s case in respect of them. 48. Having allowed the prosecution on 22 November to make its point against Connolly, the judge had to ensure that Connolly was not prejudiced by the change in such a way that he could not have a fair trial. 49. Mr Arlidge submitted to us, although he does not appear on the transcripts available to us to have submitted to the judge, that, if he had known that the prosecution were going to make this point against Connolly, he would have wanted to ask further questions of the various eye witnesses called by the prosecution. Mr Arlidge was unable to identify the relevant witnesses and relevant questions. We can see no lines of cross-examination additional to those which he utilised. 50. Mr Arlidge submits that the judge was wrong not to adjourn/discharge the jury pending the obtaining of an expert report. 51. In our view the judge was right to continue the trial in all the circumstances. Albeit we have not seen any reasons he gave for continuing the trial without giving the defence enough time to obtain a report, the judge would have been entitled to conclude that the likelihood of an expert concluding that the man in black could not have been Connolly was not high. 52. However, in the exercise of our jurisdiction to ensure that Connolly has had a fair trial, we concluded that Connolly should now be given an opportunity to obtain an expert report. With the agreement of Mr Austin-Smith, we adjourned the hearing to enable Connolly to take that opportunity and laid down a time table. We should add this. No criticism attaches to Connolly’s legal team for not having obtained such a report before trial. Without knowing how the prosecution would later put their case, it would not have been reasonable to seek such a report. 53. Mr William Platts explained his experience and prepared a report for the adjourned hearing and gave evidence to us. He rightly pointed out that there were a number of deficiencies with the CCTV evidence. The footage only recorded two frames a second and not the standard 25 frames a second. But that is clear from the footage itself. He points out that the quality of the footage is very poor, particularly the images seen through the windows. That was obvious to the jury. He shows how the “dead ground”, and the fact that there were only two frames a second, would have allowed a person to attack Davies without being seen on the footage at all. That again was obvious, so it seems to us. 54. In cross-examination Mr Platts accepted that he was unable to show that the man in black was not Connolly. He accepted that the image of the man in black, notwithstanding all the possible deficiencies, was consistent with being Connolly. He points out that in different frames at different times there were other men dressed apparently like the man in black, but that does not take the case any further. 55. Having considered the matter carefully, we have no doubt that if the jury had heard the evidence of Mr Platts, the jury’s verdict would necessarily have been the same. 56. In conclusion we wish to add that we have looked at the summing up to see how the judge left the issue of the CCTV footage to the jury. In one passage of the summing-up the judge records that Mr Austin-Smith was saying no more than that the clothing of the man in black was consistent with Connolly’s clothing. During the cross-examination of Connolly, Mr Austin-Smith, as he had to, put it in clear terms to Connolly that he was the man in black seen in about the five still images before, during and after the attack. The judge at the conclusion of the summing up reminded the jury that this was the prosecution’s case. Nonetheless we have no doubt that the jury would have understood that the prosecution’s case was that the images of the man in black were consistent with being Connolly. It was quite impossible to identify Connolly from the images, and no one suggested otherwise. 57. Having looked at the case as a whole we have no doubt that the conviction is safe.

```yaml citation: '[2010] EWCA Crim 1150' date: '2010-05-25' judges: - LORD JUSTICE HOOPER - MR JUSTICE OPENSHAW ```

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

Case No: 201206451 B1 Neutral Citation Number: [2015] EWCA Crim 1791 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT WOOLWICH Her Honour Judge Robinson T20111073 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/11/2015 Before: LADY JUSTICE RAFFERTY MR JUSTICE HICKINBOTTOM and RECORDER OF WESTMINSTER (HIS HONOUR JUDGE MCCREATH (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between: Regina Respondent - and - Christopher Brown Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - James Wood QC for the Appellant Christiaan Moll for the Crown Hearing date: 27 th October 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Lady Justice Rafferty: 1. On 12 October 2012 in the Crown Court at Woolwich the appellant Christopher Brown was convicted of 6 counts (2-3 and 9-12) of making indecent images of children contrary to s 1 (1) (a) Protection of Children Act 1978 . On 15 November 2012 he was sentenced to a suspended sentence order on each count concurrent. He was acquitted of 6 further counts of making indecent images of children (Counts 1 and 4-8) and of 2 counts of attempting to make indecent images of children (13-14). He appeals with the leave of the Full Court. 2. On 20 April 2012 the appellant was arrested as a result of police monitoring of a peer-to-peer file sharing computer application “Frostwire.” Indecent images of children were on his computer. In interview he admitted installing Frostwire. He said he had inadvertently accessed indecent images of children whilst trying to download mainstream pornography then deleted or tried to delete the images of children. He sometimes left the computer on all night for a download and the indecent images had come through accidentally. He made no comment in a subsequent interview. 3. The Crown’s case was that he had viewed all the indecent images. It relied on the expert Simon Field who concluded that some images had been deleted or were not accessible to the ordinary user. The appellant was acquitted of these counts. However, an automatically generated folder, “thumbcache”, was invisible and inaccessible and the ordinary user of a computer would not know of its existence. The appellant was convicted on these counts as well as a rolled-up count (12) relating to the balance of the images. 4. The Crown contended that the file titles made it obvious they contained indecent images of children and that some had clearly been selected for download as a result of his searches. Searches by Mr Field using terms supplied by the appellant did not result in indecent images of children. The Crown thus suggested that the appellant had actively sought out indecent images of children. 5. The defence was that the downloads were accidental and he had deleted all he could. He was of previous good character. He had reconfigured the software so it could not automatically connect to the internet and incomplete files could no longer be automatically downloaded. Mr Field conceded that the filenames were not such that from them the contents could be discerned and one could not tell what would appear on the screen before the images were opened. 6. The appellant in interview said he worked for solicitors in their IT department. At a further interview after more detailed examination of the hard drive he read a prepared statement in which he said that he had fully commented in his first interview and had nothing to add. 7. Stephen Faulkner, police forensic computer analyst, found associated with “Frostwire” 10 indecent images with filenames indicative of child abuse. 10 images of adult pornography in the same folder were accessible to someone looking at the contents of “Frostwire.” Many files contained names indicative of child abuse material but it was not possible to view them because they had not fully downloaded. There was evidence files had been accessed, and evidence of their names, but he could not find them. It was possible they had been moved, deleted or renamed. He found about 500 adult pornographic images and a further 8 indecent images of children. Expert evidence 8. The overwhelming inference was that all images came from the use of Frostwire whose basic operation was agreed. It enabled “person-to-person” sharing, as opposed to accessing a file from a central server. An user opened Frostwire, typed in a search term and clicked “search.” He would see a list of files and filenames on other computers presently connected to the internet and whose names matched his search terms. He would click “download” on files he wanted and downloading would begin, if in large number then in tranches. As soon as “download” was clicked the file would go into a folder marked “incomplete” and once fully downloaded would leave it and be saved in “new folder” created in response to prompts. Once the download began the user would have the option of more searches. 9. After the appellant installed Frostwire on 28th March and created the new folder, the downloads were saved in it. The default configuration meant Frostwire connected to the internet as soon as the computer was switched on. He altered that default setting so that it connected to the internet only were Frostwire opened though the experts could not say when he did so. 10. For the defence Dr Tipe’s undisputed evidence was that this was consistent with his trying to prevent further downloading. On 28/29th March of four files viewed in one session, one from “incomplete” three from “new”, three had names indicative of indecent images of children, the fourth indicated both child and adult pornography. All had been deleted. 11. The virtual store (“VS”) was created by the computer when an user first installed Frostwire. Were the user to delete “incomplete” and “new” subfolders and reopen Frostwire, it tried to create a new folder to store downloads in a location protected by its operating system so as to prevent accidental deletion. This new folder was created in the VS, hidden from the user unless actively sought. 12. Mr Field said one could access files in the VS without specialist software. Dr Tipe said the appellant could not have looked using Windows Explorer without first altering the computer settings, viewing, deleting, then changing the settings back to the default settings. This was consistent with his account in interview that he clicked on Explorer to view a folder he believed to be in Frostwire and was prompted that the file did not exist. 13. There was no dispute that if one opened Frostwire one could access all files, as the appellant had done several times, including on 31st March when in the VS he viewed three files whose names suggested indecent images of children. Dr Tipe said that whilst it was not possible to access those files via Windows Explorer they could be accessed by running Frostwire and double clicking on the filename. 14. On 17th April Frostwire was started at 2250 and images downloaded (Counts 1 and 7-8, of which the appellant was acquitted). They included two of children, opened or viewed and not deleted, pleaded in Count 12. Dr Tipe said they had been viewed in the same way as the three on 31st March, by double clicking on the file in Frostwire. 15. The two files viewed on 17th April but not deleted, on the face of it not consistent with his account that he had deleted all images of children, prompted further tests. (There was no evidence he had tried to delete the files and the experts agreed an user did not have to open a file to delete it). Frostwire automatically made any downloaded file available for sharing assuming the other person was connected to the internet and the search term was “Return one of your files”. It was not possible to delete a file in the process of being shared. 16. On 18th April his account was connected to the internet but did not start Frostwire. On 19th April it did and files were selected for download which was not completed. Mr Field felt ninety-nine files names suggested images of children but others referred to adult or gay pornography. The incomplete download could have been for a number of reasons - loss of internet connectivity, the user stopping the download or closing Frostwire. 17. The effect of the expert evidence was that the appellant selected “all files” for download on 17th and 19th April. His account was that he had not clicked “download” so he assumed a malfunction but neither expert was invited to deal with this. Mr Field said twenty images in the VS, fully downloaded on 17th April but not deleted, had been selected for download at 23.03. Fewer than seventeen were indecent images of children. Ten were pleaded in Count 12. There was no evidence any had been viewed. 18. In Thumbcache, a location upon he computer to which deleted gallery images were sent, his account held more than eleven hundred images ranging in dimension from postage stamp to 2” square. Of the one hundred and sixty with sexual content seventy-five were of children. 19. The images were in a named folder which, when opened, automatically put some images on the screen in thumbnail form. Until a folder was opened one did not know which ones would be displayed on the screen. If it held a large number only a few would be displayed. Were a folder deleted the only images entering thumbcache were those which had been displayed. One could delete a file containing an image without opening it. Areas of dispute 20. There were two areas of dispute between the experts: which search terms might have been used by the appellant and what conclusions could be drawn from the file names. Dr Tipe’s view was that his searches were consistent with the appellant’s account and that it was not possible to be sure that he searched exclusively pre-teen material. Mr Field, who had not precisely replicated the search as done by the appellant, was less confident. 21. Mr Field agreed that some file names were designed to mislead but if a filename suggested an indecent image of a child he would not risk downloading it. Dr Tipe told the jury that files shared person-to-person often had sexually explicit names but unrelated content. Distributors employed a scattergun approach in the hope of more downloads. The names of some of the files in the instant case contained references to underage, overage and gay sexual content, so that one did not know what would be in particular files. Ruling on submission at the close of the case for the Crown 22. The judge reminded herself of R v Smith and Jayson [2002] EWCA Crim 683 on what constituted a making for the purpose of s 1 (1) (a) Protection of Children Act 1978 . On Counts 1-12 the downloaded images fell into three categories described as accessible, inaccessible and a thumbcache. The files in the VS were created and downloaded intentionally. The issue was whether he downloaded them with the requisite knowledge. On all the evidence, including a lot of file names indicative of indecent images of a child and two files viewed containing such, a jury could be sure [of guilt]. That he was seeking to download adult pornography and could not be sure of the content of the file without opening it was not sufficient for her to withdraw the case. Material was described as inaccessible because images downloaded but deleted made it impossible to say when they had been downloaded, by whom, the file name or where it came from. There was therefore evidence that the image had been intentionally downloaded. The jury would be entitled to infer he was aware of the likely content because they must have come from Frostwire and were likely to be named similarly to the others. It was common ground that the thumbcache images were sufficiently clear on the screen to enable one to see the image. True, there was no evidence he was aware of the thumbcache but there was evidence on which the jury could be sure of a deliberate downloading and that the files contained indecent images of children. The defence case 23. The appellant, 30 and of good character, married with children, told the jury his IT knowledge was that of the average home user. In March/April 2011 he installed “Frostwire” to download and view adult pornography without internet connection. On 28 th March he searched using terms such as “teen,” “fuck” and “girlfriend” which would give results for adult pornography. He selected “all” results, clicked “download” and left the files to download whilst he did another search. He was not present during all downloads. He followed the Frostwire “wizard” and created a new folder. When he noticed the results of the initial search he thought he had done something wrong and deleted whole and incomplete folders. 24. He had opened four files but notwithstanding their names none held indecent images. He deleted everything as a result of what he had seen. On 31st March he tried Frostwire again but when he looked at the pictures realised it had not downloaded what he had expected. He stopped using his computer. All thumbnails in thumbcache had been deleted between 28th and 31st March. He had viewed the images very briefly once he realised what they were and did not study the file names. Duplicate thumbcache images were not from anything he had done. He opened three files on 31 st March via Frostwire, which took one to Windows Explorer, and displayed in thumbnail what had been downloaded, exactly as on 28-29th March. He could not explain how he had viewed the first four files in the original new folder created by Frostwire whereas the three viewed on 31st March were in the VS which could not be accessed via Windows Explorer. He assumed it was to do with the computer. He had not used it again until 17th April. 25. His wife on 17th April found it slow and temperamental. He first realised it was set to download files automatically when he saw a tiny icon showing Frostwire was “ trying to do stuff. ” and he disabled auto-connect. Commenting on the experts’ agreement that the files created on 17th April must have been selected to be downloaded he said “ Computers don’t always do what you want, otherwise you wouldn’t have experts. ” He did not know why Frostwire had not begun downloading earlier in the evening when his wife had briefly connected to the internet, but files had not begun to download until two minutes after the internet connection started. 26. He did not know of the VS or of thumbcache. He double-clicked on the files via Internet Explorer but could not find them so as to delete them. He accepted that in the process two images of children came up. He had been trying to delete all images when interrupted. He had not intentionally searched for, downloaded or made indecent images of children. 27. On 19th April he opened Frostwire to delete any remaining images but failed. In interview he told the truth. In the second interview he followed advice. Grounds of appeal 28. Grounds of appeal advanced by Mr James Wood QC who did not appear below are that the guilty verdicts were logically inconsistent with the acquittals. The judge erred in written directions on Counts 2-3 and 9-12, wrongly asserting that the folder containing those images must have been opened because they were viewed on screen and therefore downloaded and viewed intentionally rather than by accident and the issue was whether he knew the files did or were likely to contain an indecent image of a child, whereas the true issue was whether he had deliberately downloaded and viewed the images. The direction that the issue was “…the circumstances in which[the images] came to be on the computer in the first place…” was a serious misdirection; the appellant was charged with “making” the thumbcache images and the Crown thus had to prove that he knew the images were automatically saved. The essential elements of the offences as particularised had to be made out in connection with the particular “making” alleged. The indicted “making” was an unknowing and unintentional act and the jury was never properly directed as to it. 29. Whether the images had been made and viewed intentionally should have been left to the jury. An image was not “made” in a deliberate and intentional act but by an unknown automatic process of the computer which generated the image in thumbcache. The second limb of the direction did not address the timing of when the appellant knew the files did or were likely to contain an indecent image of a child. The knowledge had to be at the time of the “making.” On the evidence this was not upon entry into Frostwire of search terms generating automated download but when the file names were listed and thumbnails simultaneously and automatically stored in thumbcache. Grounds of opposition 30. For the respondent Crown Mr Moll who also appeared below relied on what he described as a simple factual analysis: The appellant deliberately searched for indecent images of children and knew the images had such a content when he opened them. There was a clear consensus that he had viewed then deleted the thumbcache images and the verdicts were plainly centred upon where on the computer the particular indecent images of children were. 31. He reminded us of the appellant’s evidence “Once I had viewed and seen what was there it was only briefly on the screen…I went “Oh my God” and got rid of it.” The agreed evidence was that the thumbcaches had been viewed at some stage whereas there was only an inference the others had been viewed 32. The images in Counts 1, 7 and 8 and the attempts in Counts 13-14 had been downloaded or selected for download on 17th April when, he said, his computer was malfunctioning and was downloading automatically. The experts disagreed as to whether files titled to suggest indecent images of children would in fact contain such (Counts 13-14). There was no evidence that the items in the unallocated space (Counts 4-6) had been viewed or even how they came to be on the computer in the first place. There was a logical basis for the verdicts. 33. The judge directed the jury on the Counts of which the appellant was acquitted that it had to be sure he intentionally downloaded the files and knew they contained or were likely to contain an indecent image of a child. There were seventy-five indecent images of children in the thumbcache and having viewed a few he must have known they contained such images. The issue was not whether he deliberately downloaded and viewed the images. His evidence was that he had. There was ample evidence from which jury could infer he knew exactly what he was downloading. Discussion and conclusion 34. A good deal of attention was devoted in written submissions, for which we were grateful, to technical aspects of how the computer and any relevant software worked. Oral advocacy revealed that the issue was far narrower and did not require detailed analysis of technology. The first and most powerful of Mr Wood’s arguments, that the verdicts defied logic, proved dispositive and we have not found it necessary to reach a conclusion on the balance of the submissions. 35. Although the indictment was not specific as to the dates when material was downloaded some events could be dated. as we have already set out. 36. On 31 st March Frostwire settings were changed so that files were stored in the VS, created by the computer itself in the systems folders which, on the evidence of Dr Tipe, ordinary users cannot access for fear of wrecking the workings of the computer. Mr Field disagreed,. Whichever expert view did prevail or should have prevailed, three files were viewed and deleted. 37. The VS counts (1, 7 and 8) were left to the jury on the basis that the files were downloaded on 17 th April, not deleted, and found in the VS. Summing up the judge said: “The issues which you have to decide in respect of these three counts of these. Are you sure the defendant downloaded these files intentionally?… Are you sure that the defendant knew the files did or were likely to contain an indecent image of a child? If the answer to both these questions is yes the defendant is guilty. If the answer to either question is no, he’s not guilty.” The jury returned verdicts of not guilty. 38. The thumbcache counts (2, 3, 9, 10 and 11) were left on the basis that the files had been downloaded viewed and deleted. The judge said: “There is no dispute that these were downloaded by the defendant using FrostWire. Further, the folder they were contained in must have been opened because they were viewed on screen. Therefore, they were downloaded and viewed intentionally rather than by accident. Therefore in respect of these counts there is only one issue for you to decide which is this: are you sure the defendant knew the files did or were likely to contain an indecent image of a child? If the answer that question is yes, the defendant is guilty if the answer is no, he is not guilty.” The jury returned verdicts of guilty. 39. As to the unallocated space counts (4, 5 and 6) the judge said: “Although there is no evidence as to the original filename for these images, the date or time and there were downloaded or by which user account, the defendant accepts that they can only have been downloaded by him via FrostWire. Because there is no evidence as to how these files came to be downloaded the prosecution seeks to draw an inference from all of the circumstances that they were downloaded intentionally and with knowledge as to the likely contents………….So, again, the issues in respect of these three counts which you have to decide are as follows. First are you sure that the defendant downloaded these files intentionally and, secondly, are you sure that the defendant knew they did all were likely to contain an indecent image of a child?” The jury returned verdicts of not guilty. 40. As to the attempt counts (13 and 14) the judge said: “The issues which you have to decide in respect of these two counts are as follows. Are you sure that the defendant intended to download an image which she knew did contain all was likely to contain an indecent image of a child and, secondly, are you sure…………. The jury returned verdicts of not guilty. 41. The rolled-up count (12) encapsulated the balance of the downloaded images in whatever category. The judge said: “So the issues arise on this count as in relation to counts 1 to 11 for each of those three locations. If you are sure that one or more of the images, the subject of this count, was downloaded or viewed on the screen by the defendant intentionally and with the knowledge that the file did or was likely to contain an indecent image of a child then the defendant is guilty on count 12. It is not necessary for the prosecution to prove its case as to all 131 images referred to in the indictment." The jury returned verdicts of guilty, which could have reflected only the thumbcache images within that catch-all category. 42. Mr Wood QC argued, as to the thumbcache, that the making was the result of the downloading, not of the viewing. It was the state of mind of the appellant at the point of downloading not at the point of viewing which was relevant, whether in thumbnail or full screen format. 43. The primary difficulty for the respondent Crown lies in identifying a rational reconciliation between the verdicts of not guilty and of guilty. They are not explicable by reference to the time at which the thumbcache images were downloaded. The Crown argued (contrary to the case it led at trial) that a point must have been reached by which the appellant must have known that the files were likely to contain indecent images. Leaving aside how matters were led below, the difficulties for the Crown are the acquittals on counts 13 and 14 as well as those on counts 1, 7 and 8, which related to attempted and actual downloads in April. In any event, as it conceded, it is impossible to give a date when the thumbcache images, or any of them, were downloaded: all thumbcache images might have been downloaded in the first download in the period 28-31 March and none later 44. Nor can the verdicts be explained by the appellant having viewed these images. He had also viewed images other than those in the thumbcache but been acquitted as to them. The proposition, not advanced below, that the thumbcache images may have been the same as the “other” images, was not supported on the evidence. The thumbcache images were clearly left to the jury on the basis that they were distinct from the “other” images and it was not open to the jury to convict on any other basis. 45. There was clear evidence that when the appellant saw indecent material, he deleted it. This was as true in respect of the “other” images as of the thumbcache images. Indeed the evidence was plain that these images were only created in this format as a consequence of deletion. 46. In the course of submissions counsel for the respondent Crown was invited to offer a reasoned explanation for these apparently inconsistent verdicts. He did his valiant best but was unable to help us. We had little difficulty identifying irrationality and inconsistency but had no success when we sought to understand any possible logic in the verdicts. 47. Thus, as we indicated, these apparently complex arguments, although stratified and requiring close attention to detail, revealed a ground of appeal familiar and simply stated. It was unnecessary for us to attempt a masterclass in computer software analysis or revisit the meaning of statutory terms. It was enough to conclude, on these facts, that the verdicts were inconsistent. 48. This appeal is allowed.

```yaml citation: '[2015] EWCA Crim 1791' date: '2015-11-18' judges: - LADY JUSTICE RAFFERTY - 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: [2007] EWCA Crim 2486 Case No: 200704790 A2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MAIDSTONE CROWN COURT S20060142 Royal Courts of Justice Strand, London, WC2A 2LL Date: 30/10/2007 Before : LORD JUSTICE PILL and THE HONOURABLE MR JUSTICE HEDLEY - - - - - - - - - - - - - - - - - - - Between : William John MACKIE Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Alistair J. Keith (instructed by Registrar of Criminal Appeals ) for the Respondent Ms Jane Scotchmer (instructed by Crown Prosecution Service ) for the Respondent Hearing dates : 5 th October 2007 - - - - - - - - - - - - - - - - - - - - - Judgment The Hon. Mr. Justice Hedley: 1. This application for permission to appeal against sentence has been referred to the Full Court by the Registrar who has granted the necessary extension of time. We grant leave to appeal and now give our judgment on the appeal having received submissions both oral and written from the Defence and the Prosecution, for which we are grateful. 2. On 12 th April 2006 the appellant pleaded guilty at the Medway Magistrates Court to an offence of assault occasioning actual bodily harm contrary to Section 47 of the Offences Against the Persons Act 1861 . On 16 th May at the Crown Court at Maidstone he was sentenced by HH Judge Patience, Q.C. to Imprisonment for Public Protection with a specified term of 18 months (less 60 days spent on remand), pursuant to Section 225 Criminal Justice Act 2003 . 3. The appellant had for some time had a partner called Mrs Bennett and their relationship was somewhat volatile. On 16 th March 2006 Mrs Bennett was at home when late in the evening the appellant burst in shouting and swearing. He punched her, seized her hair and pulled her to the floor. The appellant left the room but soon returned when, having pulled her to the ground, he punched and kicked and damaged the skin to her ear. Finally he desisted, the police were called and he was arrested. 4. The appellant had previous convictions including seven for violence, with Mrs Bennett amongst those victims. Unsurprisingly perhaps the judge was satisfied that the dangerousness provisions under Sections 224 -229 of the 2003 Act were amply fulfilled nor is that finding challenged. It was in those circumstances that he purported to pass the sentence that he did. 5. That sentence was unlawful since by Section 224(2) (b) this did not qualify as a serious offence since the maximum penalty is five years imprisonment. Accordingly this case did not qualify under Section 225(1) (a) and no sentence under that Section could lawfully be passed. 6. However, the judge could and should have used his powers under Section 227 to pass an extended sentence as this offence is a specified violent offence as defined by Section 224(3) and Part 1 of Schedule 15 to the Act and the dangerousness condition was fulfilled. The judge clearly had in mind a determinate sentence of three years imprisonment. That would have been both proper and lawful although that sentence the judge should under Section 227(2) have extended (in respect of licence) and could have done so by up to two years taking the case to the permitted maximum under Section 227(5). Had he done that no complaint could or would have been made of the sentence. 7. Can this Court now substitute this sentence for the one in fact passed by the judge? The question is whether in any sense a sentence of a different quality under a different statutory provision is, taking the case as a whole, more serious than the one actually passed (assuming it to have been lawful) since, if so, that would contravene Section 11(3) of the Criminal Appeal Act 1968 . Alternatively must the court simply quash the indeterminate element of the sentence leaving the three year sentence to stand alone? That in itself would not be a lawful sentence given that, the criteria under Section 227 having been made out, an extended sentence becomes mandatory under Section 227(2). 8. A person sentenced to imprisonment for public protection may not have his case considered by the Parole Board until he has served the minimum term. Thereafter he may not be released until it is considered safe to do. That may, of course, be a time considerably in excess of the minimum term. Section 225(4) of the 2003 Act imports into this sentence the provisions of Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 in respect of licences. That is further effected under Section 230 and Paragraph 2 of Schedule 18 of the 2003 Act by inserting a new Section 31 A in the 1997 Act . The result is that after release he remains subject to licence indefinitely unless the Parole Board direct that the licence shall cease to have effect. However, no such direction can be given until at least 10 years have expired since the date of actual release. 9. An extended sentence entitles a prisoner to be released at the half way point of the custodial term specified (here after eighteen months), the custodial term being assessed in accordance with Section 153(2) of the 2003 Act . He then remains on licence (and, of course, at risk of recall) until the expiration of the whole term (here five years) whereafter he is wholly discharged from the sentence. 10. It follows that in this case, taking the case as a whole, that the proposed sentence would not be more onerous that the one in fact passed. Moreover this proposal would comply with the Court’s statutory obligations under Section 227. In those circumstances we propose to allow this appeal by quashing the sentence passed in the Crown Court and substituting therefor a 5 year extended sentence comprising a custodial term of 3 years and an extension period of 2 years with the time spent on remand counting towards the custodial term.

```yaml citation: '[2007] EWCA Crim 2486' date: '2007-10-30' judges: - LORD JUSTICE PILL - THE HONOURABLE MR JUSTICE HEDLEY ```

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 1777 Case No: 202100585 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMNAL COURT HHJ Leonard QC T20167532 Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/11/2021 Before: THE LORD BURNETT OF MALDON, LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE SPENCER and MR JUSTICE JULIAN KNOWLES - - - - - - - - - - - - - - - - - - - - - Between: THE QUEEN - and - PHILIPPE SOSSONGO - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - David Emanuel QC and Yusuf Solley for the Appellant Anthony Orchard QC for the Crown Hearing date: 11 November 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 2pm on 26 November 2021. Lord Burnett of Maldon CJ: Introduction and overview 1. The appellant’s convictions for murder and two linked offences of violence have been referred to the Court by the Criminal Cases Review Commission (“CCRC”). He is now 19 years old. The grounds for referral are that since his conviction in June 2017 fresh evidence has come to light to show that at the time of the offence, and at the time of his trial, he suffered from undiagnosed Autism Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD) which, had they been known about at the time, might well have affected the jury’s assessment of the case and therefore render his convictions unsafe. 2. The murder and other offences took place on 18 November 2016. The appellant was then 14 years old (born 22 July 2002). He was convicted on 19 June 2017 after a trial before HHJ Leonard QC and a jury. The appellant was still then 14 years old. 3. Arising from the same violent incident as the murder (count 1), the appellant was also convicted of wounding with intent (count 2) in respect of a second victim and attempted wounding with intent (count 3) in respect of a third victim. His co-accused Vanquer Muanza was convicted on the same three counts. The other co-accused, M, was acquitted on the same three counts. The appellant was convicted as a secondary party. It was not suggested that he had taken any physical part in the three stabbings. 4. On 24 July 2017 the appellant was sentenced for the offence of murder to be detained at Her Majesty’s pleasure with a minimum term of 14 years less the days he had spent remanded in custody awaiting trial. No separate penalty was imposed on the other two counts, their criminality being reflected in the minimum term for murder. 5. The appellant was refused leave to appeal against conviction by the single judge and on 23 May 2018 his renewed application for leave was refused by the Full Court: [2018] EWCA Crim 2168. 6. It was only when the appellant was subsequently assessed in July 2018 by a clinical psychologist at the institution where he was serving his sentence that the diagnosis of ASD was made. A fuller report was obtained in September 2019 from Dr Arthur Anderson, a consultant clinical and neuropsychologist. He concluded that the appellant had suffered for many years from mild ASD and from ADHD. 7. In the light of the important discovery of these hitherto undiagnosed conditions, leave to appeal out of time against sentence was sought and granted. The appellant’s appeal against sentence was one of three otherwise unconnected cases heard together by the Court in December 2019 which raised issues about the proper approach to sentencing offenders suffering from autism or other mental health conditions or disorders: R v PS; Abdid Dhir; CF [2019] EWCA Crim 2286; [2020] 2 Cr App R (S) 9. The Court’s guidance foreshadowed the Sentencing Council Guideline “Overarching principles: Sentencing offenders with mental disorders, developmental disorders, or neurological impairments” which came into force on 1 st October 2020. 8. In allowing the appeal against sentence, the Court was satisfied that Dr Anderson’s report met the criteria in section 23 of the Criminal Appeal Act 1968 and should be admitted as fresh evidence. The Court accepted the submission that the diagnosis of ASD and ADHD was relevant to the assessment of the appellant’s culpability. The conditions significantly reduced his culpability in the joint enterprise. For this and other reasons not presently relevant, the Court reduced his minimum term from 14 years to 10 years. 9. Because the appellant was still then only 17 years old, the reporting restrictions imposed by the trial judge pursuant to section 45 of the Youth Justice and Criminal Evidence Act 1999 remained in force until the he attained the age of 18. As he is now 19 years of age those statutory restrictions no longer apply. 10. At the hearing of the sentence appeal in December 2019 the Court was informed that the matters raised in Dr Anderson’s report were also relied on in support of a pending application to the CCRC. Following a very thorough investigation, including the obtaining of a further report from Dr Anderson, the CCRC referred the conviction for murder back to the Court on 26 th February 2021. 11. In short, the grounds of appeal advanced by Mr Emanuel QC and Mr Solley on behalf of the appellant are that, in the light of the fresh evidence in Dr Anderson’s reports the convictions are unsafe because the jury were unaware that he suffered from any mental disorder and were unaware of the effects they would have had on his behaviour at the time of the stabbings and on his presentation at trial. It is contended: (1) that the jury may have wrongly rejected the appellant’s explanations for what he was doing, and what he perceived was happening, and what he intended to happen; (2) that the jury was unable properly to assess the appellant and his credibility when he gave evidence; (3) that the appellant was disadvantaged by the jury not knowing about his disorders. His co-accused, M was acquitted. He had been diagnosed with the same disorders and had benefitted at trial from the services of an intermediary, with expert medical evidence called as part of his case to explain the effects of the disorders on his behaviour at the time of the incident and on his presentation at trial and with a tailored direction from the judge of the effect of his condition. 12. On behalf of the Crown, Mr Orchard QC accepts that the Court should receive the fresh evidence of Dr Anderson, which is not challenged. Indeed, Dr Anderson’s conclusions are confirmed and supported in a report from Dr Ian Cumming, a consultant forensic psychiatrist instructed by the Crown. In short Mr Orchard submits, however, that evidence of the appellant’s ASD and ADHD, had it been known to the jury, could have made no difference to their verdicts. He submits that the convictions are safe. The prosecution case 13. The prosecution case was that the appellant was affiliated to a gang in Hendon. He denied this. His co-accused, Muanza, was affiliated to the gang, as was another young man Ahmed Cabdulagdir, who fled after the stabbings and was never arrested. The other co-accused, M, was not affiliated to the gang. The appellant’s older brother (aged 18) was also affiliated to the gang. He and the appellant shared a bedroom. Four knives were found in the bedroom. The prosecution relied on this as bad character evidence against the appellant. 14. On 18 November 2016 the appellant travelled with Muanza, Cabdulagdir and M by taxi to Harrow, a distance of about seven miles. He was the youngest of the four. The prosecution case was that the purpose of the journey was to find and attack members of a rival gang. 15. To demonstrate that this was the purpose the prosecution relied on evidence of three previous incidents of violence between the gangs at which the appellant had been present. The first was on 13 June 2015 when another member of the gang was stabbed. The appellant, then aged 12, had been present on that occasion as one of a group of nine schoolboys. The co-accused Muanza had also been present. The appellant admitted swinging a bag at another boy on that occasion but only in self-defence. 16. The second incident took place on 30 August 2016 outside a McDonalds in Harrow. Muanza, Cabdulagdir and the appellant were present. There was a confrontation in which Cabdulagdir was stabbed. Muanza was involved in the violence. The appellant was not. 17. The third incident took place on 16 November 2016, two days before the murder. Another young man who was a friend of the appellant and Muanza and also affiliated to their gang, was attacked and found unconscious by police officers having sustained serious head injuries. 18. The prosecution alleged that the murder and the other stabbings were in retaliation for the attack two days earlier. 19. At about 4.30pm on Friday 18 November 2016 a taxi was booked from the co-accused M’s phone. It was booked as a return trip to Harrow. The taxi picked up Muanza, Cabdulagdir, M and the appellant. The taxi stopped first in Harrow town centre. The prosecution said the appellant remained in the taxi whilst the other three went looking for a victim. The appellant eventually got out of the taxi and joined the other three when they returned to the taxi a few minutes later. The prosecution alleged that the appellant was keeping a lookout and “minding” the taxi, ensuring an escape route. 20. The taxi drove on to Eastcote Road in South Harrow. The prosecution case was that within seconds of the taxi arriving the other three got out and were scouting the area for potential victims. Again, the appellant remained in the taxi. The other three separated and walked in a pincer movement. They crossed into Parkfield Road and went out of sight of CCTV cameras for 25 seconds, during which time the victims in counts 2 and 3 were stabbed. The third victim, Hussein Ahmed, was fatally stabbed in the back (count 1). CCTV showed Muanza with a knife in his hand shortly before the fatal stabbing. It also showed Muanza and M each wearing a latex glove. 21. The appellant had got out of the taxi shortly after the others, telling the taxi driver he wanted to urinate. He then remained some distance away outside a shop called “Best Foods”. CCTV confirmed that the appellant was standing outside Best Foods some 70 metres away from the violence that was taking place out of his view. Cabdulagdir ran towards him. The appellant ran back with him to the taxi. The other two joined them and the taxi took them all back to Hendon. 22. The prosecution case was that the appellant had again been keeping a lookout and minding the taxi to ensure an escape route. He knew violence was to happen. There was also some suggestion that the appellant was minding a bag belonging to Muanza which was left in the taxi, the implication being that the knife (or knives) and latex gloves may well have been carried to the scene in this bag. The defence case 23. The appellant’s case was that he was not present when any of the victims were attacked. He denied acting as a lookout or minding the taxi to effect any escape. He was simply standing outside Best Foods. At no stage was he in possession of a knife or any weapon. He did not know that any of those travelling in the taxi with him were in possession of weapons or surgical gloves. He denied being in the gang. 24. He admitted being present during the incident at McDonalds on 30 August 2016 when Cabdulagdir was stabbed. He was aware there had been an argument which turned into a fight but denied being involved. He denied that he went with the others in the taxi seeking revenge. He had no idea that the taxi journey had anything to do with that incident. There was no discussion or plan to get into a fight or commit acts of violence. At some point during the journey Cabdulagdir said he wanted to “squash some beef” but did not elaborate. The appellant thought this meant resolve a problem by discussion. 25. When they arrived at South Harrow he told the others he did not want to be involved in squashing any beef as it was not his problem. He remained in the taxi for a short time when the others left. He got out initially intending to urinate. He walked to the corner to see where the others had gone and stopped outside Best Foods. He was standing there when he saw Cabdulagdir running towards him. He denied seeing anyone with weapons, seeing any gloves at any stage in the cab, or knowing that anyone had been stabbed. He discovered this only when he was interviewed by the police three days later. The trial 26. The appellant was represented at trial by Queen’s Counsel and junior counsel. After the trial they confirmed in correspondence that they had no inkling that the appellant suffered from ASD or ADHD. By contrast the co-accused M, who was a year older than the appellant, had been diagnosed with ADHD and traits of ASD. For that reason, an intermediary had been appointed to assist him. The intermediary sat alongside M in the dock, between M and the other two defendants (Muanza and the appellant). 27. Much of the background evidence was the subject of narrative formal admissions, including the previous incidents of violence on 13 June 2015, 30 August 2016 and 16 November 2016. Very little if any of the live evidence implicated the appellant. In the course of oral submissions counsel confirmed our assumption that there was very little cross-examination on behalf of the appellant of any of the prosecution witnesses. 28. In the case of the appellant, therefore, the key evidence was his own testimony. The credibility of his denials was the central issue. The jury had to assess his credibility as a witness and the plausibility of the explanations he gave for his presence at the scene and his understanding (or lack of it) of what was afoot. 29. Muanza, who was convicted of murder as the stabber of the deceased, did not give evidence, although his case was that he was acting in lawful self-defence. 30. M gave evidence and called character evidence. He also called a clinical and forensic neuropsychologist, Dr Halsey, to explain the impact of his psychological problems. Dr Halsey had interviewed him a few weeks before the trial. M had been involved with the Child and Adolescent Mental Health Service (CAMHS) since 2013 and had been receiving medication for ADHD since 2014. Dr Halsey explained to the jury in some detail how his ADHD would have affected him from day to day and might affect his presentation in the witness box. Dr Halsey said, for example, that when faced with situations which were dynamic, fast moving and complex, when decisions had to made very quickly and often with little information, an individual with ADHD is more likely to find that difficult compared with someone without ADHD. Such an individual would not stop to think about the consequences of their actions and might often find themselves simply getting into trouble and doing things and acting in ways that, on reflection, appear ill-founded. As well as ADHD, Dr Halsey had also noted “autistic type traits” in M’s behaviour. 31. Dr Halsey explained to the jury that overall M’s ADHD and ASD traits would lead to a very restricted capacity to consider the consequences of his actions, and the consequences of other people’s actions. Dr Halsey explained that people with autism are likely to attribute a very simplistic explanation for other people’s behaviour in quite an unquestioning manner, without understanding that people might be motivated by a range of different thoughts and emotions. People with autism will always tend to struggle in situations that require an ability to grasp the more nuanced aspects of inter-personal behaviour. 32. We have studied the transcript of the appellant’s evidence and were taken by counsel in their written and oral submissions to certain passages. In his evidence-in-chief the appellant gave a reasonably coherent account of his actions and intentions, generally in monosyllabic terms under skilful examination by his leading counsel. He was cross-examined at length by counsel for M, who sought to distance M from the appellant and Muanza. He was also cross-examined at length by prosecuting counsel. It is apparent even from the transcript that on occasions the appellant did not understand the question, at least at first. The pervading tone and purpose of the cross-examination, quite legitimately, was to convey to the jury the impression that the appellant’s denials of knowing involvement in a revenge attack were simply not credible. 33. Early on in his summing up of the facts the judge gave the jury the following direction, at page 33C-G: “I remind you from the outset that you are dealing with young witnesses and young defendants. You must bear in mind when considering the evidence that they have given… any difficulties that they may have had in understanding or their ability to express themselves. Keep that in mind. You also know the difficulties which M has with ADHD and perhaps autism. You know that the court has taken steps to ensure that he has been able to follow the trial and give evidence to the best of his ability. And, of course, he has had someone with him throughout the trial to assist with the explanations and who has monitored the questions that were asked of him and intervened to ensure that they were in a form which he would be able to answer. None of that you will hold against him; quite the reverse. You should bear in mind, when assessing his evidence, the difficulties he will have had. You also heard him give evidence over a prolonged period and are in a very good position to judge the effect his ADHD, in fact, had on his ability to express himself and that there may have been pauses in his evidence, for instance, which only signify that he was assimilating the information before answering another question.” 34. The judge reminded the jury of Dr Halsey’s evidence, explaining the ways in which it might assist the jury. The issues for the jury in the appellant’s case 35. Applying the judge’s directions on joint enterprise, the jury had to be sure: (i) that the appellant was party to a plan with one or more of other defendants (and/or Cabdulagdir) to travel to Harrow and then South Harrow, looking for a group in retaliation for what they knew or believed they had done; AND (ii) that he assisted in the commission of the offence, intending that his conduct would assist, and not having withdrawn his assistance at the time the act took place; OR (iii) that he encouraged and intended to encourage the commission of the offence by his presence (mere presence alone being insufficient without such an intention): AND (iv) that he intended that any victim of the proposed stabbing would be caused really serious bodily harm. 36. The judge directed the jury that an agreement to act together need not have been expressed in words. It may be the result of planning, or it may be a tacit understanding reached between them on the spur of the moment. An agreement may be inferred from the circumstances. He directed the jury that those who commit crime together may play different parts to achieve their purpose. It does not require the defendant to be in sight of the stabbing. One may wield the knife, another may guard his back, or ensure that he has an escape route, or provide support by adding to the weight of numbers in the group, or encourage him to commit the offence, so long as the elements in (i) and in (ii) or (iii) are established. 37. In relation to “past behaviour” (i.e. bad character), the judge directed the jury that they had to be sure that the appellant was a member of the gang. In deciding this they could take into account the views of the specialist police unit (set out in the formal admissions) that he was associated with or affiliated to the gang but must give “what weight you think right” to his denial of gang membership. They should look for any other evidence which supported or undermined the views of the specialist unit. The prosecution relied on the appellant’s involvement in or presence at the incidents of violence on 13 June 2015 and 30 August 2016. 38. In relation to the four knives found by the police in the bedroom the appellant shared with his older brother, the judge directed the jury that if they were sure the appellant had possession of those knives, or at least had access to them, then that may amount to evidence that he had a propensity to use knives. There was no suggestion that any of the knives could be connected with the stabbings on 18 November 2016. The appellant had said in evidence that he did not know who left the knives in the room and he never took them out on the street. The judge gave appropriate directions about the limited support that any such propensity could provide for the prosecution case. 39. In deciding whether the appellant was party to a planned retaliation attack the jury had to examine carefully his explanations for a number of matters: (i) his knowledge and use of the knives found in the bedroom he shared with his older brother; (ii) the true nature and extent of his involvement with the gang; (iii) the extent of his involvement in and/or knowledge of the previous gang related incidents on 15 June 2015, 30 August 2016 and 16 November 2016; (iv) the reason why he accompanied the others in the taxi to Harrow and South Harrow; (v) whether he had any knowledge that others in the taxi were in possession of a knife or knives; (vi) whether there was any discussion before, during or after the journey to Harrow of the purpose of the journey; (vii) his intention in waiting outside the taxi at Harrow, and again at South Harrow, and his understanding of what the others were or may have been about; (viii) whether anything the appellant did amounted to encouragement of the stabber or stabbers with the requisite intention. 40. On occasion in the course of summing up the facts the judge identified key issues the jury might wish to consider. For example, in relation to the incident on 30 August 2016 the judge said, at page 42 C: “The prosecution suggest that it is just not believable that a group of young friends who were present when one of them was stabbed would not talk about it afterwards. They suggest that he has tried to hide from you what he knew about it and the effect that incident had on their subsequent decision to go armed to the same area of Harrow as this incident happened and then go searching in South Harrow. So that is the sort of thing where you have to look at both sides and see where it leads you.” And at page 49H the judge said: “Again an issue that you may want to consider is which, if any, of the defendants you are sure got into the cab knowing what the purpose of the trip to Harrow was about and which of them may have been taken on that trip without knowing what was going to happen and who would, therefore, have been potential spectators to violence to which they were not involved.” The fresh evidence 41. Dr Anderson’s first report of 22 September 2019 was based on an examination of the appellant in custody on 11 September 2019. He confirmed that the appellant suffers from mild ASD and ADHD. His symptoms would have been present for many years and impaired his social functioning. The appellant (although 17 years old at the time of the examination) had the emotional maturity of a 13-year-old. He had severe difficulties with social interaction skills. These disorders interfered with his logical decision-making and consequential thinking skills. They made him vulnerable to manipulation by others. He is suggestible and very likely to comply with requests and instructions and statements that people would ordinarily reject. 42. His combined deficits negatively affect consequential thinking skills and cause him to react impulsively to situations and not display appropriate logical decision-making skills. He will rapidly scan the facts of a “decision tree” and miss salient problem factors. The appellant’s combined deficits interfere with his interpretation of events as they proceed and can result in misperception. He tends to rely on others to lead activities. He masks his deficits by following others and is naive in his conception of the world around him. 43. The combination of ASD and ADHD allows for a general level of confusion and poor thinking skills. The poor processing skills caused by ADHD would have interfered with his logical decision-making ability, memory formation and retention and judgement. There is a clear indication of inflexible thinking. His ASD makes him quite literal in his thinking. His ADHD leads to poor consequential thinking: “…This substantially contributes to his impulsive acting out when he feels he has been threatened and his inability to resist poor leadership from others. His logical reasoning skills are too weak to process consequential pathways when he believes he is under threat. He then acts out emotionally and impulsively at such times.” 44. In his further report of 6 December 2020, in answer to specific questions posed by the CCRC, Dr Anderson expressed the opinion that the appellant’s ASD and ADHD would have had a profound effect on his presentation in court. His poor level of verbal communication and monosyllabic tendency could appear to have indicated evasiveness. The jury would have seen him as evasive and uncooperative when in fact he would have been simply struggling to concentrate and attend to the evidence in answering complex questions about his behaviour and intentions in a high stress environment. He was not medicated during the trial, in contrast to his co-accused M. A registered intermediary would have assisted in the appellant’s case. He is highly suggestible and would easily be influenced and led in his evidence, especially in cross-examination. 45. ASD and ADHD would cause him to formulate decisions without testing the potential consequences of his actions and without questioning what happens underneath. This causes a misunderstanding of the emotions and intentions that result in attributing simplistic explanations to other people’s behaviour without questioning it. He is always a follower of others. He relies and relied on others to make decisions for him. There is an indication that he followed others whom he respected in a very literal sense, without processing their intentions and testing the consequences of his own actions. 46. Dr Anderson’s conclusions are broadly supported by Dr Ian Cumming, consultant forensic psychiatrist in his report of 5 July 2021 following an examination shortly before. He agreed with the diagnosis of ASD. He also found evidence of ADHD, although it was not as well made out. ADHD can tail off with time and Dr Cumming was assessing him aged 18. He agrees that ADHD would have been present at the age of 14. 47. As for the appellant’s likely presentation at the trial, Dr Cumming explained that someone suffering from ASD may process information differently from a normal individual, which can lead to misinterpretation by the jury. Someone with ASD may react to questioning without emotion, giving the impression that they lack feeling or compassion. Dr Cumming explains that the failure to detect ASD and ADHD is not uncommon; it may remain undetected even late into adulthood. 48. Having read the transcript of the appellant’s evidence, Dr Cumming observed that in general transcripts can give a misleading impression by suggesting that an individual functions better than they do: “…Overall I found that he gave evidence well both in chief and in cross-examination. I would tend to consider that… in terms of his age, his degree of learning and having ASD he would have coped poorly with jumping from topic to topic as seemed to occur at a few points in cross-examination. Chronology can also be an issue with those who have ASD…”. The appellant’s submissions Ground 1: the jury may have wrongly rejected the appellant’s explanations for what he was doing, and what he perceived was happening, and what he intended to happen 49. In response to the prosecution case that it is an overwhelming inference that the appellant was aware of what the others were planning and the purpose of the journeys, Mr Emanuel submitted that key to the jury’s consideration of these issues was an assessment of what they would have expected the appellant to have understood was happening, his relationships with the others, his explanations for why he was there, and what he thought was going on. He submitted that without knowing that this 14-year old boy suffered from ASD and ADHD, with all the consequences described by Dr Anderson, the jury were deprived of vital information necessary to make a fair and accurate assessment of the appellant and his case. 50. He submitted that this same gap in the jury’s knowledge would have affected their assessment of the bad character evidence. His alleged possession of knives and his alleged gang membership should have been assessed in the light of the appellant’s limited ability to see the bigger picture and make connections between events. This would have required an additional warning as part of the bad character direction. 51. Mr Emanuel further submitted that the prosecution case against the appellant as a secondary party was hardly compelling. There was no need for the appellant to “mind” the taxi; a return trip had been booked anyway. Nor did he remain with the taxi. He was standing 70 metres away from the violence, out of sight and hearing. He was in no position to act as a lookout, still less to lend any physical assistance by weight of numbers. The jury must have rejected the appellant’s explanations for his conduct, in ignorance of his ASD and ADHD. Ground 2: the jury was unable properly to assess the appellant and his credibility when he gave evidence 52. The second ground of appeal raised the separate issue of the likely impact of the Appellant’s ASD and ADHD on his presentation during the trial, and particularly his evidence from the witness box. Mr Emanuel submitted that had these conditions been diagnosed before trial the appellant, like his co-defendant M, would have had the benefit of an intermediary. Like M, he would have had the benefit of expert medical evidence and a full direction from the judge. Mr Emanuel submitted that although the transcript suggests that the appellant performed reasonably well in his evidence, the transcript cannot convey the full picture which the jury will have formed, including body language, eye contact, facial expressions, visual emotional responses, and the way he answered questions. Ground 3: the appellant was disadvantaged compared with his co-accused M who suffered from the same disorders and was acquitted. 53. Mr Emanuel submitted that the jury would have been left with the impression, now known to be quite wrong, that in respect of the appellant they did not need to exercise the same caution and make the same allowances as they did for M. They would have been left with the false impression that the appellant, in contrast to M, was “normal”. In fact, the appellant’s conditions were more severe; in M only “traits of ASD” had been diagnosed in addition to his ADHD. 54. Mr Emanuel submitted that had the jury known of the appellant’s ASD and ADHD it is impossible to say that their verdicts would have been the same. In ignorance of the true position, and through nobody’s fault, the appellant did not have a fair trial. His convictions are unsafe. The Crown’s submissions 55. Mr Orchard submitted that the convictions are safe. There was a compelling case against the appellant which depended on many strands of evidence including that he was affiliated to the gang. One of the knives in the bedroom was found under his mattress. He had been present at the previous incidents of violence on 15 June 2015 and 30 August 2016. He could not have forgotten them. He must have known about the attack on his fellow gang member and friend on 16 November. He must therefore have known the purpose of the trip to Harrow two days later and was a willing party to the plan for retaliation. After school that afternoon he had been in phone contact with Muanza and Cabdulagdir. He even changed his trousers at one stage to avoid identification. 56. Mr Orchard submitted that the position of M was different and his acquittal explicable. He was not a member of the gang. He had not been present at or involved in the earlier incidents. He was of good character and called character evidence. Although the jury knew nothing of the appellant’s ASD and ADHD the judge gave the jury a general warning, at the start of the passage we have already quoted at [33], about the evidence of young witnesses and difficulties they might have in expressing themselves. 57. Mr Orchard submitted that the appellant’s account and his denials were demonstrated to be incapable of belief. He had no difficulty in comprehending and dealing with questions in the witness box. In the transcript of his evidence Mr Orchard took us to examples where the appellant had even corrected counsel on certain details (for example a street name in South Harrow). Mr Orchard submitted that the jury was perfectly able to assess his ability to answer questions and whether he was likely to be lying to them. He had the benefit of representation by experienced Queen’s Counsel, well able to intervene (as he did on one occasion) if the appellant appeared to be confused by a question. Our assessment 58. On several occasions in recent years this Court has considered cases where fresh evidence had emerged only after conviction that the defendant was labouring under some undiagnosed mental impairment at the time of the offence and at trial: for example, R v Thompson [2014] EWCA Crim 836; R v Grant-Murray and others [2017] EWCA Crim 1228; R v Lammar Gordon [2018] EWCA Crim 1555; R v Roddis [2020] EWCA Crim 396. In some the Court has received the fresh evidence and quashed the conviction. In others the Court has declined to do so. 59. It must not be thought that the mere fact of a subsequent diagnosis, after trial, of a mental disorder such as ASD or ADHD will necessarily result in a successful appeal. Everything depends on the facts of the case. The task of the Court is to identify the issues at trial to which the fresh evidence would have been relevant, and to assess the likely impact of the fresh evidence on those issues: see R v Grant-Murray , at [53]. 60. In the present case there is undisputed fresh evidence of the appellant’s ASD and ADHD. We are satisfied, pursuant to section 23 of the Criminal Appeal Act 1968, that it is in the interests of justice to receive the unchallenged fresh evidence of both Dr Anderson and Dr Cumming in their reports. 61. In the light of this evidence, the immediate issues for the Court are whether, without this evidence, the jury were able to make a fair and reliable assessment of (i) the appellant’s credibility as a witness, and (ii) his involvement in the relevant events on the night of the murder and previously. 62. For the reasons which follow, we do not consider that the jury was able to make that fair and reliable assessment in ignorance of the fresh evidence. 63. The jury had to assess the actions and intentions of a 14-year-old boy whose role was said to be as a secondary party to the murder and the other stabbings. In the light of the fresh evidence, his ASD and ADHD may well have had an impact on his ability to recollect and process relevant information and interpret the actions and intentions of his co-accused. This could have been critical evidence because the prosecution case was that it was beyond belief that he did not associate the previous incidents with the purpose of the trip to Harrow, and beyond belief that he was not so involved in the gang that he was not part of the plan to exact violent revenge for the attack on a gang member two days earlier. 64. As the Court accepted in allowing the appellant’s sentence appeal, at para [42], the acquittal of the co-accused M demonstrated that there cannot have been a joint intention to kill shared by all who were in the taxi before the stabbings. It follows that the jury’s focus in the appellant’s case must have been on his actions and intentions once the others had got out of the taxi in South Harrow. To make good the case that the appellant’s role at that stage was to act as lookout and to “mind” the taxi, the prosecution relied heavily on the improbability of his denials in evidence. That was the successful thrust of the prosecution’s cross-examination of the appellant. Had the jury known of his ASD and ADHD we cannot be confident that they would have reached the same conclusion. 65. Furthermore, we think the fresh evidence in relation to the appellant’s consequential thinking could also have had an impact on the jury’s sure conclusion (necessary to convict of murder) that he intended that the victim of the stabbing should suffer really serious bodily injury. 66. Quite separately from the potential impact of the ASD and ADHD on his actions and intentions around the time of the stabbings, we have considered the likely impact of the appellant’s undiagnosed ASD and ADHD on his presentation at trial. The impression he created on the jury was crucial. His evidence was all the more important because it was almost the only “live” evidence which bore on his case. We have studied the transcript of his evidence. There were occasions when he plainly did not understand or follow the question. Usually counsel or the judge intervened, or the questioning moved on to another topic. But the transcript alone cannot convey the overall impression the appellant will have made on the jury through demeanour, body language and the like. When credibility is so much in issue, the jury’s assessment of the evidence of a witness is based on more than the words spoken. 67. In cross-examination prosecuting counsel on several occasions followed up his question with “Really?”, and on occasion, when the appellant did not immediately respond, said “You have heard the question?”. On other occasions, prosecuting counsel responded to the appellant’s answers by asking, “Are you telling the jury the truth?” All of this will have added to the impression that the appellant was being evasive or shifty when it may simply have been a feature of his ASD or ADHD. We also bear in mind Dr Cumming’s evidence that the appellant would have coped poorly with jumping from topic to topic in cross-examination. All this may have created an unfairly negative impression, in the light of the fresh evidence. 68. The contrast (or apparent contrast) between the appellant and M would not have been lost on the jury. The first part of the direction we have quoted at [33] above applied to the appellant and to M in equal measure as Mr Orchard emphasised. But the direction continued: “…. You also know the difficulties [M] has had with ADHD and perhaps autism…”. This may have given the jury false reassurance that in the case of the appellant, by contrast, the jury did not have to be concerned that he was at some additional disadvantage, whereas in fact, as we now know, he was. The distinction between M and the appellant, and the affinity between the appellant and Muanza, would have been accentuated further by the physical separation of M from the other two defendants in the dock through the interposition of the intermediary sitting alongside him. The judge obviously thought it necessary to give such a direction about M’s disorders; that such a direction had value; and that it was necessary in order that the jury could assess M’s evidence fairly. Had the appellant’s conditions been known, he too would have benefitted from a similar direction. He did not and he was thereby unfairly disadvantaged. 69. Moreover, had the appellant’s ASD and ADHD been diagnosed before trial he would have had the benefit of an intermediary, putting him on an equal footing with M. Like M, the Appellant would also have called expert evidence explaining the impact of his condition. 70. It is also likely that the judge’s direction on bad character would have been expanded to make it clear that the appellant’s ASD and ADHD might affect the factual issues the jury had to resolve to support the prosecution case. His alleged possession of knives and his alleged gang membership would have had to be assessed in the light of his limited ability to see the bigger picture and make connections between events. In the direction on bad character, quoted at [37] above, the judge told the jury to give “what weight you think right” to the appellant’s denial of gang membership. The jury may have thought it appropriate to give it far less weight had they been aware of the impact of his ASD and ADHD. 71. It is significant that M, whose ASD and ADHD were known to the jury, was acquitted. His position was undoubtedly different in that there was no suggestion that he was a gang member, or that he had been present at the previous related incidents, and he was of positive good character. It is therefore impossible to say that the only explanation for his acquittal was his ADHD and ASD. Equally, however, it is likely that his ADHD and ASD weighed with the jury in acquitting him. After all, like Muanza (the stabber) M had put on a latex glove; and he had accompanied Muanza and Cabdulagdir to the scene of the stabbings. To that extent, on the face of it, M was more heavily incriminated than the appellant in the unlawful activity once the taxi stopped in South Harrow. Conclusion 72. For all these reasons we are unable to accept the submission advanced by Mr Orchard that, despite the fresh evidence of the appellant’s ASD and ADHD, these convictions are safe. It is important evidence that the jury should have been able to consider, as they did in M’s case, and it might have been decisive. 73. The appellant’s conviction for murder together with his convictions for wounding and attempted wounding both with intent are unsafe and must be quashed. 74. We have received written submissions on the question whether there should be a retrial. Having considered those submissions we have concluded that the interests of justice require a retrial and that the public interests outweigh those of the appellant. 75. We direct that publication of this judgment be postponed until the conclusion of the proceedings in the Crown Court. 76. We make the following further consequential directions: (i) We order that the appellant be retried on the offence of murder; (ii) We direct that a fresh indictment be served in accordance with Crim PR 10.8(2) which requires that the prosecutor must serve a draft indictment on the Crown Court Officer not more than 28 days after this order; (iii) We direct the appellant be arraigned on the fresh indictment within 2 months; (iv) We direct that the retrial take place at the Central Criminal Court or at another Crown Court to the determined by the Presiding Judges of the South East Circuit; (v) We direct that the appellant be held in custody and that any application for bail shall be made to the Crown Court; (vi) We direct that any application for a representation order in respect of proceedings in the Crown Court must be made in writing to the relevant representation authority at the Legal Aid Agency. 77. We make an order under s.4(2) of the Contempt of Court Act 1981 postponing publication of any report of these proceedings until the conclusion of the re-trial in order to avoid a substantial risk of prejudice to the administration of justice in those proceedings.

```yaml citation: '[2021] EWCA Crim 1777' date: '2021-11-26' judges: - MR JUSTICE JULIAN KNOWLES ```

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

Neutral Citation Number: [2019] EWCA Crim 804 Case No: 201700804/C4; 201700806/C4; 201700831/C4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT at CENTRAL CRIMINAL COURT (HHJ LUCAS QC) Royal Courts of Justice Strand, London, WC2A 2LL Date: 19 th February 2019 Before : LORD JUSTICE GREEN MR JUSTICE HOLGATE HHJ PAUL THOMAS - - - - - - - - - - - - - - - - - - - - - Between : KATHERYN ADEDEJI BLESSING ADEDEJI Appellants - and - REGINA Respondent Ms Jumoke Hughes for the Appellant Edward J.Fitzpatrick for the Respondent Hearing date: 19 th February 2019 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Green: A. The facts 1. On the 23 rd January 2017 at the Central Criminal Court Katheryn Adedeji (“K”) and Blessing Adedeji (“B”) were convicted of unlawfully subletting a dwelling house contrary to 2(2) Prevention of Social Housing Fraud Act 2013. K was sentenced to a fine of £10,000 in default of which she would be subject to imprisonment for 35 days. B was sentenced to a conditional discharge of 2 years. 2. With regard to K the single judge granted permission to appeal on certain grounds but not others. K now pursues her appeal but also applies on a renewed basis for permission to appeal for the refused grounds. B was refused permission to appeal by the single judge on all grounds and now renews her application. 3. The core facts may be summarised in the following way. 4. On the 30 th November 1998 K was granted a tenancy of 29 Granville Square, London, WC1. This is a property owned by Circle Housing. The rent was initially £68 per week but over time rose to £141.01 per week. The property is social housing and is available only to eligible persons who use it as their sole and principal home. On 21 st March 2006 K purchased 120 Rochester Road, Gravesend, Kent for £142,000. On 27 th July 2007 she purchased 67 Grove Lane, Ipswich for £141,000. On 21 st February 2014 K purchased 44 Dickson Road, London for £325,000. 5. On 24 th November 2008 B was granted a tenancy of Flat 7, 62 Glasshouse Fields, London E1 by Newlon Housing Association. The initial rent was £115.37 per week rising over time to £153.15 per week. This property is also social housing available only to eligible persons who use it as their sole and principal home. 6. On 26 th March 2014 Ms Diane Thompson of Circle Housing conducted a tenancy audit at 29 Granville Square. K confirmed to Ms Thompson that she still occupied the property as her sole and principal home. However, as a result of an anonymous complaint in July 2015 an investigation was initiated. In November 2015 observations indicated that K was living at 44 Dickson Road, not 29 Granville Square. 7. Enquiries also revealed that the sole account holder for the supply of gas and electricity at 29 Granville Square had, since September 2014, been B. A number of text messages recovered from the work mobile phone of K established that she was living at 44 Dickson Road. They also indicated that she was receiving rental payments from B who, herself, appeared to have been collecting rent from a third-party tenant. Analysis of the bank account of K indicated that regular transfers to her account had been made by B. An analysis of the bank account of B revealed regular cash deposits were made to it and regular transfers from it were also made to the account of K. 8. K was arrested on the 7 th December 2015 at 44 Dickson Road. In reply to caution she said: “ I know what I have done. It was for my sister, I have made no personal gain from it .” She was interviewed that same day without a solicitor. She admitted that following her acquisition of 44 Dickson Road she had sublet 29 Granville Square to B. She had continued to pay the rent to Circle Housing and her sister had in turn made cash payments or transfers to her. She also admitted that shortly after moving out of 29 Granville Square she had signed a tenancy audit document declaring that she was still living there on a permanent basis. As at the date of interview K was employed in a very senior position in the Local Authorities housing department. She had responsibility for commissioning new houses and for their maintenance and repair. 9. B was arrested on the 7 th December 2015 at 29 Granville Square. She made no reply to caution. Found at the address were a Tesco delivery note, a letter from HMRC, and a driving licence in her name. She was interviewed the same day with a solicitor. She made no comment to all questions asked. 10. Officers visited 62 Glasshouse Fields on the 7 th December 2015. They discovered a Mr Ajibola Lawal living there. He confirmed that he had been living at the address since December 2014. He paid £200 rent in cash every 2 weeks to B. He was shown a photograph of the registered tenant attached to the Newlon Housing Association tenancy agreement and confirmed that this was B, to whom he made the cash payment. An inspection of the property indicated that B was not living at that address. 11. On 18 th March 2016 B was re-interviewed, again with a solicitor. Upon this occasion she submitted a prepared statement to the effect that money paid into her bank account were from her sister Francesca, members of her family or her brother-in-law Wahid, and were not, therefore, rental payments. Thereafter she made no comment in response to all questions posed to her. 12. Certain other facts are relevant to the issues before this court. In late January, early February 2014 K made an application for a mutual exchange of properties with her sister, B. The application was, apparently, approved in principle in April 2014 but due to an administrative error never completed. The sole account holder for the supply of gas and electricity since September 2014 at 29 Granville Square had been B. Next, an inspection was carried out at 62 Glasshouse Fields in October 2016 and the resulting report concluded that the property was unfit for habitation due to noise, a lack of hot water and mould. It is also relevant that B had been diagnosed with a number of medical conditions including IBS, narcolepsy and depression. 13. The prosecution case at trial was that the K and B had retained the homes that they leased from their respective housing associations in circumstances where the tenancies would have been terminated had the landlords known the true facts and circumstances. The sisters had unlawfully sublet each property benefiting financially from the arrangements. In large measure the core facts were agreed between the parties at trial. These included, documents relevant to the tenancy agreements and supply of utilities, communications between the sisters by text message, bank account records showing payments in and out, comments made by the sisters upon arrest in their police interviews, and evidence from covert observation showing, for instance, that K was living at Dickson Road and not Granville Square. 14. The nub of the defence case for both K and B was a denial that they had ceased to occupy the properties as their principal place of residence. It followed that they could not be guilty of unlawfully subletting those premises. K gave evidence that she had moved into Granville Square in 1998. She applied for a mutual exchange in early 2014 to Glasshouse Fields. She had purchased 44 Dickson Road taking it on as her principal home in September 2014 but she denied that she had moved out of Granville Square. She had merely moved some of her belongings to Dickson Road. B had started staying at Granville Square. She was not a lodger. She merely had an informal arrangement with her sister which did not amount to a sub-tenancy. With regard to the mutual exchange she had never intended to take up the tenancy at Glasshouse Street but the mutual exchange had gone awry. She accepted that she was obtaining rent as from October 2014 as her own home was uninhabitable and they had spent 6 months trying to get the move legitimised. She had thought that by charging B rent this would nudge B gently to proceed with the process as she was mentally and physically vulnerable. She denied that she had given up control of the property or that her sister had exclusive possession of the property. She still used part of the property for her own purposes. 15. B gave evidence of her medical ailments. This included narcolepsy whereby she would suddenly fall asleep. There were many problems with the flat at Glasshouse Fields and life had become unbearable. That was the reason for the mutual exchange but it fell through. She denied that she had moved into her sister’s property. She accepted that on occasion she took a suitcase with her and sometimes her children would stay with her at Granville Square. She had paid the utilities to reduce the burden upon her sister. She was having difficulty persuading her landlord to resolve the problems at Glasshouse Fields. It had been her intention return there once the problems were resolved. She denied that anyone else was living in the flat at Glasshouse Fields. But friends and family did have access to the property. 16. The central issue for the jury was whether the properties rented to the applicants had ceased to be their principal place of residence whether they had sub-let the whole of each property or whether other people staying in those properties were in fact lodgers or guests and whether they had acted dishonestly. The jury found both defendants “guilty”. B. Misdirection in law in relation to the definition of sub-letting and the constituent requirements of the offence The directions given to the jury and the jury’s question 17. K was charged under section 2(2) of the Prevention of Social Housing Fraud Act 2013. This provides, inter alia , that a tenant of a dwelling house commits an offence if: (a) dishonestly and in breach of an express or implied term of the tenancy the tenant sub-lets or parts with possession of the whole or part of the dwelling-house; and (b) the tenant ceases to occupy the dwelling house as the tenant’s only or principal home. 18. Written directions were prepared for the jury by the Judge. These were agreed with counsel in the case. The relevant portion of the directions was in the following terms: “1 A person may stay at a property as a guest meaning without having to pay any form of rent. 2. Lodgers and sub-letters pay rent. The distinction in law between a property which a person has been permitted to lodge is that whereas a lodger does not have the right to exclude the landlord from the part of the property he occupies, in a sub-let property, the person sub-letting the property has “exclusive possession” meaning the right to exclude anyone else from the property subject to any express or implied agreement to the contrary. 3. People close to each other or not knowledgeable in law may create either a sub-let or a lodging without necessarily giving the matter any prior thought. It is the arrangement which is ultimately arrived at which determines whether it is a sub-let or a lodging. 4. Where one is dealing with friends or as here, siblings, the position can be complicated by the relationship between the parties. Moreover, it may be agreed either directly or by implication that a person will continue to have access to a property even after it is sub-let. It is for you to determine the actual nature of the arrangements arrived at in this case. 5. In this case, it is for you to determine, applying your commonsense knowledge of the world to the evidence you have hard and considering that evidence in the round, whether you are sure.” The numbers have been added to assist cross-referencing. (Italics added) 19. Subsequently, in the course of their deliberations, the jury posed a question to the Judge. It was in the following terms: “Regarding the terms used to describe sub-letting, exclusive possession meaning a right to exclude anyone else from the property subject to any express or implied agreement to the contrary, is the Prosecution required to provide evidence/proof of any express or implied agreement to the contrary, as underlined on page 13 of the judge’s direction, or should we rely on our collective common sense and knowledge of the world to infer such an agreement between the parties?” 20. Following discussion with counsel, and with their concurrence, the Judge essentially reiterated the directions already given. Exclusive possession 21. In his summing up the Judge rehearsed the main part of the evidence of K and B. He reminded the jury that it was K’s case that she retained control over 29 Granville Square and that B had no control over it at all never mind exclusive possession. He also reminded the jury of the evidence of B that she occupied Glasshouse Fields and K had possession of Granville Square. It was common ground in the trial that there was a prohibition in the tenancy on sub-letting without consent and upon the taking in of lodgers without prior notification to the landlord. There was, however, no definition in the agreement as to the meaning of either term. Equally there was no definition of such terms in the Prevention of Social Housing Fraud Act 2013. 22. It is common ground that the distinction between sub-letting and lodging, and indeed other arrangements falling short of a tenancy, boils down to the question of whether or not the person in possession has “ exclusive possession ” of the premises. The leading authority upon the point is Street v Mountford 17 HLR 402 . It was held there that the grant of a tenancy may be express or may be inferred where the owner accepts weekly or other periodic payments of rent from the occupier. It was held that exclusive possession is of the first importance in considering whether an occupier is a tenant. The label placed upon the arrangement by the parties is not determinative of whether or not there is a tenancy, licence or lodging arrangement. Lord Scarman adopted the rationale provided by Windeyer J in Radhich v Smith [1959] 101 CLR 209 , to the following effect: “ … What then is the fundamental right which a tenant has that distinguishes his position from that of a licensee? It is an interest in land as distinct from a personal permission to enter the land and use it for some stipulated purpose or purposes. And how is it to be ascertained whether such an interest in land has been given? By seeing whether the grantee was given a legal right of exclusive possession of the land for a term or from year to year or for a life or lives. If he was, he is a tenant. And he cannot be other than a tenant, because a legal right of exclusive possession is a tenancy and the creation of such a right is a demise. To say that a man who has, by agreement with a landlord, a right of exclusive possession of land for a term is not a tenant is simply to contradict the first proportion by the second. A right of exclusive possession is secured by the right of a lessee to maintain ejectment and, after his entry, trespass. A reservation to the landlord, either by contract or statute, of a limited right of entry, as for example to view or repair, is, of course, not inconsistent with the grant of exclusive possession. Subject to such reservations, a tenant for a term or from year to year or for a life or lives can exclude his landlord as well as strangers from the demised premises. All this is long-established law…” In detailed and careful written submissions counsel for K has set out other authorities and texts which elaborate upon the test. It is not necessary for us to recite them in this judgment. Application of legal principles to facts of the case : The expression “subject to any express or implied agreement to the contrary” 23. We turn now to apply the law to the facts of the case. It is said that the burden upon the prosecution was to prove that K granted B a sub-tenancy of the premises. Two of the main hallmarks of a tenancy are, it is conceded, established, namely payment of a periodic rent and the taking of possession with K ceasing to use the place as her principal home. The issue for the Jury revolved around whether B had “ exclusive possession ”. 24. It is argued, in this respect, that the Judge erred when in explaining to the jury in paragraph (2) of the directions (see paragraph [18] above) that the test was one of exclusive possession he added the phrase “ subject to any express or implied agreement to the contrary ”. It is argued that this added phrase was wrong in law and confusing. If the judge had directed the jury that they had to be satisfied that “exclusive possession” had been granted subject to the usual situation for a family member who might call at the property unannounced, that would have been uncontroversial. But where, as here, the evidence was, inter alia , that on occasion K visited and stayed at the premises as and when she wanted to, and that her son visited and stayed at the premises as and when he wanted to, then B was not granted “ exclusive possession ”. 25. We do not accept these submissions. The words which are objected to as an unprincipled bolt-on to the proper definition derive from Street v Mountford ( ibid ). They refer to the fact that in many tenancy agreements there are express reservations permitting, for instance, the landlord to enter the premises to carry out repairs. They also refer to the explanation given by the Judge in his directions (se paragraph (4) set out at paragraph [18] above) that a person may formally sublet a property even though they still have access to it ie granting such access is not necessarily inconsistent with a tenancy. The words thus reflect the fact that a true tenancy might exist even if there is a reservation, whether express of implied, in favour of a third party and such a state of affairs is not necessarily inconsistent with “ exclusive possession ”. We do not consider that, in the circumstances of this case, the use of these words was wrong in law or unprincipled. 26. We would add that the wording used in the direction “ subject to ” and “ the contrary ” was perhaps unfortunate since the sorts of reservations to which we have referred are not antithetical to a grant of exclusive possession (or subletting); on the contrary they are compatible with it. But the submissions made are overly legalistic. To a property lawyer, the words used by the judge, read strictly, are not correct but in truth they are merely a somewhat clumsy way of expressing the point about express or implied reservations in favour of eg a landlord. At worst there is an infelicity of language. 27. In our view the tenancy agreements in this case did not raise any point about reservations of this kind, and no one else had raised the point as going to the central question. We have real doubts as to why the direction needed to go into this matter at all. We are not aware of any significant point which truly turned upon the wording which is, now, made the subject of complaint. Prosecutions of this kind ought to be relatively straightforward. The legal direction should be tailored to the actual context to the case and to the “real” issues in dispute. It seems to us that in many if not most cases this additional language could be avoided. Whether this will be so will of course be for the judge to determine by reference to the facts of the case. We are not seeking to lay down any firm rule of law or practice. 28. Next, when one stands back and looks at the evidence in the round the jury can have been in no realistic doubt about the relevant facts and the position of K. There are several reasons for this. In her interview K admitted that she had sublet the premises. At the time K was the head of housing for the prosecuting authority. The Crown, in the Respondent’s notice states: “ It is fanciful to suggest that the Appellant, who was at the time a head of housing for the prosecuting authority, was misled by the interviewing officer as to the meaning of “sub-let” and thereafter made a whole series of mistaken admissions as a consequence ”. Further, K had accepted under cross-examination that she had for several years earlier consulted her landlord about the possibility of sub-letting and had been informed that only a lodger would be permitted and the Crown argued that, as such, K was aware of the distinction between a tenant and a lodger because she had discussed the distinction with the housing authority. Moreover, K made no mention in her interview of B being a lodger. These were all facts and matters which the jury was entitled to, and no doubt did, consider in the course of their deliberations. 29. For all of these reasons we do not accept that the Judge erred in any material way in the directions he gave to the jury in the case of K. 30. We turn now to the discrete sub-letting point as advanced on behalf of B. The main issue in her case was whether throughout the indictment period, when she no longer slept daily at her flat, she had ceased to occupy the premises as her only or principal home. It is argued on her behalf that the Judge erred by giving an unfair and inaccurate description of B’s case and the issues that it raised. We do not agree. As we have already observed in the case of K, the direction given was in some respects generous to the defendants. But the position of B is also contradicted by the evidence which includes the letter she wrote to the housing association following her arrest informing them that she had left the property in December 2014. It was also contradicted by her refence in text messages sent to K to being paid by “ the tenant ”. It also contradicted by the fact that B only returned to her property when K’s property became unavailable to her. In our judgment when the directions are considered in the round they were fair and accurate and the jury would not have been misled by anything said. We reject the arguments in relation to B. C. Admission of the statement of Ajibola Lawa: The admission into evidence of inadmissible material 31. We turn now to the separate arguments advanced by B. We start with the dispute about the evidence of Mr Lawal who had produced a statement. This evidence was, however, treated as inadmissible hearsay. He had disappeared prior to the trial and enquiries suggested that he had used a false name when spoken to by officers. An application to read his statement under the hearsay provisions was withdrawn by the prosecution. It had, however, already been agreed that it could be put to B that someone calling himself “Ajibola Lawal” was at her flat when officers visited upon the day of her arrest. This was recorded as an agreed fact. In the course of the crossexamination of B several details contained within the statement were put to B including assertations that he had been paid money to provide false evidence. B denied this allegation and the statement was not sought to be used in rebuttal. 32. An application was made to discharge the jury upon the basis that prejudicial material had been wrongly placed before the jury. The judge declined to discharge the jury. He concluded that he could give an adequate direction to the jury to address what had happened. It is plain from the transcript of the hearing that he gave an explicit direction to the jury that there was absolutely no evidence to support the basis upon which the disputed questions were asked which suggested wrong doing by “Ajibola Lawal”. The judge elaborated upon this clear and unequivocal direction by reference to those parts of the evidence which were, and were not, relevant. In our view the evidence was peripheral to the real issues of the case. Moreover, the risk that any prejudice might have eventuated was squarely addressed by the judge’s direction. In our judgment this issue falls squarely within the case management discretion of the Judge and we would not interfere with this in the absence of a clear error and a material risk of injustice. We detect neither. D. B’s narcolepsy: The exclusion of parts of the interview during which the defendant fell asleep 33. We turn now to arguments based upon B’s medical condition. 34. The Judge excluded all those parts of one of the interviews (see paragraph [11] above) which took place between B and the police during which it appears that B, due to her narcolepsy, had fallen asleep. It appears from the evidence that as the interview progressed B was unable to remain awake. B had, however, by that point in time, already indicated that she would make no comment to any question put to her upon advice. The matters relied upon by the Prosecution in relation to this interview were matters already put to her interview or dealt with in the prepared statement she had put forward in an earlier, second, interview. 35. It is argued that the Judge erred. It is said that had B woken up she might have decided, contrary to her earlier indication, to give answers to questions and this might have included exculpatory material. She therefore lost the chance to give evidence advantageous to her case. The judge directed the jury upon this. In our view there was no unfairness which could conceivably have arisen. We have reviewed the interview evidence and in our judgment this is an entirely hypothetical objection. E. The evidence of Ms Dina Abdoluaye: The wrongful inclusion in the jury bundle of inadmissible material 36. The next issue concerns the evidence of a Ms Abdoluaye and arose in the following way. She had been a friend of B but they had fallen out. It was the case of the defence that evidence that Ms Abdoluaye gave for the prosecution would be unfair to B. Proposed agreed facts were emailed by the Prosecution to the defence team the night before the trial. These made no reference to Ms Abdoluaye. However, at the commencement of the trial it was noted that information relating to Ms Abdoluaye had, in fact, been included in the jury bundle. The Prosecution refused to remove that information upon the basis that it was a part of their case. Defence counsel decided, on balance, not to draw attention to the matter and to let matters lie without objection. To counter the possible adverse effects of the inclusion of that evidence in the jury bundle the defendant adduced certain missing and contextual evidence. Subsequently, there was a change of strategy on the part of the defence and an application to discharge the jury was made. The application was rejected. There then followed a renewed application to withdraw the case from the jury on the basis that the material was prejudicial and related to facts and matters outside the indictment period. The judge declined to discharge the jury. He did, however, direct the jury to remove the evidence from their bundle. The judge also directed the jury to disregard any evidence relating to Ms Abdoluaye. 37. It is now argued that the approach taken by the judge was materially unfair and renders the conviction unsafe. It is said that the facts now speak for themselves. The position adopted by the Judge in directing the removal of the material, in and of itself, establishes that the evidence would have been so significant that the jury might have relied upon it as evidence of past misconduct by B. Were this not so then there would have been no need for the judge to direct removal of the material from the jury bundle. 38. We do not accept this submission. No criticism is made of the directions given by the Judge to the jury in relation to this matter. This was par excellence a case management decision taken by an experienced trial judge who fully understood what was, and what was not, prejudicial. The Judge acted in a precautionary manner and it is not possible to infer from his decision to direct removal of the material that he thought either that the material was prejudicial or that, if it was, it could not be adequately countered by appropriate directions. This was, in our judgment, quintessentially, a matter for the judge and we can identify no error on his part. F. The case management measures taken by the judge to deal with the defendant’s narcolepsy 39. It is next alleged that the Judge acted unfairly in his treatment of B. It is said that she lost concentration during the trial and fell asleep, including in the witness box. We deal with this point briefly. An application was made by the defence for regular breaks in the conduct of the trial. The judge accepted that due to B’s medical condition she would indeed need regular breaks. He did not agree on 30-minute breaks with 30-minute intervals as sought by the defence, but he did decide that a 10minute break every hour would be sufficient. It is now said that the breaks were inadequate and on occasion the trial had to be stopped because B had fallen asleep. It is said that B tended to answer questions in the witness box which conveyed an appearance that she was lucid, even after she had entered a sleep mode. We do not accept that the Judge conducted an unfair trial. He was conscious of B’s limitations. He made adjustments to cater for those limitations. It is plain from the transcripts that he was astute during the trial to modify the adjustments to ensure that B was able to give fair evidence. He was able to form a view, on an ongoing basis, about the steps to be taken to enable B to give her evidence fairly. Once again, we conclude that this was quintessentially a case management matter and there is no evidence that the Judge failed properly to take B’s condition into account. We reject this ground of challenge. G. Costs The issue 40. We turn now to an issue of quite a different nature. In the course of sentencing the prosecution sought costs in the sum of £30,959.50 by way of prosecution costs and £48,805.90 to cover investigation costs incurred by the relevant Councils, a total of nearly £80,000. The defence objected that the sum was excessive and the costs schedule submitted tardily by the Prosecution insufficiently particularised. The judge considered that there was force in the criticisms. Applying a broad brush, the judge reduced recoverable costs to £46,000. He then held that K should pay 50% of these costs ie £23,000. There was no costs order against B. 41. The single judge granted permission to appeal on costs based upon concerns as to the approach of the judge towards the costs exercise. The relevant local authorities were ordered to place all relevant evidence and information before the Court of Appeal. 42. The Prosecution told the judge that there were no guidelines relevant to costs and the defence did not correct this submission. The judge proceeded therefore upon the basis that there were no guidelines. In fact, guidelines do exist as set out in paragraph 3.7 of the Practice Direction (Costs in Criminal Proceedings) 2015. It is now said that the Judge failed properly to apply those guidelines. There are three particular aspects of the principles that are of relevance which we summarise as follows. 43. First , the Prosecution is under an obligation to serve upon the defence, at the earliest time, full details of its costs in order to give the defendant a proper opportunity to make representations upon them, if appropriate. 44. Second , costs awarded should not ordinarily be greatly at variance with any fine imposed. We take this as imposing a general obligation to ensure that costs are broadly proportionate to the financial sanctions imposed. In R v North Allerton Magistrates Court ex parte Dove [1999] 163 JB 657 Lord Bingham CJ emphasised that an order for costs should never exceed the sum which the prosecutors actually and reasonably incurred. Lord Bingham also acknowledged that whilst there was no requirement that a sum ordered should stand in any “ arithmetical relationship to any fine imposed” but, nonetheless, the order should not be grossly disproportionate to the fine. 45. Third , when setting costs, a judge should take into account that the Prosecution might be seeking to defray costs incurred by the officers of a third party (such as a Council) which might be said to be “ routine ” and would have to be incurred in any event, in the normal way. Appellant’s arguments 46. It has been argued before us that, despite the best efforts of the judge to reduce, using a very broad brush, the costs to take account of criticisms made by the defence, the judge still erred because he did not address the matters which under the Practice Direction he should have addressed and he thereby failed to impose a sufficient discount on the sums claimed by the Prosecution. In particular it is argued that the Judge: (i) failed to consider the nature and extent of the relevant Council officers’ normal “ routine ” duties and he thereby allowed too many of the claimed hours to be treated as recoverable; (ii) failed to enquire as to the hourly rates of pay of such officers and thereby applied an excessive multiplier; and (iii), applied an arbitrary reduction to reflect the judge’s acceptance of the argument that the number of hours claimed was excessive failing to take account of proportionality in relation to the fine that he imposed. Analysis 47. In our judgment there is force in these criticisms. Mr Fitzpatrick, counsel for K, in his helpful and detailed written and oral submissions started by making some broad policy points about costs in cases such as this. He argued that a consequence of failing to conduct a full and proper inquiry is that the costs awarded for an investigation performed by a local authority risk exceeding the costs awarded for an investigation by a police force funded by central government. This would, it is said, be punitive and contrary to guidance given by the Court of Appeal in R v Kesteven [2012] EWCA Crim 2029 to the effect that the purpose of a costs order is to compensate the prosecutor but not punish a defendant. Mr Fitzpatrick also argued out that the proper approach to be taken in cases such as the present is of wide public significance given that it is estimated that 25% of all prosecutions in this jurisdiction are now performed by agencies other than the police and the CPS. He argued that in this growing number of cases, if unchecked, there risks being an incentive for the prosecution to seek to cover the administrative (pre-charge) costs of investigators who are simply performing their contracts of employment. 48. Closer to the facts of the case Mr Fitzpatrick argued that the Judge was led into error by the Prosecution failing to draw the attention of the judge to the relevant principles and in the tardiness of the submission of the costs schedules. Because of these failings the Judge did not enquire whether the activities performed by the in-house Council legal team or by the Council fraud officers were “ routine ” duties. According to the Prosecution’s own public records the Council recovered 63 properties between April 2014 and March 2016 as a result of fraud investigations demonstrating that this type of investigation was “ routine ”. Even if, to test the argument, it was proper for the Council to recover some portion of what would otherwise be “ routine ” costs there was nonetheless an allocation of costs exercise to be performed as between different investigations to avoid the risk of improper cross-subsidies. There was no evidence in this case that such an allocation exercise had been properly conducted. Had the Judge been put in a position whereby he could pose searching questions he might well have been led to reduce the costs on a better informed and more logical basis. 49. Mr Fitzpatrick also argued that the hourly rates advanced in the schedules appeared substantially to exceed the actual costs incurred by the relevant local authority. For example, in relation to two officers a cost of £70 per hour was provided. However, based upon a working week of 37.5 hours this was equivalent to an annual salary of £127,400 each. In relation to another officer for whom a cost of £40/hour was claimed, based upon the same working week this was equivalent to an annual salary of £72,800. The Council’s own annual accounts reveal all salaried positions remunerated in excess of £60,000. When “ on costs ” (e.g. pension, employers NI etc) were taken into account this would equate to all positions which cost the council in excess of £75,000. None of the individuals whose costs were sought to be recovered were however listed in the council’s annual accounts in the category of higher-earning employees. Mr Fitzpatrick also made the point, which we agree with, that no identification or analysis of such possible inconsistencies or inaccuracies was possible given that the prosecution tendered its costs schedule less than 24 hours before the sentencing hearing. We note that the costs schedules are exceedingly broadly drafted. For instance, it is simply asserted without proof that the investigation took 930 hours and there was “24/7” surveillance. We find both surprising, but we cannot test the accuracy of these assertions because no evidence was adduced before this court by the authorities in question. Against this we note that disclosure, which elsewhere in the documents was described as being an important part of the case against the Defendants, took only 27.9 hours. 50. Mr Fitzpatrick thus made the point that the number of hours claimed by the prosecution seemed excessive. Indeed, the judge appears to have shared this view. However, the judge adopted what was, essentially, an arbitrary downward adjustment to take account of his doubts. Mr Fitzpatrick contended that the degree to which the original number of hours had been overstated could not be established because insufficient detail was provided by the Prosecution. He pointed out that according to the transcript, counsel for the Prosecution had asserted to the judge that the costs presented to the court related only to the charges in court. However, the detail of the legal costs appeared to show that they also included costs which were not in fact related to charges heard in court. The Judge did not attempt to investigate these points nor make allowances for such inaccuracies. 51. As already observed we are persuaded by the thrust of these submissions. We would make five points. First it was the duty of the legal representatives to place before the court the relevant guidelines. It seems that the Judge was misled into believing that there were no guidelines. The Judge was entitled to greater assistance than he received. We do not exonerate the defence who should also have drawn the guidelines to the attention of the Judge. But primary responsibility lies with the local authority qua prosecutor and this duty was not complied with. Second , the schedules were served late and risked amounting to a form of ambush. This was unacceptable especially given the scale of the costs being sought and the lack of information contained therein which would not have enabled the accuracy of the schedules to be tested. Third , the Judge was wrongly led, by these failures, to apply an arbitrary and overly broad brush to the costs. Even endeavouring to err on the side of caution any Judge would risk getting the assessment wrong in a case of this level of complexity, and in consequence being over generous to the Prosecution, if invited to proceed on what might be an ill-informed basis. Fourth , we consider that because of these procedural defects there can be no confidence in the costs figure ultimately arrived at by the Judge. We are also concerned that no attention appears to have been made to K’s means, though counsel for K, properly, does not on the facts of this case take any point about means. It was still a matter that should have been considered unless conceded before the judge. Fifth , we observe, that the costs far outstripped the fine which should have put the judge on notice that there might be something problematic about the costs order. The costs might have been justified nonetheless; but because of the problems we have identified we remain concerned whether any sort of a proportionality assessment has been carried out. 52. For these reasons we set aside the order for costs. The Single Judge, in granting permissions to appeal, indicated that all relevant documentation should be placed before the full court so that we could assess the costs for ourselves on an informed basis. The local authorities have not attended. Relevant information was not before the Court. We were given no explanation for this. We have therefore done the best that we can and have therefore fully taken into account Mr Fitzpatrick’s criticisms. 53. We quash the order for costs below and substitute in its place on order for costs of £32,000. K will be liable for half of this, namely £16,000. This is therefore the order for costs made against K. To this extent only the appeal is allowed.

```yaml citation: '[2019] EWCA Crim 804' date: '2019-02-19' judges: - LORD JUSTICE GREEN - MR JUSTICE HOLGATE ```

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

No: 200506076/C5-200506077/C5-200506078/C5-200506079/C5 Neutral Citation Number: [2006] EWCA Crim 2061 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 MONDAY, 10th July 2006 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE LATHAM) MR JUSTICE FORBES MR JUSTICE SIMON - - - - - - - R E G I N A -v- BARRY JOHN JONES SAMANTHA JANE JONES NATALIE RICHARDS PAUL DESMOND LAWES - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR G ELIAS QC appeared on behalf of the APPELLANTS (CPS) MR H EVANS appeared on behalf of the DEFENDANT/RESPONDENT B JONES MR P DAVIES appeared on behalf of the DEFENDANT/RESPONDENT S JONES MR I BENNETT appeared on behalf of the DEFENDANT/RESPONDENT RICHARDS MR H WALLACE appeared on behalf of the DEFENDANT/RESPONDENT LAWES - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: This is an appeal by the Crown under section 31 of the Proceeds of Crime Act 2002 , ( the Act ), in relation to orders made by His Honour Judge Bidder QC on 26th October 2005, in proceedings under the Act . Those proceedings related to the assessment of benefit and consequential orders to be made as a result in relation to four defendants who were then before the court and are represented before us today. 2. The background facts need to be stated only very shortly for the purposes of these proceedings. All four of the defendants were involved in one form or another with drugs, particularly heroin, in Bridgend. The proceedings resolved in the following way. The first defendant to plead guilty was Natalie Richards, who on 14th March 2005 pleaded guilty to conspiracy to supply a controlled drug of Class A and she was sentenced to a community rehabilitation order for 2 years. On 24th March 2005 Barry Jones pleaded guilty to an offence of being the occupier of premises the knowingly permitted or suffered the supply of a controlled drug, namely diamorphine on those premises, and was sentenced to 2 years' imprisonment. On 7th April 2005 Paul Lawes, on rearraignment, pleaded guilty to the conspiracy to supply a controlled drug of Class A and was sentenced to 3 years' imprisonment. There was a consequential order in relation to a Drug Treatment and Testing Order as a result of which he was sentenced to a further 6 months' imprisonment. On 15th June 2005 Samantha Jones pleaded guilty to supplying a controlled drug and was sentenced to a 12 month Drug Treatment and Testing Order. 3. The proceedings with which we are concerned were preceded by the usual investigations which were carried out by a Detective Constable Wynn Lewis, who prepared statements under section 16 of the Act , in relation to each of the defendants. His conclusions were that as far as Barry Jones, Samantha Jones and Natalie Richards were concerned, they had each benefited to the extent of £31,500, but that there were no assets. As far as Paul Lawes was concerned, he concluded that he had benefited to the extent of £87,343.64p but, again, he had no assets. If those reports had been accepted they would have resulted in a nominal order in relation to each of the defendants under section 6 of the Proceeds of Crime Act 2002 . 4. The judge, however, having heard argument from all parties, concluded the hearing in the following terms: "In relation to Mr Lawes there is, in my judgment, on the face of the report, no evidence of any benefit. In relation to the others there is, on the basis of the reports, evidence from the Defendants' own interviews that they have got into their possession controlled drugs which had been used either for their own purposes or for the purposes of their co-Defendants, who are addicted to drugs. They no longer have any assets whatsoever and, given their chaotic life-styles, it is unlikely that they will have any substantial assets in the foreseeable future. If I make the assumptions that I am entitled to make under Section 10 it seems to me that there is a serious risk of injustice to the three Defendants against whom there is some evidence of benefit, in that such benefit they have over a period of years was ephemeral, it was put into drug abuse and to have a Confiscation Order hanging over their heads in the future neither is of assistance to Society, because the enforcement of it leads to great expense, nor to the Defendants and I, therefore, make no Confiscation Orders in relation to any of these Defendants." 5. The Crown appeals that decision both generally in relation to the way the judge treated his approach to section 10 and, in particular, in relation to the defendant, Paul Lawes, on the basis that although he concluded that there was no evidence of any benefit there was clear evidence in a section 9 statement, in particular from Barry Jones, of benefit. 6. As to that latter discrete matter, there can be no doubt that the judge fell into error. There was evidence of benefit in the section 9 statement of Barry Jones, but it may well be that there is further evidence as well; and that aspect of the matter will have to be considered by the Crown Court in due course. 7. Turning then to the issue of general principle raised by the way in which the judge dealt with the other defendants, the Crown submits that the judge made a fundamental mistake. Having concluded that there was evidence of benefit, he was statutory obliged to make an order requiring the defendants to pay the "recoverable amount" pursuant to section 6(5) (b). Instead, he appears to have concluded that section 10(6) gave him a general discretion to make an order. This subsection, to which we will return in its context later provides: "But the court must not make a required assumption in relation to particular property or expenditure if-- (a) the assumption is shown to be incorrect, or (b) there will be a serious risk of injustice if the assumption were made." 8. On behalf of the defendants, counsel have submitted to us that essentially the judge was, by that subsection, given a discretion in relation to the determination of what ultimate order ought to be made, which he exercised properly, taking into account relevant considerations, and accordingly is unassailable before us on appeal. 9. In order to understand the complaint by the prosecution it is necessary just shortly to indicate the structure of the Act . Section 6 requires the court, if certain preconditions are met, which they were in this case, to proceed to make certain determinations. In first instance it must decide whether the defendant has what is called a "criminal life-style". If it so decides, it must by section 6(4) decide whether he has benefited from his general criminal conduct. If it concludes that he has not a criminal life-style, it must decide whether he has benefited from the particular criminal conduct. 10. Having made the appropriate determination the court must then proceed, pursuant to subsection (5) to determine the recoverable amount which is defined in section 7 of the Act ; it must then make a confiscation order requiring him to pay that amount. 11. A combination of those subsections and section 7 , 8 and 9 essentially require the court to determine benefit, and then determine what is called the "available amount". The recoverable amount is essentially the lower of the benefit, so determined or the available amount so determined. Accordingly it is apparent from the structure of the Act that Parliament intended that in every case where the court has concluded that there is benefit, it must make an order. 12. In determining benefit, section 10 applies and entitles the court to make certain assumptions in cases where a person is held to have had a criminal life-style. Criminal life-style is defined in Schedule 2 to the Act ; and all these defendants fall into the category of those who are to be held to have a criminal life-style. It follows that the assumptions in section 10 are to be applied to them when the court determines the benefit. 13. It is only when considering the appropriateness of applying those assumptions that section 10(6) bites. It is there in order to ensure that assumptions made under section 10 are not so unrealistic or so unjust in relation to a particular defendant that they should not be made. It provides a means of moderating the ultimate calculation of benefit. 14. Section 10(6)(a) is clear in its terms. As far as section 10(6)(b) is concerned, the question will arise, in relation to any case, as to what will be considered unjust in the circumstances. The prosecution submit that whatever meaning one gives to the phrase "serious risk of injustice", that cannot include the fact that an order will create hardship. Support for that can be gleaned from Blackstone's Criminal Practice 2006, paragraph E-217, at page 2129: "The risk of injustice must arise from the operation of the assumptions in the calculation of benefit and not from eventual hardship in the making of a confiscation order ( Dore [1997] 2 Cr App R(S) 152; Ahmed [2005] 1 WLR 122 ). What is contemplated is some unjust contradiction in the process of assumption (eg double counting of income and expenditure), or between an assumption and an agreed factual basis for sentence (see Lunnon [2005] 1 Cr App R(S) 111; Lazarus [2005] Crim LR 64)." With that we agree. The purpose of the exercise is to ensure that there is ultimately a sensible calculation of benefit. It is not a discretionary exercise by the judge to determine whether or not it is fair to make an order against a particular defendant. 15. In the present case, from the citations from the ruling of the judge, it will be apparent that leaving aside for the moment the question of the defendant, Paul Lawes, as far as the other three defendants were concerned, he concluded that there was benefit. The fact that any benefit was ephemeral, in the sense that it may have been frittered away, perhaps on drugs, is irrelevant to the question. It remained benefit for the purposes of the Act . He was obliged to determine what that benefit was. He failed to do so. 16. It is only when the calculation is carried out applying the assumptions that the issues under section 10(6) can arise. But the judge appears not to have taken the matter to that stage of enquiry. In those circumstances, we allow the appeal of the Crown and remit the matter to the Crown Court for those calculations to be carried out in accordance with the Act . 17. THE VICE PRESIDENT: As far as the judge to whom the case should be allotted is concerned, have you any submissions to make, Mr Elias. Should it be Judge Bidder or not? 18. MR ELIAS: We thought it probably should go back to a new judge. 19. THE VICE PRESIDENT: Are there any submissions from the defendants? 20. MR BENNETT: I have none, thank you. 21. MR EVANS: My Lord, a practical point. The only thing that occurs to me of possible consideration is the question of the transcript of your Lordship's judgment in relation to this matter today. It is not often available until some months after the judgment is given, but whether the people-- 22. THE VICE PRESIDENT: I would hope I would have it and have corrected it within the next 7 days, but I cannot promise that, but we will do our best. 23. MR ELIAS: I doubt this will be listed this side of 7 days. 24. THE VICE PRESIDENT: It will be remitted to the Crown Court at Cardiff, to be listed before a different judge from Judge Bidder QC. Thank you very much.

```yaml citation: '[2006] EWCA Crim 2061' date: '2006-07-10' judges: - (LORD JUSTICE LATHAM) - MR JUSTICE FORBES - 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} ======

Neutral Citation Number: [2023] EWCA Crim 1463 Case No: 202202665 B1& 202203146 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SOUTHWARK HIS HONOUR JUDGE HEHIR T20170213 Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday 15 December 2023 Before : THE LADY CARR OF WALTON-ON-THE-HILL THE LADY CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE BRYAN and MR JUSTICE HILLIARD - - - - - - - - - - - - - - - - - - - - - Between : DAVID AMES Appellant - and – REX (Serious Fraud Office) Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Neil Hawes KC, David Miller and David Claxton (instructed by Blackfords LLP ) for the Appellant Andrew Wheeler KC and Benjamin Isaacs (instructed by The Serious Fraud Office ) for the Respondent Hearing date: 29 November 2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down at 10am on Friday 15 December 2023 in Court 4, and circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. Lady Carr of Walton-on-the-Hill, LCJ: A. Introduction 1. On 3 August 2022 in the Crown Court at Southwark (before HHJ Hehir (the Judge) and a jury) the appellant was convicted unanimously of two counts of fraud by abuse of position (counts 1 and 3). Count 2, an alternative count of fraud to count 1, was ordered to lie on file. 2. On 30 September 2022 the appellant was sentenced by the Judge to 9 years’ imprisonment on count 1, and 3 years’ imprisonment on count 3, to run consecutively, making a total sentence of 12 years’ imprisonment. The appellant was also disqualified from acting as a director for a period of 15 years pursuant to section 2 of the Company Directors Disqualification Act 1986. 3. This is his appeal against conviction and sentence by leave of the full court. On granting leave to appeal against conviction the full court stated that: “ The question that arises on this application may be expressed quite shortly: what is the necessary ingredient or ingredients of an offence under section 4(1) of the Fraud Act [2006] that one finds in section 4(1)(c)?” 4. Section 4 of the Fraud Act 2006 (section 4) provides as follows:- “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.” 5. The appellant’s position is that subsections 4(1)(c)(i) and 4(1)(c)(ii) each constitutes a separate legal ingredient of the offence; where more than one intent is alleged, the jury must be directed that they need to be unanimous on at least one intention before finding the defendant guilty (a Brown direction, named after the decision in R v Brown (1984) 79 Cr App R 115 ( Brown )). It is said that in failing to give such a direction, the Judge materially misdirected the jury. 6. The respondent’s position is that a defendant’s intention for the purpose of section 4(1)(c) is properly to be regarded as a single overarching ingredient of a section 4 offence. Subsections 4(1)(c)(i) and 4(1)(c)(ii) set out the different ways in which the essential element of intent is made out. There was no misdirection by the Judge. 7. The grounds of appeal against sentence are that the sentence passed was manifestly excessive in that it was i) too long and the result of an impermissible and deliberate decision to use consecutive sentences to evade the statutory maximum; and/or ii) there was no or no sufficient reduction for the fact that the scheme was not fraudulent at the outset; and/or iii) there was no or no sufficient reduction for delay; and/or iv) there was no or no sufficient reduction in the overall sentence to reflect the appellant’s age and poor physical and mental health. B. Background Facts in summary 8. The appellant controlled a company called Harlequin Management Services (South East) Ltd (“HMSSE”). HMSSE was a UK company, incorporated on 25 April 2001. The appellant controlled HMSSE; he was a shadow director, the primary authority and decision-maker in the affairs of the company. He was also the sole director of a number of offshore companies. Together these companies formed the Harlequin Group. 9. HMSSE went into administration in May 2013, and subsequently into liquidation. From the start of trading in 2005 until its liquidation, HMSSE sold in excess of 9,000 “properties” off-plan to investors who made in excess of 8,200 deposits. The properties in question were located principally in the Caribbean. The total sale price was £1.4bn. 10. HMSSE primarily marketed the resorts to UK Independent Financial Advisors (“IFAs”) and Self Invested Personal Pension (“SIPP”) providers (collectively referred to as “Agents”) who in turn attracted potential UK investors/ purchasers. The resorts were owned by offshore companies collectively known as the Resort Development Companies (“RDCs”). The RDCs were controlled and beneficially owned by the appellant, who was sole director and shareholder. 11. The Harlequin Business Model operated as follows: i) The transaction started either with an introduction of an investor by an external sales agent such as an IFA, or by direct telephone contact from the investor to Harlequin; ii) Investors reserved a property by paying a deposit of £1,000 into a Barclays UK bank account controlled by HMSSE (the client account); iii) If the investor wished to continue with the purchase, they would sign a purchase agreement with the RDCs, and pay into the HMSSE client account a sum equal to 30% of the purchase price of the property (including the £1,000 already paid); iv) Under the terms of its agreement with the RDCs, HMSSE was entitled to approximately 15% (14.2%) of the overall purchase price of the property i.e. nearly half of the sum paid by the investor at that stage. Such sum was withdrawn from the client account, and used to pay commission to the agents (typically 9-10% of the purchase price), leaving 5% to represent HMSSE’s costs and profit; v) The remaining 15.8% was then either transferred to the RDC, or used to make payments to suppliers on the RDC’s behalf; vi) The investors’ funds were not ring fenced at any stage, and thus HMSSE used deposits received in relation to one resort to pay RDCs or suppliers involved in the construction/development of another resort; vii) The RDCs also agreed to meet the finance obligations of those investors who took out mortgages or loans to fund the 30% payment. This was part of the inducement for entering into the contracts, and it was intended that these sums were to be added to the final purchase price. The effect of such a commitment was to add £900,000 per month to the outlay of the RDCs. By November 2012, in excess of £38 million was paid out to investors in this way - representing nearly 3% of the £1.4 billion of total purchase prices; viii) The contracts between the RDCs and the investors required the investors to pay the remaining 70% of the purchase price in stages - determined by the build and stage of completion of the property. Such payments could, however, be deferred to the completion of the unit, subject to an interest charge on those sums deferred; “Deferred Stage Payments” and the “100% finance scheme”; ix) It was stated by HMSSE that the monies required to be paid upon completion could be raised by the investor by means of a mortgage. The purchase price was deemed by HMSSE to be below market value, so that an advance of 70% loan against market value would be ample funds to pay the completion funds due and to also pay off any loans obtained regarding the original 30% deposit; x) It was intended (and sold on the basis) that in return for their financial investment, investors would receive: a freehold property (which was up to 50% below market value), 30 days personal use, 10% rental guarantee per annum for the first two years, and then 50:50 net room share thereafter. The owner was required to allow the property to be used by the hotel for a period of 25 years. The investors generally comprised individuals or joint investors, and many investments were made through SIPPs. 12. Under the Harlequin Business Model and the structuring of the staged payments by investors, HMSSE received approximately £398m from investors (net of refunds and resale proceeds). Despite the size of the total stage payments made by the investors, only approximately 200 properties in one project in St Vincent were ever constructed, representing less than 2% of the total contracted to be built. During the same period, alleged the respondent, the appellant made a profit for himself and his immediate family by taking £6.2 million from those investor monies. 13. The respondent’s case was that the appellant induced investors to enter into contracts for the purchase of these off-plan properties when the true state of affairs in relation to those properties was such as to expose those investors to loss or a risk of loss. 14. The three counts on the indictment related to differing points along the trading timeline, commencing in 2010. It was not alleged that the operation was fraudulent from the outset. Rather, count 1 alleged that the appellant’s conduct in relation to HMSSE was fraudulent from 2010 onwards (by which time the lack of external funding had become obvious and it was discovered that HMSSE had itself been the victim of fraud) with an alleged loss to investors of approximately £196 million. Count 2 alleged an alternative time frame, namely that the appellant’s conduct became fraudulent from February 2011 onwards, with an alleged loss to investors of approximately £112 million. Count 3 alleged dishonesty relating to a successor company to HMSSE, namely Harlequin Hotels and Resorts (Cayman) Ltd (“HHR”). This was from the middle of 2012 onwards, with an alleged additional loss to investors of approximately £30 million. 15. The respondent’s case was that the Harlequin Business Model, even if theoretically possible, was wholly flawed in its operation. Throughout the entire process the appellant failed to exercise any proper business controls, which substantially increased the risk of loss to investors and the Harlequin Business Model exposed investors both to the risk of loss and substantial actual loss. 16. It was also alleged that the appellant provably lied to investors from the outset about a number of matters which were central to the viability of the Harlequin Business Model, including: i) The availability of mortgages, which he represented were “guaranteed”; ii) The “ring-fencing” of funds allocated to each resort; iii) The availability of external development funding; and iv) His ownership of the land on which the proposed resorts were to be developed. 17. In addition, it was said that the appellant lied to his investors regarding his allegedly successful business background. In reality, he had twice been made bankrupt previously. Additionally, he was said to have ignored repeatedly advice given to him (regarding the level of risk/difficulties with the Harlequin Business Model) from a series of professionals throughout the timeline of the trading of the Harlequin enterprise, both before and during the indictment period. 18. The appellant was interviewed under caution on two occasions, initially in 2013, and then subsequently in December 2015. He denied that he had in any way acted dishonestly and stated that he had continued to promote the Harlequin business model as a viable enterprise in which he believed. He maintained that he had always put the interests of his investors first. 19. He also maintained that he had relied throughout upon advice provided to him by the professionals that he employed, and that he had been let down by a number of such persons, most notably Martin MacDonald of Wilkins Kennedy (an accountancy firm). He alleged that they had failed not only to protect the business in financial and other terms, but had actively allowed or encouraged another man called Padraig O’Halloran to misappropriate company funds for his own purposes. 20. The appellant did not give evidence or call any evidence in his defence, save for playing a 3 minute promotional video in respect of Buccament Bay, the only development on which building commenced. C. Legal Directions 21. In his legal directions the Judge directed the jury, amongst other things, as follows: “In order to find DA Guilty of any of the three indictment counts, you must be sure of five matters: (i) That DA, as a person who was controlling Harlequin Management Services South East Limited [HMSSE] (counts 1 & 2) or Harlequin Hotels and Resorts (Cayman) Ltd [HHR], (count 3), occupied a position within that company where he was expected to safeguard, or not to act against, the interests of Harlequin investors, in other words those persons who paid money to HMSSE or HHR for the purchase of overseas properties: and (ii) That at any point during the time period covered by the count you are considering, DA abused his position within the relevant company by continuing to accept monies from Harlequin investors in respect of overseas properties, when he knew or believed that the true state of affairs in relation to those properties was such as to expose those investors to loss or a risk of loss: and (iii) That continuing to accept monies from Harlequin investors in those circumstances did expose those investors to loss or a risk of loss: and (iv) That by continuing to accept monies from Harlequin investors in those circumstances, DA acted dishonestly by the standards of ordinary decent people: and (v) That DA intended by continuing to accept monies from Harlequin investors to make a gain for himself and / or members of his family, and / or to cause loss to those investors or expose them to a risk that they would lose some or all of the monies they were paying . It is only if you are sure of all five of matters (i)-(v) above that you will find DA Guilty of the particular indictment count you are considering. If you are not sure of any one or more of these five matters, you will find him Not Guilty of that count.” (underlining in original, emphasis added) D. Verdict and Sentencing Remarks 22. The jury returned guilty verdicts on counts 1 and 3. In his sentencing remarks the Judge noted that these verdicts showed that the prosecution case had been made out to its full extent in terms of the duration (January 2010 to June 2015). He said that the appellant had transacted his business through a bewildering array of (some 16) companies, deliberately opaquely, with a view to concealing the true nature and extent of his operations, and with a view to saving his own skin in terms of financial liability. 23. The Judge identified the biggest flaw in the Harlequin Business Model as the total absence of external funding. There were also real issues with land ownership. Whilst care had been taken to ensure that the term was not used before the jury, the plain truth was that by January 2010 the appellant was operating a gigantic “Ponzi” scheme. 24. The Judge found that the losses suffered by investors during the indictment period could not have been less than £196 million during the count 1 period, and £30 million during the count 3 period. 25. The result was that the losses caused by the appellant’s fraudulent activity were far in excess of the levels generally encountered even in serious fraud cases, as illustrated by the definitive Sentencing Council Guideline for Fraud Offences. The highest category of harm (category 1) was based on losses of £500,000 or more, with a starting point of £1 million. This was also category A offending in terms of culpability. The appellant’s offending had been protracted, sophisticated, and claimed a large number of victims. 26. Aggravating features were identified as follows: the appellant had ignored repeated warnings from others that his business model was seriously flawed and doomed to failure without radical revision; he had ignored the advice of others; and sought to blame others. 27. In terms of mitigation, the Judge bore in mind that the appellant was 70 years of age and the contents of medical reports from his GP and a psychiatrist. The appellant was of previous good character, although this had to be set against the scale of the appellant’s offending. There had been a number of unusual and exceptional delays in bringing the case to trial, although the fundamental reason for the overall delay was the appellant’s continued denial of guilt. The Judge took into account that the Harlequin business operation was not to be treated as fraudulent from the outset. He also bore in mind the various character references he had received. He did not consider that the activities of Martin MacDonald or Padraig O’Halloran provided any mitigation. 28. Given the scale of losses, the Judge stated that he needed to consider whether it was necessary for him to impose consecutive sentences so as to arrive at a total sentence higher than the statutory maximum for a single offence of fraud. After referring to the competing submissions, and making express reference to the overarching Sentencing Council Guideline on Totality, the Judge concluded that the extent of the losses caused by the appellant’s criminality was so great that a total sentence in excess of the statutory maximum was called for. 29. The Judge went on to pass a sentence of 9 years’ imprisonment on count 1, and a consecutive sentence of 3 years’ imprisonment on count 2. 30. He also disqualified the appellant from acting as a company director for the maximum period of fifteen years, identifying that the appellant was a thrice-bankrupt fraudster, who had caused losses of over £200 million by his fraudulent conduct, and was a menace to anybody unfortunate enough to do business with him. E. Section 4 of the Fraud Act 2006 E.1 The issue 31. As set out above, the appeal raises the question of what is/are the necessary ingredient/s of an offence under section 4(1) so far as the question of intent in section 4(1)(c) is concerned. E.2 The terms of sections 4 and 5 32. For ease of reference we repeat section 4: “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.” 33. Section 5 of the Fraud Act 2006 goes on to define “gain” and “loss” as follows: “5 “Gain” and “loss” (1) The references to gain and loss in sections 2 to 4 are to be read in accordance with this section. (2) “Gain” and “loss”— (a) extend only to gain or loss in money or other property; (b) include any such gain or loss whether temporary or permanent; and “ property ” means any property whether real or personal (including things in action and other intangible property). (3) “ Gain ” includes a gain by keeping what one has, as well as a gain by getting what one does not have. (4) “ Loss ” includes a loss by not getting what one might get, as well as a loss by parting with what one has.” E.3 The parties’ respective submissions 34. The appellant’s position is that subsections 4(1)(c)(i) and 4(1)(c)(ii) are each a separate identifiable legal element of the offence and that where more than one intent is pleaded the jury must be directed that they need to be unanimous on at least one of the intentions before conviction, i.e. a Brown direction, and that the Judge misdirected the jury as to the ingredients of the offence. 35. The submission is said to give rise to the following questions:- (1) Does each intention listed in subsections 4(1)(c)(i) and (ii) of the Fraud Act 2006 form part of the “ essential ingredient(s) ” of the offence which, where more than one intention is alleged in a count, it would require a Brown direction to be given to the jury requiring them to be unanimous about at least one of those intentions before they could convict (assuming all other ingredients of the offence were proved)? The appellant says that it does. (2) Did the Judge materially misdirect the jury on subsections 4(1)(c)(i) and (ii) by stating that the jury could consider the four intentions disjunctively and cumulatively, where the direction put the word ‘ and /or’ between each intention, where (a) the word ‘ and’ is not found in the Act, (b) it was not pleaded in the particulars of the offences and, (c) by reason of its use in the direction, no Brown direction could be sought or was given? The appellant says that the Judge did. (3) And alternatively, was it sufficient for the jury to be directed that the necessary intent for the offence is capable of being fulfilled by any one or more than one of those intentions in the sub-sections, such that a Brown direction on unanimity about which intent was present was not necessary? The appellant says that it was not. 36. We record that the appellant also sought to argue that, even if the appeal failed on the issue of interpretation of section 4(1)(c), the Judge nevertheless misdirected the jury by adding in the word “and” in his directions when such word does not appear in section 4(1)(c). In oral submission, the point was all but abandoned by Mr Hawes KC, who fairly acknowledged that the use of the word “and” may in fact have been helpful to the appellant on the facts of the case. We are satisfied that there was no material misdirection by the Judge in this regard and say no more about it. 37. The respondent’s position is that a defendant’s intention to make a gain for himself or another or cause loss to another or expose another to a risk of loss is properly to be regarded as one overarching ingredient of the section 4 offence, rather than two separate ingredients (or indeed four separate ingredients). It is submitted that that conclusion is supported by the statutory drafting. The essential ingredients of the offence are sections 4(1)(a), 4(1)(b) and 4(1)(c). Subsections 4(1)(c)(i) and 4(1)(c)(ii) constitute different ways in which the essential element (c) may be proven. In other words, they are the mechanisms through which the jury may be satisfied of the ingredient of section 4(1)(c). They are not separate ingredients. 38. Ultimately the issue is an issue of statutory interpretation. Before embarking on that exercise, however, it is convenient first to identify the principles in Brown , as addressed and developed in subsequent authorities. E.4 Brown and subsequent authorities 39. Brown (at [119]) is authority for the proposition that the jury must agree on every ingredient of the offence for it to be proved. Equally the jury must be directed that they need to be agreed on each ingredient of the offence. 40. The authorities following Brown have established a clear distinction to be drawn between a matter which is i) an ingredient of the offence and ii) a merely evidential – or ancillary – issue. It is common ground that on the latter there is no need for jury unanimity (or a Brown direction). 41. This key difference is illustrated in subsequent cases, including the following: i) R v Smith (Owen) [2014] EWCA Crim 2163; [2015] 1 W.L.R. 937 (an offence of possession of a firearm with intent to endanger life). The essential ingredient of the offence under section 16 of the Firearms Act 1968 was an intent to endanger life, not the manner in which life would be endangered, (whether directly by the defendant or by another). At [35] and [36] Davis LJ stated: “35.…while accepting that the defendant’s state of mind as possessor is critical, we consider it to be entirely an ancillary matter as to whether the possessing with intent involved the defendant intending himself to endanger life, or whether the possessing with intent involved the defendant intending to enable another to endanger life. There are not two separate offences under section 16 appropriately charged as two different counts. There is in substance one offence, albeit capable of being satisfied on two different scenarios: the central unifying factor for each limb being possession with intent that life be endangered. 36. The gravamen of the section…is possession of a firearm with intent to endanger life. By whom the life is to be endangered…is thus in practical terms a matter extending to the mechanism which might be involved in life being endangered…this is not a “relevant difference.””; ii) R v Dunleavy [2021] EWCA Crim 39 (see in particular at [53] to [62]). There Fulford LJ held (at [57]) that the “essence” of the crime under section 5(1) of the Terrorism Act 2006 was an intention that an act of terrorism would be committed and the defendant engaged in conduct in preparation for carrying out that intention. The particular means or mechanism by which the offence was committed was an ancillary issue in respect of which the jury did not need to be unanimous. Such an approach caused no prejudice to the applicant, whose defence to the count was the same under either relevant scenario. The position in Dunleavy was to be contrasted with the position in R v Leslie Joseph Carr ; [2000] 2 CR App R 149, where the absence of a Brown direction was fatal to the safety of the conviction. In that case, whether the fatal blow was a kick (to which the appellant’s defence was identification) or a punch (to which the appellant’s defence was self-defence) mattered: the jury needed to be directed that it needed to reach a unanimous decision on the basis of conviction; iii) R v Philips [2019] EWCA Crim 577 (see in particular [69] and [70], a case concerning an offence under section 4(2)(b) Misuse of Drugs Act 1971). It was held that the jury had needed only to agree whether the applicant had been concerned in the production of drugs, not precisely where the drugs had been produced; iv) R v Chilvers [2021] EWCA Crim 1311; [2022] 1 WLR 1089 (see in particular [63] and [64], [71] and [72]), a case concerning the offence of controlling and coercive behaviour contrary to section 76 of the Serious Crime Act 2015. Multiple separate acts of such behaviour were pleaded in the indictment counts. The court found that the essential ingredient of the offence was controlling and coercive behaviour, not the particular acts relied upon to support the allegation. The jury did not have to agree on the “mechanism” (to use the language of Smith ) or the “kind” of controlling and coercive behaviour that had taken place (to use the language of Chilvers) . The court emphasised that there were not two or more different means of committing the offences which may have given rise to different defences. Fulford LJ also stated (at [63]) that a Brown direction is only necessary in relatively rare situations, the requirement being confined to those situations where i) there is an appreciable danger that, when the jury is deciding whether they are agreed on the matter that constitutes the relevant ingredient of the offence, some may convict having found a particular matter proved as constituting the ingredient whilst others may find a wholly different matter or different matters proved as constituting the ingredient or ii) when two distinct events or incidents are alleged, either of which constitutes the ingredient of the offence charged or iii) when two different means of committing the offence may give rise to different defences. E.5 The proper interpretation of Section 4 of the Fraud Act 2006 42. As already noted, ultimately the issue is one of statutory interpretation. Applying normal principles, the words of the statute have primacy and are to be interpreted in the sense which best reflects their ordinary and natural meaning and accords with the legislative purpose, an objective concept. 43. We consider that both as a matter of structure and language it is clear that there are only three essential ingredients of the offence in section 4: section 4(1)(a) (“occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person”); section 4(1)(b) (”dishonestly abuses his position”); and section 4(1)(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”). 44. First, section 4 is broken down into only three subsections, not four (let alone six, which would be necessary if, as the appellant suggested, each of the two options in subsections 4(1)(c)(i) and (ii) required separate treatment). 45. As to section 4(1)(c) itself, the ingredient is (a single) intention by means of the abuse of that position to make a gain (for himself or another) or to cause loss to another (or to expose another to a risk of loss), in other words to have some sort of financial impact. As section 5 makes clear, “gain” and “loss” are limited to gain or loss in money or other property, but are otherwise widely defined. They do not have to be permanent. Gain can include keeping what one has, and loss includes not getting what one might get. 46. Neither the use of the word “or” internally in each of (i) and (ii) nor the use of the word “or” externally between (i) and (ii) supports the argument that each is an alternative and independent ingredient of the offence. In the statutory context, the word “or” is more often used in a manner which includes “and”: see Bennion, Bailey and Norbury on Statutory Interpretation (8th edition, 2020): “Section 17.11: Use of ‘or’ and ‘and’ 17.11 The words ‘or’ and ‘and’ can be used in different senses and this can occasionally give rise to difficulty where it is not clear from the context what sense is intended: (a) the word ‘or’ is normally used in an inclusive that ‘A or B’ means A or B or both), although it can also be used in an exclusive sense (so that ‘A or B’ means A or B but not both); (b) the word ‘and’ can be used in a joint sense (so that ‘A and B’ means A and B together) or a joint and several sense (so that ‘A and B’ means A and B together or either of them). In most contexts the sense in which ‘and’ or ‘or’ are used will be apparent from the context and the application of basic common sense but they can occasionally give rise to doubt. It has sometimes been suggested that in legislation the word ‘or’ is more often used in an inclusive sense and that ‘and’ is more often used in a joint and several sense. This is a useful starting point, but it may be displaced by the context.” 47. The better interpretation here is that the word “or” at the end of subsection 4(1)(c)(i) (and within each of (i) and (ii)) is used in an inclusive, rather than an exclusive sense. In other words, it is to be interpreted as meaning subsection 4(1)(c)(i) or subsection 4(1)(c)(ii), or both, rather than merely either subsection 4(1)(c)(i) or subsection 4(1)(c)(ii). 48. This inclusive interpretation is entirely consistent with common sense. Those who commit fraud will often, if not usually, intend both to make a gain (for someone) and/or to cause loss to another (or expose another to a risk of loss). Far from being mutually exclusive alternatives, those elements are generally co-occurring and overlapping aspects of most frauds. Subject to any special features that a case may present, proof of either element ought to be sufficient to satisfy the ingredient of intent. 49. Indeed, it may be difficult to say precisely whether a defendant’s intention was to make a gain for himself or to cause a loss to another, or both. Section 4 is, as the respondent put it, “offender-focussed”. The offence is complete when the defendant carries out the act (or omission) with the necessary intent. It is immaterial whether or not he is successful in his enterprise. So much is clear from section 4 itself and the Explanatory Notes accompanying the Fraud Act 2006 (note 11): “Subsection (1)(b) requires that the person must make the representation with the intention of making a gain or causing loss or risk of loss to another. The gain or loss does not actually have to take place. The same requirement applies to conduct criminalised by clauses 3 and 4.” (emphasis added) 50. An approach which requires the jury to consider each possible relevant intention as a separate ingredient of the offence risks impermissible speculation on the part of the jury, for example as to what would have happened to the proceeds of the fraud, had the fraud been successful. 51. Finally, further support for our interpretation can be found in the Law Commission Report No 276 (on which the drafting of the 2006 Act was heavily based). Its starting point was the classic definition of fraud espoused by Stephen’s History of Criminal Law (1883), Volume 2. The relevant passage reads: “…two elements at least are essential to the commission of the crime: namely, first, deceit or an intention to deceive or in some cases mere secrecy; and, secondly, either actual injury or possible injury or an intent to expose some person either to actual injury or to a risk of possible injury by means of that deceit or secrecy’ . (emphasis added) 52. Again, the reference is to a single intent. 53. In the above circumstances, and before consideration of authority, we consider that section 4(1)(c) contains a single overarching ingredient of intent for the purpose of a section 4 offence. The ingredient is intention by means of the abuse of position to make a gain (for himself or another) or to cause loss to another (or to expose another to a risk of loss) – in other words, to have a financial impact, whether by way of gain or loss (actual or potential). E . 6 Authorities on the Fraud Act 54. This conclusion is entirely consistent with the relevant authorities, including the following: i) R v Harrison [2017] EWCA Crim 296. This was a case dealing with an offence of fraud by false representation under section 2 of the Fraud Act 2006. Section 2(1)(b) sets out the ingredients of intent in materially identical structure and words to those used in section 4(1)(c). The court identified the ingredient of the section 2 offence as follows: “37. ..the ingredients of the offence under the Act…are that (1) there was a false representation, (2) which the Applicant knew was or might be untrue or misleading, (3) which the Applicant made dishonestly, and (4) that by making the representation, the Applicant intended to make a gain for himself or cause a loss to another or expose another to the risk of loss. There is no separate requirement that the Applicant actually makes a gain or that HMRC actually suffers a loss.” (emphasis added); See also R v Varley & others [2019] EWCA Crim 1074, another case dealing with section 2 of the Fraud Act 2006 to similar effect ; ii) R v Pennock [2014] EWCA Crim 598; [2014] 2 Cr. App. R. 10 a case dealing with section 4 itself. The court stated as follows: “6. Thus, in general terms, in respect of an offence charged under section 4 of the Fraud Act 2006, the prosecution has to prove four matters: (1) That the defendant at the relevant time occupied a position in which he is expected to safeguard or, at least, not act against the financial interests of another. The current edition of Archbold, at 21–385, suggests that the “expectation” in section 4(1)(a) is that of the reasonable member of the public as personified by the jury. For present purposes we would accept that definition. (2) That the defendant “abuses” that position, i.e. he uses that position incorrectly or he puts it to improper use contrary to the expectation resulting from the position held. (3) That the defendant's abuse of that position is dishonest. (4) That the defendant intends, by means of his dishonest abuse of that position either to make a gain for himself or another person; or that he intends to cause loss to another or to expose another person to a risk of loss. As is clear from section 5 of the Act, the gain or loss must relate to money or any other property, but it can be a temporary gain or loss or a permanent one. But there does not have to be an actual gain or an actual loss.” (emphasis added); iii) R v Say [2021] EWCA Crim 520, another case addressing the ingredients of a section 4 offence. Convictions were upheld in circumstances where no Brown direction was given in respect of the alternatives set out in section 4(1)(c). 55. R v Valujevs & Another [2014] EWCA Crim 2888, [2015] QB 745 at [37]-[39], relied upon by the appellant, does not point to a contrary conclusion. There the court stated that three alternatives needed to be listed as separate particulars within the count as examples of how the defendants breached the obligation not to withhold wages issue, accompanied by a Brown direction. The alternatives being referred to were clear alternatives as to the facts of the offences alleged giving rise to the alleged breach of duty for the purpose of section 4(1)(a). The decision provides no support for the contention that the different options in subsections 4(1)(c)(i) and (ii) are to be treated as separate ingredients of a section 4 offence. E.7 Conclusion on Section 4(1)(c) of the Fraud Act 2006 and the absence of a Brown direction 56. For the reasons we have given, as a matter of statutory interpretation, consistent with the authorities referred to above, section 4(1)(c) is properly to be regarded as containing a single ingredient of the offence, namely intention (by means of (dishonest) abuse of position) to cause financial gain or loss (or exposure to risk of loss), in other words to have a financial impact. Whether the financial impact intended is gain, loss, or both, does not matter. Subsections 4(1)(c)(i) and 4(1)(c)(ii) are merely the mechanisms through which the jury may be satisfied of the single ingredient of intention in section 4(1)(c). 57. On this basis, there was no need for a Brown direction as a matter of legal principle without more. There may be factual scenarios (albeit likely to be rare) in which the precise mechanism for intent under section 4(1)(c) is relevant and where a Brown direction may be appropriate. However, this is not such a case. Neither subsection (i) or (ii) gave rise to a different defence and this was not a case where distinct events or incidents were alleged for the purpose of either subsection. No prejudice arose to the appellant as a result of the absence of a Brown direction. 58. The jury was thus directed properly. 59. Finally, we would only add that even if, contrary to our interpretation of section 4(1)(c) and conclusion that no Brown direction was required, we would not have been persuaded in any event that the convictions were unsafe. The fact that the appellant intended to make a gain was not only not in dispute, it was agreed evidence. The Harlequin business was operated for gain, including for the appellant’s own personal gain. This was also confirmed in the defence statement, the live evidence adduced by both parties at trial, and counsel’s submissions to the jury. All members of the jury must therefore have been sure that the appellant intended, by means of the abuse of position, (at least) to make a gain for himself or another. Furthermore we do not consider that it could be sensibly argued that the appellant did not also intend to cause loss (or exposure to risk of loss). The Harlequin business, being operated in order to make money for the appellant, was an investment business which relied on money being transferred in from investors in reliance on the representation that they would receive a return. Both the intention to make a gain and cause loss or expose investors to loss were inherent in the very structure of the scheme. 60. Accordingly, the appeal against conviction is dismissed. F. The appeal against sentence 61. We turn to the appeal against sentence. It will be recalled that the Judge passed a sentence of 9 years’ imprisonment on count 1, and a consecutive sentence of 3 years’ imprisonment on count 2, making a total sentence of 12 years’ imprisonment. 62. We remind ourselves at the outset that the ultimate issue is whether the total sentence passed was just and proportionate or not only excessive, but manifestly so. Totality was a key consideration before the Judge, and he rightly had it at the forefront of his considerations. The key submission for the appellant is that the Judge was wrong to impose consecutive sentences. 63. The Sentencing Council Definitive Guideline on Totality applicable at the time stated that concurrent sentences would ordinarily be appropriate where “a) offences arise out of the same incident or facts” or “b) there is a series of offences of the same or similar kind, especially when committed against the same person”. 64. Consecutive sentences will ordinarily be appropriate where “a) offences arise out of unrelated facts or incidents” or “b) offences are of the same or similar kind but where the overall criminality will not sufficiently be reflected by concurrent sentences”. The Guideline states however, that “it is not permissible to impose consecutive sentences for offences committed at the same time in order to evade the statutory maximum penalty.” (emphasis added). 65. Examples of category b) situations include “where offences [are] committed against different people, such as repeated thefts involving attacks on several different shop assistants” and “where offences of domestic abuse or sexual offences are committed against the same individual”. This reflects the fact that offending against different individuals often justifies consecutive sentences, and the latter reflects the fact that serious offending even against the same individual may require consecutive sentences, the common theme being that, whilst the offences are of the same or similar kind in each case, the overall criminality will not sufficiently be reflected by concurrent sentences. 66. In the present case there was an evolution of the facts over time, the companies featuring in count 1 (HMSSE) and count 3 (HHR) were not the same, and the victims of the fraud were numerous and different. HHR needed to come on the scene – with a new bank account – in order for the appellant’s fraudulent activities to be able to continue, given that HMSSE was running into obvious difficulties by then. There was never any suggestion that the offences were not properly charged separately. 67. These features - different (even if overlapping) time periods, the use of different entities and different victims – all militated in favour of consecutive sentences without more. And in any event there was more, namely the seriousness of the offending and the appellant’s overall criminality. 68. This was, on any view, Category 1A offending of the utmost gravity for the purpose of the Sentencing Council Guideline for Fraud Offences. The losses suffered by investors were no less than £196 million during the count 1 period, and £30 million during the count 3 period. These were losses far in excess of the £1 million on which the starting point for category 1A offending (of 7 years’ imprisonment (range 5 to 8 years)) was based. The Fraud Guidelines expressly provide that, “Where the value is larger or smaller than the amount on which the starting point is based, this should lead to upward or downward adjustment as appropriate”. It is further provided that, “Where the value greatly exceeds the amount of the starting point in category 1, it may be appropriate to move outside the identified range” (in bold in the Fraud Guideline). This was clearly such a case, and the amounts involved of themselves justified, indeed necessitated, a starting point outside the identified range. 69. As for culpability, the appellant’s offending was sophisticated and carried out over a sustained period of time. 70. There were then a number of serious aggravating factors which had to be taken into account. The appellant ignored repeated warnings and advice from others that his business model was seriously flawed and doomed to failure without radical revision. He also readily blamed others. 71. The Judge took careful account of the available mitigation, including his age, physical ailments and mental health problems, the fact that the enterprise was not fraudulent from the outset, the appellant’s previous good character and character references (which could not carry much weight in the circumstances), and the passage of time. 72. Standing back, we consider that the Judge was fully entitled to conclude that consecutive sentences were justified on the facts and that the imposition of concurrent sentences, giving a maximum custodial term of 10 years, would not sufficiently reflect the appellant’s overall criminality. Thus, he was fully entitled to proceed, as a matter of principle, to impose consecutive sentences. 73. We can then find no legitimate complaint in the overall term of 12 years’ imprisonment at which the Judge arrived. In particular, he made a very substantial reduction to arrive at the custodial term of only 3 years on count 3, no doubt to the available mitigation, delay, and totality. 74. For these reasons, it cannot be said that the overall sentence of 12 years’ imprisonment was manifestly excessive. Accordingly, the appeal against sentence is also dismissed.

```yaml citation: '[2023] EWCA Crim 1463' date: '2023-12-15' judges: - MR JUSTICE HILLIARD ```

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: 2002/4316/C2 Neutral Citation Number: [2005] EWCA Crim 476 IN THE COURT OF APPEAL CRIMINAL DIVISION Sitting at Cardiff Crown Court Law Courts, Cathays Park South Glamorgan CF10 3PG Friday 18 February 2005 B E F O R E: LORD JUSTICE PILL MR JUSTICE CURTIS MR JUSTICE PITCHFORD - - - - - - - R E G I N A -v- YAN TONG WANG - - - - - - - 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 F JONES appeared on behalf of the APPELLANT MR C JAMES appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. MR JUSTICE PITCHFORD: On 5th August 2004, His Honour Judge Burr sitting at Swansea Crown Court made a finding against the appellant of contempt of court under section 3 Criminal Procedure (Attendance of Witnesses) Act 1965 . In consequence the appellant was committed to prison for one month. He was released from that period of imprisonment on 5th September. The appellant now appeals the finding of contempt as of right under section 13(2) (bb) Administration of Justice Act 1960 . 2. The circumstances giving rise to the contempt hearing are as follows. A man named Cheng Xing was charged with conspiracy to assist illegal immigration into the United Kingdom and money laundering. The appellant made a witness statement dated 6th May 2003 in which he described the circumstances in which he was assisted to make an illegal entry into the United Kingdom. The trial of the defendant was fixed for 10th May 2004. 3. The appellant, it was common ground, is unable to communicate in English, speaking some Mandarin and a Fujan dialect. It was a condition of his temporary residence in the United Kingdom imposed by the Immigration Service that the appellant reside at 19 Portland Road, Aberystwyth, premises at which the business of a Chinese restaurant was carried on. 4. The commencement of the trial being imminent, the appellant was visited in Aberystwyth on Friday 6th May 2004 by DC Lyndon Smith, who warned him that he would be needed at Swansea Crown Court on Tuesday 10th May. This information was imparted to him with the assistance of an interpreter, Alice Cheung, who translated to the appellant by means of a mobile telephone. Neither she nor the police officer was in any doubt that the appellant understood the requirement to attend. 5. Having heard evidence from them, from an immigration officer and from the appellant, the judge found that within 48 hours - that is on or before Sunday 8th May - the appellant left his address in Aberystwyth without, as he was obliged, informing the Immigration Service and travelled to London. There he remained until arrested on 4th August 2004 under a bench warrant issued by the judge on 25th May in circumstances which we shall describe in a moment. 6. No step had been taken to compel the appellant's appearance at court until 24th May 2004 when, at the prosecution's request, the court issued a witness summons. The summons was served that day at the appellant's last known address by posting it through the letter box at 19 Portland Road. The officer, however, saw that the property appeared to be unoccupied and so informed the court when an application for a warrant was made on 25th May. It follows from the judge's finding of fact that the summons did not come to the personal attention of the appellant. 7. The judge found at the contempt hearing on 5th August 2004 as follows, and we commence at page 39G of the transcript of the proceedings: "I do not accept and I specifically reject and I am satisfied so as to be sure that there was no question of Wang Yen Tung, the defendant, being under any misapprehension at all as to the necessity for his attendance at court either on the 10th May or at some subsequent date and his failure to attend on that or subsequent dates was a deliberate failure, that he for whatever reason ... quite deliberately absented himself and made sure that he did not attend court. Mr Francis Jones in his submissions says that on the 6th May there was no witness summons in existence and of course he is right about that. And if there was no witness summons in existence, there was no obligation upon the defendant to attend court under the terms of the original statement that was made and attached to the prosecution bundle because he was never notified that he was fully bound and, even if he was, that did not of itself create any obligation to attend court. In the face of those submissions it is suggested that it cannot now be said that he is in breach of any obligation to this court to attend. I do not accept that. Once a person is notified of the requirement to attend court, he having made a statement in terms that he understood at the time which were fully explained to him and translated to him, then that obligation remains and his deliberate intention to absent himself from the address at which he was required to reside demonstrated to me when the summons was issued that he had no intention of attending court. And even though that was issued some weeks after the 6th May, it was properly and lawfully deposited in the premises where he was required to reside where it should have come to his attention had he been lawfully in occupation as he was required to be. And he failed to answer to that summons. It seems to me, therefore, that the summons was properly issued. The warrant in consequence of the summons was properly issued and I am satisfied so as to be sure on the finding that he deliberately absented himself and was, for whatever reason, determined not to attend this court that he is responsible without just excuse for disobeying the requirement to attend before this court and I find the allegation against him - which is framed by me, these being contempt proceedings - proved in accordance with the burden, the criminal burden, and standard of proof." 8. Mr Francis Jones has renewed his submissions on behalf of the appellant to this court. Witness orders in committal proceedings were abolished by section 65 Criminal Procedure and Investigations Act 1996 . Schedules 1 and 2 of the Act apply to criminal investigations commenced after 1st April 1997. The principal effect of the change is that there is no obligation on a witness to attend court merely because his evidence is included in what is called the 'committal bundle'. The legal obligation to attend is triggered by a summons sought by the prosecution and issued by the Crown Court under section 2 Criminal Procedure (Attendance of Witnesses) Act 1965 , as substituted by the 1996 Act . Section 2 now reads: "(1) This section applies where the Crown Court is satisfied that- (a) a person is likely to be able to give evidence likely to be material evidence, or produce any document or thing likely to be material evidence, for the purpose of any criminal proceedings before the Crown Court, and (b) the person will not voluntarily attend as a witness or will not voluntarily produce the document or thing. (2) In such a case the Crown Court shall, subject to the following provisions of this section, issue a summons (a witness summons) directed to the person concerned and requiring him to- (a) attend before the Crown Court at the time and place stated in the summons, and (b) give the evidence or produce the document or thing." We need not for present purposes recite succeeding subsections, save to note that witness summonses should be applied for as soon as is reasonably practicable after committal or transfer. In the usual course it is unnecessary for the prosecution to apply for witness summonses because witnesses will usually agree to attend to give evidence on the date notified. It is however important to note that the court makes no order of which a witness can be in contempt unless and until it issues a witness summons on application under section 2 of the 1965 Act and Crown Court Rules, r.23. 9. A witness summons, it was accepted before the judge, is a document for the purposes of Crown Court Rules, r.28 which provides that: "Any notice or other document which is required by these Rules to be given to any person may be served personally on that person or sent to him by post at his usual or last known residence or place of business in England or Wales..." 10. The witness summons issued to the appellant was regularly served by posting through the letter box at 19 Portland Road on 24th May 2004. The application for a warrant under section 4 of the 1965 Act was regularly made and granted the following day. The judge dealt with the appellant's failure to attend under section 3 of the 1965 Act which in its relevant parts reads as follows: "(1) Any person who without just excuse disobeys a ... witness summons requiring him to attend before any court shall be guilty of contempt of that court and may be punished summarily by that court as if his contempt had been committed in the face of the court." The judge reached the conclusion that the appellant, despite understanding the need conveyed to him on 6th May to attend court on the 10th, deliberately left his address and made himself unavailable. Since the summons was regularly issued and served, and since the appellant failed to attend in answer to the summons, his conduct was deemed a contempt of court. The appellant, in view of the intention he evinced within 48 hours of DC Smith's visit on 6th May to go to ground, had no just excuse for his disobedience to the summons subsequently issued on 24th May. 11. In reaching this conclusion we consider that the judge fell into error. There was no obligation upon the appellant to attend arising from any order of the court until 24th May and it was common ground that at no time did the appellant have actual notice of the summons issued on that day. In those circumstances it seems to us it was not open to the judge to find that the appellant was in contempt of court. We have no doubt that the judge was right to conclude that the appellant deliberately evaded a responsibility which he knew he should meet, but the mere failure to oblige the prosecution is not a contempt of court. Only disobedience by the appellant to an order of the court of which he had notice would in our view have been sufficient. 12. Had there been evidence, however, that the appellant was warned on 6th May that the prosecution would obtain a witness summons and had the appellant in that knowledge gone to ground for the purpose of evading service of a witness summons which he knew was coming, the judge's conclusion that there was a contempt under section 3 or, we add, at common law, may have been sustainable. We do not reach a concluded view since the subject has not been fully argued before us. 13. Authority has however been drawn to our attention. In particular a decision of this court in R v Robert Abbott [2004] EWCA Crim. 91 of which we have helpfully been provided with a transcript. The problem which faced the court on that occasion, a court over which my Lord, Pill LJ, presided, was not identical to that which faces the court in the present appeal. However, in delivering the judgment of the court, Gray J at paragraph 13 described the arguments advanced on behalf of the prosecution as follows: "Firstly, he points out that the learned judge had concluded that, although he had been contacted by an intermediary and informed of his obligation to attend court on 22nd August 2003, the appellant had deliberately by his actions made himself unavailable for service of the summons and that in fact the summons was never served. The contention advanced by [counsel] is that as the summons was not served section 3(1) of the Act had no application and the learned judge was entitled to proceed under the common law. The alternative submission advanced by [counsel] is that if the summons is deemed to have been served by reason of its communication, and as a consequence the appellant commits a statutory contempt, then section 3 of the 1965 Act does not exclude the operation of the common law contempt at least in those cases where a defendant's conduct is contumelious." At paragraph 14: "We are unable to accept either of those submissions. Leaving aside for the moment the question of service of the summons, it does appear to us to be clear that, whilst prior to the enactment of the 1965 Act the failure of a witness to attend court was punishable as a contempt at common law, the effect of the enactment of section 3 was to convert what was previously a common law contempt into a statutory contempt. That being so, we cannot accept that there exists a parallel jurisdiction, namely, contempt at common law, in circumstances where section 3 applies." 14. The court proceeded to find in Abbott that the summons having been issued it was regularly brought to the attention of the witness for the purposes of section 3(1) of the 1965 Act orally and, accordingly, a contempt had been committed under the statutory provisions. We do not understand the court in Abbott to have said any more than this, namely that where the circumstances covered by section 3 of the 1965 Act exist, then the procedure in which the court is engaged in finding a contempt is that provided by section 3 . It does not seem to us that the court was intending to convey that the only contempt which may exist in consequence of the behaviour of the witness who evades an obligation to attend is that provided by section 3 . Nevertheless, we repeat that not having received full argument it has been unnecessary for us to consider the application of the common law to the facts of the particular appeal before us. As it is, there was no evidence before the learned judge that the appellant with knowledge that a court order would be issued then went to ground to avoid its service. 15. Accordingly, and with regret, we conclude that the finding of contempt was not open to the learned judge and must be quashed.

```yaml citation: '[2005] EWCA Crim 476' date: '2005-02-18' judges: - LORD JUSTICE PILL - MR JUSTICE CURTIS - MR JUSTICE PITCHFORD ```

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 597 Crim Case No: 2017/04931/B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LEICESTER CROWN COURT HIS HONOUR JUDGE DEAN QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/04/2019 Before : LORD JUSTICE GROSS MRS JUSTICE LAING DBE and MRS JUSTICE CHEEMA-GRUBB DBE - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - Ezekiel Braithwaite Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Matthew Jewell QC (instructed by Fosse Law ) for the Appellant Gareth Patterson QC (instructed by CPS Appeals Unit ) for the Respondent Hearing date : 17 January 2019 - - - - - - - - - - - - - - - - - - - - - Approved Judgment LORD JUSTICE GROSS : INTRODUCTION 1. On 17 October 2017, in the Crown Court at Leicester, before HHJ Dean QC, the Appellant, now aged 21, was convicted of murder. 2. On 27 October 2017, the Appellant was sentenced by HHJ Dean QC to Imprisonment for Life; a period of 21 years, less 213 days on remand was specified as the minimum term under s.269(2), Criminal Justice Act 2003 . 3. The Appellant was acquitted of attempting to unlawfully and maliciously wound Muzzammil Deen with intent to do him grievous bodily harm, contrary to s.1(1), Criminal Attempts Act 1981 . 4. The Appellant appealed against conviction by leave of the Single Judge. 5. Two grounds of appeal were advanced on the Appellant’s behalf: i) The Judge did not leave a version of unlawful act manslaughter for the consideration of the jury (“Issue I: Manslaughter”); ii) The Judge failed to inform counsel of a message received from a juror and thus deprived the defence of the opportunity of addressing him about it, and thereafter enquiring into the message and applying for the discharge of the jury (“Issue II: The Jury message”). 6. At the conclusion of the hearing, we indicated that the appeal would be dismissed and that our Reasons would be given later. These are our Reasons. THE FACTS AND THE CASES AT TRIAL 7. In short summary, on the evening of 25 March 2017, the Appellant attended a party in Leicester. The deceased, Pedro Godhino, attended the party with his friend Mr Deen. The Appellant and Mr Godhino recognised each other and spoke on at least two occasions. At the time, there was no apparent hostility between them. Mr Godhino and Mr Deen left the party in a taxi, with sisters Jade and Terry Bunsie. The taxi took them to Terry Bunsie’s address in Canonsleigh Road, Leicester, collecting food on the way. When they arrived at the address, shortly after 06.00, the Appellant was outside. The Appellant approached Mr Godhino while the latter was still in the taxi and asked him about a suggested inappropriate conversation between Mr Godhino and the Appellant’s 15-year old sister at the party. Mr Godhino and the others got out of the taxi. Mr Godhino denied any such conversation with the Appellant’s sister. The Appellant took out a knife and made contact with Mr Godhino, who received a fatal stab wound to the chest, penetrating his heart. Mr Deen’s jacket was sliced at shoulder level. The Appellant made off in a car. An ambulance was called and Mr Godhino was taken to hospital. He was pronounced dead at 07.18. The Appellant was apprehended the next day at a hotel with his ex-girlfriend. The events in Canonsleigh Road, from the taxi’s arrival until the ambulance was called, occurred over a period of about 5 minutes. 8. The Prosecution case was that the Appellant had stabbed Mr Godhino to the chest in anger, intending at the very least really serious harm. 9. In his first Defence case statement, the Appellant denied presence at the scene. Before the trial, however, the Appellant resiled from that position. 10. At trial, the Defence case was that the Appellant had taken out his knife to ward off the deceased. He was in fear of being stabbed by the deceased and so used his knife to fend him off in self-defence. He had no intention of causing any harm. 11. There was no dispute that the Appellant was responsible for the death of the deceased. The issue for the jury was whether they were sure that the killing was unlawful and that the Appellant intended to kill or cause the deceased really serious bodily harm. THE EVIDENCE 12. It is next convenient to outline, briefly, some of the evidence adduced at the trial and relevant to this appeal, beginning with the Prosecution evidence. 13. The pathologist expressed the view that the fatal stab wound required at least moderate force. There were no defensive injuries on the deceased’s body. 14. Jade Bunsie spoke of arriving at her sister’s address. The Appellant looked angry and was raising his voice. When they got out of the taxi, the Appellant was shouting at the deceased and Mr Deen, in connection with the conversation with his sister. According to Ms Bunsie, the deceased tried to calm the Appellant down and did not himself shout. According to her evidence, the Appellant kept shouting and pushing the deceased; the deceased stepped back, and the Appellant punched him in the chest. It sounded as if the deceased was winded. The deceased then started walking down the road. Immediately after what she had described as the “punch”, she saw the Appellant swing round and slash Mr Deen’s coat. Mr Deen had been standing behind the Appellant. This was the first time she saw a knife; it was in the Appellant’s hand – the same hand he had used to “punch” the deceased. She told her sister (Terry Bunsie) that she thought the deceased had been stabbed. 15. Terry Bunsie described seeing the Appellant as soon as the taxi stopped outside her address. The Appellant was near the deceased’s door. The deceased paid for the taxi and then got out. The Appellant said, “what did you say to my sister?” The deceased looked shocked; the Appellant angry. The deceased denied any inappropriate conversation and tried, unsuccessfully, to calm the Appellant down. The Appellant continued to be aggressive. She thought that Mr Deen was also trying to calm things down. She went inside her flat and came out when her sister came running in to tell her what she had seen. 16. Mr Deen said that everyone was happy in the taxi. He too described the Appellant being angry with the deceased, when the taxi arrived at Ms (Terry) Bunsie’s address – and the deceased trying to calm the Appellant. Mr Deen spoke of coming around the front of the car, seeing the Appellant pull out a knife and stabbing the deceased in the chest. The Appellant seemed angry and calm at the same time. The deceased had been standing with his arms open and down. He thought a fight was going to start, so when he saw the Appellant stab the deceased, he stepped forwards to split them up. At that point, the Appellant slashed downwards towards his shoulder, cutting his jacket. He ran across the road and the Appellant said, “Keep running, keep running, you pussy”. The Appellant then ran to a car and drove off. He ran to the deceased who was lying face down on the footpath. He turned him over; the deceased’s eyes were already closed. Cross-examined, he said that he did not see the deceased put his hand to his waist as if to get a knife or see him step towards the Appellant. 17. The Appellant gave evidence in his own defence. He had spoken to the deceased at the party; it was a friendly conversation and there had been no hostility. He was then told about the allegedly inappropriate conversation between the deceased and his sister. He felt “slightly angry”, as he loved his sisters. 18. He left the party to deliver cannabis somewhere but took the opportunity to see if he could find the deceased. He just wanted to speak to him. He did so when he saw the taxi pull up outside Terry Bunsie’s address. The Bunsie sisters went indoors. He asked the deceased what he had said to his (the Appellant’s) sister; he was not angry or aggressive. The deceased responded, saying “What the fuck are you on about?”. Voices became raised; he wanted the deceased to come back to the party to apologise. An argument followed. 19. He had been carrying a knife – for his own protection as he had previously been robbed of his cannabis at knife point. He believed that the deceased was a drug dealer who would carry a knife. The deceased approached him and put his hand to his waistband as if reaching for something. He feared and believed the deceased had a knife. He pulled out his own knife to keep the deceased away from him by fending him off. He denied striking out, poking or punching with his knife. The deceased was moving towards him and he felt contact was made. He did not intend contact; he did not intend to hurt or kill. He did not think the deceased had been injured. The deceased pulled away and went down the street. Mr Deen came towards him with his hands raised. He thought Mr Deen was going to “slash” him, so he “slashed” to keep him away. He did not intend to hurt him. Thereafter, he ran and did not shout out. He threw the knife into a river after he heard that the deceased had died; he also threw the clothes he had been wearing into a bin. ISSUE I: MANSLAUGHTER 20. (A) The debate at trial and the direction given: Leading counsel then appearing for the Appellant submitted that, although not the Defence case, on the facts it was open to the jury to find the Appellant guilty of involuntary manslaughter. The Appellant’s evidence was that he had no intention to injure when he drew out the knife and used it to fend off the deceased. If the jury accepted that evidence, the Appellant might still be convicted on the basis that the Appellant had committed an unlawful and dangerous act, which all sober and reasonable people would inevitably realise must subject the victim to at least the risk of some harm. The unlawful and dangerous act in question was the carrying and taking out of the knife. 21. The question of a manslaughter direction was debated at some length between counsel and the Judge, including by way of an extended email exchange over the weekend. This says much for the diligence of all concerned, even if (perhaps) less than ideal for re-tracing subsequently precisely how matters developed. With hindsight, and with respect, it would have been helpful at the conclusion of the email exchanges for the Judge to have produced a ruling – however brief – in a single place, pulling the threads together. In the event, nothing turns on that and it suffices to focus on the direction actually given. 22. The Judge made it clear to the jury that there was no dispute as to the Appellant having killed Mr Godhino. There were, however, very different accounts of how the Appellant came to be responsible for Mr Godhino’s death. The Judge began by outlining the Prosecution case of deliberate stabbing, before continuing as follows (Transcript, I(a), at pp. 5-6): “On the other hand, Braithwaite says that he was not aggressive in confronting Godhino, rather Godhino’s response was aggressive and that Godhino moved and Deen was positioned in ways that led Braithwaite who says he believed both Godhino and Deen carried knives to think he was about to be attacked. Braithwaite says that he produced the knife to defend himself. Braithwaite’s own evidence about what happened immediately after he produced the knife was, you might agree and it is a matter for you, not easy to follow. He said that he was aware of some contact with Godhino who he claimed had been moving towards him but he said he was not aware that Godhino was stabbed or hurt at all. Essentially, though, Braithwaite was accepting that it was him producing the knife that led to and caused Gohino’s death. He says he produced the knife only in self-defence, only to ward off and intended no harm to be caused. Well, was the killing unlawful? A killing is not unlawful and cannot be murder if it was or may have been as a result of an accident or if it was or may have been a killing in self-defence. In this case it is not suggested that the stabbing was accidental but you must decide whether it was or…may have been a killing in self-defence…..” 23. The Judge then dealt in an orthodox manner with the defence of self-defence. He recorded the Prosecution case that this was a deliberate attack which had nothing at all to do with self-defence. Aside from the witness evidence, the Appellant had realised that his initial reaction to the charges – silence and then the assertion that he was not present at all – would not wash. The Prosecution submitted that the Appellant had fabricated a lie, namely, that he thought he was about to be attacked. The Judge went on to summarise the Appellant’s case on self-defence, before saying this (Transcript, I(a), at pp. 7-8): “If you are sure this was a deliberate stabbing not in selfdefence then before you could say that Mr Braithwaite was guilty of murder you would also have to be sure that when he stabbed Godhino he intended to kill him or at least to cause him really serious injury. Again, you may agree but it is a matter for you with what was suggested during the trial, that deliberately to stab someone in the chest must involve an intention to kill or at least to cause really serious injury. If Braithwaite, though, did not or may not have intended to kill or cause really serious injury then your verdict will be not guilty of murder. If you are sure he was not acting in lawful self-defence and sure he intended to kill or sure he intended to cause really serious harm your verdict would be guilty of murder. What if you conclude that when he stabbed, if that is what you do conclude, he did not intend to kill or to cause really serious injury but intended to cause some harm, harm falling short of grievous bodily harm? If that was your conclusion then your verdict would be not guilty of murder but guilty of manslaughter.” 24. It will be apparent that a case of manslaughter was left to the jury – but not in the form for which the Defence had contended. 25. (B) The rival cases on the appeal: For the Appellant , Mr Jewell QC (who did not appear at trial) submitted that the fundamental issue was whether the jury were sure that the Appellant had deliberately stabbed the deceased. Only if the answer to that question was “yes” would issues such as self-defence and/or lack of intent arise. 26. What had, however, been omitted was the possibility of unlawful act manslaughter on a different footing. This possibility could arise from a reasonable view of the facts and, though improbable, was not impossible. 27. If the Appellant’s evidence was accepted by the jury as wholly true, then he would have been entitled to be acquitted of both murder and manslaughter. 28. The need to leave unlawful act manslaughter to the jury in the form for which the Defence contended arose from the possibility of the jury accepting part but not all the Appellant’s evidence. Thus: “…the jury may have been sure….that the appellant did not honestly believe he was about to be attacked. If they rejected that part of his account, but concluded that his account of his physical actions was, or may have been, true, then a conviction for unlawful act manslaughter would have been available to them.” The unlawful act in question was the production and holding of the knife, in the context of a fast-moving incident – where, on the Appellant’s account, the deceased was moving towards him. 29. As became clear in argument, this version of manslaughter entailed, first, the jury being sure that the Appellant was not acting in self-defence and was brandishing the knife unlawfully. Secondly, the jury (on this hypothesis) would not have been sure that the Appellant had deliberately stabbed the deceased. Thirdly and accordingly, the jury needed to accept that the deceased impaled or may have impaled himself on the knife, so sustaining the fatal injury. 30. It was to be noted that, at trial, Prosecution counsel (then appearing) had himself contemplated a direction in similar form. 31. The Appellant submitted that the Judge had fallen into error in failing to leave this version of manslaughter to the jury. If so, it was difficult to say that the conviction was safe. 32. For the Crown , Mr Patterson QC (who also had not appeared at the trial), submitted that the Judge had been correct not to leave the form of manslaughter for which the Defence contended to the jury. The actual facts of the case did not permit such theoretical findings. The real issue, to which the witness evidence had gone, was whether the jury was sure that the Appellant had deliberately stabbed the deceased. The jury’s rejection of self-defence must have involved their being sure that the Appellant had deliberately stabbed the deceased, as submitted by the Prosecution. It was to be underlined that the real focus on self-defence in the present case had gone to the first limb; the Prosecution case had not been that the Appellant’s actions had “gone over the top”. As Mr Patterson expressed it: “…it would have been unrealistic to suggest that if they [the jury] were sure that the appellant did not act in self-defence when he caused the knife injury to the deceased, they could nonetheless be sure that when he caused the knife injury he was merely showing the knife to the advancing deceased in the way he described in his evidence. By rejecting self-defence the jury was rejecting the appellant’s account as to how the injury was caused.” The Judge’s decision was no less correct because some Judges might have left this version of manslaughter to the jury. A “compromise” verdict, comprising a different form of manslaughter had been left to the jury (as summarised above); the version left was not fanciful and the jury was thus not confined to a stark “all or nothing” choice. In any event, the conviction remained safe. 33. (C) The legal framework: The statutory framework governing an alternative verdict of manslaughter in the case of a person tried for murder, is contained in s.6(2) of the Criminal Law Act 1967 , which provides as follows: “On an indictment for murder a person found not guilty of murder may be found guilty – (a) of manslaughter…..” 34. The relevant principles, as to leaving the lesser alternative verdict of manslaughter to the jury when a defendant faces the more serious charge of murder on the indictment, were summarised by Gross LJ in R v Barre [2016] EWCA Crim 216 ; [2016] Crim LR 768, at [22], distilled from R v Coutts [2006] UKHL 39 ; [2006] 1 WLR 2154 , R v Foster [2007] EWCA Crim 2869 ; [2008] 1 WLR 1615 and the discussion in Archbold (now found in the 2019 edition at paras. 4-533 and 7-99): “1. The public interest in the administration of justice will be best served by a judge leaving to the jury any obvious alternative offence to the offence charged. The tactical wishes of trial counsel on either side are immaterial. As observed by Lord Bingham in Coutts at [23]: ‘A defendant may, quite reasonably from his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency.’ 2. Not every alternative verdict must be left to the jury. Plainly there is no such requirement if it would be unfair to the defendant to do so. Likewise, there is a ‘proportionality consideration’: Foster at [61]. The alternative need not be left where it would be trivial, insubstantial or where any possible compromise verdict could not reflect the real issues in the case ( ibid ). The requirement to leave an alternative verdict arises where it is ‘obviously’ raised by the evidence, it is one to which ‘a jury could reasonably come’ or, put another way, ‘where it arises as a viable issue on a reasonable view of the evidence’: Foster at [54]; Coutts at [85]. 3. Subject to the above framework, whether in any individual case an alternative verdict must be left to the jury is necessarily fact specific. In this context, the trial judge will have ‘the feel of the case’ which this court lacks: Foster at [61]. 4. Where an alternative verdict is erroneously not left to the jury, on an appeal to this court the question remains as to whether the safety of the conviction is undermined: Foster ( loc cit ).” 35. (D) Discussion: Applying those principles, we are not persuaded that the Judge was in error in not leaving to the jury the alternative version of manslaughter contended for by the Defence. Our reasons follow. 36. First, it strikes us as remote from the real issue/s at trial, going to the stark dispute between the Prosecution case, that the Appellant deliberately stabbed the deceased (with whatever intent of which the jury were sure) and the Defence case that the Appellant was or may have been acting in self-defence. 37. Secondly, on the evidence, we struggle to see that there was room for this alternative. As already foreshadowed, this alternative entailed the jury rejecting both self-defence and the Appellant deliberately stabbing the deceased. It required the jury accepting that the deceased impaled or may have impaled himself on the knife brandished by the Appellant, sustaining the fatal injury in that manner. Additionally, the Appellant must have done enough with the knife (as accident was disclaimed) but not sufficient to amount to a deliberate stabbing. Articulating the constituent elements of this finely tuned alternative is itself not at all straightforward. It emphatically does not arise obviously from the evidence. It is, in our judgment, both artificial and wholly unreal to see it as a viable alternative on a reasonable view of the evidence, and one to which a jury could reasonably have come. 38. Thirdly, for completeness, we are not at all dissuaded from our view by the fact that both trial counsel professed attraction for some such direction in respect of the further alternative. With respect, we prefer the Judge’s “feel” for the case to those submissions of counsel then appearing. 39. Fourthly and as set out above, a version of manslaughter was left to the jury, relating to the Appellant’s intent when stabbing the deceased. We agree with Mr Patterson that this alternative was not fanciful – and entertain little doubt that, had it not been left to the jury, complaint would have been made on the part of the Defence as to its omission. Furthermore, the lesser alternative that was left to the jury went a long way towards catering for the danger highlighted in Coutts , remarked upon in Foster (at [60]) and neatly summarised by Professor Hungerford-Welch in his Commentary on Barre ([2016] Crim LR, at 770) : “The real tension in such cases [i.e., where no lesser alternative is left to the jury] arises from the possibility that the jury will decide that the defendant is not guilty of the offence on the indictment, but is guilty of ‘something’. This in turn raises the risk that either the jury will convict him of the more serious offence to ensure he does not escape punishment altogether (which would clearly be unfair on the defendant), or else acquit him even though they….are sure that he is guilty of some criminality (thus leaving criminality unpunished).” 40. Fifthly, the mere fact that some Judges might have given a direction extending to the alternative version of manslaughter postulated by the Defence, seems to us neither here nor there. Error on the part of this Judge in this trial has not been shown. It follows that it is unnecessary to consider whether, had the Judge been in error, the conviction would have remained safe. 41. For the reasons given, we dismissed this Ground of Appeal. ISSUE II: THE JURY MESSAGE 42. (A) Introduction: At the end of day one of the Judge’s summing up (which extended into a second day), the Judge received a message, through his usher, from a member of the jury. It appears that the juror had asked (possibly on behalf of other members of the jury as well) whether, after verdicts had been returned, they would be able to leave the building by a separate exit so that they did not encounter people who had been in the public gallery during the trial. 43. The Judge regarded this as a jury management issue that he was not required to notify to counsel and the parties at that stage. The Judge’s response to the jury as a whole was as follows: “Whatever verdicts you reach in this case, reaching verdicts and then announcing verdicts will end your jury service. Should you then wish to leave the building by a private exit so that you do not in doing so encounter any member of the public then arrangements will be made for just that.” 44. In consequence, it would seem, of receiving the message from the jury (see below), the Judge included the following direction in the summing up: “…..you must approach your deliberations with open minds, and you must reach your verdicts based upon considering all the evidence that you have heard, and the directions of law that I have given you.” 45. After the jury had returned their verdicts, the Judge informed counsel in open Court that he had received the message and how he had dealt with it. He had not required the message to be reduced to a contemporaneous note. 46. After the conclusion of the trial, the Judge circulated a note (“the Note”) to counsel in the following terms: “On 16 October after I had risen for the day (now halfway through summing up) and after the jury had departed, I was informed by my usher…that a juror had asked (possibly on behalf of more than just himself) whether after verdicts had been returned they would be able to leave the building by a separate exit so that they did not encounter people who had been in the public gallery during the trial. I regard this as a jury management issue and an issue that does not require to be notified to the parties at the moment. If it were communicated the information would be passed to Braithwaite’s family (some of whom have been in the public gallery during the trial) with possible consequences in relation to their behaviour in court and after verdicts. I intend to send a message to the whole jury tomorrow saying: ‘Whatever verdicts you reach in this case, reaching verdicts and then announcing verdicts will end your jury service. Should you then wish to leave the building by a private exit so that you do not in doing so encounter any member of the public then arrangements will be made for you to do just that that.’ After verdicts and after the jury have departed I will notify counsel of the steps I have taken. In view of what has occurred I intend to direct the jury that when they retire and begin their deliberations they must have open minds about what their verdicts will eventually be and must decide the case based on the evidence they have heard and the directions of law I have given.” 47. (B) The rival cases on the appeal: For the Appellant , Mr Jewell submitted that the Judge should have notified counsel of the communication from the juror at the time. The failure to do so constituted an irregularity. In the event, there had been private communications between Judge and jury in relation to matters expressed which might have affected the relevant juror’s (or jurors’) view of the case. The message should have been reduced to writing so that consideration could have been given to its true interpretation and the reason it had been sent. Potentially, this was a case of a jury irregularity, now dealt with by the Criminal Practice Directions 2015 (as amended) , at VI, 26M. An enquiry might have been appropriate and, depending on its outcome, some steps may have been necessary in relation to one or more members of the jury, including (possibly) the discharge of the jury. The course followed by the Judge prevented any of these further actions being taken and raised concerns as to the safety of the conviction. 48. For the Crown , Mr Patterson submitted that the Judge had been entitled not to notify counsel of the message from the jury. The message meant no more than it said and did not disclose any jury irregularity. In any event, no further enquiry had been called for. Further and in any event, there was nothing whatever to cast doubt on the safety of the Appellant’s conviction. The jury’s mixed verdicts of themselves disclosed the care and fairness of the approach they had taken. 49. (C) Discussion: In our view and with great respect, the Judge’s failure to notify counsel of the message from the jury and his response to the jury – it would seem via the court staff and jury bailiff – gave rise to a material irregularity. The private communications between Judge and jury, however unintentionally, offended against the principle of open justice. 50. The background is itself at least a little curious. On the material before us, there is no suggestion of any prior poor behaviour from those in the public gallery. Nonetheless, we are prepared to assume that there was concern on the part of one or more jurors, looking ahead to the stage when verdicts would have been given, as to how they would leave the Court building. 51. As it seems to us, on receipt of the message the Judge ought to have asked for the message to be reduced to writing. In that way, there would have been a clear record and any doubts or ambiguities could more readily have been explored. For instance, it would have paved the way for rapidly flushing out the nature of any concerns, if concerns there were, underlying the message. Moreover, we do not think that the course to be followed by the Judge is answered by labels; even if the matter was one of “jury management”, that does not necessarily determine the appropriate way of dealing with it. The Appellant indeed submits that it was inconsistent for the Judge to categorise the exchange with the jury as one of (“mere”) “jury management” and yet add a direction to his summing up and circulate the Note after the event. There is a degree of logical force in this submission, but it should not be pressed too far; both the additional direction and the subsequent communication with counsel could be seen as prudent precautionary measures. That said, the mere fact of the Judge’s concern to take those measures should perhaps have rung a warning bell as to the desirability of notifying counsel at the time. 52. In R v Ball (Linda Sheila) [2018] EWCA Crim 2896 , the trial had been beset by bad weather. There came a point when the jury sent a note to the Judge asking about majority verdicts. Without informing counsel, the Judge told the jury to carry on. The decision of this Court was that there had been a material irregularity. That case was a far stronger case than the present; the jury question there plainly went to a matter central to the trial. Nonetheless, the Court’s consideration of the underlying principle of open justice has resonance for this case. Giving the judgment of the Court, Holroyde LJ said this: “19. ….save in the limited situation of an uncontroversial communication raising something unconnected with the trial, it will in almost every case be necessary for the judge to recall the jury if they have asked a question and to answer their question in open court. 20. ….We have no doubt that Miss Wright [counsel for the Crown] was correct to make her concession that a material irregularity occurred. The answer to the jury’s question, namely that they must for the time being continue to try to reach a unanimous verdict, was in itself uncontroversial and we accept that the judge wished to avoid interrupting the jury’s deliberations by bringing them back into court to receive that direction. Nonetheless, with all respect to the judge, it was not proper for her to cause her direction to be communicated in the jury room by the jury bailiff. Such a method of communication offends against the important principle of open justice. It gives rise to the obvious risk that in response to the bailiff’s statement the jury might be tempted to ask a supplementary question. There is the further obvious objection that there would be no recording of precisely what is said in the jury room. For at least those reasons, the jury bailiff, however experienced and however punctilious, should not have been used in that way. 21. Moreover, in the circumstances of this case the following of the correct procedure would have provided an important opportunity for counsel, if they wished to do so, to make submissions to the judge as to whether she should not merely direct the jury as to the need for their verdict to be unanimous, but should also reiterate her earlier direction that the jury must not feel under any pressure of time, whether by reason of the adverse weather or for any other reason.” It may be noted that the Court dismissed the appeal as the material irregularity had not cast doubt on the safety of the conviction. 53. In the present case, we understand the Judge’s wish not to alert the Appellant’s family – but, without being in any way prescriptive, ways could have been found to notify counsel without alerting the public gallery, for example, see CPD IV Trial 26M.12 54. In summary and fortified by the observations in Ball, we are clearly of the view that, having received a message from the jury and having had it reduced to writing, the Judge should have notified counsel – who would then have had the opportunity to advance such submissions as they thought appropriate to the Judge. If need be, the jury could have been asked whether there was any matter that they wished to raise with the Judge. That must have been the prudent course and the course consistent with open justice. The failure to do so amounted to a material irregularity. 55. We turn to consider the impact of this material irregularity on the safety of the conviction. In our judgment, the appearance of the matter was more troubling than the underlying reality and we are wholly unable to conclude that it had any impact on the safety of the conviction. 56. First, the terms of the message related to a concern as to exiting the building after verdicts had been reached. We are satisfied that that is the obvious explanation for the message; that is what the message said and there is no reason to suppose that the sender/s did not mean what was said. A concern of such a nature does not begin to disclose any jury irregularity. In that regard there is nothing from which we can tell or surmise that the jury knew whose family members or friends had been attending the trial – even though we have been told that it was the Appellant’s rather than the deceased’s family who had been in the public gallery. 57. Secondly, while a discussion with counsel would have given the opportunity to clear the air and, if need be, permit some very straightforward inquiry of the juror/s or jury as to the reason for the message, including whether anything was troubling them which they wished to raise with the Judge, it is wholly speculative to suppose that underlying the message was some matter affecting the ability of a juror or jurors to remain faithful to his or their oaths. The Appellant’s case on this Ground requires altogether too great a leap – and a speculative leap at that. On any view, there is nothing at all to suggest that, realistically, the discharge of the jury would have arisen for consideration, still less have been required. 58. Thirdly, there is no reason to suppose that the jury did not follow the directions they were given. When initially sworn in, the Judge gave the now standard direction to the jury as to making him aware of any concerns that might arise during the course of the trial. Insofar as they did so through the message, the concern, as already explained, went to departure from the building. The direction given to the jury at the outset, as to deciding the case fairly and in accordance with the evidence, was thereafter reinforced by the Judge’s additional direction in the summing up - given, out of an abundance of caution, after receipt of the message. That direction reminded the jury of the need to approach their decision with open minds, in accordance with the evidence and the directions of law the Judge had given. No reason has been shown to suppose, let alone demonstrate, that the jury did not do so. 59. Fourthly, as already recorded, the Appellant was acquitted of the attempted wounding of Mr Deen with the intent to do him grievous bodily harm. That verdict of itself supports the conclusion that the jury approached their task with fairness and care. 60. For the reasons given, we dismissed the appeal on this Ground as well and, hence, dismissed the appeal as a whole.

```yaml citation: '[2019] EWCA Crim 597' date: '2019-04-09' judges: - HIS HONOUR JUDGE DEAN QC - LORD JUSTICE GROSS - MRS JUSTICE LAING DBE - MRS JUSTICE CHEEMA ```

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 1816 No: 2007/3638/D2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 25 July 2008 B e f o r e : LORD JUSTICE HUGHES MR JUSTICE BODEY HIS HONOUR JUDGE PERT QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v PAUL MARSH - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Miss R Trowler appeared on behalf of the Appellant Mr Q Hawkins appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE HUGHES: The appellant Marsh was convicted on 11th June 2007 of conspiracy to supply cocaine. The trial had taken something like five or six weeks. Three distinct grounds of appeal have been raised before us by economically framed and extremely helpful submissions on his behalf by Miss Trowler. The first relates to the judge's refusal to admit hearsay evidence on behalf of Marsh relating to an alleged statement made in prison by a man called Rosier. The second relates to a failure of disclosure by the Crown affecting the same man, Rosier. The third ground complains of a comment made by counsel for the Crown in his closing speech upon the absence from the witness box of Marsh's wife. 2. The Crown case was that a man called Thame, closely assisted by Marsh, had arranged the importation and sale of 50 kilograms of cocaine for onward transmission through a purchaser called Arber to unnamed subsequent purchasers. The cocaine was brought into the country from the continent in a lorry by a long distance lorry driver called Coleman. A handover was arranged at about 6 o'clock in the morning in a layby in Colnbrook on 3rd August 2006. The handover was from the lorry driver Coleman to Arber's man called Swanson. In the meantime Marsh had enlisted his brother-in-law, Church, to drive him about. Significantly Marsh did not involve himself in the handover; he was to be found shepherding the goods and supervising from a safe distance away in his car, having passed the point of the handover some four times. Similarly the purchaser (Arber) was not directly concerned in the handover; he too was lurking nearby in his car. 3. There was a good deal of telephone analysis in the case, as well as surveillance evidence. The telephone analysis showed a good deal of contact between Marsh and Thame, between Marsh and Arber, although none directly between Thame and Arber. There was also much contact between Thame and Coleman, the driver. Lastly, in the days before the delivery Marsh had made telephone calls to the continent and in the immediate run up to the handover Marsh had been in contact with Coleman. The surveillance evidence included a sighting of Thame handing to Coleman a package, appropriately sized for money, shortly before Coleman left for the continent. 4. On his arrest Thame was apprehended doing his best to destroy various papers which demonstrated his connection with Coleman, his knowledge of Coleman's movements on the continent and his connection with Marsh. On his arrest Marsh had handwritten notes describing Coleman's lorry and giving his telephone number and directions to the point of handover. 5. Church was in a different category to the other defendants. He was a man with significant learning difficulties and it was perfectly clear that any role that he had had was peripheral, having been brought in very late on simply to drive Marsh around on the day in question. Other than that defendant, none of the defendants elected to say anything at all when interviewed by the police. 6. However, faced with the evidence that there was, by the time of the trial Marsh's defence was this. He admitted all the incontrovertible evidence, he admitted that he was taking part in a drug transaction of substance, but he asserted that he believed the drug to be cannabis. If that was or might be true it afforded him a defence to the charge as framed, which was of conspiracy to supply cocaine, even though it would not have been a defence to a differently framed charge of possession with intent to supply, had the Crown elected to maintain such a count, which it did not. 7. Marsh did not suggest that any of his co-defendant conspirators had given him the impression that he was dealing with cannabis. For that he blamed the man called Rosier. Rosier was somebody he knew quite well. His family home was closely neighbouring to that of Marsh's. Rosier was by the time this contention was advanced by Marsh in custody awaiting trial on a charge of murder which, to anticipate for the sake of completeness, was subsequently proved against him. 8. Marsh's case was that it was Rosier who had got him to find a lorry driver, and to approach Thame for the purposes of doing that, and also Rosier who had persuaded him against his inclination to supervise the handover. So far as his telephone calls to the continent were concerned, Marsh explained those as relating to a quite independent trade of his in smuggling cigarettes and strong beer -- illegal but not class A drugs. Said Marsh, it was Rosier who had introduced him to Arber and that was the explanation for the telephone contact between Marsh and Arber. That then was Marsh's defence. 9. Thame admitted his connection with Coleman but he asserted that all that he had ever asked Coleman to do on this or any previous occasion was to bring in tobacco. He accepted that he had been seen giving money to Coleman, but said that had been payment for tobacco smuggling. If Coleman had brought in any cocaine, said Thame, he Thame had nothing to do with that. Thame in his evidence supported Marsh to this extent. He gave evidence that Marsh had asked him if he could find a suitable driver and that when he had done that Marsh had said to him that he needed a driver to bring in some cannabis for Gary Rosier. 10. Coleman (the driver) had earlier submitted a defence case statement in which he alleged coercion by Rosier. That however was not his evidence at trial and he accepted that what was there said was untrue. He partly aligned himself with Thame to the extent that he agreed that he had smuggled tobacco for Thame previously. So far as this transaction was concerned he said that he had been asked to carry it out by Marsh, but he had been told that it was going to be cannabis. He had it in mind to bring some tobacco as well but in the end there had not been room in the lorry so he brought the drugs. He supported Marsh because he said in his evidence that he had been told over on the continent when handed the package of drugs to bring back that here were "three bags for Gary" - that being of course a reference to Rosier. 11. Arber advanced a defence of duress. He contended that he had been compelled to take the part that he had by a group of other men. He did not assert that any of them were any of his co-defendants. It became clear that he too aligned himself with Marsh and the others because he suggested that the principal of these people was Rosier. He asserted that the man whom he knew as Clampit (who was Rosier) was the user of a particular telephone with a number ending 770. 12. The only remaining defendant was a man called Swanson who had been Arber's runner. He advanced a defence which did not affect Mr Rosier at all. He contended that he had been told by Arber that he was a courier of legitimate property. In his case this jury was unable to reach a verdict. 13. All the defendants who advanced the contention that Rosier was in one or other manner critical to their defence were convicted. 14. The position of Rosier was accordingly the subject of considerable debate and evidence at the trial. The Crown made substantial admissions about Rosier. He was a man in his mid-forties. He had convictions for violence, including a conviction for wounding with intent by shooting somebody else. He also had a conviction in this country for importing into the United Kingdom a large amount of cannabis and a small amount of cocaine. For that he had been sentenced to five years' imprisonment. Since then he had been convicted in Belgium of participation in the possession of drugs and he had been sent to prison there also. In addition to that, as we have already mentioned, he was currently awaiting trial on the charge of murder. 15. Marsh gave evidence that Rosier had since his arrest uttered threats directed at his (Marsh's) family. Marsh's wife had reported such a threat to the police. According to her it had been a threat to burn down the house with herself and the children in it if Marsh named Rosier at his trial. The Crown admitted that this report had been made to the police, although it contended that it was false and part of setting up what it contended was a bogus defence. It was certainly the case that if such a threat had been made it had not deterred Mr Marsh from making Rosier the central plank of his defence. 16. The telephone ending in 770 was one about which there was a good deal of evidence including from the defendant Arber. The Crown also had available the records of its use. By the time of the closing submissions and summing-up, the Crown's position was that its user might be Rosier, although the admission was not made, but that to the extent that he might be there was no indication that Rosier was on the supply side of this transaction but rather that he appeared to be on the purchase side. Whatever the position of the Crown may have been, the judge summed up the case to the jury largely chronologically on the basis of the sequence of telephone contacts. In doing so he treated the telephone 770 as attributable to Rosier. He was assisted in doing that by a schedule which had been prepared by Miss Trowler, no doubt a modification of the Crown's schedule, and which showed the interaction of the telephone attributable to Rosier with each of the various other relevant parties. There is no doubt that as left to the jury the telephone was treated by the judge as being Rosier's and its use plainly demonstrated that Rosier was in regular contact with people on both sides of this transaction. 17. With that background we come to the three grounds of appeal. The first relates to the question of hearsay. Marsh applied to have admitted the evidence of a convict called Bennett. Bennett had made a witness statement on the first day of the trial. In it he said he had been in prison in HMP Belmarsh at the same time as Rosier in September 2006, which would be about a month or two after the arrest of the defendants in the present transaction. Bennett said that he had known Rosier vaguely as an acquaintance for many years. He asserted that they confided in each other. Said Bennett, Rosier told him that he (Rosier) had a conscience about having set up a neighbour by giving him money to collect what he told him was cannabis, whereas in fact it was cocaine. According to Bennett he had asked for the name in case he knew the man. He was told "Paul Marsh" but it meant nothing to him. Then, said Bennett, two months or so after that Marsh arrived in Belmarsh. Bennett did not know Marsh at all. Nevertheless, the time came when Marsh, in telling Bennett why he was in prison, was overcome by distress and broke down. That, said Bennett, led him to ask his name and, said Bennett, when told he remembered the conversation with Rosier. 18. Bennett was a career criminal, largely small-time and largely a repetitive drug-related thief. He had however a sentence of either 10 or 12 years in 1991 for three offences of robbery and associated firearms offences, which was an entirely different proposition. In addition to that he had recently been convicted of murder, having chased and stabbed a man on the grounds that the man had had some kind of altercation with Bennett's girlfriend in the course of a drug deal. Accordingly Bennett was at all material times serving a life sentence in any event. 19. The application to admit Bennett's evidence was made under section 114(1)(d) of the Criminal Justice Act 2003 . In a reasoned judgment the judge refused to admit the evidence. The judge accepted that, for this purpose making the assumption that the statement of Rosier was true (see section 114(2)(a) ) it would in that event have plain probative value; indeed it would be central to the issue raised by Marsh's defence. The judge referred in passing to the absence of contemporaneity and to what seemed possibly to be the rather unusual circumstances of the impulsive Rosier confession which was alleged. However, the ground on which the judge declined to admit the evidence was the great difficulty in assessing it (see section 114(2)(h) and, accordingly (i)). The judge rightly directed his attention not to any difficulties in challenging Bennett, but to the difficulty in assessing the veracity of what Rosier was alleged to have said on the assumption that he was shown by Bennett to have said it. That is the right approach. There would have been no shortage of scope for challenge to Bennett and in any event the unsatisfactory nature of a witness who is to be called provides normally no grounds for refusing to admit his evidence. The special difficulties of hearsay relate to the difficulties of assessing the accuracy of the reported statement not of the reporter's statement. 20. The judge encapsulated his decision in the following succinct passage: "Looking at it in the round, a professional judge, sitting without a jury and without rules of evidence, would almost certainly have said, in his judgment in the case, that the evidence on its own would have been, or has been, of little, perhaps no probative value at all because he would have had no tool for proper evaluation of it. Given that appraisal, my role as a gate keeper under section 114 bids me to decline to admit this evidence. It is not in the interests of justice for such low grade material to be put before the jury but then only with the strongest health warning attached." The question for us is whether that was appealably wrong. This was an exercise of the judge's judgment. This court will interfere if he has arrived at it on the basis of wrong principle or has reached a conclusion outwith the available bracket to him and thus unreasonable in the Wednesbury sense; otherwise it should not. 21. For Marsh, Miss Trowler makes a number of specific targeted criticisms of parts of the judge's ruling. She submits first that he was wrong to advert to the circumstances of the asserted statement being unusual. That however was clearly a passing comment. Secondly, she asserts that he was wrong to refer to lack of contemporaneity. We agree that contemporaneity of Rosier's assertion to the events of which Rosier was speaking, if he did, was not in this case relevant in the sense that it might be relevant where a witness is speaking of events about which the memory may play one false. What Rosier spoke about, if indeed he did, would not be in that category. If he had lied to Marsh he would no doubt remember. There was some potential significance in the absence of contemporaneity, but only to this extent. A hearsay statement such as Rosier's made spontaneously, with no real opportunity for consideration or invention, would clearly carry more weight than one which may be made dishonestly with a view to assisting Marsh. It seems to us that that is what the judge will have had in mind given the manner in which he was concentrating on the assessment of Rosier's assertion. But this too was in the end a passing reference by the judge. 22. Thirdly, Miss Trowler says that the judge was wrong to make reference to Bennett having nothing to lose by perjury. Although the principal focus in a hearsay case needs to be the reliability of the assertion rather than that of the reporter, the reporter's reliability is a relevant factor. It is specifically referred to in section 114(2)(f) , no doubt because, as this case plainly illustrates, there may well arise a double possible unreliability. What Miss Trowler says is that in so far as Bennett's reliability fell to be considered under section 114(2)(f) , whilst he may have had nothing to fear from a prosecution for perjury, given the life sentence he was already serving, it does not follow that he had nothing to fear from Rosier if Rosier had a reputation for violence. That however, as it seems to us, is quite neutral. If Rosier might be vengeful that might be as great an inducement as any to remain silent whether his evidence was truthful or not. Moreover, there is simply a total absence of any material by which anybody can assess who had the greater influence over Bennett, Rosier or Marsh, or their various associates, particularly in the rather particular circumstances of a prison population. 23. Next, and importantly, Miss Trowler submits that the judge should have directed himself that what Rosier had said was likely to be true because it was a confession contrary to interest. She reminds us of what this court said in R v Y [2008] EWCA Crim 10 , at paragraph 58, namely. "Absent inducement, mental instability or perhaps an incentive to protect someone else, it can no doubt normally be said that a person is unlikely to it." However, this was a case in which the very issue was whether if Rosier had said what he had done he had said it because it was a confession contrary to interest or because, being himself in prison facing at least the real possibility of incarceration for life and not being prosecuted for the present offence, he wanted to help his neighbour and co-conspirator Marsh. On any view, Marsh had Rosier were co-conspirators in this transaction. This is not a case in which it can possibly be assumed that the assertion of Rosier which was in question was one made without motive to assist Marsh. That is the very question which would have arisen had the evidence been admitted. 24. We agree with the judge that there was enormous difficulty in evaluating the truthfulness of Rosier's statement if Bennett's evidence of its making should be accepted. We accept that the test applied to an application by a defendant defending himself on a serious charge may quite properly be less exacting than that which could be applied to an application made be the Crown. Quite often that may well be the case. But the interests of justice which are the governing feature of section 114(1)(d) are not wholly synonymous with the interests of the defendant. They mean the public interest in arriving at the right conclusion in the case, including of course the acquittal of anyone about whose guilt there is proper doubt. We are influenced in this case by the amount of other evidence available to Marsh of the involvement of Rosier. We have largely summarised it already: The evidence of himself, Coleman, Thame, Arber and of the schedule of telephone evidence as summed up by the judge. 25. Next, we draw attention to a feature which did not receive much attention in the court below, namely that nobody had made any attempt to call Rosier or even to see what his current stance was. Miss Trowler submits that it would have been pointless. She draws attention to the way such considerations were put in a passage in the Law Commission's Report No 245 of 1997 in relation to hearsay at paragraph 4.11: "It will normally be impossible for a defendant to adduce the oral evidence of a person who has confessed because that person could rely on the privilege against self-incrimination." That certainly would have been the position as at 1997. It is by no means clear that it is since the passage of the Criminal Justice Act 2003 . First, it is now open to a party to call a witness and to put to him his previous inconsistent statement, provided of course that the witness gives evidence which is inconsistent with it, and, by section 119 of the 2003 Act the previous inconsistent statement is some evidence of its truth. More significantly in this case nobody knows what Rosier's reaction might be. If it be the case that the confession was indeed induced by a sense of guilt, it is not necessarily the case that he would fail to substantiate it in evidence, particularly if he was facing imprisonment on a much more serious charge of which he has since been convicted at the time. We certainly accept that there was a very real possibility that what he might do would be to come to court and rely on his privilege against self-incrimination about which he would certainly have to be warned by the trial judge. But even that would enable the jury to see him and to take such a stance would not have been without assistance to Marsh. Under the new rules it seems to us that it will increasingly be the case, although every case must depend entirely on its special circumstances, that there ought to be pause before admitting hearsay evidence when the maker of a statement is available to be seen by the jury and at the very least his current stance in relation to the assertion which it is sought to prove can be discovered. As this court observed in O'Hare [2006] EWCA Crim. 512 , the purpose of section 114(1)(d) is not to set aside section 116. 26. It may be that some judges faced with this application would have decided on balance that the evidence could be admitted, but it seems to us that it is perfectly clear that the conclusion that it should not be admitted was well within the range of proper decisions. To admit it, at least without there being any attempt to call Rosier, would have presented the jury with a near impossible task in assessing the value of Rosier's assertion. It seems to us, some of whom have the experience ourselves of being the fact-finders on the basis of evidence without the assistance of a jury, that the judge's reference to the reaction of a professional judge based with this evidence were he the fact-finder is an acute one. Additionally, we take the view that the absence of this evidence does not in any event render the conviction unsafe given two factors: the other evidence about Rosier (to which we have already referred and which was clearly rejected by the jury) and secondly, the very clear warning or direction which the judge would admittedly have had to give about the extreme caution needed before relying on second-hand evidence of this kind of what Rosier had said. 27. We turn to the second ground which also relates to Rosier, namely disclosure. There was a good deal of disclosure about Rosier, as we have already said. In the course of the preparation of the appeal Miss Trowler had learned incidentally that there might be an additional piece of evidence. Accordingly we held a disclosure enquiry within the last fortnight and there was indeed. Disclosure has now been made, according to our direction, that in June of 2006, which was about two months before the present offence, Rosier had been observed meeting and in conversation with a man called Carolan. It had been observed because Carolan was under surveillance and was later proved to have been engaged in cocaine dealing on a substantial scale, a scale not dissimilar to that involved in the present case. 28. That information had been known to counsel for the Crown at the time of the trial. He had bona fide formed the view that it added nothing to the information about Rosier already disclosed and thus he had neither disclosed it nor raised with the judge various public interest considerations relating to then ongoing enquiries. We took the view that it ought to be disclosed. We were of the view that even if there had at the time of trial been public interest considerations, whilst that might have meant some redaction in the material it would still have been possible to reveal that there was reason to think that Rosier had had contact (unspecified) with a man engaged or suspected of being engaged in large scale cocaine dealing. The possible relevance of that, as it seemed to us, was that it might assist the defence of Marsh to know that within two months of the present offence there had been this contact. The test on disclosure is whether the material might assist the defendant. It is not whether its absence would render the conviction unsafe. 29. Now we do need to address the second question which is whether its absence renders the conviction unsafe. We are quite satisfied that it does not. First it went nowhere. The meeting was in a public cafe, nothing changed hands, there is no evidence about what the conversation was about and the two men did not, so far as was known, have any further contact with each other or indeed any previous. Secondly, if it was, despite these limitations, capable of suggesting an interest in Rosier in drug dealing including cocaine, that added precious little to what was already known about him. It may be that his previous conviction in relation to cocaine had been for a much smaller amount, but he was a proven drug smaller on a large scale and on any view he was a co-conspirator in the present conspiracy. In addition to that, there was the history of violence. 30. Miss Trowler was able to make to the jury at the conclusion of an effective speech on behalf of Marsh the point that Rosier is the only other person who has been mentioned who has convictions for class A drugs; he had been convicted of drugs offences on the continent (which is what all this was about), not only on the continent but quite close to where Coleman had come from in the present case. She was also of course able to refer to his history of violence. Whatever the stance of the Crown may have been, the judge treated Rosier as a user of telephone 770 and summed up accordingly. The question which mattered in the case was not whether Rosier was involved; it was whether, being involved, he had duped his neighbour Marsh. The fresh information had no real bearing to that. 31. Lastly, the comment on the wife's absence. The evidence of Marsh that Rosier had threatened his family was disputed by the Crown. Since the threats were said to have been made while he (Marsh) was in custody on remand, he was strictly speaking able to give very little firsthand evidence about it -- he certainly was able to and no doubt did give evidence of it by way of his reaction to it. Mrs Marsh, who could have given evidence about it since she reported it to the police, was at court throughout the trial. She was not called to give evidence. In his closing speech to the jury counsel for the Crown referred to her absence. He invited them to conclude that she had not been called to verify the threats because the threats were not true. Indeed, he went on to suggest that there might have been other perils for Marsh in calling his wife because she might not have been sufficiently consistent with his evidence on other topics. That was unwittingly, we accept, in contravention of the provisions of section 80A of the Police and Criminal Evidence Act 1984 : "The failure of a spouse (or now civil partner) of a person charged in any proceedings to give evidence in the proceedings shall not be made the subject of any comment by the prosecution." 32. The existence of that provision was overlooked by everybody. It may be that it is not particularly present to the minds of many people in criminal trials. Counsel for Marsh responded vigorously in her closing speech, saying with some force that given the kind of man that Rosier was Mrs Marsh could hardly be criticised for not being prepared to give evidence incriminating him in public. It is the fact that section 80A is the successor to a rule which came into existence at a time when there was a complete embargo upon any comment upon the absence of the defendant from the witness box. However that may be, the rule has been reenacted in the form in which it currently has as a result of the Youth Justice and Criminal Evidence Act 1999 , enacted some years after the provisions of the Criminal Justice and Public Order Act 1994 had changed the rule in relation to the defendant. So there is no doubt that the rule remains the same. 33. Because the point was entirely overlooked not only by counsel for the Crown but also understandably by counsel for Marsh, whilst she made a trenchant response she did not invite the judge to direct the jury that the Crown should not have made the comment it did. The judge himself did not advert to the point, no doubt because it was not present to his mind either. Nor did he make any comment himself, as of course he was entitled to. Whilst that is true, it by no means follows that if he had been confronted by being reminded about section 80A with the need to tell the jury that counsel for the Crown ought not to have made the comment he did, he would not have felt himself obliged to explain to the jury that whilst they should not guess, if satisfied that the only explanation for the absence of Mrs Marsh was that her evidence would not support her husband they were entitled so to reason. On any view, whatever he said about it would have drawn attention to the point. The point was likely to have been seen as significant by the jury and he would have had to deal with it. It seems to us that he would have been effectively bound to deal with it in approximately the way we have indicated. 34. In those circumstances, whilst we accept that there may still be cases where now, as in 1985 in the case of Naudeer 80 Cr.App.R 9, an unjustified comment of this kind may render a conviction unsafe, we are quite satisfied that it does not do so here. This comment was countered by a robust response and had there been any further treatment of it by the judge it would have had to have been accompanied by a direction such as we have indicated. 35. In all those circumstances, persuasively as these three separate grounds have been argued for Marsh, we are satisfied that this conviction is safe and this appeal must accordingly be dismissed.

```yaml citation: '[2008] EWCA Crim 1816' date: '2008-07-25' judges: - LORD JUSTICE HUGHES - MR JUSTICE BODEY - HIS HONOUR JUDGE PERT QC ```

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

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 805 No. 202201129 A2 Royal Courts of Justice Tuesday, 24 May 2022 Before: LORD JUSTICE COULSON MRS JUSTICE MCGOWAN MR JUSTICE BOURNE REGINA V BAI REPORTING RESTRICTIONS APPLY: SEXUAL OFFENCES (AMENDMENT) ACT 1992 and THE YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999 _________ 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. E. Leonard appeared on behalf of the Applicant. Mr T. Stanford appeared on behalf of the Crown. _________ JUDGMENT LORD JUSTICE COULSON: Introductory matters 1 The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead to members of the public identifying that person as the victim of the offence. We shall refer to the victim in this case throughout this judgment as Z. 2 In addition, the provisions of section 45 of the Youth Justice and Criminal Evidence Act 1999 are engaged in this case, because the applicant, whom we shall call BAI throughout, is currently 16. He was 14 when he raped Z. Accordingly, no matter relating to BAI shall, whilst he is under the age of 18, be included in any publication if it is likely to lead members of the public to identify him as a person concerned in these proceedings. 3 On 7 January 2022 in the Crown Court at Lincoln, before HHJ Knight ("the judge"), BAI, then aged 15, changed his plea to guilty to the offence of rape of a child under 13, contrary to 5(1) of the Sexual Offences Act 2003 . On 1 April 2022, when BAI was aged 16, he was sentenced by the judge to 28 months' detention under section 250 of the Sentencing Act 2020 . His application for permission to appeal against that sentence has been referred to the full court by the Registrar of Criminal Appeals. We grant permission to appeal and move on to consider the merits of the appeal itself. The Circumstances of the Offence 4 It hardly needs to be said that this is a very sad case for a number of reasons, primarily because of the consequences that BAI's offence caused for his victim Z, his family and himself. 5 BAI was born on 8 February 2006. He grew up with his parents and four siblings. In late 2010, when he was about four and a half, his cousin Z, who had been born on 26 February 2020, came to live with BAI's family. BAI's mum and dad effectively became Z's mum and dad. Despite that, it does not appear that BAI ever thought of Z as a sister. It seems that Z was not always easy or comfortable in the home and was sometimes a source of tension. It appears that on more than one occasion BAI and Z played what Z called "the breathing or the not breathing game". This involved BAI putting a pillow over Z's face so that she could not breathe. The ramifications of that game appear on their face rather troubling, but it is not something that is referred to in the report of Dr James Lang, the clinical psychologist. 6 On 6 October 2020, when BAI was 14 and Z was 10, BAI wanted to play a computer game in his room. Z kept distracting him. They then played the breathing or not breathing game, but as the judge put it, "something very different happened" on this occasion. BAI took down Z's pyjama bottoms and put his penis in her vagina. In her video interview conducted the following day, Z described BAI rocking back and forth, and that it really hurt her. She said, "Ouch", and asked BAI to stop. He replied, "10 more seconds. 10 more seconds." She said, "No, it’s rude". After BAI stopped, he tried to persuade Z not to tell anyone, saying that they would both get into trouble and that they would both be locked up. It appears that Z went to her room, trying to hold back her tears. BAI again sought to persuade her not to tell because otherwise they would both be locked up. 7 A little later Z approached BAI's parents to say she did not want to live there anymore. That was not uncommon. However, she then went on to say that BAI had pulled her trousers down, and, "put his thing in me". BAI's parents confronted him. He said that he had not done anything, but was crying and distraught. He ran out of the back door wearing a t-shirt and shorts, but without any shoes. The police were called and attended. BAI subsequently returned and was arrested. Even at this early stage, Z was now concerned that she would be taken away from the house. 8 The police interviewed BAI about what had happened. He denied the offence. Although Z's DNA was subsequently found in his pants, he continued to deny rape. During Z's video interview the day after the rape, she explained the breathing or not breathing game, and how the previous day, out of nowhere, she felt something, her trousers got pulled down and BAI, "did something that he should not have done." She then described the rape. BAI was subsequently charged with rape. 9 At the PTPH in August 2021, he pleaded not guilty. On 7 January 2022, by which time BAI was 15, he was re-arraigned and pleaded guilty. Reports were ordered. The sentencing hearing took place on 1 April 2022, by which time BAI was 16. The Reports 10 There were two relevant reports for the purposes of the sentencing exercise. There was a detailed Pre-Sentence Report prepared by Lincolnshire's Children's Services team ("the PSR"). The writer had interviewed BAI on a number of occasions. In dealing with the offence itself, the writer noted at paragraph 2.2 of the PSR that, on the day of the rape BAI thought Z was being annoying. BAI also said that Z had climbed on top of him, and described her as "coming on to him". BAI claimed that he continued to push Z off until Z pulled her pyjama bottoms down. At paragraph 2.5 of the PSR, the writer noted that: "There is an element of him not taking complete responsibility for what happened as he feels that she was coming on from him, so in some way he may have perceived that she wanted sexual activity to take place." 11 In the same paragraph, there was a reference to the views of BAI's parents: "I feel that to process what has happened they may have apportioned some of the blame on to the victim, citing that because she often displayed a difficult behaviour. This is then partly what led to the offence." 12 BAI was assessed as presenting a medium risk of serious harm to others. He was assessed as posing a low risk of reoffending. It was noted that he internalised his feelings and had experienced social isolation because of previous bullying. The PSR recommended a Youth Rehabilitation Order ("YRO") as the most appropriate disposal proportionate to the offence committed. 13 As we have said, there was also a psychological assessment report prepared by Dr James Lang. This noted at paragraph 4.4 that BAI, "expressed anger and resentment about the victim. He explained that her behaviour had been difficult for years within the family and he stated that, 'I resent her.’ He elaborated about her, stating that, ‘She tried to get us into trouble’, implying that she made up stories about all his siblings that were not true”. 14 At paragraph 5.7 of his report, Dr Lang noted that although Z was not a stranger to BAI and was, therefore, not an indiscriminate choice as victim: "His actions may have been a function of his inter-personal anger. Indeed, he acknowledged that he got frustrated by her behaviour within the family and resentful of the impact she had on family relationships". The Judge's Sentencing Remarks 15 The judge set out the facts. She then went on to address what BAI had told the writer of the PSR to the effect that Z had taken her own pyjama trousers down, and that, in addition, he had not mentioned to the writer of the PSR that he had told Z not to tell anyone about what had happened. As to those aspects of the PSR, the judge said this: "Now, I have read what Z said. I have read what you said, and I have given you the opportunity to give evidence in front of me. You have chosen not to do that. I do not believe what you said in the Pre-Sentence Report. I accept what Z said happened. You do say, as well, to both psychologists and to Harriet [the writer of the PSR] that you resented Z and you had been finding her annoying for a while. I do accept that, and I know that you know this. It is no excuse for what you did, but I add all of that together with how things were in the family, how you thought about her, and it tells me that what you were doing was not about sex, really. It was about hurting or punishing Z in that moment, because you knew what you were doing was wrong at the time. It was a single incident. There was nothing running up to it suggesting you were experimenting with sex and using Z for that." 16 The judge then went on to deal with the delay prior to BAI pleading guilty. She said: "It took 16 months, as I say, from that incident through to you pleading guilty. Over that period, Z had to leave, really, the only home she has known to live with her grandparents, at least people that she knew and would stay with regularly, but she lost that contact with your family and your parents who had effectively been her parents too. I have read her victim impact statement. That tells me how this has affected Z. It is in her own words and so it is quite understated. She struggles with what you did. She cannot talk to anyone but her mum about it. I have got a very detailed statement from her social worker... That makes clear what had seemed to me was behind Z's statement, that Z suffered profoundly from what you did. She feels responsible for losing the only home she knew and the contact with the only close family she had." 17 The judge referred to the various relevant sentencing guidelines, in particular, the main Sexual Offences guideline, and the Overarching Principles for Sentencing Children and Young People, which include what is called an offence specific guideline relating to sentencing children and young people for sexual offences. In view of its importance to the present appeal, we shall call that "the primary guideline." The judge recognised at page 4E of the transcript that the critical point was whether BAI should be detained or given a non-custodial sentence. The judge referred to the stated aims of the primary guideline to prevent offending, and the welfare of BAI. She went on to address the seriousness of the offence, the harm that was caused and how responsible BAI was for it, the effect on Z, BAI's history and welfare, including the bullying that he had suffered in year seven, and other mitigating factors relating to BAI's background. 18 The judge's conclusions on the critical issue as to detention were as follows: "Because you forced yourself on Z you hurt her, knowing you were hurting her, and I find, meaning to hurt her, and she lost her home as a result of what you did and how you behaved afterwards. A custodial sentence is justified here. I have considered carefully those reports and everything about you and your family, but they are not enough to mean that a non-custodial sentence is appropriate here. So following the specific guideline on sentencing young sex offenders, I do think that custody is my only option here, so I do need to look at the guideline for adults. If you were an adult, an offence like this would be harm level 3, culpability B, which gives a starting point of eight years and a range of between 6 to 11. The Children and Young Persons guidelines suggest that for older young people I should choose between half and two thirds as a starting point, but you were 14, and so I should go below that. I quite agree. So to reflect the fact that you were just under 15 and you are immature, I reduce the starting point to three years. So that is less than half what it would have been for an adult." 19 The judge identified a number of aggravating factors, such as BAI telling Z not to tell anyone because they would both get into trouble, the fact that the rape happened in her own home and the fact that Z had to leave that home, because amongst other reasons, BAI's mother and father thought she was lying. The mitigating factors included the fact that BAI had not committed any other offences before or since, his family background and the work BAI had done to rehabilitate himself. The judge decided that the aggravating and mitigating factors broadly cancelled each over out, and so came back to her 3-year starting point. The judge gave BAI a 20% discount to reflect his guilty plea. Given the time that had elapsed between the original arraignment and the guilty plea, that can be regarded as a relatively generous discount. That reduced the period of detention to one of 28 months. That was the sentence imposed. The Grounds of Appeal 20 The principal complaint is that the judge erred in concluding that custody was the only appropriate option. That argument is put in a number of different ways by Ms Leonard on behalf of BAI. We have slightly re-ordered those points so as to deal with them in what we hope is a logical way. The complaints, therefore, are these: (1) the judge did not give adequate weight to a number of mitigating factors available to BAI; (2) The judge made findings of fact which were not justified; (3) The judge failed to follow the relevant Sentencing Guidelines. 21 We consider each of those arguments in turn. Ground 1: The Failure to Take into Account Various Mitigating Factors 22 It is said that the judge failed to take into account properly or at all a number of specific mitigating factors available to BAI. First, it is said that the judge failed to give adequate consideration to the immaturity of BAI at the time of the offence. The written grounds suggest that although the judge found that he was immature at 16, "that did not mean that he was immature as a 14-year-old." With great respect to Ms Leonard, that submission is a little confused. All the evidence relating to BAI's maturity had been prepared for the purposes of the sentencing hearing. It therefore related to BAI as a 16-year-old. The evidence strongly indicated that he was, indeed, immature. That was what the judge found. (see the transcript at 4E.) If BAI was immature as a 16-year-old, then it would follow, absent some unusual evidence to the contrary, that he was immature as a 14-year-old as well. We very much doubt that Miss Leonard wished to suggest the contrary. It appears, therefore, that the judge made an allowance for BAI's immaturity. That is what she said. 23 Secondly, it is submitted that the judge did not give adequate consideration to the bullying which BAI had experienced in year seven, 2 or 3 years before the rape. We disagree. The judge expressly dealt with that event at 4F, 4H and 5C of the transcript of her sentencing remarks. 24 Thirdly, it is said that the judge did not give adequate consideration to the effect of BAI's isolation. Again, we consider that to be wrong as a matter of fact. The judge expressly referred to both reports which dealt with BAI's isolation, and expressly concluded in her sentencing remarks that BAI was "a bit isolated" (see 4F of the transcript.) Again, she took that factor into account, although she noted at 5C that by the time of the rape, BAI was "… at a new school with friends." 25 Fourthly, although it was not a point made orally, the written grounds complain that the judge failed to give adequate consideration to BAI's welfare and the likelihood of him being bullied in a custodial environment and concerns that he might self-harm. Again, we reject that submission on the facts. All those matters were expressly identified in the reports in passages to which the judge made express reference (see in particular pages 4H to 5A of the transcript.) 26 In her oral submissions Ms Leonard appeared to accept that the judge had, indeed, taken all those mitigating factors into account. Her complaint instead was that she had not accorded them sufficient weight. That is always a difficult submission for an advocate. The weight to be accorded to the different elements of the material relevant to any sentencing exercise is quintessentially a matter for the sentencing judge. It is not easy to see how the judge could be said to have erred in principle in passing this sentence in circumstances where she referred to all the mitigating factors relied on on behalf of BAI, and accorded them the weight which she considered appropriate. 27 Moreover, any question of weight immediately throws into relief those elements of the material before the judge which were less than helpful to BAI. Sentencing is not a one-way street. So for example, the potential consequences of detention upon a defendant who has pleaded guilty to a serious crime must be balanced against the risk of harm to the public generally if that defendant remains in the community, and the consequences of his offending for the victim. Here, BAI was assessed as posing a medium risk of serious harm to others. As to the consequences for Z, the judge made plain that they could not have been any more severe. She was clearly a troubled child who, through BAI's action, lost the only home she had ever known. The judge was duty bound to balance the weight to be accorded to the mitigating factors against both risk of harm and the consequences of the offending before reaching a conclusion on the crucial question of custody. 28 We therefore consider that the judge properly took into account all of the mitigating factors. The question of the weight to be attached to each was a matter for her. We, therefore, conclude there is nothing in ground 1 of the appeal. Ground 2. Unjustified Findings of Fact 29 The second complaint made by Ms Leonard is that the judge made unjustified findings of fact, in particular, her conclusion that the rape had not been about sex but about hurting or punishing Z in that moment. Ms Leonard submits that there was no basis for such a finding. 30 We respectfully disagree with that submission. In the passages to which we have already referred, the PSR made plain BAI's anger and resentment of Z both generally and, in particular, on the day of the rape. More specifically, the consultant psychologist, Dr Lang, not only reiterated those feelings of anger and resentment, but suggested that the rape "may have been a function of his interpersonal anger." By contrast, there was no evidence to indicate that the rape had evolved out of adult experimentation with sex. In those circumstances, therefore, we consider that the judge was quite entitled to make that finding of fact. 31 The grounds of appeal also included a complaint that the judge erred in finding that BAI "repeatedly" warned Z not to say anything about what he had done. There is nothing in this point. According to Z, BAI warned her twice, immediately after the event, and then again shortly afterwards, when she went to her room. He, therefore, did it more than once. In her oral submissions Ms Leonard accepted that. There is, therefore, nothing in this second ground of appeal. 32 It is necessary to pause there and take stock. We have rejected Ms Leonard's two arguments based on the judge's factual findings and the weight which she said that the judge had failed to give to some of the mitigating factors. Since the detail of her argument that the judge failed to follow the relevant sentencing guidelines was based on those failures, it is difficult to see what remains in this appeal. However, we go on to deal with ground 3, which is concerned with the alleged failure on the part of the judge to follow the Sentencing Guidelines, because we consider that there is an important point to be made both about this appeal and more widely. Ground 3. The Alleged Failure to Follow the Sentencing Guidelines 33 The first question is whether or not the judge failed to follow the applicable sentencing guidelines. If she followed them, then that is a complete answer to the third and final ground of appeal, and this appeal must fail. If, on the other hand, she failed to follow them, it may be necessary for this court to remake her sentencing exercise and to see what such a remaking produces. a) Did the Judge follow the Sentencing Guidelines? 34 The judge clearly had the primary guideline in front of her when sentencing the appellant. For example, at 4E to 4F, and again at 5H to 6A of the transcript, she expressly considered both the mitigating factors in step 2 and the mitigating factors in step 3 of the primary guideline. She expressly said that BAI was immature, but had no mental illness or learning disability, and no trauma beyond the bullying suffered in year seven. Those are some of the most important factors expressly listed in step 3. 35 Moreover, on the key question as to whether the offence was so serious that only a custodial sentence was required, the judge concluded in the passage that we have already cited that BAI meant to hurt Z and that as a result she lost her home, and those were the principal reasons why she concluded that only a custodial sentence was appropriate. She went on to say at 5D to 5E of the transcript that, even when making every allowance for both the reports and what she knew about BAI and his family, those matters "are not enough to mean that a non-custodial sentence is appropriate here." 36 In our view, therefore, no criticism of principle can be made of the judge's decision. Whilst we quite accept that some judges might have come to a different conclusion, the judge in this case was entitled to conclude that this offence was so serious that only a custodial sentence was justified, and that all the mitigating factors, even when taken together, were not enough to lead to a different result. Furthermore, we consider that the judge reached that view having generally followed the steps in the primary guideline, although we accept that she did not expressly refer to or necessarily engage fully with each step in the process. 37 Accordingly, since we found that the judge followed the primary guideline, at least in general terms, the third ground of appeal must fail. However, in the light of the importance of this case, both to BAI and to Z and their family, it is appropriate to assume that we may be wrong in that conclusion, and that the sentencing exercise ought to be remade by adhering more closely to the primary guideline, remaking the exercise by reference to it. 38 We make two observations at the outset. The first is that the primary guideline refers to all sexual offences, without differentiation between them. The rape of a child is one of the most serious sexual offences identified in the Sexual Offences Act 2003 . That is why for an adult it has a maximum term of life imprisonment, and the adult sentencing guidelines recommend a range of starting points, depending on the facts, between 6 to 18 years' imprisonment. Of course, this case concerned the rape of a younger child by an older child, which makes a difference, but the question is whether it makes such a difference that an offence that carries with it a term of life imprisonment for an adult should, in principle, when perpetrated by a boy of 14, be met with a non-custodial term. 39 The second general observation comes from the first page of the primary guideline, which sets out what it describes as a "non-exhaustive list of factors that illustrate the type of background factors that may have played a part in leading a child or young person to commit an offence of this kind." The list includes references to neglect or abuse, exposure to pornography, involvement in gangs, association with child sexual exploitation, unstable living or educational arrangements, communication or learning disabilities, or mental health concerns, part of a peer group where harmful sexual norms go unchallenged, or a trigger event, such as the death of a close relative. 40 None of those factors applied here. BAI came from a stable and supportive home, and was never exposed to peer pressure of the kind described. Although he changed schools after the bullying in year seven, that was over two years before the rape of Z, and it was accepted that he had friends at his new school. There was no indication that the appellant had any mental health issues. Some of the illness in his family, to which reference was made at the hearing, post-dated the rape. Accordingly, this is not a case where the appellant's offending can directly be linked to his background. On the contrary, he does not fit into any obvious offending pattern. 41 Step one of the primary guideline requires the judge to take a view as to the seriousness of the offence. Any penetrative activity, it is said, may justify a custodial sentence. We are in no doubt, for the reasons that we have given, that the rape of Z was a very serious offence. 42 Step 2 considers aggravating and mitigating factors. In our view, there were four aggravating factors. First, we take the view that, although BAI and Z were both children, a difference of age between a 10-year-old girl and 14-year-old boy was a significant disparity. Secondly, Z was particularly vulnerable because she was in her own home. Thirdly, BAI twice told Z not to tell anyone. Fourthly, the events which occurred after the rape might also be regarded as aggravating factors. These include BAI's denial of the offence when his parents confronted him, leading them to think that Z was lying, and resulting in her having to leave what had been the only home she had ever known; his denial at the police station; his plea of not guilty when he was arraigned; and, following his change of plea, his attempts to pass at least some of the blame to Z by suggesting wrongly to the writer of the PSR that she had taken off her bottoms and that she, his 10-year-old cousin had "come on to him". 43 However, in respect of the post-rape events, we have to bear in mind not only the age of BAI at the time of the rape but also his immaturity. It seems to us that at least some of those actions are explained by that immaturity. Accordingly, whilst we consider his post-rape conduct should be regarded as a fourth aggravating factor, it should not be overstated. 44 Against those four aggravating factors the only relevant mitigating factor at step 2 was BAI's good character. Pausing there, therefore, it might be said that the aggravating factors outweigh the mitigating factors. Step 3 is a consideration of BAI's personal mitigation. By reference to the checklist there, we note that BAI was not very young. He was 14 at the time of the rape, and 16 when sentenced. But we accept that he was immature. Although there were no mental health concerns or learning disabilities, BAI was something of a loner and therefore, to an extent isolated, as the judge identified. Significantly, as we have said, there is no element of unstable upbringing or family background. 45 Just pausing there, what does all that mean in terms of an appropriate sentence. The judge is required to consider the relevant sentencing guidelines for an adult, and then in a case where a custodial sentence is unavoidable, the court should consider applying a sentence of half to two thirds of the appropriate adult sentence for those aged 15 to 17, and a greater reduction for those under 15. Where there is the least harm and the lowest culpability, the relevant starting point for an adult in relation to the rape of a child under 13 is 8 years. For the reasons noted above, that was capable in the present case of potentially being increased to, say, 9 years, because of step 2, where the aggravating factors outweigh the mitigating factors. But moving to stage 3, the age of BAI, his immaturity and all his other personal mitigation, would bring the starting point tumbling down. The judge brought it down to 3 years, that is to say about a third of what the starting point would otherwise have been for an adult. That significant reduction was in accordance with the primary sentencing guideline. Ms Leonard at no time suggested that, if a custodial term was appropriate, 3 years was too high a starting point. 46 As to step 4, the judge gave credit of 20% to reflect the guilty plea. It has not been suggested that there was anything wrong with that reduction. That reduces the 3 year starting point to 28 months. 47 Accordingly, therefore, redoing the sentencing exercise with a closer adherence to the first four steps of the primary guideline, we arrive at the same figure as the judge. 48 In many ways, the critical step is step 5. The sentencing judge is there required to state the reasons for being satisfied that the offence is so serious that no other sanction would be appropriate, and why a YRO could not be justified. Although we consider that the judge addressed these issues in the passages from her sentencing remarks which we have already set out, her language was not quite in the definitive terms required by step 5, leaving her open to the potential criticism that she did not have full regard to the exercise required. 49 However, we consider that, in substance, the judge did follow step 5. It is there that the likelihood of reoffending and the risk of causing serious harm become relevant. As we have said, BAI was assessed as posing a low risk of reoffending but a medium risk of causing serious harm, and whilst a YRO was open to the judge in this case, that is because, in accordance with the primary guideline, it is available for all sexual offences committed by a child or young person, no matter the seriousness of the offence. Whether a YRO is in fact appropriate depends on the particular circumstances of the particular case. 50 As we have explained, the rape of any child, even by a child of four years older, is a very serious offence. It was found by the judge to have been an act of violence. It was borne out of anger and resentment against an innocent victim, for whom it has had catastrophic consequences, by an offender who poses a medium risk of harm to the public. Notwithstanding BAI's age, we consider that in all the circumstances the judge was entitled to reject the option of a YRO, even a YRO with intensive scrutiny. She was entitled to conclude that only custody was appropriate. Conclusions 51 In one way, the arguments developed by Ms Leonard suggested that the single fact that BAI was an immature 14-year-old at the time of the offence meant that the appropriate disposal was some form of non-custodial order. But it can never be said that, in a case involving the rape of a child, the mere fact that a defendant was only 14 should automatically lead to a non-custodial sentence. As we have said, and repeat, it must always depend on the particular facts of the case. We have explained why, on the facts of this case, a custodial sentence was the only appropriate sentence. 52 We conclude that the judge made no error of law or principle, and the sentence she imposed was not manifestly excessive. We note that no complaint has ever been made about the calculation of the 28 months in any event. 53 We repeat what we said at the outset. This is a very sad case on all sides. We acknowledge the difficulties it created when the judge came to sentence BAI, but for the reasons that we have given, we consider that she dealt properly with those difficulties and arrived at an unimpeachable sentence. 54 BAI's appeal against that sentence must, therefore, be dismissed. ______________

```yaml citation: '[2022] EWCA Crim 805' date: '2022-05-24' judges: - LORD JUSTICE COULSON - MRS JUSTICE MCGOWAN - MR JUSTICE BOURNE ```

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: 201703489/A3 Neutral Citation Number: [2018] EWCA Crim 835 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday 6 March 2018 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE CARR DBE THE RECORDER OF GREENWICH HIS HONOUR JUDGE KINCH QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - R E G I N A v UNIVERSITY COLLEGE LONDON - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - J U D G M E N T This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity ( Sexual Offences (Amendment) Act 1992) , or where an order has been made in relation to a young person. 1. LORD JUSTICE HOLROYDE: On 14th June 2017 in the Crown Court at Southwark, the University College London ("UCL") pleaded guilty to an offence of exposing another to a risk to health and safety, contrary to sections 3(1) and 33(1)(a) of the Health and Safety at Work Etc Act 1974. On 3rd July 2017 His Honour Judge Tomlinson sentenced UCL to pay a fine of £300,000 and to pay just under £15,000 by way of prosecution costs. UCL now appeals against that fine by leave of the single judge. 2. The circumstances giving rise to the prosecution of UCL were as follows. UCL, a body established by Royal Charter and a registered charity, is the part owner of the London Centre of Nanotechnology ("LCN"), a department which employed approximately 130 staff. Within the centre was a group called the Diamond Electronics Group which consisted of post-doctorate staff and graduate, Ph D and Masters students. The complainant, Miss Marie-Laure Hicks, was a masters student studying nanotechnology. She was engaged in research which involved the use of a bespoke piece of equipment called the lithium evaporator or lithotron. 3. The lithotron was designed in 2009 by the distinguished head of the Diamond Electronics Group. It comprised of a stainless steel chamber with two viewing ports and a sample holder within the larger chamber. The chamber would be heated up to 170 degrees Celsius to bake samples of diamond. The machinery sat on a metal frame on a metal bench. The bench had a hole which permitted access to the chamber and sample holder from underneath the bench. The chamber was connected to a vacuum pump and a compressed gas cylinder which supplied nitrogen to create a slight overpressure so as to avoid any contaminant getting into the chamber when a sample was introduced and the vacuum broken. The supply of nitrogen was controlled by a gate valve which had an on/off action and a speedy valve with a rotary action. There was a sensor on the lithotron which measured negative pressure. As we understand it, the supplying of nitrogen was a modification of the equipment which had been introduced only days before the accident occurred. 4. On 30th June 2014, Miss Hicks was working on the lithotron. She introduced a sample into the cylinder and was in the process of tightening the bolts on the sample chamber when the viewing port shattered. Glass fragments exploded outwards causing injury to the left side of her face and to her eye. Miss Hicks was taken to hospital where she stayed for four days. She had stitches to the wounds to her face. She underwent surgery to remove fragments of glass from her left eye. The lens was removed from her left eye and oil was introduced to help the retina to heal. After six months further surgery was necessary to remove the oil and attempt to repair the hole in the retina. The hole could not be repaired. Sadly, therefore, Miss Hicks has lost partial vision in her left eye. She suffers from an area of grey vision, blurred vision and double vision. This serious injury causes her problems in her work - where, for example, she has difficulty in manipulating small items because she finds it difficult to perceive depth - and in the activities of her daily life. She has difficulty estimating speed, for example if she is crossing the road and a vehicle is approaching. If she is filling a glass or other vessel with liquid she cannot see where the top of the liquid is. She has been severely limited in pursuing her hobby of skiing because she cannot see bumps or rocks in the slope ahead. In addition, she suffered the symptoms of post traumatic stress disorder for some six months after the accident and continuing anxiety thereafter. On any view this was a serious injury to a young woman blamelessly going about her work. 5. A health and safety executive investigation and an internal investigation concluded that it was likely that the chamber had over-pressurised because nitrogen was still being introduced into the chamber as it was being sealed. As a result, the pressure inside the chamber became too high and the viewing port failed because it was not strong enough to withstand the pressure. 6. UCL pleaded guilty on a written basis which was not disputed by the prosecution. Three specific breaches of health and safety were admitted. First, a failure properly to calculate and keep under review the design of the lithotron following the modification to introduce the nitrogen supply in order to ensure that the machine was strong enough to withstand any potential overpressure. Secondly, there was a failure to carry out a risk assessment on the machine following the addition of the nitrogen line. A risk assessment should have identified either that the supply of nitrogen needed to be properly controlled, so that the device did not become a pressure chamber, or that the components of the machine should have been of sufficient strength to withstand the pressure. In this regard it is striking to note that the glass in the viewing port appears to have been between 10 and 20 years old. The third breach was the failure to ensure adequate control measures to meet the risk of over-pressurisation. Had a risk assessment been carried out, then control measures to meet the risks should have been identified and implemented. In fact no control measures had been introduced and there were no operating procedures written down for students to follow. As a result they were not informed of the risk that over-pressurisation of the chamber might lead to a shattering of glass in the viewing port. It was also unclear when the supply of nitrogen should be switched off prior to or during the sealing of the chamber and in the absence of a pressure gauge there was no way to gauge when sufficient nitrogen had been introduced. 7. The learned judge heard detailed submissions as to the application of the Sentencing Council's Definitive Guideline on Sentencing for Health and Safety Offences. That guideline requires the court to consider culpability, which may fall into one of four levels, and harm, which requires a two-stage process taking into account both the likelihood of harm and the seriousness of the harm if it is suffered. The court then has to assess the turnover or equivalent of the defendant organisation. In this regard the guideline states: "Normally, only information relating to the organisation before the court will be relevant, unless it is demonstrated to the court that the resources of a linked organisation are available and can properly be taken into account." The court must then assess the appropriate penalty by reference to a table showing starting points and sentence ranges. 8. The question of the appropriate credit for UCL’s guilty plea was considered at some length. The judge ultimately decided that the appropriate fine should be reduced by 25 per cent because of that plea. He observed in his sentencing remarks that the complainant had suffered life-changing injuries involving the almost total loss of visual acuity in her left eye and other disfiguring injuries to her face. He acknowledged a number of features in the appellant's favour. The appellant had never disputed civil liability and had been supportive of Miss Hicks and solicitous for her welfare in ways that went beyond simple monetary compensation. He recognised that UCL is a prestigious organisation and not one that anyone would expect to be involved as a defendant in criminal proceedings. He accepted that it was not a case in which anyone had engaged in cost-cutting or had in any way taken a calculated risk in regard to health and safety issues. Rather, it was evident that all those involved had simply overlooked the possibility of the events occurring as they did. 9. In terms of the guideline, the judge concluded that the offence involved a medium level of culpability and level B harm. The number of persons exposed to the risk of injury was limited, but the offence had resulted in actual injury. The judge found no aggravating features. As to mitigation, he noted that there had been no previous incidents, the appellant had a good record and it had cooperated with the investigation in the way which would be expected of a responsible and caring organisation. He concluded that the resources to which he must have regard were those of UCL and not those of LCN. In summary, he found it to be a medium culpability, harm level 3 case involving a large organisation which because of its non-profit charitable status was entitled to be treated with less severity than a commercial operation. Had the appellant been a commercial organisation, the starting point would have been no less than £500,000 and very probably more. Making allowances for the appellant's charitable status, the judge reduced that starting point to £400,000 and then further reduced it by 25 per cent to reflect the guilty plea. Thus the judge arrived at the fine of £300,000. 10. This court, like the court below, has been greatly assisted by the written and oral submissions of Mr Sturman QC for the appellant and Miss Heer for the respondent. We are grateful to them both. 11. Mr Sturman accepts, as he did below, that the judge was entitled to have regard to the resources of UCL, but submits that the court should also take into account the limited resources of LCN. He also accepts, again as he did below, that the judge was entitled to find that this was an offence involving medium culpability and level 3 harm, but he submits that the fine was manifestly excessive in amount. In particular, he argues that the learned judge erred in fixing too high a starting point on the facts of the case: the relevant guideline starting point being £300,000, there was no warrant for the learned judge to have increased that figure to as high as £500,000 or more. Secondly, he submits that the learned judge was in error in failing to make a sufficient reduction because of the appellant's charitable status. Thirdly, he submits that the learned judge did not appear to have taken into account either at all or at any rate sufficiently the very much smaller turnover of the LCN as a subsidiary of UCL. In this regard Mr Sturman makes the point that although UCL in accordance with their policies have properly accepted responsibility for this offence, and will meet the financial penalty from the resources of the university as a whole, nonetheless this was an error on the part of one small subsidiary and not a university-wide or extensive failing. Fourthly, Mr Sturman submits that the learned judge made insufficient reduction for the various mitigating factors. He underlines those which we have already mentioned, but adds that in a number of ways UCL went well beyond what could reasonably be expected of them in quickly settling all civil liability, in taking a solicitous approach to the welfare of Miss Hicks and in handing over the report of their internal investigation to the Health and Safety Executive rather than seeking to claim privilege for it. 12. Mr Sturman goes on to submit that UCL does indeed have a very large turnover measured in excess of £1 billion per annum but emphasises that this turnover stems from the receipt of grants from various sources. Any surplus which may be left at the end of a particular year is not treated as a profit to be distributed, but rather as a fund to be held in reserve in case of any future adverse developments in one or more of the sources of funding. Thus although the turnover is high, argues Mr Sturman, the position of UCL is very far removed from that of a commercial organisation with a similar turnover. He reiterates his submission below that in all the circumstances of this case, having regard to where the true fault lay, it was appropriate for the learned judge not only to consider the very large resources of UCL but also to consider the much more limited resources of LCN. He reminds us that the effect of UCL meeting the financial penalty in this case will be felt, at least to a limited extent, by all departments within the university and not just by that department which was at fault. He submits that the fine should properly have been in the range £150,000 to £200,000 and not the £300,000 imposed. 13. Miss Heer for the respondent submits that the learned judge properly applied the guideline and the guidance in Thames Water Utilities Limited [2015] EWCA Crim. 960 . She adds that the learned judge also in fact followed or acted in accordance with guidance which has much more recently been given in Whirlpool UK Appliances Limited [2017] EWCA Crim. 2186 . She invites the court to conclude that the fine imposed was just and proportionate in the circumstances of the case. 14. Having reflected upon the submissions of both counsel, we have reached the following conclusions as to the application of the sentencing guideline to the circumstances of this case. 15. As to step 1 of the guideline, it is common ground that the case is one of medium culpability, in particular because it is appropriately to be regarded as falling between the descriptions in the high and low categories. As to harm, it is common ground that it is a category 3 offence because there was a medium likelihood of harm causing physical or mental impairment which has a substantial or long term effect on the sufferer's ability to carry out normal day-to-day activities or on their ability to return to work. As we have indicated, the assessment of harm under the guideline is a two-stage process. As to the second stage of that process, we agree with the learned judge that although comparatively few persons were exposed to the risk, harm was in fact caused and, we would add, was serious. That being so it is important to note that the guideline required the learned judge to consider "either moving up a harm category or substantially moving up within the category range at step 2." 16. Step 2 requires the court to identify the relevant table of penalties. The selection of the relevant table depends upon the size of the defendant organisation. Appropriate financial information was properly provided to the court both in relation to UCL and in relation to LCN. To summarise that information, the former is a very large organisation for the purposes of the guideline, whilst the latter would fall at the bottom end of the category of medium sized organisation. It is important to note that the tables showing starting points and category ranges go up to the category of large organisation. In relation to a very large organisation, the guideline indicates that "... it may be necessary to move outside the suggested range to achieve a proportionate sentence." As was explained in Thames Water Limited , the court when dealing with a very large organisation should consider, having regard to the culpability and harm involved in the offence and to the financial realities of the organisation, whether the guideline for a large organisation sufficiently meets the case, bearing in mind that an important purpose of the fine is to have a real economic impact which will bring home the need to comply with health and safety legislation. A court in such a case may conclude that it is not "necessary" to move outside the category ranges appropriate to a large organisation. 17. Although the learned judge did not state this in specific terms, we infer that he concluded that in the circumstances of the case UCL, although in fact a very large organisation, could properly be sentenced in accordance with the table of penalties appropriate to a large organisation. We draw that inference having regard to the terms in which the learned judge expressed himself first at page 32B and then at page 32G of his sentencing remarks. It may well be that the judge also took into account the reality of UCL's income at that stage. It seems to us that in the circumstances of this case the learned judge was entitled to treat the appellant as a large rather than a very large organisation. We observe, however, that that decision was, if anything, favourable to the appellant. It would have been open to him at step 2 to look simply at turnover and to treat the appellant as a very large organisation, with an appropriate adjustment to be made later in the sentencing process. 18. The relevant table in the guideline, as identified by the learned judge, shows that the starting point for sentence after a trial is a fine of £300,000 and the range of penalty is from £130,000 to £750,000. Mr Sturman argues that consideration of LCN's turnover should have caused the judge to go towards the bottom end of that range. We are unable to accept that submission. The judge, as we have indicated, had already stepped back from placing the appellant into the category of "very large organisation" and on that ground going outside the table relevant to large organisations. Moreover, as we have already indicated, the judge was required at step 1 to consider moving up a harm category or substantially moving up within the category range because of the serious harm caused. We have no doubt that the learned judge was fully entitled to conclude that after trial a sentence substantially above the guideline starting point would have been appropriate. 19. Having rightly found that there were no aggravating factors, the judge then had to consider the mitigating factors. We have summarised what the learned judge said in this regard and we have summarised Mr Sturman's submissions. We accept that the points made by Mr Sturman are matters of mitigation which do carry weight, but we are not able to accept that the learned judge failed either to take them into account or to give them sufficient weight. It must be remembered that within the appropriate range a fine of up to £750,000 could have been imposed after a trial. In our judgment, the seriousness of the harm caused to Miss Hicks merited a sentence high in that range before making reductions first to reflect the mitigation and then the guilty plea. 20. Steps 3 and 4 under the guideline require the court in a number of ways to step back from the provisional fine reached by consideration of steps 1 and 2 and if necessary to adjust that provisional fine in order to ensure that it fulfils the objectives of sentencing. At this stage of the process, the court is required to have regard to the realities of the financial position of the offender. As the Lord Chief Justice said at paragraph 40 of the judgment in Whirlpool : "Step Three in the Guideline does not provide an invitation to the court to disregard what has gone before, but to adjust any conclusion to reflect the economic realities." The decision in that case also makes it clear that the guideline does not require a strictly arithmetical approach and is sufficiently flexible to do justice in the circumstances of the individual case. 21. It seems to us that the learned judge had already taken into account the financial realities of the position of UCL, and the fact that fault lay with LCN rather than with the university as a whole, in his decision to pass a sentence within the category range appropriate to a large organisation in a case of medium culpability and harm category 3. As we have indicated, had he not taken into account those factors he would have been entitled to move to a substantially higher starting point for sentence than he did. 22. It remains to consider the reduction made by the learned judge in relation to the charitable status of the appellant. Mr Sturman submits that a reduction of 20 per cent was inadequate. It was perhaps not a generous reduction. However, this is not a case in which a fine which would otherwise be appropriate should be reduced because of its likely impact on the provision of charitable services to the needy, and we agree with Miss Heer that the judge must already have taken into account, at an earlier stage of the sentencing process, the fact that almost all UCL's income is spent on funding educational activities. Moreover, whilst the appellant of course has charitable status, the activities of LCN not only add to the academic prestige of the parent organisation, but also have at least some commercial aspect. In those circumstances, it seems to us that the reduction made by the learned judge to reflect the charitable status was within the range properly open to him. 23. We have already referred to the detailed argument below as to the credit to be given for the guilty plea. We have no doubt that the reduction of 25 per cent on this ground was again well within the range properly open to the judge. We need say no more about the remaining steps in the process set out in the guideline. 24. It follows that in our judgment the learned judge applied the sentencing guideline in a way which does not give rise to any successful ground of appeal. There is much to be said on the appellant's behalf and it is apparent from the transcript that Mr Sturman made all relevant points with considerable skill before the sentencing judge. But for the reasons which we have given, we conclude that the fine imposed was not one which was manifestly excessive. Indeed, we would wish to emphasise that in our judgment a fine at the level for which Mr Sturman has contended would have fallen well short of being adequate to meet the seriousness of this case. This appeal accordingly fails and is dismissed. 25. MISS HEER: My Lord, the prosecution were directed to attend this hearing by the single judge. In those circumstances may I apply, pursuant to section 18 of the Prosecution of Offences Act for the prosecution costs? I have a figure which my learned friend is aware of and I understand makes no submissions in respect of. It is £2,524.84. 26. LORD JUSTICE HOLROYDE: Mr Sturman? 27. MR STURMAN: They follow the event. The closest I seem to have got was a concession but it was not a very generous concession. That does not amount to a win. So the only point I make is this comes out of the general funds for the university, but it is for my Lords' discretion. 28. LORD JUSTICE HOLROYDE: Thank you both. We order the appellant to pay the costs of the respondent in the sum of £2,500. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400

```yaml citation: '[2018] EWCA Crim 835' date: '2018-03-06' judges: - LORD JUSTICE HOLROYDE - MRS JUSTICE CARR 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: [2018] EWCA Crim 1107 Case No: 201705683/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 9 May 2018 B e f o r e : PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE SPENCER - - - - - - - - - - - - - - - - MR JUSTICE JAY R E G I N A v PETER PHILLIP MUIR - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - Ms L Addy appeared on behalf of the Appellant - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. MR JUSTICE JAY: On 1 December 2017 the appellant was sentenced by His Honour Judge Batty QC, sitting at York Crown Court, following his guilty pleas, to a total term of imprisonment of 3 years on a two count indictment. Count 1, assault occasioning actual bodily harm, the sentence was 3 years' imprisonment; on count 2, criminal damage, no separate penalty was imposed. He appeals against sentence with the leave of the single judge. 2. The facts of this case are that the victim had been in a relationship with the appellant for 5 years. She told the police that there had been no previous incidents between them. On the evening of 12 July 2017 they were both at home. The victim had some friends with her as well as her 17-year-old nephew and there were three young children upstairs asleep. The appellant had had a lot to drink during the course of the evening and his partner suggested that he leave and visit a friend as she did not like him to be in the house when he was drunk. He left and she locked the front door. 3. Moments later the appellant returned to find the front door locked and he began kicking the door. The victim was frightened and phoned the police such was the level of force with which he was kicking the door. While she was on the phone to the police the front door broke open and he came running in. In relation to count 2 there was no evidence as to the value of the damage to the door. 4. The appellant assaulted the victim and started punching her to the head. He pulled her to the floor by her hair and then he began kicking her to the head calling her "a slag". It seemed to last for several minutes. She used her arms to protect her head. Her friends intervened. There were differing views as to what happened next. She did manage to get back on the phone and whilst she was trying to phone the police one witness said he jumped on her at least five times. Another witness said he picked up a television and threatened to smash it and he smashed the glass in the kitchen. Her friends managed to stop the assault and he left the property. 5. The complainant had a fractured nose, a large clump of hair had been pulled out and she had a swollen eye. She was treated at hospital for a severe headache and was given intravenous painkillers. She suffered severe nausea from having her head kicked and she was sick. She was X-rayed and the CT scan had to be performed. 6. The appellant gave a "no comment" police interview. 7. The appellant was 29 at sentence, born on 18 June 1988. He had seven previous court appearances for 20 offences between 2005 and 2014. Most of these convictions are not relevant for present purposes. In 2007 and then in 2008 the appellant was given low fines for what must have been relatively minor offences of criminal damage. In June 2010, at York Crown Court, the appellant received a sentence of 48 weeks' imprisonment for various offences of assault occasioning actual bodily harm and battery. One of the offences involved assault of a police officer. Most importantly for these purposes, another of the offences entailed assault of a partner in circumstances very similar indeed to the present case. Finally, in 2014 the appellant received a community order for assault on a police officer. 8. According to the pre-sentence report the appellant recognised that he could drink too much and he had sought professional help. He had engaged with counselling. His compliance with probation supervision had been satisfactory. He was assessed as a "medium" likelihood of re-offending and a medium risk of serious harm to his partner. 9. The mitigation advanced on behalf of the appellant was that he was remorseful, that alcohol lay at the root of his offending, and that he was addressing this by seeking professional help. Furthermore, the appellant was a self-employed bricklayer and his family would be significantly impacted if a custodial sentence were imposed. Counsel submitted that any custodial sentence could and should be suspended with requirements. A 25% discount for plea was not in issue. 10. In his sentencing remarks His Honour Judge Batty QC placed emphasis on the appellant's previous conviction for what we have said was the very similar offence committed in late 2009. In the current matter he did exactly the same thing but there were the following serious aggravating factors. There were three young children asleep upstairs when he violently attacked his partner; it was done in the presence of his 17-year-old nephew and furthermore his victim, his partner, made efforts to telephone the police but he tried to prevent her from calling them by jumping on her and threatening her with further violence. 11. In the judge's view there was no doubt that this was a category 1 offence: greater harm and higher culpability. For someone with no previous convictions the sentencing range was of up to 3 years, with a starting point of 18 months, but there were statutory aggravating features. These took it outside the top range of the Sentencing Guideline under category 1 and led to a sentence in the region of 4 years' imprisonment; after credit for plea the sentence was therefore 3 years' imprisonment. There was no separate penalty for criminal damage. 12. The grounds of appeal are that the starting point was outside the guidelines and was manifestly excessive, and the sentence could have been suspended on a lower starting point with 25% discount for a guilty plea. Of course, in relation to a possible suspension, one would have to reach a sentence of no more than 2 years' imprisonment. 13. In her clear and well-presented oral arguments Ms Laura Addy, for the appellant, developed these submissions as follows. She accepted that the views of the victim could not really be prayed in the appellant's aid. She drew attention to the fact that the starting point under the relevant guideline for category 1 offence was 18 months' custody and she accepted that there were aggravating features here which took it above that starting point. The real question, as she put it, was whether those aggravating features took this case as high as 4 years before credit was given for the plea. 14. Her headline submission was that 4 years was manifestly excessive and that the right figure could be seen to be in the region of 32 months which, when discount was given for the plea, would take this down to 24 months. Ms Addy then submitted, in connection with the relevant guideline, that it would be possible to suspend the sentence because various relevant boxes in the context of that guideline were notionally ticked: in particular, as we have pointed out, the appellant's mitigation and his remorse, and the fact that he has engaged with professional help. 15. We have carefully considered these submissions. Under the Sentencing Council's Assault Definitive Guideline on page 12 this was undoubted a category 1 offence with a sentencing range of up to 3 years' imprisonment. 16. The factors indicating greater harm were the nature of the injury, the vulnerability of the victim and the sustained or repeated assault on her. 17. In our judgment, the judge was not bound by the 3-year threshold but he would need to give clear and compelling reasons for exceeding it. The guideline itself provides: "A case of particular gravity, reflected by multiple features of culpability in step one, could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features, set out below." 18. We have noted the appellant's personal mitigation but then so did the judge. The difficulty with the appellant's submissions before us is that this was a very serious offence of assault occasioning actual bodily harm, with the obvious aggravating features that the judge enumerated, and it was also an offence which did bear truly striking similarities with the 1909 offence, involving on our understanding another partner. 19. The question for us is whether the judge was entitled to take this case beyond the threshold set out in the guidelines or, put another way, whether his doing so led to the imposition of a manifestly excessive sentence or one that was erroneous in principle. In our view, after careful reflection, we simply cannot conclude that the judge erred in his approach or in the level of the sentence he imposed. 20. In those circumstances, no possible issue arises in relation to the suspending of the sentence. The appeal must therefore 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: '[2018] EWCA Crim 1107' date: '2018-05-09' judges: - 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: [2015] EWCA Crim 437 Case No: 201404490 A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 24 February 2015 B e f o r e : LORD JUSTICE BURNETT MR JUSTICE GILBART HIS HONOUR JUDGE GRIFFITH-JONES (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - R E G I N A v KADELE EMMANUEL CAREW - - - - - - - - - - - - - - - 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 Stanilas (Solicitor Advocate) appeared on behalf of the Applicant - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE GILBART: This applicant was charged on an indictment containing two counts: the first was an allegation of robbery, contrary to section 8(1) of Theft Act 1968, and the second was an allegation of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. 2. On 21 March 2014, in the Crown Court at Inner London, the applicant pleaded guilty on re-arraignment after the jury had been sworn and after the complainant had given evidence. On 29 April 2014, he was sentenced as follows: on count 2 (wounding with intent) he was sentenced to 9 years' detention in a young offender institution; on count 1 (robbery) he was sentenced to 8 years' detention concurrent and was ordered to pay a victim surcharge order. 3. He had been jointly charged and tried with a man called Jordan Kanon. On 21 March he too pleaded guilty on re-arraignment after the jury had been sworn on count 1 (robbery) and was sentenced to 4 years' imprisonment. As we shall come to, this court has reduced his sentence to one of 27 months' imprisonment. 4. This applicant renews his application for leave to appeal against sentence after refusal by the single judge. The facts are as follows. The complainant was with a friend in Leicester Square in London in the early hours of 25 October 2013 when they got talking to a group of five people. The applicant and Kanon were part of that group. The complainant and his friend were invited to a party in Brixton and agreed to go. They all took a bus to Brixton. Once in Brixton they started walking to the party when the applicant and Kanon said to the complainant, "Come with us we're gonna skin up". The complainant followed them down an alleyway. Kanon stood behind the complainant and the applicant stood in front of him and demanded his mobile phone. The complainant refused to hand it over. Kanon then grabbed the complainant from behind and pulled him to the ground. The applicant smashed a bottle and stabbed the jagged end into the complainant's left hand. He and Kanon then made off with the complainant's mobile phone. The complainant had a 3-inch wide and 1-inch long laceration to the back of his left hand. The police were summoned. 5. In sentencing the learned judge pointed out that both had pleaded not guilty and maintained those pleas in front of the jury right up until the close of the prosecution's case. The court was not able, in those circumstances, to give them any credit by way of discount and the length of the custodial sentences. That was not to say that the court did not recognise that to plead guilty, even in the circumstances that they both did, did not take some courage. 6. Given the fact that there is only one point in this application, which relates to whether or not the discount should have been made, it is not necessary to read the rest of the sentencing remarks, save that the judge considered that the total sentence should be one of 9 years' detention in a young offender institution. There was no discount from that. There was a pre-sentence report, to which it is not necessary to make reference. 7. The application before us is based on one principal ground. The Court of Appeal had heard an appeal relating to the sentence of Kanon. This court recognised that credit for Kanon's guilty plea should have been given by the sentencing judge, although the guilty plea came late in the proceedings. The principle of the appropriate credit being given applies to the applicant as it does to Kanon and, says Mr Stanislas, the applicant should have received the 10% discount on his guilty plea in principle and therefore reducing the sentence. 8. No case is argued before us about the appropriate starting point of his sentence. We refer to the definitive guideline of the Sentencing Council published in 2007 dealing with discounts for guilty pleas. In section D at paragraph 4.1 it is stated that: "The level of reduction should be a proportion of the total sentence imposed, with the proportion calculated by reference to the circumstances in which the guilty plea was indicated, in particular the stage in the proceedings." Reference is made in the guideline to section 144(2) of the Criminal Justice Act 2003. There is reference to the sliding scale which is reduced to a recommended one tenth for, in its words, a guilty plea entered at the "door of the court" or after the trial has begun. Section 5.1 to 5.9 set out reasons which may be given for withholding a reduction. None apply in this case. 9. The learned judge was required to give reasons if he chose to depart from the guideline. The reason given was that the change of plea came too late. We understand that in this court in the Kanon appeal the Aikens LJ said this: "Should the judge have given credit for the very late guilty plea? We think that he should have done so, for the very reason that the judge identified at least. It takes some courage to plead guilty at a late stage and there should be encouragement to all offenders to recognise their offending and to own up to it. That, as [counsel] said in his submissions this morning, also avoids any miscarriage of justice. This should be encouraged by giving credit for a guilty plea even if that is entered at the eleventh hour or even later. In our judgment there should have been a 10% credit." 10. This court respectfully agrees. We therefore consider that in the application of a discount the sentence on count 2 of 9 years should be reduced to 8 years, 1 month's detention in a young offender institution, and on count 1, 7 years, 2 months to run concurrently. Leave is granted. The appeal is allowed to that extent and a representation order is granted.

```yaml citation: '[2015] EWCA Crim 437' date: '2015-02-24' judges: - LORD JUSTICE BURNETT - MR JUSTICE GILBART - HIS HONOUR JUDGE GRIFFITH-JONES ```

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

No: 201207155 C3 Neutral Citation Number: [2013] EWCA Crim 937 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 1 May 2013 B e f o r e : LORD JUSTICE McCOMBE MR JUSTICE KING RECORDER OF LIVERPOOL HIS HONOUR JUDGE GOLDSTONE QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - R E G I N A v PAUL ANTHONY MCKNIGHT - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - Ms N Matheson (Solicitor Advocate) appeared on behalf of the Appellant Mr O Gibbons appeared on behalf of the Crown - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE McCOMBE: On 16 November last year in the Crown Court at Inner London after a trial before His Honour Judge Bishop and a jury, this appellant was convicted of one offence of using a false instrument. On 12 December he was sentenced to 12 months' imprisonment. He now appeals against conviction by leave of the single judge. 2. The circumstances of the offence with which the appellant was charged are fairly straightforward. In June 2011 he had sent to the Treasury Solicitor, in his capacity as the personal representative of the late Juana Gonzalez (who had died intestate on 7 October 2000) a document purporting to be a will made by her on 10 February 1999. The submission of the will, in those circumstances, attracted suspicions of the person at the Treasury Solicitor's department dealing with the matter and led in the end to the allegation that the will was a false document which the appellant knew and believed to be false. Accordingly, he was charged with the offence we have mentioned. 3. The fuller circumstances of the case were these. The deceased had lived at a flat in Davenport Road in London E12. She had been made a subject of a Court of Protection Order on 6 January 1999 because of her mental incapacity. It seems she had been suffering from senile dementia. She died on 7 October 2000. 4. On 22 August 2001, the Treasury Solicitor was appointed as administrator of the deceased's estate as she had died intestate with no apparent next of kin. The administration had essentially been completed by 2003 and had reached a value of some £178,000. In the practical circumstances of the administration, a claim against the estate had to be intimated to the administrator by 13 March 2015. On 7 June, 2011 the appellant instructed a firm of solicitors to submit the document purporting to be a will, seemingly made by the deceased, to the Treasury Solicitor. 5. As we say, the will was dated 10 February 1999, a month or so after the Court of Protection Order. The will stated on its face that the original was to be sent to the appellant for safe keeping and that copies were going to be supplied to the witnesses. It was a strangely drafted document, the details of which do not have to be mentioned, although it purported to be signed and witnessed by the testatrix in customary form. 6. The lady at the Treasury Solicitor dealing with the matter noticed that the will post-dated the Court of Protection Order and certain other strange circumstances: the claim was made nearly 11 years after the deceased's death; the appellant in submitting the will had not provided an explanation as to why the claim had not been made earlier. All these circumstances led the Treasury Solicitor's representative to hand the document to the police. They did not have direct contact with the solicitors. The police made some attempt to trace the witnesses, criticised by Miss Matheson, no doubt correctly, as being somewhat perfunctory. They were unable, however, to find witnesses at the addresses that had been given (perhaps not surprisingly after the lapse of time), but nor was it suggested that any information had come to light as to where those witnesses had gone. 7. On 16 December 2011, some six months or so after the document had been submitted to the Treasury Solicitor, the appellant was arrested and interviewed. He answered "no comment" to all questions. However, he provided a prepared statement stating that he had met the deceased on Uxbridge Road in London in 1990 when he had helped her home with some shopping when something seemed to have fallen out of her bag. He checked up on her whenever he was in the area. His visits would last for 10 to 15 minutes. They would speak about their respective families. She appeared to be coherent, and the appellant said that he was unaware of her disability. He said in the statement that the deceased had sent him an envelope in about 1997 or 1998, but he did not open it at the time. He put the envelope in the loft when his house was being tidied. However, he had discovered the envelope containing the document in 2010 when clearing the loft and found the will inside. He said he was shocked because he had not seen the deceased for about four years prior to receiving the envelope. He took the will to some solicitors to find out whether it was a valid document or not. 8. Essentially the issues for the jury were whether the document that was being presented was a document actually executed by this testatrix and whether the appellant knew or believed it to be false. The evidence before the court for the Crown was the evidence of the lady from the Treasury Solicitor to whom the document had been submitted. She set out her experience in the bona vacantia department of the Treasury Solicitor. She outlined that no claims on the estate had been made until the will had been submitted by the appellant's solicitors on 7 June 2011. She then referred the will to a colleague. She had been surprised by it because it was submitted so long after the death. She noticed differences in font within parts of the document. She had thought it was unusual that the original had been sent to the appellant and copies to the witnesses. She was cross-examined and she told the jury matters of straightforward law: that a will did not have to be in a particular format; there was a difference, she accepted, between a will that was invalid because of lack of capacity and because of falsity as such; she said it was not unusual for a person to make a claim after 11 years. The concern had been originally because of the deceased's known absence of capacity at the date borne on the will document. The estate had been advertised in local and national newspapers some six months after the death. It was likely that it had been advertised, she thought, in Spain as well as in England because that is where the deceased had come from. She told the court that the advertisements at the time would have included the value of the estate, although that practice had subsequently changed. She said that she would have looked at the will before deciding whether to give up the Treasury Solicitor's interest in the estate, and she did think that the will was a possible forgery. 9. The Police Officer in the case gave evidence. The appellant had been asked in interview, he said, about his background and his knowledge of the deceased; about the nature of the relationship; about whether the will he had supplied to the solicitors was the same he had received in the envelope; and he was asked about his address. He offered no comment to all these questions. The Officer had asked two other officers to attend the premises said to be at the addresses of the witnesses. Nothing relevant had been found. He said he was not the original reporting officer. The case had been originally closed, but had been reopened on the invitation of the Treasury Solicitor. He accepted there was no forensic evidence in support of the case that it was a false instrument. 10. In those circumstances, at the close of the Crown's case, Miss Matheson, who appeared for the appellant at the trial as she has before us, submitted that there was no case for the appellant to answer. She argued there was no evidence to show the document was not a will made by the deceased; the fact that it might have been invalid by reason of her incapacity was nothing to the point. She submitted that that fact did not mean that the document had not actually been executed by her. There was no forensic evidence, and suspicion about the circumstances in which the will had been presented was not, she argued, sufficient to enable a jury, properly directed, to be sure that the appellant was guilty of the offence charged. 11. The Crown for its part, through Mr Gibbons who appeared at trial as he has before us, relied upon the circumstances that we have mentioned as being sufficient evidence from which the jury could be sure that the will was false (that is, that it was not a will or purported will of Miss Gonzales). It was argued that this was a case, albeit circumstantial, that should be left to the jury. He tells us (although this is not clear from the judge's own summary of the argument) that he also mentioned the failure of the accused to answer questions when interviewed by the police. 12. In dealing with the submission, the judge expressed himself shortly. It is indeed, of course, a short point. He said this: "It seems to me that this is a case in which the jury must decide these competing submissions on the evidence. Plainly my judgment is that a reasonably directed jury could reach a conclusion that they could be sure that this was a document which was false, in the sense that it was lying about itself in purporting to be a will from Ms Gonzalez, and in those circumstances I am quite satisfied that the case should proceed to the next stage." 13. On the present appeal, the point that is argued by Miss Matheson is that the judge was wrong to reject her submission of no case. She repeats the arguments she raised before the learned judge. The point arising was and is a short one, and the answer to it permits little more elaboration than the judge was able to give in his ruling. 14. The circumstances in which the will was produced were highly suspicious. It was extraordinary that a document in the strange form that this will took should be produced 11 years after the deceased's death, having, on the defence case, been sent to him in an envelope some 13 or 14 years previously, which he did not open but consigned to his loft where it remained undisturbed until re-found during a house-clearance exercise. The police could find no trace of either attesting witness. On the defence case, the testatrix had consigned this original document to the post without any care as to what would happen to it and without seeking to make further contact with the appellant. 15. In short, we agree with the judge that there was indeed a case to answer. It was a circumstantial case, but it was one proper for the jury to assess in the light of proper directions as to the burden and standard of proof. For those reasons, we reject the ground of appeal that was advanced and for which leave was given. 16. Mr Gibbons, as we have already suggested, submits in his skeleton argument that the judge would also have been entitled to take into account in assessing the no-case submission the facts of the appellant's silence (as it is put in the skeleton argument) in his interview with the police, relying upon section 34 of the Criminal Justice and Public Order Act 1994, the well-known statutory provision whereby inferences adverse to an accused may be drawn from a failure to answer questions in such circumstances. This was not, however, a point relied upon by the judge in his ruling, as we have already indicated. 17. However, that submission by Mr Gibbons gave us cause to examine the circumstances in which the possibility of such an inference arose. It is correct, as we have already noted, that the appellant did not answer questions in interview. He said he was so advised by his solicitor. However, he did provide a two-page prepared statement in the terms which we have already outlined. 18. It will be recalled that the trigger for the application of the provisions of section 34 of the 1994 Act are provided in subsection (1) of that section, which provides as follows: "(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 ..." It is important to recall that the triggering provision is a failure to mention any fact relied on in his defence. 19. So far as we can see, up to the point where the appellant gave evidence he did not rely on any fact which was not mentioned in the prepared statement. Accordingly, at the half-time stage the point simply did not arise. However, he did give evidence and his account, as related by the judge in his summing-up at pages 33A to 38B of the transcript, did not, as we see it, deviate in substance from what he told the police in that prepared statement. Naturally, the account given orally in the witness box was fuller than that given in the statement. For example, he said that when he moved home in 1996 he told the deceased his new address but did not give her a telephone number. He also said that during the search of his loft he had found an unopened letter from insurers enclosing a significant cheque, thus bolstering his apparently strange explanation that the important letter from the testatrix had gone unopened for so long. However, the substance of what he said had happened did not vary from the earlier prepared statement. 20. When the judge came to sum up the case, he gave the jury a direction pursuant to section 34 of the Act along very standard lines. The important passages for present purposes are to be found at page 20B to C in these terms: "There is then the question of his failure to answer questions in the police interview. Before his interview, the defendant was cautioned. He was first told that he need not say anything, and it was therefore his right to remain silent. But he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court, and that anything he did say might be given in evidence. Now, as part of his defence in this trial, the defendant has relied upon the following facts: firstly, that he knew Juana Gonzalez, having met her and helped her in the Uxbridge Road with her shopping, and gone home with her, and then befriended her, and met her -- in passing he had called on her once a month or so for a period of time, but he had not seen her for some years; secondly he told you that the will, this document at page 4, had arrived in an envelope some 13 years or so ago, but he had not opened the envelope; and thirdly, he said that he had recently found the will in the loft, when they were clearing the loft." 21. It seems to us to note at this stage that every one of the facts there identified by the judge as being relied upon by the appellant at trial had been mentioned in the prepared statement. The judge made no mention of the additional matters that we have just mentioned, nor certain other matters (to which we will shortly refer) of which Mr Gibbons has informed us today became relevant. 22. Straight after the passage that we have just read, the judge went on to says this at the bottom of page 20 at H through to 21 at C: "The prosecution argue that if there was any truth in his defence now put forward in this trial, then the defendant would have mentioned those facts to the police as soon as he was questioned, and that the only reason for not mentioning his defence must have been that he did not then in that interview have an answer to give." But by definition he had mentioned those facts: they were all in the prepared statement. 23. Again, at the bottom of page 21 starting at letter F over to page 22 at letter B, the judge mentions again the circumstances that the defendant had related in the statement and in evidence. He said this: "So the first question you have to consider is whether in the circumstances the defendant could reasonably have been expected to tell the officers that he knew Juana Gonzalez, he had met her in the Uxbridge road, helped her with her shopping, befriended her, seen her once a month or so, and that the envelope had arrived 13 years ago, unopened, put up into the loft, and that he had recently found it and opened the envelope and found the will. So the question is whether in the circumstances he could reasonably have been expected to tell the police that when he was being asked questions." Again, those matters were all mentioned in the prepared statement. 24. In the circumstances, those enquiries and those passages in the summing-up that we ascertained From the papers led us to ask counsel how it was that a section 34 direction came to be given at all. Miss Matheson was at first unable to recall the precise circumstances, and Mr Gibbons helped us to some extent by saying that he had invited the judge, before speeches, to say that this was a case in which, although a statement had been given, the accused had expanded upon that statement in the evidence that he had given. He had added things such as the reason that his being in the area where the deceased lives was because he played football there regularly and that he dropped in on her occasionally (that, of course, was in the statement), and also that he had got friends to look in on the deceased. Mr Gibbons said that he invited the learned judge to give a more tailored direction in respect of those expansions on the appellant's account, but, as we have shown from the passages that we have read, that is not what the learned judge did. What he did do, rather than reciting facts which this appellant was relying upon in his defence which he had not mentioned, recited a series of facts that he had mentioned in the prepared statement, precisely the opposite of what was required by the circumstances of the case. 25. At the end of summing-up, the learned judge, as some judges do, invited counsel to comment on areas in which he may have failed to deal with matters as he should, but neither counsel took up the invitation to amplify, correct or supplement the summing-up that the learned judge had given. It seems to us that it is highly arguable that no adverse inference direction should have been given in this case at all. It certainly should not, in our judgment, have been given in the form that it was, because it drew to the attention of the jury not new facts relied upon by the appellant but old facts that had been relied upon by him in interview. In essence, the appellant had not relied on facts not mentioned when questioned in any significant sense, save in the two respects that we have already identified in this judgment. 26. This was a case in which in strange circumstances (the production of the will as we have outlined), the credibility of a man of good character was in issue. The judge gave a good character direction immediately followed by a direction, five pages in length, under section 34. That direction could only tend to undermine that credibility in a very significant way. We have listened carefully to Mr Gibbons' submission that the case was highly suspicious; it was an overwhelming case, he submitted, on the circumstantial evidence. We can see the force that the Crown had in putting such an argument before the jury. However, this was a case that depended essentially upon the appellant's credibility. To give a direction at all in questionable circumstances under section 34 was unfortunate; to give it in terms that were substantially inaccurate was even more unfairly prejudicial to this appellant. 27. In the end, therefore, we consider that the conviction in this case is unsafe and must be quashed on the grounds that we have identified, rather than those for which leave was initially given. 28. We would emphasise that this case has thrown in stark relief the importance of counsel discussing with a judge, prior to speeches, the precise ambit of any direction that is to be given pursuant to section 34 of the 1994 Act. It is the experience of those sitting in this court that it is usual for counsel to identify the specific facts relied upon by a defendant in his case at trial, over and above anything that may have been said in interview, and any respect in which the account given at trial varies from that which was put in any prepared statement or in any answers given in interview. That must be done with some care, identifying the individual features that are to be pointed out specifically to the jury in the summing-up. We would hope that that would be noted in any future circumstances where this arises. 29. For the reasons, however, that we have given, we allow the appeal and quash the conviction.

```yaml citation: '[2013] EWCA Crim 937' date: '2013-05-01' judges: - LORD JUSTICE McCOMBE - 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} ======

Neutral Citation Number: [2007] EWCA Crim 805 Case No: 2006/04975/A8 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE INNER LONDON CROWN COURT HIS HONOUR JUDGE ISSARD-DAVIES Royal Courts of Justice Strand, London, WC2A 2LL Date: 3 April 2007 Before : LORD JUSTICE PILL MR JUSTICE HENRIQUES and SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - H Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR RHYS DAVIES for the Appellant Hearing date : 30 January 2007 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pill: 1. On 16 August 2006 in the Crown Court at Inner London before His Honour Judge Issard-Davies and a jury, H was convicted of robbery on indictment 0756. He pleaded guilty before Magistrates and was committed for sentence for a further offence of robbery and an offence of attempted robbery. On 6 September 2006, before the same judge, H was made subject to an extended sentence of 11 years pursuant to Section 228 of the Criminal Justice Act 2003 (“ the 2003 Act ”). On the offences for which he was committed for sentence, indictment 0501, he was sentenced to 3 years detention for robbery and 3½ years detention concurrent for attempted robbery. For the offence of robbery on indictment 0756, he was sentenced to 3½ years detention consecutive. The total custodial term was stated to be 7 years imprisonment to which an extension period of 4 years was added under Section 228(2) giving a total extended sentence of 11 years. 2. H appeals against sentence by leave of the single judge. 3. At 5:30am on 22 May 2005, the complainant ML was walking home across Streatham Common accompanied by a male friend. A group of males approached them. The appellant pushed the victim to the floor. He kicked her two or three times in the head and pulled her handbag from her shoulder until the strap broke. Three other males held the male friend down on the ground. The appellant took the credit card from the victim’s handbag, kicked her and told her to give him a PIN number. She gave him a false number. He searched her and went off with her handbag containing a mobile telephone, a purse containing £15, and some other personal items. The appellant was later found hiding in a garden. He made no comment on interview. 4. The victim felt dizzy and sick. She suffered from concussion and had to wear a neck brace for a week. She had trouble sleeping and became nervous of groups of males. 5. On 12 July 2005, while on bail, the appellant committed a further robbery when he pinned down a man on a bus and took property from him. For that offence, he was sentenced to a detention and training order for 4 months at the South Western Youth Court. Having completed that sentence, he remained on bail for the offence on indictment 0756. 6. In the early hours of 3 July 2006, two young women alighted from a bus in Stockwell (indictment 0501). The appellant ran towards them and grabbed the shoulder bag of one of them. There was a struggle in the course of which the victim’s arm was scratched and the strap broke. One of the women dialled 999. Soon afterwards, the appellant returned and said: “Give me my f… keys, you stole them”, he said: “Give me £20. Do you want to be stabbed?” while reaching for an object in his pocket. He ran off but was found nearby by the police with some of the stolen property. He was also in possession of a folding knife. 7. The appellant’s date of birth is 26 November 1989. He had previous convictions, including that already mentioned, and an offence of wounding in February 2004 for which he was made subject to a supervision order for eighteen months. That offence involved stabbing with a knife. 8. When sentencing the appellant, the judge stated that despite his youth, the appellant was a dangerous offender. The judge rightly considered an extended sentence under Section 228 of the 2003 Act to be appropriate and that assessment is not challenged. The pre-sentence report referred to problems with his upbringing and concluded that he posed a high risk of re-offending with a high risk of harm to the public. The appellant expressed remorse but had little awareness and understanding of the consequences of his actions. He did, however, have a positive attitude to education and had approached community support agencies. 9. On behalf of the appellant, Mr Rhys Davies submits that the total sentence of 3½ years for the offences of 3 July 2006 was too long and that the overall custodial term of 7 years was too long. He relies on the youth of the appellant, who is still only 17 years old. He refers to Attorney General’s References Nos. 4 and 7 of 2002 [2002] EWCA Crim 127 , where guidance was provided for sentencing for robberies in public places of mobile phones and small sums of money. Mr Davies also refers to the case of Chapman [2006] EWCA Crim 1919 where a defendant aged 18, with previous convictions, and for repeated offences of attempted robbery was, sentenced to a total of 4 years in custody, upheld on appeal. 10. A feature of the sentence was of course the imposition of consecutive extended sentences. The court indicated to counsel that it proposed to reserve judgment having been told that the appropriateness of that form of sentence, and other legal issues, was being considered by a court presided over by the Vice-President. The inappropriateness of consecutive extended sentences, as distinct from consecutive sentences generally, was not a point taken by counsel. On 22 March 2007, the court gave judgment in ‘C’ & Ors [2007] EWCA Crim 680 . Having considered the statutory provisions, and the practice followed by the Secretary of State, the court stated: “17. But the fact that these practical solutions are not mandated by the 2003 Act underlines why consecutive sentences under the 2003 Act should be approached with great caution. Nonetheless, as we have said, they can be valuable tools in the sentencer's armoury. One particular example is where a defendant is charged with repeated affrays. In such a case, even though an extended sentence may be mandated, the sentencer has to work within the confines of a maximum sentence of three years imprisonment. In such circumstances, consecutive sentences may be the only way to impose an appropriate custodial punishment and provide for a realistic extended period on licence. 18. Having explained how the sentences can be made to work, and explained the pitfalls, we would not expect this court to interfere with consecutive sentence orders unless the appellant can establish that an insuperable difficulty exists in giving effect to such an order in his case. 19. In summary, our conclusions as to the practice to be adopted in dealing with consecutive and concurrent sentences in this complex area of sentencing are as follows: a. There is nothing unlawful about the imposition of a concurrent or consecutive sentence within either regimes relating to extended sentences, and indeed, as explained by Hooper LJ in R –v- O'Brien et al [2006] EWCA Crim 1741 , where sentences of life imprisonment or imprisonment for public protection are imposed under chapter 5. This court will not interfere where extended or indeterminate sentences were justified, unless the practical result is manifestly excessive, or for some reason gives rise to real problems of administration. b. Nonetheless, judges should try to avoid consecutive sentences if that is at all possible and adjust the custodial term or minimum period within concurrent sentences to reflect the overall criminality if that is possible within other sentencing constraints.” The conclusions at 18 c. and d. are not relevant to the present case. 11. These were serious offences and represented a continuing course of conduct. The later offences were committed while on bail. The violence was considerable on the earlier occasion and involved the threat to use a knife on the later occasion. The appellant had other convictions and presents a high risk of future offending. 12. In our judgment, a substantial overall sentence was required and it was not inappropriate to pass consecutive extended sentences in the circumstances of this case. The sentence of 3½ years for the offence on indictment 0756 of which he was convicted was entirely appropriate. While a consecutive sentence was required for the offences on indictment 0501, we have regard to the youth of the offender and the need, in that context, not to make the overall sentence too long. 13. While the sentences on indictment 0501 will remain consecutive to that on 0756, they were too long. They will be quashed and sentences of 18 months concurrent with each other, on each count, substituted, giving a total custodial term of 5 years. 64 days spent on remand will count towards sentence. The extension period will remain 4 years, that is, 2 years on 0501 and 2 years on 0756, to take effect in accordance with the statute, giving a total extended sentence of 9 years ( ‘C’ paragraph 15). 14. To the extent indicated, this appeal is allowed.

```yaml citation: '[2007] EWCA Crim 805' date: '2007-04-03' judges: - LORD JUSTICE PILL - MR JUSTICE HENRIQUES - 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} ======

Case No: 2010/2361/D4 Neutral Citation Number: [2011] EWCA Crim 2568 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WORCESTER His Honour Judge McCreath (The Recorder of Worceser) Royal Courts of Justice Strand, London, WC2A 2LL Date: 11/11/2011 Before : LORD JUSTICE RICHARDS MR JUSTICE KEITH and MR JUSTICE NICOL - - - - - - - - - - - - - - - - - - - - - Between : The Queen Respondent - and - Tracy Maureen Carpenter Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Rex Tedd QC (instructed by Duncan Kenney Solicitors ) for the Appellant Timothy Raggatt QC (instructed by CPS Worcester ) for the Crown Hearing date : 20 September 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Richards : 1. The appellant, Tracy Carpenter, was tried at Worcester Crown Court before HHJ McCreath (the Recorder of Worcester) and a jury on a count of murder (count 1 on the trial indictment) and a count of wounding with intent (count 2). On count 1 she was acquitted of murder but was found guilty, by a majority of 10 to 1, of manslaughter. She was convicted on count 2. She was sentenced to 11 years’ imprisonment on count 1 and to 6 years’ imprisonment concurrent on count 2. She now appeals against her conviction on count 1, by leave of the full court. A renewed application for leave to appeal against sentence was adjourned to the substantive hearing. 2. The appellant’s son, Joseph (Joe) Carpenter, had previously pleaded guilty to the same counts of murder and wounding with intent. He was sentenced to custody for life (with a minimum term of 14 years 4 months, less time in custody on remand) on count 1 and to a concurrent sentence of 6 years’ detention on count 2. 3. The appellant’s husband, Paul Carpenter, was tried together with the appellant and was convicted of manslaughter on count 1 and of a separate count of wounding with intent (count 3). He was sentenced to 11 years’ imprisonment on count 1 and to 6 years’ imprisonment concurrent on count 3. His application for leave to appeal against sentence was refused by the single judge and has not been renewed. The facts 4. The Carpenter family and the Price family belonged to the travelling community and had known one another for a number of years. Joe Carpenter (aged 18) and Shane Price (aged 21) had been friends on and off for about three years. They socialised and worked together. At some point, however, they had a disagreement and a conflict arose between them. It resulted in their meeting on 13 February 2009 at a pre-arranged location, in the presence of members of their families, so that the two men could settle their differences in a “fair-play fight”. During that fight Joe Carpenter inflicted a number of stab wounds on Shane Price, as a result of which Shane died. Joe also inflicted knife injuries on Shane’s mother, Eileen Price. 5. Joe admitted his own part in these matters and, as we have indicated, entered guilty pleas in respect of the murder of Shane Price and the wounding of Eileen Price with intent. The trial concerned the involvement of his parents. The prosecution alleged joint enterprise, contending that the Carpenter family went to the scene armed with at least two weapons (Joe had a knife and Paul had a machete) and that the appellant was aware at least of the fact that Joe was carrying a knife. It was alleged that the appellant and her husband held on to other members of the Price family to prevent assistance being given to Shane as Joe attacked him: the appellant held on to Eileen Price whilst her husband held on to Frederick Price Snr. It was also alleged that Joe attacked Eileen Price while the appellant held on to her (an attack in the course of which the appellant herself sustained an accidental wound to the hand from Joe’s knife). The issue on the appeal against conviction 6. Leave was granted by the full court on just one ground, as is clear from the transcript of the judgment (see [2011] EWCA Crim 1189 ) and the order drawn up to give effect to it. That ground relates to the judge’s directions as to joint enterprise in relation to manslaughter. 7. In the first part of his summing up, having given directions as to what the prosecution had to prove for the jury to find the appellant or her husband guilty of murder, the judge continued: “Not quite an end of it, because if the prosecution prove, against either Paul Carpenter or Tracy Carpenter, that he or she participated in the violence, and that, when he or she did so, he or she knew that Joe Carpenter had a knife, and intended to use it to cause some injury or harm, but falling short of killing or causing serious bodily harm, or realised that he might use a knife to cause some injury, falling short of really serious harm, then whoever was in that state of mind would be guilty not of murder but of manslaughter. Why? Because the killing would have been unlawful and a shared intention to that extent, but not a shared intention to kill or cause serious bodily harm.” 8. Thereafter the judge prepared written directions in the form of a “route to verdict” document which was handed to the jury and which the judge then took the jury through. It was expressed in terms of what had to be proved in relation to Paul Carpenter, with an instruction to answer the same questions, with appropriate substitutions, in relation to the appellant. Although only the second part related to the alternative of manslaughter, it is helpful to set it out in full: “1. In respect of Paul Carpenter, is it proved that by the time he arrived at the car park he knew that Joe Carpenter was armed with a knife? 2. If no, your verdict will be ‘not guilty’. 3. If yes to (1) go on to answer this question: Is it proved that he shared Joe Carpenter’s intention to kill or to do really serious injury or realised that Joe Carpenter might use the knife with that intention and nevertheless took part by restraining Frederick Price sr, to prevent him from intervening in order to protect Shane Price? 4. If yes to (3), your verdict will be ‘guilty’. 5. If no to (3), go on to answer this question: Is it proved that he knew that Joe Carpenter had a knife and intended to use it to cause some injury or harm but falling short of killing or causing really serious injury or he realised that Joe Carpenter might use the knife to cause some injury falling short of really serious injury and nevertheless took part by restraining Frederick Price sr, to prevent him from intervening in order to protect Shane Price? 6. If yes to (5), your verdict will be ‘not guilty of murder but guilty of manslaughter’. 7. If no to (5), your verdict will be ‘not guilty’. You should then answer the same questions in relation to Tracy Carpenter, substituting her name for that of Paul Carpenter and the name ‘Eileen Price’ for ‘Frederick Price, sr’.” 9. Trial counsel had requested a direction on an alternative verdict of manslaughter and made no complaint about the directions actually given. But Mr Tedd QC, who has come into the case on behalf of the appellant since the trial, contends that there was no scope for a verdict of manslaughter and that no manslaughter direction should have been given, alternatively that the direction given was flawed. 10. The essence of the case advanced by Mr Tedd is that because the offence was murder, the appellant could not be liable for the death as a secondary party unless she shared the intention of the principal, Joe, to kill or to cause really serious harm or she foresaw that Joe might act with that intention. In other words, in Mr Tedd’s submission, in this case it was murder or nothing, and the jury should not have been directed that a verdict of manslaughter was open to them at all, let alone directed in the terms quoted above. A person can be liable as a secondary party in manslaughter only to the extent of the act which he or she foresees, which in this case (as shown by the jury’s acquittal of the appellant on the count of murder) did not include death or life-threatening injury. 11. An alternative way in which Mr Tedd put the argument was that the jury should have been directed that in order to find the appellant guilty of manslaughter they had be sure that Joe acted within the scope of the joint enterprise to which the appellant had lent herself, that is to say a joint enterprise involving foresight of some degree of harm but not of death or life-threatening injury. Mr Tedd observed, however, that it was difficult to see what practical scope there was for a direction of that kind in this case, given that Joe had acted with the intention to kill or to cause really serious harm and had, in Mr Tedd’s submission, thereby acted in a way fundamentally different from that putative joint enterprise. In other words, his alternative way of putting the matter really came back to the first submission, that the appellant was guilty of murder or nothing. 12. Mr Tedd based himself heavily on passages in R v Mendez and Thompson [2010] EWCA Crim 516 , [2011] Cr App R 10 , which examines issues of secondary liability for murder by parties to a joint enterprise and which refers, for example, at [31] to “the removal of the ability of the jury to return a verdict of guilty of manslaughter in circumstances where D sets out with others on a criminal venture in joint possession of weapons, but without intent to kill or cause serious bodily harm, and P murders V in the course of it”. It was the perception of a possible inconsistency between the judge’s directions in this case and the judgment in Mendez and Thompson which led the full court to grant leave to appeal. 13. Mr Tedd also made some criticism of the judge’s approach in expressing the primary directions and “route to verdict” by reference to the appellant’s husband, Paul Carpenter, and directing the jury to make the requisite substitutions when considering the appellant’s case. He submitted that it was unsatisfactory and undesirable for such crucial directions to be given in this manner. He did not seek to advance the point as a separate ground of appeal but said that it would be relevant to the question whether the conviction for manslaughter was unsafe if his main submissions concerning the judge’s directions were accepted. 14. For the Crown, Mr Raggatt QC submitted that Mr Tedd’s approach to the issue of manslaughter was wrong in fact, law and common sense. The jury must have concluded in this case that there was an overall joint enterprise to commit unlawful violence, that the joint enterprise involved the carrying of a knife and machete by the appellant’s son and husband respectively, that the appellant took an active part in preparation and in preventing the deceased’s parents from coming to his aid, and that she acted in the knowledge that her son had a knife and might use it to cause some harm. The jury blanched only at whether the appellant foresaw that he might use it with the intention of killing or causing really serious harm. It must have been open to the jury in such circumstances to convict of manslaughter; and the defence no doubt preferred the jury to be left with the alternative of manslaughter rather than to be faced with a “murder or nothing” decision. Mr Raggatt submitted that the authorities support that approach and that the judgment in Mendez and Thompson does not have the effect contended for by Mr Tedd. The judge’s directions in this case were therefore correct in law and appropriate to the circumstances. Discussion 15. In our judgment, Mr Tedd’s submissions run contrary to a clear and well established line of authority in this court; and whilst they gain superficial support from passages of the judgment in Mendez and Thompson , that case does not in reality represent a departure from the established line of authority and does not provide the appellant with any assistance. 16. For the line of authority against Mr Tedd’s submissions, it is sufficient to go back to R v Roberts and Others [2001] EWCA Crim 1594 . In that case there were three appellants alleged to have participated in a joint enterprise to attack the deceased. Two of them had been convicted of murder, whereas the third (Marc Day) had been convicted of manslaughter. It was argued that since the other two defendants had been convicted of murder on a joint enterprise basis, Marc Day could only have been guilty if he participated in the joint enterprise to inflict grievous bodily harm with intent, and in that case he would have been guilty of murder. If his state of mind was only to intend some harm and he did not foresee the infliction of grievous bodily harm by the others, then he was not a participant in the joint enterprise in question and he should have been acquitted. In rejecting that argument, Laws LJ, giving the judgment of the court, said this: “52. As regards the second point, it is not part of the law of joint enterprise that a secondary party, B, must share the mens rea of the principal offender, A – see Slack [1989] QB 775 and Hide [1991] 1 QB 134 where it was made clear that foresight of what the principal may do is sufficient mens rea for the accessory even if there is no actual agreement between him and the principal. In Powell and English itself a major question was whether a secondary party in a murder case must be shown to have been actuated by the mens rea required in the principal offender, and the question was answered in the negative. The subject matter of a joint enterprise is not a state of mind or intention but an objective act which it is contemplated will or might be done. 53. That proposition we think provides the key to the right result in a class of case which is not, so far as counsel’s researches have revealed, distinctly the subject of any authority. Suppose that the participants in a joint enterprise all propose or foresee the same kind of violence being inflicted on their victim, let it be punching with the possibility of kicking to follow. On that they are at one. But two of them harbour a subjective intention to inflict really serious injury by means of such violence. The third harbours only, or foresees or intends only, that some harm might be done. One of those actuated by an intent to do grievous bodily harm punches or kicks the victim just as all three foresaw. The victim falls and suffers a subdural haemorrhage and dies. The principal is guilty of murder as he had the mens rea required. So also is the accessory who, like him, intended or contemplated the infliction of the serious injury. What of the third adventurer? Mr Fitzgerald submits he must escape altogether because he did not foresee a murderous state of mind would be harboured by his fellows. Yet if his fellows had entertained only an intention to do some harm and otherwise the facts were the same, all three would be guilty of manslaughter. It does not seem to us that that can be right. In such a case there was a joint enterprise to inflict some harm, and that is not negated by the larger intentions of the other two adventurers. In our judgment in such a case there is no reason why the participants should not be convicted and sentenced appropriately as their several states of mind dictate ….” 17. In R v A and Others [2010] EWCA Crim 1622 , [2010] 2 Cr App R 32 , a case concerning the liability of secondary parties for murder, Hughes LJ (Vice President), giving the judgment of the court, drew a distinction at para [27] between a case where D2 foresees that D1 will cause death by acting with murderous intent (in which case D2 has associated himself with a foreseen murder) and a case where all that D2 foresees is that death may be caused without that intention (in which case he has associated himself not with a foreseen murder but with foreseen manslaughter). He then cited at para [28] a substantial part of the passage we have quoted above from Roberts , before concluding: “Thus this court proceeded upon the basis that the second participant was guilty of murder because he at least foresaw the deliberate infliction of GBH, whereas the third was not because he did not. That is precisely the law as we have endeavoured to state it. This court was not beginning to say that D2 could be guilty of murder without foresight that D1 might act with murderous intent.” The focus was of course on secondary liability for murder, but there was not the slightest suggestion of disagreement with the conclusion reached in Roberts that the participant who lacked the requisite state of mind for murder might nonetheless be guilty of manslaughter. 18. To similar effect as Roberts is the judgment in R v Yemoh and Others [2009] EWCA Crim 930 , albeit Roberts does not appear to have been cited to the court in Yemoh . The case concerned a knife killing in which joint enterprise was alleged. One of the appellants had been convicted of murder, the others of manslaughter. In broad terms, therefore, the case had a degree of factual similarity to the present case. One of the arguments advanced on behalf of those convicted of manslaughter was that the judge had been wrong to direct the jury that a defendant would be guilty of manslaughter if it was proved that he participated in the attack and that when he did so “he knew that the knifeman had a knife or other sharp implement and intended to use it to cause some injury or harm, but falling short of killing or causing really serious bodily harm, or he realised that that person might use the weapon to cause some injury, falling short of really serious harm”. In rejecting the appellant’s submissions Hooper LJ, giving the judgment of the court, said this: “125. This submission cannot succeed in the light of the decision of the House of Lords in Rahman [ R v Rahman [2008] UKHL 45 , [2009] 1 AC 129 ], upholding the decision of the Court of Appeal. In Rahman it was argued that the fact that the stabber intended to kill (or may have intended to kill) took (or could take) the stabber’s actions out of the scope of the common design because what the stabber did was ‘fundamentally different’ from what the appellants had intended or foreseen. All that they had intended or foreseen was the infliction of serious bodily harm. That argument was rejected. 126. The argument presented in this case on behalf of those convicted of manslaughter is only a slight variation on this argument. If a defendant knowing that the stabber had a knife intends the stabber to cause some injury to the deceased or realises that he might cause some injury, then the fact that the stabber stabbed the deceased intending to kill him is not ‘fundamentally different’ from what the defendant had intended or foreseen. Counsel could point to no authority to the effect that the fundamentally different rule in manslaughter cases is different to the rule as it applies to murder cases. It follows that, in so far as this argument is concerned, there was no misdirection and it also follows that the judge was entitled if not obliged to leave manslaughter to the jury.” 19. Mr Raggatt directed our attention to what is said about Yemoh in Smith and Hogan’s Criminal Law , 13 ed. (2011), at pages 225-226: “In Yemoh the Court of Appeal confirmed that P’s greater mens rea from that which D foresaw will not prevent D being guilty of manslaughter. D, a member of the gang, knew that another member of the gang, P, had a knife and intended that other to cause some injury to V or realized that he might cause some injury. The fact that P stabbed V intending to kill (i.e. with graver mens rea ) did not absolve D. If D intended or foresaw that one of the group might cause non-serious injury, D remains liable for manslaughter even if P kills with intent to kill or do gbh, unless P’s manner of doing so is fundamentally different from that D foresaw.” 20. To similar effect is the commentary in Archbold, 2011 edition, para 19-26, referring inter alia to Roberts (sub nom. R v Day (M) ), Rahman and Yemoh . 21. All this is fundamentally at odds with the case advanced by Mr Tedd on the present appeal. Mr Tedd submitted, however, that it cannot stand with Mendez and Thompson , which does not appear to have been cited to the court in R v A and Others (nor indeed in Yemoh ) and which we should now follow. 22. The scenario in Mendez and Thompson was that the deceased had met his death from a stab wound after a chase by a group of youths. He had been attacked with punches, kicks and blows with one or more pieces of wood and metal bars. He had also been stabbed with a knife. The two appellants were convicted of murder as secondary parties on the basis of joint enterprise. One of the grounds of appeal was that the judge had wrongly directed the jury in relation to joint enterprise liability, in particular on the question whether use of the knife was fundamentally different from anything the defendants foresaw (in the case of Mendez, at least, there had been no suggestion that he knew that anyone in the group had a knife until after the fatal stabbing had occurred). The court’s consideration of that ground started with a review of the principles of secondary criminal liability. 23. The judgment of the court, given by Toulson LJ, stated at para [18] that, at its most basic level, secondary liability is founded on a principle of causation: a defendant (D) is liable for an offence committed by a principal actor (P) if by his conduct he has caused or materially contributed to the commission of the offence (with the requisite mental element); and a person who knowingly assists or encourages another to commit an offence is taken to have contributed to its commission. At paras [19]-[20] reference was made to early authority that “[i]f the principal totally and substantially varieth, if being solicited to commit a felony of one kind he wilfully and knowingly commiteth a felony of another, he will stand single in that offence, and the person soliciting will not be involved in his guilt”: conduct by P which involves a total and substantial variation from that encouraged by D could not properly be regarded as the “fruit” of D’s encouragement, nor with propriety be said to have been committed under D’s influence. The judgment continued: “21. The judgment of the Court of Appeal in R v Reid (1976) 62 Cr App R 109 at 112 … provides a good illustration of the recognition of the principle. The court commented on R v Anderson; R v Morris (1966) 50 Cr App R 216, [1966] 2 QB 110 …and contrasted the facts of that case with those of Reid . Lawton LJ said: ‘In Anderson and Morris … a distinction was drawn between a mere unforeseen consequence of an unlawful act and an “overwhelmingly supervening event which is of such a character that it will relegate into history matters which would otherwise be looked upon as causative factors”; see the judgment of Lord Parker CJ at … 120. Was O’Conaill’s deliberate firing of the revolver “a mere unforeseen consequence” of the unlawful possession of offensive weapons? We adjudge it was. When two or more men go out together in joint possession of offensive weapons such as revolvers and knives and the circumstances are such as to justify an inference that the very least they intend to do with them is to use them to cause fear in another, there is, in our judgment, always a likelihood that, in the excitement and tensions of the occasion, one of them will use his weapon in some way which will cause death or serious injury. If such injury was not intended by the others, they must be acquitted of murder; but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter.’ 22. Reid no longer represents the common law in England and Wales on the question of the availability of manslaughter as a possible verdict in cases of that kind, because in Powell and English [ R v Powell; R v English [1998] 1 Cr App R 261 , [1999] 1 AC 1 ] the House of Lords adopted a different analysis of Anderson and Morris , which excluded the possibility of a manslaughter verdict in such cases. … However, that is not relevant to the point under discussion. …” 24. Mr Tedd placed particular emphasis on the statement that Reid no longer represents the law on the question of the availability of manslaughter as a possible verdict in such cases. The point was picked up again at para [31], in a passage which we have already quoted when summarising Mr Tedd’s submissions: “Other relevant factors have been … the removal of the ability of the jury to return a verdict of guilty of manslaughter in circumstances where D sets out with others on a criminal venture in joint possession of weapons, but without intent to kill or cause serious bodily harm, and P murders V in the course of it (the scenario considered in Reid ).” 25. The judgment went on to discuss the principle established in Chan Wing Siu v R (1985) 80 Cr App R 117 , [1985] AC 168 , and reaffirmed in Powell and English , that a secondary party is criminally liable for acts by the primary offender of a type which the former foresees as a possibility but does not intend. Toulson LJ referred to disquiet expressed about that principle but explained how it might be accommodated within the concept of causation which underlies secondary liability. He observed at para [38], with a further reference to Reid : “Some would argue, in company with Lord Mustill in Powell and English , that where D and P embark on a criminal venture in which P goes further than D wishes, but foreseeably so, D has a measure of culpability for P’s act and V’s resulting death but usually at a lower level than P. When Reid was good law, the difference was accommodated by the possibility of a manslaughter verdict, but that is no longer available; D is guilty of murder.” 26. A little later he encapsulated and commented on the central submissions before the court in Mendez and Thompson itself, as follows: “45. The essence of Mr Waterman’s argument can be stated in this way. In cases where the common purpose is not to kill but to cause serious harm, D is not liable for the murder of V if the direct cause of V’s death was a deliberate act by P which was of a kind: (a) unforeseen by D; and (b) likely to be altogether more life-threatening than acts of the kind intended or foreseen by D. Mr Watson QC for the prosecution did not dissent from this proposition. The reference to a ‘deliberate act’ is to the quality of the act – deliberate and not by chance – rather than to any consideration of P’s intentions as to the consequences. … 47. In our judgment the proposition stated at [45] is both sound in principle and consistent with Powell and English and Rahman . It would not be just that D should be found guilty of the murder of V by P, if P’s act was of a different kind from, and much more dangerous than, the sort of acts which D intended or foresaw as part of the joint enterprise.” 27. On that basis the court accepted the force of criticisms of the directions given by the trial judge and concluded that the conviction of Mendez was unsafe and had to be quashed; and because Thompson had also been convicted as a secondary party, it was conceded that his conviction, too, had to be quashed. 28. We are satisfied that, on proper analysis, Mendez and Thompson does not support Mr Tedd’s submissions. Our reasons are as follows. 29. First, the context was very different. The underlying issue was whether use of a knife to stab the deceased was fundamentally different from anything the secondary party foresaw, so as to fall outside the scope of the joint enterprise, where there was evidence that he foresaw the use of violence and of weapons (fist, foot, pieces of wood and/or metal bars) but not that he foresaw the use of a knife. The particular test of liability for murder set out and approved at paras [45] and [47], and against which the judge’s directions to the jury were tested, was directed to that issue. The court was not considering a case where the use of a knife to do some harm was foreseen but the secondary party did not share or foresee the murderous intention with which the principal actually used the knife. 30. What the court said about the unavailability of manslaughter as a possible verdict has to be read in that context: it was directed to a case where use of a knife was not foreseen, rather than to a case where use of a knife was foreseen but the secondary party did not share or foresee the intention with which it was used. This can be seen very clearly from the passage in Powell and English which the court evidently had in mind when stating at para [22] that Reid no longer represented the law because the House of Lords had adopted a different analysis of Anderson and Morris . The passage is in the speech of Lord Hutton at [1999] 1 AC page 30B-D: “Accordingly, in the appeal of English, I consider that the direction of the trial judge was defective … because in accordance with the principle stated by Lord Parker CJ in Reg v Anderson , at p.120B, he did not qualify his direction on foresight of really serious injury by stating that if the jury considered that the use of the knife by Weddle was the use of a weapon and an action on Weddle’s part which English did not foresee as a possibility, then English should not be convicted of murder. As the unforeseen use of the knife would take the killing outside the scope of the joint venture the jury should also have been directed, as the Court of Criminal Appeal held in Reg v Anderson , that English should not be found guilty of manslaughter. On the evidence the jury could have found that English did not know that Weddle had a knife. Therefore the judge’s direction made the conviction unsafe and in my opinion his appeal should be allowed and the conviction for murder quashed.” 31. It follows that what was said in Mendez and Thompson about the unavailability of a verdict of manslaughter has no bearing on the issue in the present case. The court was simply not addressing a situation where, as here, use of a knife was foreseen but it was not intended or foreseen that the knife would be used with the intention to kill or cause really serious harm. It is therefore unsurprising that cases such as Roberts and Yemoh are not referred to in the judgment and do not appear to have been cited to the court: the issue in those cases did not arise for consideration in Mendez and Thompson . 32. If, contrary to our reading of the judgment, anything said in Mendez and Thompson is to be taken as applying to the availability of a verdict of manslaughter in circumstances such as those of the present case, what was said was plainly obiter (the case was concerned with liability for murder, not for manslaughter) and was expressed without consideration of the Roberts line of authority, and in our view it cannot displace that line of authority. 33. Accordingly, we take the view that the Roberts line of authority remains good law. Its application is determinative of this appeal. We are satisfied that the alternative of manslaughter was properly left to the jury and that there was no material error in the judge’s directions. It might have been better for him to give the jury a separate “route to verdict” in respect of the appellant, rather than directing them to make the appropriate substitutions in the “route to verdict” in respect of her husband, but the jury can have been left in no doubt as to the test they had to apply and there is nothing to cast doubt on the safety of the appellant’s conviction. 34. The appeal against conviction must therefore be dismissed. Sentence 35. We turn to consider the renewed application for leave to appeal against sentence. Mr Tedd submitted that a sentence of 11 years’ imprisonment was simply too high in view of the fact that the appellant was a secondary party who was not herself armed and who acted with the limited intention or foresight implicit in the jury’s verdict, and given the available mitigation. 36. The appellant was born on 31 January 1964 and is now therefore 47 years old. She does have two previous convictions for assault occasioning actually bodily harm but they were a very long time ago (in 1982 and 1983 respectively) and were dealt with in one case by a fine and in the other case by a short suspended sentence. She had led a positively good life between then and the present offence, acting for many years as a foster carer. A psychiatric report on her revealed a woman prone to anxiety and depression over many years. 37. Taking everything into account, we do not consider a sentence of 11 years to be arguably excessive. This was an appalling offence, with the appellant playing an important role in the events that led to the death of Shane Price (as well as the wounding of Eileen Price). The mitigation available to the appellant was limited in nature and she did not attract the credit that would have been afforded by a plea of guilty. The sentence was severe but justified. 38. The renewed application for leave to appeal against sentence is therefore refused.

```yaml citation: '[2011] EWCA Crim 2568' date: '2011-11-11' judges: - LORD JUSTICE RICHARDS - MR JUSTICE KEITH - MR JUSTICE NICOL ```

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

Neutral Citation Number: [2018] EWCA Crim 692 Case No: 201705582/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 14 March 2018 B e f o r e : LADY JUSTICE THIRLWALL DBE MRS JUSTICE WHIPPLE DBE HIS HONOUR JUDGE LEONARD QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - R E G I N A v RAYAN TAHIR OWAIS - - - - - - - - - - - - - - - - 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 T Qureshi appeared on behalf of the Appellant - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. MRS JUSTICE WHIPPLE: Introduction 2. The appellant is now 39 years old. On 13th December 2017 in the Crown Court at Warwick the appellant pleaded guilty to a single offence of causing serious injury by dangerous driving, contrary to section 1A of the Road Traffic Act 1988 . He was sentenced to 2 years' imprisonment and disqualified from driving for 3 years and until an extended re-test had been passed. 3. He now appeals against that sentence with the leave of the single judge. The Facts 4. On 10th May 2016 at 10.45 pm on the A426 near Rugby in Warwickshire the appellant was driving his car when he was involved in a head-on collision with a car being driven by the complainant, Mr Ketchell. Mr Ketchell was 60 years of age at the time of sentence. Mr Ketchell was travelling in the opposite direction on the single carriageway road. The traffic on the road was heavy because traffic, including the appellant's car, had been diverted from the M6 onto the A426. There was a slow but steady flow of traffic travelling at around 40-45 miles an hour. The appellant was unfamiliar with the road. His SatNav was telling him to do a U-turn. It was dark and there was no street lighting and the road conditions were dry. Both drivers were alone in their cars. 5. The appellant overtook two cars and then attempted to overtake a lorry. He said this was so that he could see a sign indicating where the diversion from the motorway was going to take him. A witness in the traffic behind the lorry saw the appellant's car travelling at speed, overtaking the witness's vehicle and another vehicle. The appellant did not pull in after overtaking the two cars but continued to overtake the lorry and that is when the collision occurred. Mr Ketchell had no chance of avoiding the collision. The appellant claimed that he did not see the headlights of Mr Ketchell's car coming towards him. 6. All of the airbags in Mr Ketchell's vehicle were deployed and Mr Ketchell was left dazed and trapped in his vehicle by both ankles. He was taken to hospital and remained in hospital for around 9 weeks. He had surgery on his ankles and he also suffered broken ribs and some lacerations. 7. In interview the appellant explained that he believed it had been safe to overtake and he believed he had a clear view of the road ahead. 8. A victim impact statement was put before the sentencing court which described the injuries suffered by Mr Ketchell. He was depressed and anxious while he was in hospital. He had been unable to return home when released from hospital and instead had gone to live with an aunt who had a bungalow. Since the accident he had moved to a bungalow because he could not manage the stairs with his injuries. 9. At the time of sentencing he still had to walk with a stick and he had a limp. He could no longer drive a manual car and had to give up dancing, his recreational interest. The judge described these injuries as "life changing". Sentence 10. In passing sentence the judge remarked that the appellant overtook two cars and then without coming back into his lane made the fateful decision to carry on and overtake a 15 metre lorry which had been travelling between 45 and 55 miles per hour. The judge noted that the appellant had not intended to cause harm but that he had caused Mr Ketchell very serious injuries. She noted that the appellant was himself injured also. He sustained fractures to his lumber region, to his wrist and suffered internal bleeding and spent some days in intensive care. 11. By way of personal mitigation, the judge noted that the appellant was 38 years of age and had no previous convictions. He had an unblemished record of driving for 21 years. The judge had read the pre-sentence report and the character references which showed him to be a responsible family man who gave a lot to the community. She noted that the appellant had two young children and that a prison sentence was likely to jeopardise the business that the appellant had spent many years building up. The judge noted that she did not have guidelines as such, but she did have regard to the guideline for causing death by dangerous driving. It was agreed that this was a level 3 offence under that guideline. There would have been a starting point of 3 years' imprisonment with a range of up to 5 years' imprisonment. 12. In terms of culpability and the dangerousness of the driving she described this as a "really very dangerous manoeuvre" which fell high in the category range. She said that the appellant had been distracted by the diversion and by the SatNav and what it was telling the appellant. 13. Taking all of those matters into account the judge said that she would have passed a sentence of two-and-a-half years' imprisonment after a trial. She gave the appellant 20% credit for his late guilty plea. That reduced the sentence to one of 2 years' imprisonment, which would be an immediate prison sentence. She said that the message had to go out that if you drive a car dangerously and injure other people you must go to prison unless there are really good reasons not to and there were no goods reasons here. She imposed the driving disqualifications for 3 years. The Appeal 14. The appeal is brought on the following grounds: (i) The starting point of 2.5 years was too high; (ii) The judge wrongly attributed aggravating factors to the sentence; (iii) Insufficient consideration and weight was given to the appellant's positive good character; (iv) The sentence should have been suspended. 15. We are grateful to Mr Qureshi for his focused submissions in support of these grounds. He has focused on grounds 1, 2 and 3, in particular, in his submissions before us. Discussion 16. Mr Ketchell was grievously injured in this collision and will have to carry the consequences of his injuries for years to come. Nothing said or done in this court can change that. We acknowledge that the harm caused by this collision was very substantial. Further, we consider the appellant's culpability to be high for the reasons explained by the judge. To try to overtake on an unfamiliar road, at night, in the circumstances described, was undoubtedly dangerous. 17. In relation to the second ground Mr Qureshi submits that the judge was in error in suggesting that the appellant was distracted by fiddling with his SatNav. The fact that the appellant was being told by his SatNav to perform a U-turn was only ever part of the background facts and was not something that the prosecution alleged to have been causative in any way of this collision. We accept that the judge may have overstated the relevance of the SatNav in her sentencing remarks. We accept that there is no evidence that the SatNav did in fact cause or contribute to the collision as it occurred. 18. We come then to the central issue in this appeal, which is whether the judge was right to take 2.5 years as the sentence following trial and before credit for plea. This is to address grounds 1 and 3. (We note that the appellant’s grounds suggest that 2.5 years was the judge's "starting point" . It was not, it was the notional sentence she identified following trial and took account of the appellant's personal mitigation.) 19. Like the judge, we start with the guideline for causing death by dangerous driving. We, like her, consider this offence to fall within level 3. It was "brief but obvious danger arising from a seriously dangerous manoeuvre" as the guideline indicates. We accept that there are no additional aggravating features present by reference to the list set out in the guideline. We think there is one additional mitigating feature present, namely the fact that the offender was seriously injured in the collision. Even accepting that the appellant's manoeuvre was very dangerous, we conclude that if this had been a case of death by dangerous driving the correct starting point, before considering personal mitigation and other factors, would have been 3 years or thereabouts. In recognition of the substantial personal mitigation the sentence after trial would have been in the region of two-and-a-half years. Because death did not result the sentence after trial in this case must be lower than that. We therefore agree that the judge's notional sentence of two-and-a-half years following a trial was too high. 20. The starting point in this case, we conclude, should have been around 2 years to reflect the serious harm and culpability, which features the judge was right to emphasise. The term would then need to be reduced to reflect the appellant's substantial personal mitigation. In addition to the fact that the appellant suffered injuries in the accident, the appellant has two school aged children and family responsibilities, and he has accepted responsibility for what occurred and has expressed his remorse from the outset. He also has a clean driving record over 21 years. While the guideline states that a good driving record is not a factor which automatically falls to be treated as a mitigating factor, any evidence that the offender has been an exemplary driver can be taken into account. In this case the appellant runs a vehicle recovery business which he started and developed himself, recovering vehicles from collisions and other scenes of crime. It is appropriate to give him some credit for the fact that driving is part of his livelihood and has been for many years, and yet this is the first blemish on his record. These features of personal mitigation would bring the sentence, after trial, down to around 20 months. 21. We are not invited to depart from the judge's assessment of 20% to reflect the guilty plea, which in any event we consider was appropriate. We arrive at a sentence of 16 months' imprisonment, after guilty plea. This is the sentence which we substitute for that imposed by the judge. The sentence originally imposed was manifestly excessive. 22. Because we have allowed this appeal and substituted a shorter sentence we must revisit the disqualification term. We are assisted by the checklist in R v Needham & Ors [2016] EWCA Crim 455 at paragraph 31. This offence carries an obligatory disqualification pursuant to s 34 of the Road Traffic Offenders Act 1988 . The minimum term for causing serious injury by dangerous driving, as prosecuted in this case, is a term of 24 months, see s 34(4)(a)(iia) of that Act. Pursuant to section 35A of the same Act we impose an extension period which will be half of the term of custody imposed, namely 8 months. That will give a total period of disqualification from driving of 32 months. The appellant is required to take an extended driving test at the end of that period as a condition of recovering his licence. 23. In conclusion, we allow this appeal, we quash the sentence of 2 years' imprisonment imposed by the judge. We substitute a sentence of imprisonment of 16 months and do not disturb the victim surcharge order. We disqualify the appellant from driving for a total period of 32 months and we direct that he must take an extended driving test at the end of that period.

```yaml citation: '[2018] EWCA Crim 692' date: '2018-03-14' judges: - LADY JUSTICE THIRLWALL DBE - MRS JUSTICE WHIPPLE DBE - 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} ======

Neutral Citation Number: [2012] EWCA Crim 2893 Case No: 201200977 C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 12th December 2012 B e f o r e : LORD JUSTICE TOULSON MRS JUSTICE COX DBE MR JUSTICE CRANSTON - - - - - - - - - - - - - - - - - - - - - R E G I N A v IAN COULL - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7422 6138 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Miss K Thorne appeared on behalf of the Appellant Miss S Mallett appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE CRANSTON: This is an appeal against conviction by leave of the full court. On 23rd September 2010, in the Crown Court at Teesside, this 34-year-old appellant was convicted of five counts of rape (counts 1, 5, 6, 8 and 9 on the indictment) and one count of sexual assault (count 7). The jury acquitted him of two counts of rape, counts 3 and 4. The judge, His Honour Judge Walford, found that there was no case to answer in respect of count 2, rape. 2. On 28th January of the following year the judge sentenced the appellant for the rape offences to concurrent extended sentences comprising a custodial term of 15 years and an extension period of eight years. He was sentenced to two years' imprisonment concurrent for the sexual assault. He was also made subject to a Sexual Offences Prevention Order. 3. Evidence at the trial was heard over two weeks in September 2010, with the jury returning their verdicts in the third week. The appellant was represented by senior counsel, Mr Nicholas Atkinson QC, and junior counsel, Mr Ellwood. 4. There were four complainants. Three were former partners of the appellant, "N", "Y" and "J". Y and J were related, being niece and aunt respectively. N was involved in a relationship with the appellant between 2004 and 2006 and again between 2007 and 2008, Y in 2008 and J in 2009. 5. The prosecution case was that the appellant had raped these women over that six year period in the context of relationships which were possessive, violent and controlling. Drug use by both parties was a feature of the relationships. 6. The rape counts were sample counts. Counts 1 to 4 alleged rapes of N. In relation to counts 3 and 4, the prosecution called evidence from N's boyfriend. Counts 5 and 6 involved Y. Evidence was before the jury that the appellant and Y had received cautions for an incident of violence towards each other. Counts 8 and 9 concerned J. She had a conviction for assaulting the appellant. In her evidence at trial she stated that nothing had occurred which was not consensual and that the appellant had never either vaginally or anally raped her. That was in contradiction to what she told the police. She now said that she had made that up. She told the jury that she had visited the appellant in prison. 7. As we have indicated, count 7 was an accusation of sexual assault. That was of one of Y's friends, "A". Its basis was an incident when the appellant had indecently touched A when she was trying to assist Y, who had passed out after the appellant had given her alcohol and drugs. 8. The allegations only came to light when J was questioned about unrelated matters. The police had then contacted the other complainants. 9. When questioned in his police interview about the offences which J alleged, the appellant initially failed to mention N or Y until asked directly about them. 10. In her evidence, N denied any motive for making up false allegations. She had never complained previously, she said, because it was her word against the appellant's. She had made her statement only after the police arrived at her home. 11. Y said that she had not made a complaint earlier because she just wanted the appellant out of her life. She would never have telephoned the police because she had to continue to live on the estate. She denied wanting revenge or that she had sent a text to J saying "Revenge is sweet. I feel like dancing". 12. A said that she had not reported the incident, although she had told her husband, because at the time the appellant was still in a relationship with her friend Y. 13. The appellant gave evidence and denied the allegations. He could not explain why the complainants were fabricating their allegations, but speculated that the police may have contaminated the evidence of N and Y when approaching them after J had given her statement. He also suggested that there may have been a desire for revenge by some or all of the complainants because he had left them, and in Y's case there may have been a grudge due to an investigation concerning her daughter. In fact the appellant denied the specific incidents in Y's case which she had said had led to rape. He also said that N had deliberately caused trouble in the relationship he had with Y. In his evidence the appellant suggested that A was making up the allegation to support Y, her friend. The appellant told the jury that he only used violence in self-defence when provoked beyond endurance. He accepted, however, that the relationships had been volatile. 14. The appellant called his mother, who gave evidence of his contact with N, Y and J. One of the appellant's male friends gave evidence about two incidents, one with N, the other with Y. A woman gave evidence that she was an ex-lodger of Y and described what she said was Y's bizarre behaviour of violence and drug taking. Y disputed that the woman had ever stayed at her address. 15. In directing the jury, the judge began with the conventional direction about standard and burden of proof and then on treating each count separately, but he added that did not mean in total isolation. He said that as a matter of law the evidence in relation to one count was capable of supporting the prosecution case in relation to another count, and so in this case the evidence of one woman about the way the appellant treated her was capable of supporting the evidence of the other women about how he had behaved towards them. The judge continued on this issue of cross-admissibility as follows: "The Prosecution case depends on whether you are sure, when it comes to important matters, that these four women have been truthful, accurate and reliable witnesses. When considering whether they have given truthful, accurate and reliable evidence, you should make an assessment of them individually, but also the Prosecution submit that you can and should take account of the similarities of the defendant's behaviour which each of them has described. On the face of it, the fact that these women have made similar but otherwise unconnected complaints about the defendant's behaviour makes it more likely that each of these complainants is true. In that sense, the evidence of each of the complainants is capable of lending support to the others. Obviously, the first issue you will need to resolve is whether the complaints made by these women really are independent of one another. If you came to the conclusion that witnesses have put their heads together and then each made similar allegations, you might also think that this would not be very convincing or reliable evidence." 16. The judge then said that, in advancing the appellant's case before the jury, Mr Atkinson QC had not suggested any conspiracy between the women, but that it was right that they should examine the evidence as to whether they really were independent. He recounted the evidence that N did not know Y, although they knew of each other's existence. N did not know J. Although Y and J were related, prior to 2010 in March their evidence was that either they had little contact or had not spoken for up to three years. The judge added: "Accordingly, the Prosecution submit that there is no realistic possibility that any of the witnesses' evidence has been influenced or contaminated by anyone else, consciously or unconsciously, and that therefore, there had been no collusion nor any basis for thinking that the evidence is not independent, you can safely treat the evidence of each complainant as supportive of the others. If you accept the Prosecution's submission as to the independence of each of these complainants, whilst you must, as I have said, consider the case against and for the defendant on each count separately and return separate, individual verdicts, you may have regard to the evidence in relation to one or more of the other counts because evidence of one count is capable of supporting the Prosecution case on the others, just as the evidence of one woman about the defendant's treatment of her is capable of supporting the truthfulness and accuracy of another woman's evidence as to how the defendant treated her." The judge cautioned that the jury had to proceed carefully to decide whether in fact the evidence of the witnesses did support each other. 17. The judge also directed the jury on propensity. He explained how, by agreement of both sides, they had heard background evidence about the history of the relationships, the drugs and the violence, albeit that there was a dispute about who began the violence. That evidence, he explained, was not to blacken the appellant's character. Just because he had behaved badly in the past, if they accepted that he had, did not mean that he had done so on other occasions; rather, its relevance was that the prosecution said that the history of the relationships revealed a pattern of behaviour towards women, namely one which became abusive. The judge explained that the appellant painted a very different picture. While adventurous sex and drug taking did feature, the relationships were essentially loving, with Y less so, and all sexual activity was consensual. The judge concluded: "If, having considered the evidence of both the defendant and the complainants, you are sure that it does show that the defendant had a propensity to treat his girlfriends or indeed all women in a particular way, it is a matter for you to decide whether and, if so, to what extent it helps you to decide whether he is guilty of one or other of these counts on the indictment. What you will need to remember is that a tendency to behave in a certain way does not of itself prove that he did what is alleged against him in these counts on the indictment. A tendency to behave in a certain way is only part of the evidence in the case and you should not exaggerate its importance. You could come to the conclusion that he treated his girlfriends shamefully yet still not be sure of his guilt on the specific charges which he faces." The judge then went on to address the jury as to what he summarised as the defence case. 18. Before us, Ms Thorne submits that the convictions are unsafe, first, because of defects in the judge's directions on cross-admissibility and propensity; secondly, there was a failure to put the appellant's case on contamination; and, thirdly, there were factual misdirections. 19. As to the first, her submission is that the judge had misdirected the jury in relation to the cross support that one complainant's evidence could give the other. He had failed to warn them about the dangers of contamination and collusion and had not told them that only if they were sure that the women had not colluded could they use the evidence of one to support the account of the other. As to propensity, Ms Thorne submitted that the judge had misdirected the jury in relation to how to deal with one complainant's evidence supporting another. He had failed to indicate that they should exclude the possibility of contamination or collusion before considering propensity. The judge had not warned about innocent contamination. 20. In relation to the second ground, Ms Thorne contends that there was a possibility of collusion, or at least conscious or unconscious influence, between the complainants. There was the relationship between the two of the women (Y and J) and there had been contact between all three. She took us, for example, to N's ABE interview where, in the course of the interview, N said that Y had contacted her by phone and had texted her on at least one occasion. (We note in passing that in the course of that ABE interview, N's evidence was "I don't know [Y], I've never even met her". That in context was a reference to not having met Y in person, because it is clear from what N also said that she had been in contact with Y both through phone and through texting). That, Ms Thorne contended, was in clear contravention of what the jury had been told, that there was no contact between N and Y. Given that there had been contact, there was the possibility, at least, of innocent contamination. The appellant had given evidence of N causing trouble during his relationship with Y and Y's desire for revenge. That was backed by the evidence of the alleged text. 21. In particular, Ms Thorne underlined the point the appellant had raised about the possible contamination by the treatment of J in the course of the police interview and the way that that might have led to false allegations, first by J, but also by Y and N. She accepted that the appellant had given evidence about the volatile nature of the relationships, but the possibility of contamination was also there, at least implicitly. In her submissions the judge should have addressed the issue of whether, as a result of contact, some of the complainants might have changed their characterisation of what had happened to them from rough sex to rape. 22. None of these arguments persuade us that this appeal should be allowed. First, the judge's directions about cross-admissibility dealt with the possibility of contamination. In the passage we have first quoted the judge told the jury that the prosecution's cause depended on whether they were sure that the complainants were truthful, accurate and reliable witnesses and, significantly, a few lines later, "whether the complaints made by these three women really are independent of each other". The judge then set out the relationships between the women, as we have described. In the second passage we have quoted the judge summarised the prosecution submission that that evidence meant that there was no conscious or unconscious contamination, and that if the jury "accepted" the prosecution submission as to the independence of each of the complainants, they could use the evidence of each of them as supportive of the allegations against the others. In our view, the term "accepted" must be read in the light of what the judge said at the very outset of his explanation to the jury about cross-admissibility, namely that the prosecution case depended on whether the jury were sure, inter alia, that the women were independent of each other. When read as a whole, we conclude from what the judge said that the jury were being warned that they had to be sure that there was no collusion or contamination, in line with what this court has laid down in, for example, R v N(H ) [2011] EWCA Crim 730 and R v Lamb [2007] EWCA Crim 1766 . 23. As for propensity, we take the view that in the circumstances of this case that issue was closely related to cross-admissibility. The judge explained the evidence and its possible relevance. As we have set out, when he came to propensity he had already dealt with collusion and innocent contamination. In our view, the judge covered all that was necessary in terms of the propensity direction. He warned that the jury should not think that bad behaviour in the past necessarily meant bad behaviour later. In the passage we have quoted he directed the jury that, if they were sure that the evidence demonstrated propensity, it was for them to decide whether it helped them on any of the counts. 24. In relation to the criticism that the judge had failed to put the defendant's case on contamination to the jury and that what he had said was factually incorrect, we have been assisted by what we have been told by Ms Mallett, who was junior counsel representing the prosecution at the trial. She explained -- and we put it in broad terms at this stage -- that contamination had not really featured in the appellant's defence. As we have said, the judge said expressly that in advancing the appellant's defence Mr Atkinson QC did not suggest that there was any issue of conspiracy between the women. Nor, as far as we can see, was there any evidence of conscious or unconscious influence or contamination, subject to what we say in a moment about possible contamination because of the way the police had interviewed J. 25. As we have said, the appellant's defence in cross-examination of the complainants, his own evidence and the evidence he called was denial. He never suggested deliberate or innocent contamination in the case of the three main complainants. That too is underlined by the nature of the counts. Count 1, involving N, was a count of anal rape, but the appellant's account was that he could recall on one occasion that he had begun to have anal intercourse with N, but that once she had drawn breath sharply, he had immediately desisted. Innocent contamination is not relevant to his defence on that count. So, too, with the two counts involving Y, where the appellant's defence was that these did not happen. That was also his defence with A: the sexual assault simply did not happen. In relation to J, count 8, where he conceded that he had spat into her mouth on one occasion while having intercourse, his account to the jury was that he thought she might like it since he had done that on previous occasions with other girlfriends. In terms of the count of anal rape involving J, his defence was it was consensual. 26. In our view, it is difficult to see how, in terms of his defence on these counts, contamination could arise. As we have said, the explanation he offered for what he contended were their fabricated allegations was that it derived from the police enquiries, first of all with J, and then leading on to the interviews of N and Y. As far as we can see, and this is confirmed by Ms Mallett, the defence he put at trial was that the complainants had fabricated their accounts not through contamination, but because they were motivated by revenge, or in Y's case, as we have explained, by a grudge. 27. None of that raised contamination, innocent or otherwise. The suggestion about N's trouble-making really went to her credibility and her motive for making the allegations, as did the explanations about revenge and grudge. 28. Ms Thorne has conceded before us that she can make no complaint that the case put to the jury in terms of the appellant's defence was, apart from her complaint about contamination, otherwise unbalanced or unfair. 29. Finally, it is apparent to us that the jury gave close attention to what the judge had said and to the evidence they heard during two weeks of the trial. They convicted the appellant of the counts involving J, notwithstanding her evidence at trial. On the other hand, they acquitted the appellant on two of the counts involving N, counts 3 and 4. That, to our mind, demonstrates that the jury accepted that the appellant's guilt on some counts did not automatically mean his guilt on all. If they had thought in relation to any of the complainants that there was a possibility of contamination, we cannot conceive that they would have brought in those verdicts. We do not believe that there is a danger that that happened. We dismiss the appeal.

```yaml citation: '[2012] EWCA Crim 2893' date: '2012-12-12' judges: - LORD JUSTICE TOULSON - MRS JUSTICE COX DBE - MR JUSTICE CRANSTON ```

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

Neutral Citation Number: [2014] EWCA Crim 1522 Case No: IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MANCHESTER CROWN COURT His Honour Judge Hale T20120634 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/07/2014 Before : LORD JUSTICE FULFORD MR JUSTICE FOSKETT and HIS HONOUR JUDGE NEIL FORD QC, RECORDER OF BRISTOL (sitting as an additional judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between: Polyflor Ltd Appellant - and – Health and Safety Executive Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - John Cooper QC (instructed by BLM Solicitors ) for the Appellant Nigel Lawrence QC for the Respondent Hearing date: 8 July 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Foskett: 1. On 28 February 2013 at Manchester Crown Court, after a trial lasting 4 days before His Honour Judge Hale and a jury, the applicant company was convicted unanimously of one offence of failing so far as reasonably practicable to ensure the health and safety of its employees contrary to section 33(1) (a) of the Health and Safety at Work, etc, Act 1974 (‘ the 1974 Act ’). The applicant was fined £7,500 and ordered to pay £34,000 by way of costs. 2. At the close of the prosecution case, a submission of no case to answer was made on behalf of the Applicant. It was rejected by the judge and, as we have indicated, in due course the jury convicted the Applicant. The sole proposed ground of appeal against conviction is that the judge should have acceded to the submission of no case. It is contended that there was no evidence of a breach of duty by the Applicant and the case should not have been left to the jury. 3. The Applicant renews its application for leave to appeal against conviction after refusal by the single judge. Whilst, for the reasons we will give, we do not consider that the challenge to the judge’s decision should succeed, we are of the view that the appeal raises an arguable issue and, accordingly, grant leave to appeal. We are reinforced in that latter view by the fact that, as the transcript demonstrates, the trial judge did not see the merits of the case as necessarily pointing in only one direction: indeed he observed at one stage that “the merits are all with the defence”. Henceforth the Applicant will be referred to as ‘the Appellant’. 4. The Appellant is a manufacturer and producer of commercial and domestic vinyl floor covering. It employs 350 people at its premises in Whitefield, Manchester. Those employees included Mr Andrew Printy. At the material time he was employed as a Technical Support Engineer. His duties included managing the craftsmen, attending on breakdowns and dealing where necessary with a wide variety of machines used in the course of the Appellant’s manufacturing processes. 5. On 17 May 2011, whilst undertaking maintenance activities on a “granulator infeed conveyor” (commonly known on the site as a “hugging conveyor”), Mr Printy suffered a fractured arm and as a result was off work for 7 weeks. It was that incident, against the background of what had occurred previously in 2007, which led to the prosecution of the Appellant by the Respondent. 6. We cannot do justice to the appeal without describing the nature of the machine and the background to what occurred to Mr Printy. We understand the purpose of the machine is to assist in the recycling of unused vinyl products. Vinyl material that is fed into the hugging conveyor is sandwiched between two conveyor belts which run together to create a nip (rather like a mangle) and which then carry the material upwards to the granulator at the top of the machine. Once granulated the material is fed through a suction pipe to a part of the machine colloquially referred to as “the wardrobe” which then rounds the material up into neat pieces and the material is then sucked into the bagging section. The judge described the process as follows in his ruling on the “no case” submission: “What happens is that vinyl in a solid strip emerges from the water buff … and feeds automatically into the gap [in] the main … machine, which is held between two moving conveyor belts from a bottom roller and fed upwards to a top roller, which feeds the vinyl into a granulator.” 7. A schematic diagram prepared for the jury’s assistance shows the configuration of the conveyor belts and demonstrates clearly that once the material has reached the entrance to the granulator itself there is a sharp bend before the material is fed (or drops) down into the granulator. Apparently, it was a not infrequent occurrence that the vinyl material would become jammed at this point and the machine would stop operating. 8. As will become apparent from the description that follows, access to the rollers is ordinarily prevented during normal operation by certain guards that are in place. 9. What happened in the situation where a blockage occurs was described clearly by the judge in his ruling and we borrow substantially from what he said: “... Blockages tend to occur at the upper roller. The machine stops, and the blockage is manually cleared. That may or may not require guards to be removed; it depends on the extent of the blockage. That process of unblocking the machine, whether the guards are on or off, itself causes no hazard as the power is switched off, and there are no dangerous parts in the machine such as blades, that when switched off can cause any risk whatsoever. However, once unblocked and otherwise ready to be restarted, it is necessary to check that the two belts have not been forced out of alignment. Severe blockages might also require the engineer to slacken the tension of the belt at the top or the bottom roller, and the tension needs to be reapplied and the alignment also rechecked, so that the belts can be properly aligned in a way central to the rollers. Tensioning and the tracking of the belt is achieved by two sets of screw threads on bolts, one paired to the top roller and one paired to the bottom. It is the process of tensioning and alignment that give rise to this prosecution. In 2007 an engineer, Mr. Manchester, was injured in the course of performing that task. Up until shortly after his accident in 2007, the two pairs of adjusting bolts were inaccessible without the removal of guards covering the rollers. As it is necessary to see the belts running to check the adjustment, the machine had to be operated without guards and without vinyl, but there was no way of adjusting the alignment at that stage, without removing the guards. The danger was the bottom roller, in that the point came where the two belts came together at a roller … where there is a nip, and it is extremely easy for one's hand or arm to be drawn in under that roller and crushed.” 10. The judge described what happened to Mr Manchester and drew a distinction between what occurred to him and what happened to Mr Printy. What happened to Mr Manchester did not occur, he observed, “in the scope of adjustment following a blockage”, but in the context of gaining access to and fixing an internal bar just forward of the bottom roller, the screw attachment to which had become detached. As a result the bottom roller had to be removed in order to gain access to the broken part. The judge recorded correctly that “the accident to Mr. Manchester is relied on by the prosecution, to the extent it forms a background to subsequent events, and made it clear to the company the dangers inherent in allowing the machine to be switched on unguarded.” Indeed, as he went on to describe, the arrangements were changed after Mr Manchester’s accident: “However, it did lead to a total reassessment of the machine. Mr. Manchester himself was asked to make the suggestions and he did, and most of them were substantially adopted. The main effect was to allow for adjustments to tracking and alignment to be achieved without removing any guards …. Metal was cut away to allow access to the two pairs of tensioning bolts. Mesh viewing points were installed at the bottom, top and side of the parts of the belt, which allowed a degree of visibility as to the alignment of the belts. One thing that was not done was to put a plastic screen where one is now to be found, so that an operator could in the area of the bottom roller, look straight down on to the belts. That has now been done. We have heard as yet no evidence why that was not done in 2007. It is said by the prosecution expert, Mr. Marr, that the view of the belt from above is the most helpful guide to adjusting the belts into alignment. We have heard evidence that the operator's considered best view is available at the upper roller. It is normally … a two man job to adjust this machine, one person being at the top of the machine by the top roller, adjusting that. They have a view on to the belt and they have a good view down the belt, according to the employees. So adjustment of the top roller by the man at the top on the viewing platform, and adjustment of the bottom set of pair of bolts by the person at the bottom, who has a less good view, because at the stage of Mr. Printy's accident, he could not look straight down on to the belt, but could look at it from the side.” 11. It follows, therefore, that following the accident in 2007 visibility to the areas described was improved by replacing solid metal on parts of the machine with metal meshing although the plastic screen mentioned above was not put in place. The idea was obviously to reduce the need to remove the guarding. 12. The judge then went on to describe the events surrounding Mr Printy’s accident. Mr Printy, we should say, was an experienced technician who had worked for the Appellant at Whitefield for about 20 years. The judge expressed himself as follows: “On the evening of Mr. Printy's accident … the machine became blocked. The two craftsmen, Mr. Anderson and Mr. Bailey, attended and unblocked the machine. It was a bad blockage at the top roller. Vinyl had gone around the belt at the top roller, and had disturbed the top roller's alignment. Mr. Anderson [gave evidence that] the machine needed tracking after the blockage had been removed, because of the disturbance to the top roller. They had not finished tracking when the time pager brought Mr. Printy, the craftsman in charge that night, to the scene. Mr. Printy's evidence was that Mr. Bailey was saying he was having trouble tracking the bottom belt, and that he needed to move the bottom guard to track the bottom roller. Mr. Printy then raised a permit to work, seeking permission to run the machine without guards for tracking …. Mr. Sarros, the man in charge of the operation of the whole produce line that night, gave permission. The permit … gave no safety advice, nor did it indicate what precautions, if any, were to be undertaken. The tracking with the guards off was substantially completed without incident. It was in reality a question of observing the running of the belt. However, there came a point when Mr. Printy says he heard rubbing of the belt, and wanted to see if he could find out where it was rubbing, the suggestion being that the distorted roller at the top had may be stretched the belt in some way. He says "I got a spanner. I sped up the belt. I put the spanner on the belt, pushing the spanner into the point where it was rubbing, and it caught and went in the machine." He could not let go of the spanner in time, as he thought he would be able to, and he broke his arm.” 13. We should interpose by saying that unfortunately the craftsman called Bailey had died before the trial and, accordingly, only a statement from him was available for the trial. His statement suggested that removal of the guards took place regularly after Mr Manchester’s accident, but the judge considered that there were aspects of that statement that were “very unsatisfactory” and was not prepared to attach weight to it for the purposes of assessing the prosecution case at the point of the submission of no case. 14. We should also record at this point a little of the evidence given by Mr Printy because it is something upon which Mr John Cooper QC, for the Appellant, places considerable reliance. Mr Printy accepted that what he did was foolish. In examination-in-chief he said this: "When we were altering the position of the rollers which allows it to track over, it wasn't affecting the conveyor belt, so foolishly I sped the machine up and I could hear where it was rubbing, so I said to Pat, "Its rubbing here", so I've one of his spanners and I've tried to push at the point where I thought it was rubbing, and then my hand got caught in the machine." 15. In cross-examination he accepted that he had been blasé that day: "... I was trying to relieve the point where it was rubbing, and it got pulled ... I had hold of the spanner with the intention ... Q: Yes A: ... if it gets pulled into the nip I can let go of it Q: Right. Yes, exactly. A: And before I knew it my hand got pulled in with the ... it all happened a bit quick because ... Q: Looking back on it, you took the risk, didn't you? You thought that if it got pulled in you could just let go … A: Yes, I did, I took the risk, yes ..." 16. Mr Cooper also relied upon the evidence of the expert for the prosecution, Mr Marr, who, in response to a question from the judge, said “[at] the end of the day, if someone's going to do something stupid you cannot stop them.” 17. Mr Cooper’s argument at the trial, and indeed before us, was that this evidence did not support the Prosecution's case (i) that the accident was caused by the Appellant’s breach of duty and (ii) that the nature of the accident was proof of the existence of a risk attributable to the system of work. We will return to that argument in due course after completing reference to what the judge said about the evidence. Referring to what Mr Printy said, the judge said this: “I must … turn now to Mr. Printy's accident. Does that provide evidence upon which a jury could convict? Mr. Printy frankly accepts that it was blasé on his part to do what he did in putting that spanner on to the belt. There was no need for the belt to be moving to see if it had stretched and therefore perhaps needed replacing. He accepted it was a silly thing for him to do, but equally as [the expert for the prosecution] said, at the end of the day if someone is going to do a silly thing, you cannot stop them.” 18. In responding to the submission of no case the judge noted that he had been referred to R v Tangerine Confectionary Ltd & Veolia ES (UK) Ltd [2011] EWCA Crim 2015 in which reference was made to Baker v Quantum Clothing Group Ltd [2011] 1 WLR 1003 . He quoted part of paragraph 36 of the judgment of Hughes LJ, as he then was, in Tangerine Confectionary as follows: “The conclusion which we draw is that Baker does apply to sections 2 and 3 of the HSWA. Foreseeability of risk (strictly foreseeability of danger) is indeed relevant to the question whether a risk to safety exists. That accords with the ordinary meaning of risk, as is demonstrated by the concept of a risk assessment, which is itself an exercise in foresight. Whether a material risk exists or does not is, in these cases, a jury question and the foreseeability (or lack of it) of some danger or injury is a part of the enquiry. None of this, however, means that in a prosecution under either section it is incumbent on the Crown to prove that the accident which occurred was foreseeable. That would convert the sections into ones creating offences of failing to take reasonable care to avoid a specific incident. It means no more than that the sections are concerned with exposure to risk of injury, and that the extent to which injury is foreseeable is part of the enquiry into the level of risk. The sections do not command an enquiry into the likelihood (or foreseeability) of the events which have in fact occurred. They command an enquiry into the possibility of injury. They are not limited, in the risks to which they apply, to risks which are obvious. They impose, in effect, a duty on employers to think deliberately about things which are not obvious.” 19. The judge then said this, addressing the issues in the instant case: “I have also got to bear in mind whether the risk is trivial or fanciful. What was the risk? The risk is that when operated without a guard, is there a risk of someone inserting something into the machine? It may be totally unwise, unnecessary and obviously stupid, but is there a risk? The only answer I can come to is yes. It may well be a risk that it is impossible to avoid, but that cannot stop the case at this stage. It was a risk, because it had happened with Mr. Manchester. It had happened with Mr. Printy. There is a risk that someone will be stupid enough or unwise enough to either put something in or allow some part of their clothing to fall into this machine when it is moving. Whether or not it is a risk that can be guarded against is another matter, and whether it is reasonably practicable other than by saying to people do not touch the machine when it is operating, because when it has to be operated without a guard, there is no need to touch any of the moving parts. The only parts that need to be touched are the screw threads, which are not moving in that context. What is required is observation, not adjustment of any of the moving belt or rollers.” 20. His attention was drawn by the prosecution to another passage in the Tangerine Confectionary case where, at paragraph 42 responding to a submission of Mr Cooper in that case to the effect that there was on the facts no foreseeable risk, Hughes LJ said this: “We have no hesitation in rejecting that argument. The risk of operatives, even experienced operatives, for some reason, good or bad, departing from de facto procedures in the vicinity of potentially dangerous machinery, especially in situations which are oft repeated, is a classic one. That is why an assessment of the risk ought to be made.” 21. On that basis the judge concluded that there was a case to answer, the existence of risk arising from the unguarded use of the machine. 22. Mr Cooper submits that the passage quoted in paragraph 20 above demonstrates that the judge applied the wrong test. He submits that the passage from the Tangerine Confectionary case is not authority for the proposition that the existence of a risk in a work process that someone may do something stupid or unwise is sufficient to satisfy the Galbraith test. Any work process or system of work, he contends, carries with it the risk that an employee may do something stupid, but that does not render the system unsafe itself. He also contends that the existence of an accident will not of itself be sufficient reason for a case to go to a jury. 23. Whilst we accept that, as it stands, the final sentence of the preceding paragraph is, to some measure, borne out by paragraph 14 of the judgment in the Tangerine Confectionary case (which is where the authoritative proposition of law is to be found), but, for reasons which will appear, we do not think that the judge acted on such a premise nor do we think that the other criticisms of the judge’s ruling advanced by Mr Cooper are made out. 24. Mr Cooper drew attention to what Lord Mance said in Baker v Quantum Clothing Group Ltd at [66] as follows: “The successor legislation to the 1961 Act, the Health and Safety at Work Act etc 1974 , was differently, and on its face more broadly, formulated. It required every employer by section 2(1) to ensure, so far as is reasonably practicable, the health, safety and welfare of all his employees, and by section 3(1) to conduct his undertaking in such a way that other persons were not thereby exposed to risks to their health or safety. The concept of safety was considered in this context in R v Chargot Ltd (trading as Contract Services) [2009] 1 WLR 1 . Lord Hope of Craighead, with whose speech all other members of the House agreed, said that the legislation was “not contemplating risks that are trivial or fanciful”, that the statutory framework was “intended to be a constructive one, not excessively burdensome”, that the law “does not aim to create an environment that is entirely risk free” and that the word “risk” which the statute uses “is directed at situations where there is a material risk to health and safety, which any reasonable person would appreciate and take steps to guard against”: see para 27.” 25. Mr Cooper suggested that the circumstances in the present case do not meet the threshold set in that case and contends that there was not a material risk to health and safety. 26. He also drew attention to what Lord Dyson said in the same case at [121]: “… in my view, the foreseeability of a risk is distinct from the question whether it was “reasonably practicable” to avoid it. Diplock LJ explained the point in Taylor v Coalite Oils & Chemicals Ltd 3 KIR 315, 319–320 in the passage quoted by Lord Mance JSC at para 71 above. It is only if a risk is reasonably foreseeable and it was reasonably foreseeable that an injury would be caused that it becomes necessary to consider whether it was reasonably practicable to avert the risk. Thus, for the purpose of deciding the issue of reasonable practicability, it is assumed that the risk was reasonably foreseeable.” 27. Finally, he referred to R v Porter [2008] EWCA Crim 1271 , which was a case involving an accident at a school. He relied upon the following paragraphs from the judgment of Moses LJ: “21. We acknowledge that the fact that an accident is unavoidable goes primarily to the reasonable practicability of the measures which a defendant might take, rather than the risk to safety. But that is not exclusively so. As we have said, that the risk is part of the everyday incidence of life goes to the issue as to whether an injured person was exposed to risk. Where the risk can truly be said to be part of the incidence of everyday life, it is less likely that the injured person could be said to have been exposed to risk by the conduct of the operations in question. The judge fairly put that to the jury in his summing-up: He said: “What you must decide is whether there was an unacceptable risk. The trivial risks of everyday life are not unacceptable. They are simply a fact of life, are they not?” 22. Unless it can be said that this child was exposed to a real risk by the conduct of the school, no question of the reasonable practicability of measures designed to avoid that risk arises. No one in this case has suggested that every playground up and down the country for every 3–4 year old must have a flat surface and nothing from which an infant can choose to jump.” 28. The thrust of his submissions, based upon these passages, is that no material risk was established on the evidence at the close of the prosecution case and that, accordingly, it should not have been left to the jury. In essence, he contends that a risk would only materialise if an employee did something very foolish (which Mr Printy accepted he did) and that is not sufficient for these purposes. 29. Mr Nigel Lawrence QC, who appeared before us on the appeal, submitted that for the case to go to the jury, the prosecution had only to adduce some evidence of exposure to risk – in other words, some evidence that an employee was, or employees were, exposed to a possibility of danger. Once that is established the onus shifts to the Appellant to show on the balance of probabilities that it did all that was reasonably practicable to ensure that its employee was, or its employees were, not exposed to such risk (see R v. Chargot [2008] UKHL 73 at [21]). He submits that the prosecution does not have to prove that a particular accident was foreseeable and equally says that causation is not an element of an offence under section 2(1): see paragraphs 36 and 29 respectively of the judgment in the Tangerine Confectionary case. 30. In our judgment, that does represent an accurate summary of the law. Furthermore, as the observations of Hughes LJ, quoted in paragraph 20 above, demonstrate, the creation of a material risk by the carelessness (including gross carelessness) of an employee remains a material risk for this purpose. 31. He made a number of points about the evidence, suggesting that it demonstrated the open acceptance on the part of the Appellant that there was a risk of danger from the unguarded operation of the hugging conveyor. However, the most telling point from the perspective of the arguments advanced by Mr Cooper, in our view, was the simple proposition that any machine with moving parts has to be guarded because of the material risks to health and safety to which exposure to such moving parts may give rise. In this case the guards otherwise normally on the hugging conveyor were removed so that a maintenance operation could be performed whilst the machine was still in operation . In this situation employees were exposed to a clear, obvious and material risk to their health and safety – and, we might add, to the consequences of their own carelessness or indeed their foolishness. The running of the hugging conveyor with its guarding removed was permitted by the Appellant under a permit to work system such that there was in place a system whereby employees were exposed to a clear risk to their health and safety. Mr Lawrence says that this is sufficient for the evidential threshold to be met. Harsh though in the circumstances it may seem, we agree with this analysis. All, of course, is not lost from the employer’s point of view in such a situation if the defence of reasonable practicability can be established. However, that is an area entered once the prosecution has surmounted the first evidential threshold. In our judgment, the judge was right (albeit maybe reluctantly) to conclude that the threshold had been crossed. 32. In the present case the Appellant chose not to adduce any evidence to demonstrate that it had done all that was reasonably practicable to obviate the risk that arose, preferring to rely upon answers obtained within the prosecution case. That, of course, is an entirely justifiable forensic approach to take, but we venture to suggest that a jury is more likely to be persuaded that an employer has probably done all that could reasonably have been done to obviate an obvious risk if it adduces a positive case that other options have been considered, but for whatever reason none has been considered reasonably practicable. It will then be for the jury to evaluate that evidence. 33. However, for the reasons we have given, this appeal must be dismissed

```yaml citation: '[2014] EWCA Crim 1522' date: '2014-07-18' judges: - LORD JUSTICE FULFORD - MR JUSTICE FOSKETT ```

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 2062 Case No: 2006/02534 C3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CANTERBURY HH Judge WILLIAMS Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/08/2007 Before : LORD JUSTICE THOMAS MR JUSTICE AIKENS and DAME HEATHER STEEL - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Simon Austin Hamilton Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Antony Chinn QC and Trevor Siddle for the Appellant James Townend QC and Andrew Jones for the Respondent Hearing date: 15 May 2007 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Thomas: 1. On 30 July 2003 a search warrant was executed at the appellant’s home address in Sussex under s.4 of the Protection of Children Act 1978 . The police seized a considerable quantity of computer equipment (including CDs and floppy disks, a Sony digital camera and a briefcase containing 8 digital video cassettes). After interviews and analysis of the computers, the appellant was charged and subsequently indicted with a number of offences which can be grouped as follows: i) Making an indecent photograph of children contrary to s.1(a) of the Child Protection Act 1978. There were five offences charged in counts 1, 3, 4, 5, and 8 of the indictment which related to the downloading of indecent images of children from the internet. ii) Possession of an indecent photograph of a child for show contrary to s.1(1)(c) of the Child Protection Act 1978; counts 2, 6 and 9 of the indictment charged three offences related to the distribution of indecent photographs of children. iii) Taking an indecent photograph of a child contrary to s.1(1)(a) of the Child Protection Act 1978. Count 10 of the indictment charged this offence in relation to the taking of a photograph up the skirt of a 14 year old girl; we refer to the facts in more detail at paragraph 7. He was also charged with a further offence on Count 7, but acquitted on the judge’s direction. iv) Committing an act of outraging public decency contrary to common law. Counts 11, 12, 13, 14 and 15 of the indictment charged five of these offences which related to occasions in 2001 when it was alleged that the appellant had, in a manner we shall describe in more detail at paragraphs 5 and 6, filmed up adult women’s skirts. The principal issue in the appellant’s appeal relates to whether, on the facts which are not in issue, the appellant’s conduct amounted to the commission of an act outraging public decency. 2. The appellant was committed to the Crown Court at Canterbury as he was a practising barrister and well known in Sussex. On 4 June 2004 he made an application in person to have the counts relating to outraging public decency dismissed but that application failed. On 5 December 2004 an application was made that the offences under the Protection of Children Act should not be joined in the indictment with the offence of outraging public decency. This submission was rejected. Those applications were renewed at the commencement of the trial but rejected. 3. On 27 April 2006 the appellant was convicted on all the counts after a trial before Her Honour Judge Williams and a jury. He was sentenced that same day to a sentence on counts 2, 6 and 9 (possession of indecent images with a view to distribution) to 3 years’ imprisonment with a sentence of 2 years’ imprisonment concurrent for the offences of making indecent photographs. He was sentenced to a term of 9 months’ imprisonment on count 10 and counts 11-15 in relation to filming up the skirt of the 14 year old and the adult women; the sentences were concurrent to each other but consecutive to the sentence of 3 years on counts 2, 6 and 9. The total sentence was one of 3 years and 9 months. 4. His application for leave to appeal against conviction was refused by the single judge who granted leave to appeal only on sentence. The application for leave to appeal against conviction was renewed to the full court who granted leave on 3 grounds: i) Whether on the evidence adduced before the court an offence of outraging public decency had been committed, as no one other than the appellant was shown to be aware of what he was doing when was filming. ii) Whether the offences of outraging public decency should properly have been joined with the other counts in the indictment. iii) If they were properly joined, whether the judge wrongly exercised her discretion by failing to sever those counts from the other counts. Leave was refused on other grounds. The offence of outraging public decency The facts 5. The appellant admitted taking video footage with a camera so positioned by him that he was able to take footage up the skirts of the 14 year old and the various women who were shopping in supermarkets. He had done so surreptitiously. Before entering the supermarket he placed his Sony digital camera in a rucksack with the lens hidden and pointing upwards and wedged in position; he disabled the indicator light that would have flashed when he was filming. He manoeuvred the rucksack into a position whereby it was pointed up the inside of a woman’s skirt to film her underclothes in the area of her crotch; the camera would automatically focus on what was in the centre of the lens. This was a random method of filming, but he found that one of the best points at which to film was at check out queues where the woman up whose skirt he was filming was more likely to be stationary. This practice is known as “up-skirting”. 6. None of the women involved had ever seen him filming and none of the adults filmed had been identified; neither the store detectives nor anyone else had noticed what he was doing. What he had done was only discovered when the police found at his house 20 hours of his filming on video cassettes. It was accepted that there had to be a direct line of sight between the lens and the object which was being taken. It was contended therefore by the prosecution that the lens was therefore capable of being seen and so what he was doing could therefore have been seen at the supermarkets. This was disputed by the appellant. 7. The police identified the female referred to in count 10. She was a schoolgirl who had been filmed wearing a school uniform in the Westgate Leisure Centre in Chichester. She was at the time 14 years and 5 months. The appellant had been confident that she was a sixth former and at least 16 years old and had expressed surprise to hear that she was only 14. 8. The appellant said that he did not believe he had committed a criminal offence in filming adults. He had stopped filming in 2001, partly because he believed that this conduct was covered by s.67 of the Sexual Offences Act 2003 . The proceedings 9. On 4 June 2004 the appellant in person applied, as we have mentioned, to dismiss the proceedings in relation to the offences of outraging public decency on the basis that the prosecution had to prove there was an element of publication in the activity. It was his submission that there was no evidence that he was seen by anyone, there was no publicity and that his intention was irrelevant. The judge ruled principally in reliance of the decision in R v Mayling [1963] 2 QB 717 (( 47) Cr.App.R 102 ) that there was ample evidence upon which a jury could properly infer that the images were taken in public; that the film was capable of being seen by more than one member of the public and that such members of the public would have been outraged by the act of a male videoing up a woman’s skirt. 10. The application was renewed by counsel on the basis of the Divisional Court’s decision in R (Rose) v DPP [2006] EWHC 852 Admin. The judge rejected the submission on the basis that, whilst there was no evidence of anyone actually seeing the defendant filming women as alleged, the common law requirement was that at least two people must have been able to see the act in question. 11. The submissions made on that occasion and on 4 June 2004 had included a submission in relation to count 10 as, at that time, that count was also charged as an offence of outraging public decency. Following legal argument, as the count related to a 14 year old girl, the count was amended to the count to which we have referred above as taking indecent images of a child contrary to s.1(1)(a) of the Protection of Children Act 1978 . 12. At the close of the prosecution case, it was submitted that on the judge’s own test there was no case to answer since there had been no evidence of any member of the public who had been able to see the filming. The submission was rejected on the basis that it was entirely a matter for the jury. 13. When the judge summed up the case to the jury she directed the jury as follows: “Here the Crown must make you sure of the following ingredients before you convict the defendant. Firstly, that it was committed in public. Well, there is no dispute about that. Secondly, that there existed the real possibility that members of the general public might witness it in the sense that at least two persons must have been able to see the act, namely, the filming. And, thirdly, that the act is of such a lewd, obscene or disgusting character that it constitutes an outrage to public decency. It is those two last ingredients which are in dispute here. It is not necessary for the Crown to prove that the act in fact disgusted or annoyed any person, so the questions you have to ask and answer in respect of counts 11 to 15 are as follows: am I sure that when the defendant did the act, namely the filming, there was a real possibility that members of the public would witness it in the sense that at least two people must have been able to see it? Secondly, am I sure that the act was of such a lewd, obscene or disgusting character so as to constitute an outrage to public decency? If your answer to both those questions is yes, then your verdict should be guilty. If your answer to either of those questions is no, then your verdict should be not guilty. The Crown argue here that filming up women’s skirts in a supermarket was in public with the real possibility that members of the public could have witnessed it and that at least two people must have been able to see it if they had looked. Secondly, the act was so obscene as to outrage public decency. The defence argue: not a bit of it. They say that no one did see him. That despite the fact that he filmed, on his own admission, approximately anything between 10 to 20 hours’ worth of up-skirting images, no one confronted him or spoke to him and no one saw him and that the act, in any event, is not so obscene as to outrage public decency.” The arguments 14. The arguments put forward can be briefly summarised. i) The appellant contended that the offence of outraging public decency as developed by the nineteenth century cases was confined to cases where a lewd act was in fact witnessed by at least one person; and that the public element was satisfied if in addition at least one other person witnessed or could have seen the act. As no one saw the appellant in the act of filming, no one saw a lewd act; public decency could not have been outraged; therefore no offence was committed. ii) The prosecution submitted that the offence was committed if three elements were proved: a) The act was committed in public; b) The act was of such a lewd, obscene and disgusting character as to constitute an outrage to public decency; c) The act was either seen or was capable of being seen by two members of the public present at the time of its commission. Each of these elements was satisfied; the fact that no one actually saw the appellant filming did not matter. The act of filming was capable of being seen and could have come to light if store detectives had been more vigilant, or his bag had spilled or someone had heard the sound of the video or been curious as to the appellant’s movements. 15. Both parties accepted that there was no case which covered the issue in this case; each relied on the decided cases, particularly those decided in the nineteenth century in support of its contentions. It is therefore necessary to examine the authorities and the contentions made about them. 16. It is, however, convenient to begin by referring to Knuller [1973] AC 435 as it was in that case that the House of Lords made clear that there was still an offence of outraging public decency at common law. The defendants had published a magazine in which advertisements were placed inviting readers to meet for the purpose of homosexual practices; their conviction for conspiracy to outrage public decency was upheld. Lord Simon of Glaisdale considered that the decided cases showed that there was a general rule that conduct which outraged public decency was an offence at common law; this was also the view taken in Russell : Crime 12 th edit at Chapter 97. 17. However, though the offence can be expressed in very general terms in that way, it is clear that the offence of outraging public decency has particular elements that must be established before a person can be convicted. It was common ground that those elements of the offence applicable to the case against the appellant must be distilled from the cases where the relevant principles have been set out. This process was described by Parke B in Mirehouse v Rennel (1833) 1 Cl & F 527 at 546: "Our common law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable or inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised." The issue raised in the appeal gives rise therefore not only an issue as to elements of the common law offence, but also an issue as to the way in which the principles derived from the cases are to be applied to contemporary standards of behaviour. The origin of the offence 18. The early cases established the very general proposition that an offence was committed when public decency was outraged in the presence of people. i) The earliest case appears to have been Sedley’s case (1675) Strange 168, 1 Sid 168; the defendant Sir Charles Sedley showed himself naked on the balcony of a house in Covent Garden in the presence of several people and urinated on them. He was indicted at common law and pleaded guilty; he was told by the justices that: “Not withstanding that there was not any Star Chamber, yet they would leave him to know that the Court of King’s Bench was the custos morum of all the King’s subjects and that it was then high time to punish such profane actions, committed against all modesty, when they were as frequent as if not only Christianity but morality also had been neglected.” ii) In Crunden (1809) 2 Camp 89, the defendant went bathing at Brighton; he could be seen as he undressed and swam in the sea. He was convicted of outraging decency for exposing his naked person in presence of people. The note to the report states that this was the first prosecution of the sort in modern times, the only case resembling it in the books being that of Sedley . McDonald CB held that by exposing his naked person he was guilty of a misdemeanour, as it outraged public decency. “The law will not tolerate such an exhibition. Whatever his intention might be, the necessary tendency of his conduct was to outrage public decency and to corrupt public morals.” It was no defence that people had previously bathed there naked before the houses were built: “Whatever becomes the habitation of civilised men, there the laws of decency must be enforced.” 19. But the offence was not confined to circumstances where a person exposed himself; for example in Delval (1763) 3 Burr 1434, the offence was applied to procuring a girl for the purposes of prostitution. The very general nature of the offence was reflected in the mid-nineteenth century books which were cited in the cases where the elements of the offence were further developed. i) In Hawkins bk. 1 c.5 s.4 (7 th edition 1787) described the offence (categorised as an offence against God) as “All open lewdness, grossly scandalous, such as was that of those persons who exposed themselves to the people in a balcony in Covent Garden with most abominable circumstances.” ii) In East: Pleas of the Crown (1803) under the heading Offences against religion, morality and the church establishment, one of the offences was “all scandalous breaches of morality exhibited in the face of the people, such as the conduct of one who exposed himself naked to the public view from a balcony in Covent Garden.” iii) Burn’s Justice of the Peace (28 th edition 1837) under the title Lewdness , was more detailed: “But although lewdness be properly punishable by ecclesiastical law, yet the offence of keeping a bawdy-house cometh also under the cognizance of the law temporal, as a common nuisance, not only in respect of its endangering the public peace, by drawing together dissolute and debauched persons, but also in respect of its apparent tendency to corrupt the manners of both sexes. (3 Inst 205; 1 Hawk .c74, Obs .1.) So, in general, all open lewdness grossly scandalous is punishable upon indictment at the common law. ( Hawk c.5.s.4; and see a form of indictment for open fornication , West , 239; R v. Delaval , 1 Bla . Rep . 439). An indecent exposure of the person to public view is an indictable offence at common law, (R v. Crunden ), 2 Camp . 89) as in the case of public bathing: as to which see title “ Bathing ,” Vol. I. In R v Sir Charles Sedley , Stra .168; Sir C. Sydley’s case , 1 Keb .620, … A count in an indictment charged that a defendant “did attempt to assault” a girl “by soliciting and inducing her” to place herself in an indecent attitude, he doing the like: it was held that such a count was bad. (R v. Butler 6 C&P.368). iv) Archbold (1 st edition, 1822, chapter 5, section 3 ) set out a model indictment for “open and notorious lewdness” in respect of exposure of the naked person. It referred to the defendant “on a certain public and common highway there situate, in the presence of divers liege subjects of our said lord the King, and then and there being, and within sight and view of divers other liege subjects through and on the said highway then and there passing and repassing, unlawfully, wickedly, and scandalously did expose to the view of the said persons so present, and so passing and repassing as aforesaid, the body and person of him the said, …, naked and uncovered, for a long space of time, to wit, for the space of one hour: to the great scandal of the said liege subjects …” The nineteenth century cases 20. A series of cases in the middle of the nineteenth century established the elements of the offence which had to be proved if a conviction was to be obtained. i) In Rouverard tried at York (see the report of Webb in Denman’s reports at p 344 referred to in sub-paragraph iv)), the defendant had exposed himself at a window in an attempt to excite a female who lived on the opposite side of the street. Parke B directed the jury that exposure by the defendant to one person was not sufficient to constitute the offence, but if the jury found that the defendant was in such a position that those in the street could have seen him had they happened to look, it was an offence; it did not matter that no one in the street had actually seen him. ii) In Bunyan & Morgan (1844) 1 Cox 74, the two defendants were seen by a servant through the window exposing themselves to each other and committing lewd acts in a parlour room of a public house where they were alone; she summoned others who witnessed the act. The indictment charged the offence as being in the sight and view of the servant and divers others. It was argued that publicity was of the essence of the offence and that therefore it was essential that it be committed in a public place so that the natural consequence of it was that it would be seen by others and that it was actually seen by others. The Recorder of London held that it was not necessary to prove that the public would detect them as the parties would seek as much privacy as they could, but was their position such that there was no reasonable probability of their being discovered? It was sufficient that they exposed themselves in a place where they were likely to be witnessed by others. iii) In Watson (1847) 2 Cox CC 446; the defendant exposed himself to a 12 year old female in Paddington Churchyard. He was found guilty on an indictment charging him with outraging public decency on the basis of exposing himself in a public place, but only in the presence of the girl. The conviction was challenged on the basis that, although the act was plainly indecent and in a public place, it was no offence in law as only one person was present; the indictment charged the offence as being in the sight and view of the girl, but not others. Lord Denman’s short judgment was: “The general rule is that a nuisance must be public; that is to the injury or offence of several. There is no precedent of such an indictment as the present and we are not inclined to make one.” There was an offence of exposure under the Vagrancy Act 1830, but he was not charged with that offence. iv) That decision was followed in the following year in Orchard & Thurtle (1848) 3 Cox CC 248 and in Webb (1848) 1 Den 338; 2 Car & K 933. In the first case, the relevant part of the indictment charged the defendants with exposure to each other and the commission of lewd acts in a urinal in a market which was alleged to be a public place; no one could see in from the outside. The prosecution argued that if the defendants committed an act in a place where the public could enter and witness what was happening then that was sufficient. It was held by Cresswell J at the Old Bailey that the place was not a public place for the purpose of the offence as everyone who entered had to expose himself and exposure to one person was not enough. The second case, Webb is the more important; the defendant had exposed himself to a bar maid in the bar of a public house when there was no one else in sight. He was indicted for outraging public decency and found guilty; his conviction was reserved for the opinion of five judges in the Exchequer Chamber, including Cresswell J and Parke B. The argument was made on his behalf that the defendant should not have been convicted of outraging public decency as the indictment averred that he exposed and exhibited himself in the “presence” (as opposed to “within sight and view”) of the woman and others; it was essential it be in the sight of the public and the words used in the indictment did not make this clear. That in any event the evidence showed that there was indecent exposure in the sight of one woman only and that was not sufficient for the offence of outraging public decency. The prosecution contended that the words in the indictment meant “expose to view”. All the judges agreed that, although the indictment averred that he exposed and exhibited himself in the presence of others, the evidence proved only an exposure in the sight of the woman; that was insufficient to prove the offence. Differing views were expressed by the judges in the course of argument and in their judgments on whether it was sufficient to aver exposure in the presence of people rather than averring that it was also in the sight or view of people so that they could see it (as opposed to actually seeing it); Pollock CB observed in the course of argument: “This indictment says ‘in the presence of’; and it might be that the defendant took particular care that it should not be seen.” The case therefore appears to have left open the point as to whether the act had to be merely in the presence of others or whether it had to be in the presence of others who could have seen the act, but the strong view expressed was that it had to be in the sight of others. The 1848 edition of Archbold observed in the light of Webb : “The allegation that the offence was committed in the sight and view of divers liege subjects etc appears to be necessary” v) In Holmes (1853) 1 Dears 207, the defendant exposed himself on a public bus; he was indicted for exposing himself in a public vehicle frequented and used by divers subjects of the Queen “to the view of” them and in a second count for exposing himself in a public place. It was considered by a court of five judges. It was contended that there was no offence because the bus was not a public place so as to constitute a nuisance. Lord Campbell CJ’s judgment was: “It would be a disgrace to the law if we had any doubt that both counts are good. The defendant exposed himself in a public omnibus in the New Road in the presence of several women and this country would not be a fit place to live in if this were not an offence.” Parke B simply held that the omnibus was a public place and exposure to more than one person was an offence. vi) In Elliot and White (1861) Le & Ca 103, the defendants were convicted of exposing themselves on Wandsworth Common under an indictment that charged them with doing so in the “sight and view” of divers others. There was evidence that they had sexual intercourse on the common, but that there was no evidence that it was seen by anyone other than a single witness or within the possible sight and view of anyone else who was shown to be there. Though their act could have been seen by others on the common or a public footway or footbridge, there was no evidence that there were persons on the common or the footway or footbridge at the time. The jury were directed that they could convict if the acts could be seen without difficulty by others. It was argued for the defendant that the exposure had to be public in the sense of being to the offence or injury of more than one person; the prosecution argued that an indecent exposure was indictable whether seen by others or not, as they exposed themselves where they might have been seen. Although one judge suggested that all open lewdness was indictable as outraging public decency, the argument centred on the question whether a conviction could be upheld, as there was no evidence that anyone other than the single witness was passing at the time and therefore might have seen it. Weightman J noted: “The case depends on this question, Could the parties be convicted if no one saw them, as for instance, upon their own confession merely?” The court of 5 judges disagreed amongst themselves; it was to be re-argued, but the report notes that the court subsequently decided that it was not desirable to do so and no judgment was delivered. The note in the report observes that the case left the law uncertain as to position, where the exposure was in a public place and it was actually seen by one person and it could have been seen by passers by. vii) In the following year the Court of Criminal Appeal in Ireland decided in Farell (1862) 9 Cox CC 446, that indecent exposure seen by one person and capable of being seen by one person only was not an offence. The defendant exposed himself on a public road so that he was seen by one person as there was only one person passing at the time, though he could have been seen by others who might have been passing. The Chief Justice giving the judgment of the court said in quashing the conviction: “but it is not to be taken that we lay it down that if the prisoner was seen by but one person, but there was evidence that others might have witnessed the offence at the time, we would not uphold the conviction; but in this case there is no evidence that anyone could have seen the prisoner but one female. Therefore all we say is, that an exposure seen by one person only is not an offence at common law. If there had been others in such a situation that they could have seen the prisoner, there would have been a criminal offence”. viii) In Thallman (1863) 9 Cox CC 388, the defendant exposed himself on the roof of a house in Albemarle Street, Piccadilly opposite to a window in a house where females lived. He was indicted for doing this in the “sight and view” of those who lived opposite and of those going along the public highway. His actions could not be seen from the street but only from the windows of neighbouring houses. He was convicted, but argued that the exposure was not visible to anyone passing along the street and therefore was not in a public place. The court held in a very short judgment that it was not necessary that the exposure be on a public highway. “If it is in a place where a number of the Queen’s subjects can and do see the exposure, that is sufficient”. In their very illuminating work Sexual Offences : Law and Practice , Judge Rook QC and Robert Ward, (3 rd edition para 14.43) consider that this case was an example of the court considering that the requirement that the act must be committed in a public place was falling into disfavour; they rely on dicta in other cases that they suggest support their view. 21. In our judgment these cases established that if the offence of outraging public decency was to be proved, it was necessary, to prove two elements. i) The act was of such a lewd character as to outrage public decency; this element constituted the nature of the act which had to be proved before the offence could be established. ii) It took place in a public place and must have been capable of being seen by two or more persons who were actually present, even if they had not actually seen it. This constituted the public element of the offence which had to be proved. As the cases to which we will refer show, there was still some uncertainty as to what was required. In all the cases the act had in fact been seen by one person, but Elliot and White left open the point summarised by Weightman J which we have set out. 22. The cases of the later nineteenth century were largely concerned with an examination of what constituted the public element in the offence. In Harris and Cocks (1871) 1 CCR 242 , the defendants were observed by the police through openings in a urinal exposing themselves to each other and committing acts of lewdness; the Court of Crown Cases Reserved distinguished Orchard and held that a urinal open to the public just off a footpath was a public place just as much as a public highway. In Reed (1871) 12 Cox 171, Cockburn CJ held on assize that a person bathing naked at a place near Chichester could be convicted of indecent exposure if he bathed naked so that he could be seen from a path where the public were likely to go. A similar broad view was taken in Saunders (1875) 1 QBD 15 ; the defendant was a travelling showman who invited persons into a tent on Epsom Downs for payment to see an exhibition that was indecent. The Court for Crown Cases Reserved dismissed the contention that this was not a public place in a very short judgment. In Wellard (1884) 14 QBD 63 , the defendant took a group of young girls onto a marsh at a spot away from a public footpath and exposed himself; they were all technically trespassers on the marsh, but the public frequented the spot without anyone trying to stop them. It was argued that it was not a public place. Lord Coleridge said: “I am of the opinion that we should not hold that it is sufficient to prove that, as a matter of law, the place was one to which there was no strict legal right of access in order to make out a defence where the act is in fact committed in the presence of a number of the public, in the presence of a number, that is, of persons. It is, I concede, difficult to define affirmatively what is a public place; this place, however, is clearly so. The public did undoubtedly have access to it. I am by no means sure that at common law the publicity of the place itself is an essential element in the offence, and I am not inclined now to say so: it is not necessary to decide this question. It is, however, obvious that what is a public place may vary from time to time, and what we now have to consider is, was this place at the time public?” He considered that it was, as the public resorted to it. The other judges came to the same conclusion, but they all made it clear that they either thought that the offence could be committed without it being in a public place or were not prepared to rule that out. Huddleston B added: “The beach at Brighton is not public property, yet an exposure there is punishable. It seems to be established that, speaking generally, whatever openly outrages decency and is injurious to public morals is a misdemeanour at common law. The act was in a public and open place and that disposes of the case, but I am by no means satisfied that indecency before several in a private place is not punishable.” The modern cases 23. That the main elements of the offence were settled by the series of cases in the middle of the nineteenth century to which we have referred was made clear by this court in Mayling [1963] 2 QB 717 ( (1963) 47 Cr App R 102 ). That appears to have been the first case where any issue about the nature of the offence arose in the twentieth century. The defendant followed a man into a public lavatory; another man entered the lavatory and came straight out looking disgusted and annoyed. Two policemen then entered the lavatory and found the appellant and another masturbating, but they did not give evidence of their being disgusted at this. It was argued for the appellant that proof was required that more than one person must have been able to see the act in order to establish it was committed in public and proof was also required that those who saw the act were disgusted and annoyed. In giving the judgment of the Court of Criminal Appeal dismissing that argument Ashworth J said: “ In the judgment of this court, it is now well established that an offence so described is punishable at common law and, indeed, it was not contended on behalf of the defendant that no such offence existed. It is equally well established that the act complained of must be committed in public if it is to constitute the offence and, in many of the reported cases, the main issue was the question what had to be proved in order to show that the act was committed in public ” Relying on Watson, Webb and Farrell, he concluded that: “ it is, in the view of this court, clear that more than one person must at least have been able to see the act complained of, if the charge is to be made out. ….. So far as the present appeal is concerned, there was undoubtedly evidence that more than one person actually saw the act complained of, namely, the two police officers. Whether the young man who retreated hurriedly from the lavatory also saw it is not known, as he was not called as a witness, but there was material before the jury from which they could infer that he did. However that may be, the requirement that more than one person should have been able to see the act was plainly satisfied. In addition to publicity as explained above, it is of course necessary for the prosecution to establish that the act complained of was an act of indecency or, to use the words in the indictment, an act outraging public decency. On the assumption that the evidence of the police officers about the behaviour of the defendant was accepted by the jury, this requirement also was plainly satisfied.” It was not necessary to prove that the act in fact disgusted and annoyed all those who saw it: “In the present case, it is to be noted that, in the particulars of offence, the act was described as "of a lewd obscene and disgusting nature and outraging public decency" and it was incumbent upon the prosecution to satisfy the jury not merely that the defendant did the act and did it in public, but also that the act was of the description alleged. The operative words, i.e., "of a lewd obscene and disgusting nature and outraging public decency," may be paraphrased without altering their effect as "such an act of a lewd obscene or disgusting nature as constitutes an outrage to public decency involving great disgust and annoyance of divers of Her Majesty's subjects." If the jury were so satisfied, the offence was proved and, in the judgment of this court, it was not necessary for the prosecution to go further and prove actual disgust or annoyance on the part of any observer. ” 24. Although some reference was made to the nineteenth century cases that established the offence of outraging public decency in Shaw v DPP [1962] AC 220 , it was the decision of the House of Lords in Knuller which not only confirmed the continuing existence of the offence but which clarified elements of the offence. It is only necessary to refer to what Lord Simon of Glaisdale categorised at page 494 as the requirement of publicity: he first summarised the decision in Mayling which showed: “that the substantive offence (and therefore the conduct the subject of the conspiracy) must be committed in public, in the sense that the circumstances must be such that the alleged outrageously indecent matter could have been seen by more than one person, even though in fact no more than one did see it. If it is capable of being seen by one person only, no offence is committed. ” He then answered the prosecution argument that it was immaterial that the act alleged to outrage public decency took place in public provided the public’s sense of decency was outraged.: The authorities establish that the word "public" has a different connotation in the respective offences of conspiracy to corrupt public morals and conduct calculated to, or conspiracy to, outrage public decency. In the first it refers to certain fundamental rules regarded as essential social control which yet lack the force of law: when applicable to individuals, in other words, "public" refers to persons in society. In the latter offences, however, "public" refers to the place in which the offence is committed. This is borne out by the way the rule was framed by my noble and learned friend, Lord Reid, in Shaw v DPP [1962] A.C. 220 in the passage which I have just cited. It is also borne out by what is presumably the purpose of the legal rule - namely, that reasonable people may venture out in public without the risk of outrage to certain minimum accepted standards of decency. On the other hand, I do not think that it would necessarily negative the offence that the act or exhibit is superficially hid from view, if the public is expressly or impliedly invited to penetrate the cover. Thus, the public touting for an outrageously indecent exhibition in private would not escape: see Reg. v. Saunders, 1 Q.B.D. 15.” 25. There are four further decisions of this court to which it may be helpful briefly to refer; all affirm the elements of the offence as established by the nineteenth century cases, but make clear what was meant by the act having to be committed in a public place. i) In May (1990) 91 Cr App R 157 , the defendant simulated sex in the presence of two boys in a school classroom with a door into a well used corridor that was sometimes open. It was contended that as they were participants, the acts were not committed in the presence of two persons and therefore not in public. The court held that the public nature of the offence could be established if it could be proved that more than one person “must at least have been able to see the act. If one person is proved to have seen the act and others might have seen it that is enough.” As the boys were not participants and it was possible anyone might have walked into the classroom at any time, there was ample evidence for the jury. ii) In Rowley (1992) 94 Cr App R 99 , the defendant had left notes which were offering money to boys who would run errands; although the notes were suggestive, the defendant’s diary provided evidence that the notes were indicative of intended sexual activity with the boys. The judge admitted the diaries into evidence and directed the jury that they were entitled to look at the motive and purpose behind the notes. Taylor LJ giving the judgment of the court held: “ In our judgment the offence consists in the deliberate commission of an act which is per se of a lewd, obscene or disgusting nature and outraging public decency. The crux of it is therefore the nature and effect of the act itself. Although the ultimate intention of the actor and his motive for his act may be the subsequent performance of lewd, obscene or disgusting acts, his intention and motive cannot, in our judgment, supply lewdness or obscenity to the act if the act itself lacks those qualities. A member of the public is either outraged by the act or not. He will not be affected in his reaction by whether thoughts or fantasies may be in the actor's mind or his diary. Evidence of those would not be before him. Accordingly, in our view, the learned judge was in error in holding that regard should be paid to what had motivated the appellant in leaving the notes….. It follows that in our judgment the learned judge was in error in rejecting the submissions that were made to him based upon the notes themselves, because there was nothing in the acts complained of here capable of outraging public decency. ” iii) In Walker [1996] 1 Cr App R 111 the defendant exposed himself in the sitting room of a house to a young child. This court affirmed that two people must have been able to witness what happened and the act must have been committed in public in the sense that there was a real possibility that members of the general public might witness what happened, as the purpose for which the offence existed was that people must be able to venture out in public without the risk of outrage to minimum standards of decency. This did not mean that the act had to be done in a place of public resort, but the public must be able to see what happened, such as on a balcony of a private house open to public view. As Rook and Ward state, this decision made clear that the requirement that the act take place in a place where it can be seen by the public remained an ingredient of the offence. iv) In Choi [1999] EWCA Crim 1279 (Court of Appeal Transcript 7 May 1999) the defendant went into a cubicle in a ladies lavatory in a supermarket and filmed a lady in the next cubicle; she saw the lens or the mirror attached to the lens and called for help. It was argued unsuccessfully by the defendant that there was no evidence for the jury that the act was lewd or disgusting or that public decency was outraged. No point was taken as to whether the acts were in public or could have been seen by more than one person. The court held, that the prosecution had first to prove the acts took place in public, but there was no issue on that. “Next the prosecution would have to establish that those acts were such as to disgust ordinary, right thinking people and third, that those acts were such as they would outrage public decency. The prosecution did not have to prove that there was a bystander who was actually outraged.” The second and third elements which the prosecution had to establish were issues for a jury as representing the standards of ordinary people. The court should not interfere unless it was unarguable that the acts were not disgusting or would not outrage. It was submitted on behalf of the appellant in this appeal that the point should have been taken that, as the woman who was filmed was the only person who saw the act, the public element of the offence was not satisfied. 26. The judge was, as we have mentioned, referred to R (Rose) v DPP [2006] EWHC 852 (Admin) . The defendant’s girl friend performed oral sex on him after midnight in the foyer of a bank to which customers of the bank were admitted to use an ATM. The foyer was subject to 24 hour CCTV surveillance and the acts of the defendant and his girl friend were seen the following morning when a bank employee viewed the video. The foyer was well lit and members of the public could have seen what was happening if they chose to look in, but there was no evidence that anyone was passing at the time or tried to enter the foyer. After reviewing the mid nineteenth century cases, Stanley Burnton J held that the offence of outraging public decency had not been committed as it had not been seen by anyone who was not participating in it and there was no evidence of there being any passers by. He also considered, but did not decide, that the private viewing by the employee of the bank of the video was not sufficient as the original act had not been an offence when committed. 27. There is only one case where acts very similar to those carried out by the appellant were dealt with in this court on an appeal against sentence after a guilty plea - Tinsley [2003] EWCA Crim 3032 ; the case is therefore of no assistance, though it is important to point out that the defendant had been seen by others, including a security guard at a supermarket where that defendant had filmed, whilst in the act of filming up women’s skirts or using mirrors to look up skirts. Our conclusion 28. There was some discussion as to whether s.67 of the Sexual Offences Act 2003 covered the acts committed by the appellant; the issue of whether it did or not is not relevant. The actions of the appellant were committed before the Act came into force and determining whether he might have committed that offence if it had been committed after the Act came into force is of no assistance in determining the scope of the offence of outraging public decency. It is, however, important to state that “voyeurism” as such was not a criminal offence; as was made clear in the Home Office report: Setting the Boundaries (2000) which led to the passing of the 2003 Act at paragraph 8.3: “Voyeurism or ‘peeping’ is an activity which is normally regarded as a nuisance, and in many instances is not criminal in England and Wales…. We were told of covert observations in changing rooms (both in shops, market stalls and schools), of hidden cameras filming in public changing areas and beaches and of course of the classic “Peeping Tom” looking into houses. Rather like flashing, our traditional attitude to such activity has been to regard it as unpleasant but a nuisance rather than criminal, possibly because of difficulties in definition.” 29. We therefore turn to apply the two elements of the offence established by the nineteenth century cases which we have set out at paragraph 21, as elucidated by the more modern cases, to the facts of the present case. It is clear that the point in issue – whether the nature of what was being done was actually seen by someone – is without direct authority and the arguments finely balanced. 30. The first element is one that constitutes the nature of the act which has to be proved. It has to be proved both that the act is of such a lewd, obscene or disgusting character that it outrages public decency. i) An obscene act is an act which offends against recognised standards of propriety and which is at a higher level of impropriety than indecency; see Stanley [1965] 2 QB 327 . A disgusting act is one “which fills the onlooker with loathing or extreme distaste or causes annoyance”; Choi (supra). It is clear that the act done by the appellant was capable of being judged by a jury to be a lewd, obscene or disgusting act. It is the nature of the act that the jury had to consider and it was clear in our view that the jury were entitled to find that it was lewd, obscene or disgusting, even if no one saw him doing it. ii) It is not enough that the act is lewd, obscene or disgusting and that it might shock people; it must, as Lord Simon made clear in Knuller , be of such a character that it outrages minimum standards of public decency as judged by the jury in contemporary society. As was pointed out, “outrages” is a strong word. It is not necessary to establish that any particular member of the public is outraged, as this court said in Mayling and Choi ; and it must follow that this requirement does not mean that anyone has to see the act whilst it is being carried out. 31. As to the second element - the public element - its precise ambit was the principal issue discussed in most of the cases. i) We accept that the public element first requires that the act done in a place to which the public has access or in a place, as set out in Walker where what is done is capable of public view. The filming by the appellant was done in a supermarket – a place to which the public had access – and in a place where what was done was capable of bring seen. On either basis this part of the public element was satisfied. ii) The public element is not, however, satisfied unless the act is capable of being seen by two or more persons who are actually present, even if they do not actually see it (what is conveniently described by Rook and Ward as the two person rule). It was the scope of the two person rule that was the subject to which the submissions in this appeal were principally directed. 32. The prosecution contended that as the cases referred to the act as one which was capable of being seen by two or more persons, this element was satisfied, as the appellant could have been discovered filming by a vigilant security guard (as in Tinsley) or the contents of his rucksack could have spilled out. 33. The first step in the prosecution argument was that the requirement of seeing was not to be understood literally. They relied on a passage in Rook and Ward at paragraph 14.42 where the authors referred to a debate in the House of Lords on the Sexual Offences Bill 2003 where the Government was resisting the creation of an offence of sexual activity in a public lavatory on the basis that it could be prosecuted as outraging public decency: “Some scepticism was expressed in the Lords as to the availability of the common law offence where the act in question takes place behind the closed door of a lavatory cubicle and so is heard but not seen. Lord Falconer, speaking on behalf of the Government, thought that the common law was sufficiently flexible to cover this scenario and that an act would be covered if it was witnessed or capable of being witnessed, whether by being seen or heard. We respectfully agree.” 34. There is no reason why in principle the nature of the act cannot be witnessed in another way such as hearing; we therefore accept the argument of the prosecution the nature of the act can be capable of being witnessed by means other than seeing. At first sight this conclusion does not advance the argument far in the present appeal, as there was no evidence that the acts of the appellant were seen or heard by anyone. However it is a first step, as it may be an indication that the two person rule is concerned with evidence as to the public requirement in the offence. 35. The contention did not, however, meet the appellant’s submission that the essence of the two person rule meant exactly what the cases, as the appellant submitted, in fact showed, namely that the nature of the act had been seen by one person and was capable of being seen by others. We accept that in all the cases to which we have referred the nature of the act was visible. Russell on Crime (12 th edition 1964) at page 1430 refers to the cases of indecent exposure as cases where exposure in view of several persons constituted the offence. Moreover, it was argued that the reason why this was so was that it had to be shown that a member of the public was in fact outraged; Taylor LJ, as he then was, had referred to the outrage to the member of the public in the passage we have cited from Rowley at paragraph ii) above; public decency could not be outraged unless the nature of the act was seen by someone. 36. However in our view the purpose of the two person rule was to provide a basic requirement that had to be satisfied before it could be said that the offence was of a sufficiently public nature for it to be an offence. We have referred to the purpose of the requirement that the act outraged public decency as set out in the speech of Lord Simon of Glaisdale in Knuller which we have cited at paragraph 24; it was that people should be able to venture out without the risk of outrage to certain minimum acceptable standards of decency. It is clear from this speech that the outrage which the act must bring about is the element of the offence that goes to the nature of the act; the public element, as the speech also makes clear, refers to the place where the act is committed. The two person rule, in our view, also goes to this element. 37. But as we have said, in all the cases at least one person saw the nature of the act. Is it therefore a rule of law that one person must actually see the nature of the act or are the cases in fact all cases no more than examples where proof by one person was merely an evidential requirement? As we have set out at paragraph vi), the issue as to whether the nature of the act had actually to be seen was left open in the question posed by Weightman J in Elliot and White . 38. In Knuller, Lord Simon of Glaisdale summarised Mayling by referring to the fact that one person did in fact see it. In May, the court stated as we have set out in paragraph i) that it was enough if one person saw the act and others might have seen it. The old form of indictment expressly referred to the act being “in view of” and “to the view of”. In contrast, the judgments in Rouverard, Webb, Farrell and Mayling all contain language that suggest that it is sufficient if two or more persons could have seen the act. But a decision based on the precise words used in the cases where the point was not in issue cannot be decisive as in all the cases someone saw the nature of the act and the court was addressing the question as to the public element in the offence. We are not applying a statutory provision, but a rule of law derived from legal principles and judicial precedents. 39. In our view it is necessary to have regard to the purpose of the two person rule; it goes solely to the necessity that there be a public element in the sense of more than one being present and capable of being affected by it. There is in our view no reason to confine the requirement more restrictively and require actual sight or sound of the nature of the act. The public element in the offence is satisfied if the act is done where persons are present and the nature of what is being done is capable of being seen; the principle is that the public are to be protected from acts of a lewd, obscene or disgusting act which are of a nature that outrages public decency and which are capable of being seen in public. As was pointed out in Bunyan and Morgan , a person committing such an act may wish as much privacy as possible, if there is a possibility of them being discovered in public, it would nonetheless be an offence. Looking therefore at the purpose of the two person rule, it can, in our view, be satisfied if there are two or more persons present who are capable of seeing the nature of the act, even if they did not actually see it. Moreover, the purpose of the requirement that the act be of such a kind that it outrages public decency goes, as we have said, to setting a standard which the jury must judge by reference to contemporary standards; it does not in fact require someone in fact saw the act and was outraged. In most cases, there will be no evidence against a defendant unless the act is seen by someone; but that does not mean that where an act is in fact done which is lewd, obscene or disgusting and is of a nature that outrages public decency and is done where it is proved that people are present and capable of seeing its nature, it is not an offence. 40. Thus in the present case, although no one saw the appellant filming, there was evidence from the videos that there were others present. But was what the appellant was in fact doing capable of being seen, even though no one actually did? It cannot be said, as is clear from Tinsley, that this type of filming is incapable of being seen. Whether on the facts of this case the way in which the appellant filmed up the skirts of the women was capable of being seen was a question for the jury. As is clear from the passage in the summing up which we have set out at paragraph 13, this was an issue expressly left to the jury by the judge. By their verdict of guilty the jury must have concluded that the way the appellant filmed was capable of being seen by those in the supermarket. 41. We therefore consider that the jury were entitled to convict the appellant and dismiss the appeal on counts 11-15 on this ground. Joinder 42. The appellant contended before the judge that the counts of outraging public decency should not have been joined in the same indictment as they were neither founded on the same facts nor were part of a series of offences of the same or similar character. Applying the test in Barrell and Wilson (1979) 69 Cr App R 620 , the charges did not have a common factual origin; the only connecting link was that they were discovered at the same search of the appellant’s house; otherwise they covered different periods of time and the subjects of the counts of outraging public decency were adults not children. Nor, applying the principles established in Kray (1969) 53 Cr App R 569 and Ludlow v Metropolitan Police Commissioner [1971] AC 29 , was there a sufficient nexus between them; filming adults was quite different to downloading child pornography. 43. In rejecting the submissions, the judge had held that there was sufficient nexus on the basis that they all involved the acquisition and retention of images for sexual gratification. 44. We consider that the judge was plainly correct. Both sets of offences involved the acquisition and retention of photographs where it was open to a jury to conclude that they were acquired and retained for the purposes of sexual gratification. Severance 45. It was next contended by the appellant that even if the counts were properly joined in the indictment, the judge had wrongly exercised her discretion in failing to sever the counts. There was severe prejudice to the appellant in defending both in the same trial; his defence to the downloading offences was that this was accidental and, as we have set out, his defence to the offences of outraging public decency, he cannot have outraged public decency as no one had seen him. Reliance was placed on the observations of Lord Taylor of Gosforth CJ in Christou [1997] AC 117 at 129 where he enumerated some of the factors to be taken into account. 46. The judge refused in her discretion to sever the indictment as she considered that the evidence in relation to the counts of outraging public decency was admissible in relation to the other counts to rebut the defence of accidental download; there was no improper prejudice. 47. It was submitted that the judge was wrong in her view on admissibility; the appellant had admitted to downloading adult pornography and the fact that he had filmed up women’s skirts was relevant only to an interest in adult pornography and not to child pornography. 48. We cannot accept that contention. In our view the evidence was admissible as it was relevant to the issue of accidental download; as to the difference between an interest in adult and child pornography, that was for the jury to consider when deciding the weight to be attached to the evidence. Furthermore count 10 of the indictment related to filming up the skirt of a schoolgirl and the retention of that film. Although the appellant had denied knowing she was under 16, it was a further common link which enabled the prosecution to contend that the retention of this film was evidence that the jury could use in deciding if the child pornography downloaded from the internet was accidental. 49. In our judgment the judge was entitled to exercise her discretion to refuse to sever the indictment; she made no error of law and took into account no irrelevant consideration. The decision she made was well within the exercise of her discretion as a trial judge in determining the best way of achieving a fair resolution of the issues. 50. Nor can any criticism attach to the way in which the judge summed the issues up for the jury; leave was refused by the full court on this issue, but the criticism was renewed before us as the judge had indicated that she would direct the jury in relation to their use of the evidence when making the rulings on joinder and severance. In fact she directed the jury to consider the counts separately. The fact that she gave no separate direction in relation to the evidence in our view was immaterial, as the relevance of the evidence would have been obvious. Sentence 51. It was contended by the appellant that the sentence for the offences of outraging public decency should not have been made consecutive to the sentence on counts 1-9 and the totality of the sentences on counts 1-9 was in any event too long. His career had been ruined and he would have to begin his life again on release. He had about 7500 files of still and moving images on his computer, but only 100 were illegal. 52. However the gravity of the appellant’s conduct in relation to counts 1-9 was shown by the fact that 2 of the images were at level 5 and about 49 at level 4 and there were 28 others of children; he was also convicted of two counts of possession with a view to distribution; one of those related to a level 5 image. Although we take into account the fact that the had not actually distributed any images, we do not consider that a total sentence of three years on the counts of distribution can be said to be manifestly excessive. 53. The sentences of 9 months for the counts of filming up the skirts of the schoolgirl and the women were made consecutive. This made the overall sentence too long. We will therefore make those sentences concurrent to the other sentences so that the total sentence to be served by the appellant is reduced to three years. To that extent the appeal on sentence is allowed.

```yaml citation: '[2007] EWCA Crim 2062' date: '2007-08-16' judges: - LORD JUSTICE THOMAS - MR JUSTICE AIKENS ```

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 232 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202303005/A3 Royal Courts of Justice Strand London WC2A 2LL Thursday, 22 February 2024 Before: LORD JUSTICE DINGEMANS MR JUSTICE WALL THE RECORDER OF NORWICH HER HONOUR JUDGE ALICE ROBINSON (Sitting as a Judge of the CACD) REX V REECE SINGH-DIGWA __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MISS S PROBERT appeared on behalf of the Appellant MR E ELTON appeared on behalf of the Crown _________ J U D G M E N T LORD JUSTICE DINGEMANS: Introduction 1. This is the hearing of an appeal against sentence with the leave of the single judge. 2. On 23 June 2023 in the Crown Court at Southampton before His Honour Judge Parker KC, the appellant, who was born on 3 January 2006 and was then aged 17, and is now aged 18 years, pleaded guilty to an offence of affray. The offence took place when he was aged between 15 and 16. 3. On 10 July 2023, having been convicted after a trial in the youth court for a robbery of a victim whose identity is protected under the relevant provisions, and after he pleaded guilty to other robberies in relation to three other victims, handling stolen goods, theft of motor vehicles and assisting an offender, the appellant was committed for sentence pursuant to section 16 of the Sentencing Act 2020 and section 20 of the Sentencing Act 2020 . One of the pleas were made at a time when he was not entitled to full credit but it is apparent from reverse calculations that other pleas were made at a time when he was entitled to full credit. 4. The sentencing hearing took place on 4 August 2023 before the Resident Judge and the appellant was sentenced to a total sentence of four years two months' detention and a victim surcharge order was made. The offences 5. So far as the first offence was concerned, this concerned a robbery and fraud by false representation. It occurred at 4.00 pm on 19 June 2021 when the appellant was aged 15 years and six months. The victim was with two friends who were aged 13. They were crossing a footbridge leading to West Quay in Southampton. They were stopped by a large group of older boys, including the appellant. They were shouted at and intimidated. One of the group split them up and one of the victims was pinned against a wall and his man bag removed. The group took that man bag, an iPhone and a bank card. That was the card that was used in the course of frauds: £3 used at Poundland, £30 on two occasions at WH Smith and an unsuccessful attempt to use the card in Asda. 6. The victim of the robbery was asked what he had in his bag. He refused to let go but was man-handled and the bag removed. He had been shopping and had bought a hoody, £25 worth of shorts and a pair of shin pads which were taken. Another person managed to break free and run away. 7. The appellant was arrested for that on 11 December and interviewed but he answered no comment. 8. The robbery of two other persons took place on 13 July 2021 and the appellant pleaded guilty to this. This took place nearly a month later. Those two victims were on Eastgate Street at about 5.30 pm. A group of five youths, including the appellant, came out of the multi-storey car park and approached them. One demanded their belongings. The rest of the group stood by, acting in a threatening manner and had their hands in their tracksuit bottoms suggesting that they had weapons or knives. A bag was taken from one of the victims and he was punched. Another had his beanie hat taken from his head. They took a hand pump, speaker and wallet containing a provisional driving licence and bank card. The total value of the items taken was about £250. In the course of the robbery one of the victims was punched and kicked by members of the group and he went to A&E for treatment, with double vision, cuts, lumps and bruises. The group returned to the car park and the person who had one of the victims' bags looked through it and discarded anything that they considered not worth taking. 9. The appellant was interviewed about this on 29 September 2021 and again answered no comment. 10. The theft of the motor vehicles took place on 22 July 2021. Again the appellant pleaded guilty and this was about a week after the last robbery. A man had parked his Honda 125 motorcycle on Western Esplanade. Half an hour later, as he was walking back to where he had parked, he heard the sound of the exhaust he had fitted to the motorcycle. The appellant had stolen the motorcycle and drove it away, despite the efforts of the victim to give chase. The vehicle was recovered the next day but it had extensive damage which took more than two months and £1,000 to repair. 11. On the same day, acting with others, the appellant stole a motor vehicle belonging to another person. 12. On 24 July 2021, two days after those incidents, Owen Large parked his Yamaha motorcycle in a car park. He left the vehicle secured with a bike lock but when he returned the motorcycle had been stolen. A stolen motorbike Facebook group in Southampton were able to send a photo showing the appellant and his group using the stolen motorcycle. It was not recovered until April 2022 but many of the parts and all of the after-market parts which had been fitted were missing. 13. That brings us then to the robbery of another person which occurred on 6 September 2021, about a month-and-a-half after the last theft of the motorcycle. This was the robbery for which the appellant was convicted after a summary trial in the youth court. 14. There was a 14-year-old victim and his friend walking down the Western Esplanade towards the station. A group of 12 teenagers, including the appellant, crossed the road and stopped them. They had hoods up or had obscured their identities. One of the two tried to run through a gap between the group but he was grabbed and his Armani bag was removed from his shoulder. He was too frightened to put up resistance. The group were shouting and began intimidating them. After they took the bag he was allowed to walk away. The other victim said that during the course of the incident he had been threatened with a knife. The bag had contained Apple Air pods, a bank card and house keys. The value of the items was about £240. The bag but not any of the contents was recovered from the appellant's bedroom at the time of his arrest on 29 September 2021. 15. That takes us to 25 October 2021, which was about a month after the last robbery. The appellant pleaded guilty to handling stolen goods. A person had left his e-scooter secured behind a locked, coded door at his student accommodation block and when he returned afterwards it had been stolen. CCTV showed that the scooter was stolen by a member of the appellant's group, and the appellant was part of the group of four. The following day the appellant was stopped riding the stolen scooter. He was with the person identified as having removed it. Both were wearing identical clothes to the ones they had worn when removing the scooter. 16. The appellant was interviewed on 27 October 2021 but denied knowing the e-scooter was stolen and said it had been lent to him. 17. On 24 May 2022, some seven months after the last offence and when the appellant was now aged 16 years and four months, the appellant committed the affray. There was an altercation between one family and co-defendants of the appellant. The issue was whether there had been a theft of moped keys by three of the co-defendants. The three co-defendants took offence at the allegation that they had taken the keys and they summoned reinforcements, which included the appellant. The group, some seven strong and hooded or masked, returned to the location armed with bats, clubs, pieces of wood and a golf club taken from a skip outside a block of flats. There was then an affray during which the victims were struck and one of them was hit hard on the left forearm and the left rib cage and left with a puncture wound to his arms and cuts and abrasions to his left kidney and grazes to his rib area. One of the victims spent five days in hospital recovering from injuries. Another was hit in the ribs by wood and another ran away. The appellant was hooded and masked and armed with a weapon from the skip. He was one of the persons who chased one of the victims away. 18. That brings us to 18 July 2022, so some two months after the affray and an offence of assisting an offender to which the appellant pleaded guilty. The appellant was one of four young men riding around Southampton on stolen motorcycles. One of the other men crashed his motorcycle and killed his passenger. The appellant drove that motorcyclist from the scene and his motorbike and helmet. 19. In interview on 29 July and in March 2023 the appellant answered no comment. The motorcyclist who had caused the death by dangerous driving was sentenced to a nine-year extended sentence. The sentence 20. When sentencing, the judge had the benefit of a pre-sentence report, which we have also seen, which made a recommendation for a youth rehabilitation order of 18 months' duration, with supervision requirements, electronically monitored curfews, prohibited activity requirements and exclusion requirements, as well as activity requirements. The judge stated that he considered that the matters were so serious that only a sentence of detention could be justified. The judge identified that there would need to be a long period of detention, notwithstanding the appellant's youth, but the judge recorded that he would still give the appellant a significant discount for youth. 21. So far as the sentences were concerned, the judge chose the robberies as the lead offences and imposed no separate penalties on the other offences but said that he had taken them into account in assessing the overall sentence. 22. So far as relevant guidelines were concerned, the judge expressly referred to the “Robbery-Sentencing Children and Young People” and to the “Sentencing Children and Young People” guidelines. 23. So far as the first victim was concerned, in relation to the robbery that took place on 19 June 2021 the judge took a sentence after trial of four years, halved it for youth to two years and then reduced it by 25 per cent because there was a later plea of guilty to give a sentence of 18 months. That was ordered to run concurrently with the other sentences. 24. So far as the robbery of the two individuals was concerned which took place on 13 July 2021, the judge took a sentence before discount for age and plea of five years, gave a discount of one-half (to take it down to two-and-a-half years) for youth and then a third discount for plea, ending up with a sentence of one year and eight months, or 20-months. 25. So far as the robbery for which the appellant had pleaded not guilty, which occurred on 6 September 2021, the judge took a sentence of six years which he then reduced to five years to take account of age. The judge did not explain why he had not given the same discount for age that he had given in relation to the other matters, namely a discount of one half, and we note that the robbery that occurred on 6 September 2021 was chronologically very close to the other robberies for which the appellant was sentenced. The judge then made a further reduction of six months for totality, leaving an overall sentence (because there was no guilty plea to be further deducted) of four years six months, to which he added the one year eight months, giving an overall sentence of six years two months. This appeal 26. In written and oral submissions before us, Miss Probert effectively takes two points. First, that there should have been a discount for age in relation to the main sentence. Rather than the simple reduction of one year it should have been one-half. Second, that the judge should have imposed a youth rehabilitation order rather than a sentence of detention. 27. On behalf of the prosecution, Mr Elton reminds us that this was a very experienced Resident Judge who had given appropriate discount for age in relation to two of the matters and was probably structuring the sentence so as to take account of the separate affray and assisting an offender, both of which were serious matters and which otherwise would not have been marked by the offending. 28. We can deal with Miss Probert's second point first. In our judgment the judge was plainly entitled and indeed right to conclude that only a sentence of detention would reflect the serious offending carried out by the appellant, notwithstanding his youth and notwithstanding all of the important matters identified in the sentencing children and young people guideline. 29. The first point is more difficult. In our judgment there is no good reason why the judge should not have taken the same reduction for age as he had taken for the other offences of robbery. If we do that the sentence of six years is reduced to one of three years. We take Mr Elton's point that there is other offending which was marked in all of these matters and therefore we will not make a further reduction as the judge had done for totality, because it is already reflected in the fact that no separate penalties were imposed for the other offences. There is no discount for plea to be made. That on our calculations gives two sentences which are effective and amount to the overall sentence which the appellant will receive, that is the one year eight months for the robbery of two persons and the consecutive three years in relation to the robbery to which the appellant had pleaded not guilty. That gives an overall sentence of four years and eight months' detention. 30. Having stepped back and considered, as we must, the issues of age and proportionality, we consider that that is a proportionate sentence to be imposed upon the appellant. Therefore the appeal succeeds to the extent that the overall sentence is reduced from one of six years and two months to one of four years and eight months' detention. 31. We should conclude by thanking both Miss Probert and Mr Elton for their very helpful submissions. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2024] EWCA Crim 232' date: '2024-02-22' judges: - LORD JUSTICE DINGEMANS - MR JUSTICE WALL ```

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 2249 2019/03021/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 12 th December 2019 B e f o r e: LORD JUSTICE HOLROYDE MR JUSTICE WARBY and HIS HONOUR JUDGE PICTON ( Sitting as a Judge of the Court of Appeal Criminal Division ) ____________________ R E G I N A - v - ANDREW RALPH WOOFF ____________________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. __________________________ Mr J Underhill appeared on behalf of the Appellant ______________________ J U D G M E N T ( Approved ) ______________________ Thursday 12 th December 2019 LORD JUSTICE HOLROYDE: I shall ask Mr Justice Warby to give the judgment of the court. MR JUSTICE WARBY: 1. In July 2018, in the Crown Court at Southampton, the appellant pleaded guilty a week before trial to two counts of possessing Class A drugs with intent to supply (counts 1 and 2). His previous convictions for Class A offences meant that his case engaged the minimum sentence provisions of section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 , headed "Minimum of seven years for third class A drug trafficking offence". 2. At the sentencing hearing on 18 th July 2019, the appellant's case was that it would in all the circumstances be unjust to impose the minimum seven year term. The judge refused an application for a pre-sentence report and proceeded to sentence. He rejected the appellant's case and, after reduction for the guilty pleas, imposed a sentence of six years' imprisonment on each count, to run concurrently. 3. The appellant now appeals against sentence by leave of the single judge. 4. His case in this court is that the sentence imposed was both wrong in principle and excessive for two reasons: first, a pre-sentence report should have been ordered to allow the court to consider fully, in proper detail, the history of the offender in order to consider whether or not it was unjust to apply the minimum sentence provisions; and secondly, the previous convictions which triggered the minimum sentence were old and the sentencing judge was not in possession of any of the detailed facts of the previous offending. 5. We start our consideration of those grounds of appeal by recalling some of the chief features of the legal framework surrounding the minimum sentence provisions. In the context of this case there are six points to be made: (1) The right approach for the sentencing judge is to start by applying the relevant sentencing guidelines to determine the appropriate sentence without reference to the minimum sentence provisions. Only then should the judge consult those provisions to ensure that the sentence complies with the statute: see R v Silvera [2013] EWCA Crim 1764 . (2) Under section 110 , the starting point when sentencing an adult for a third drug trafficking offence is that the court "shall" pass a custodial sentence of at least seven 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". (3) The minimum sentence provisions are qualified by section 144 of the Criminal Justice Act 2003 which requires the court to take into account a guilty plea and allows it to reduce the prescribed minimum sentence by up to 20 per cent for that reason. That produces a minimum sentence following a plea of guilty of 2,045 days (about 67 months). It is clear that the ability to reduce the minimum to this extent must be taken into account when assessing whether the application of section 110 would be unjust: see Attorney General's Reference (R v Marland) [2018] EWCA Crim 1770 , [2018] 2 Cr App R(S) 51 at [22]. (4) The question of whether particular circumstances would make it unjust to impose the minimum sentence is inherently fact-sensitive. For that reason the authorities suggest that in cases where the burden lies on the defendant to persuade the court that particular circumstances would make it unjust to apply the minimum sentence provisions, a pre-sentence report should usually be obtained: R v Densham (Neil James) [2014] EWCA Crim 2552 ; [2015] 1 Cr App R(3) 37 at [8], and Marland at [7]. The failure to obtain a report is not, however, of itself a fatal flaw in the sentencing exercise, as is clear from Densham , where the appeal was dismissed, despite such a flaw. (5) One way of testing whether or not a sentence would be unjust in the particular circumstances of the case is to ask whether or not the sentence under section 110 is markedly more severe than the sentence that would have been passed, applying the Sentencing Council guidelines for the offence. This, however, has to be measured against the deterrent element which underlies section 110 : see Marland at [31]. (6) The court must loyally apply the law that Parliament has enacted. It must not circumvent or dilute the effect of the statute by taking too liberal an approach to the notion of what is "unjust" as, for instance, by treating perfectly normal circumstances as “particular circumstances” within section 110 in order to circumvent the operation of those provisions: see R v Lucas [2011] EWCA Crim 2806, [2012] 2 Cr App R(S) 15 at [13]; R v Chaplin [2015] EWCA Crim 1491 , [2016] 1 Cr App R(S) 10 at [5] and [13] (in the context of the parallel provisions relating to domestic burglary); and Marland at [23-24 and [29-30]. 6. There is a further point of particular relevance to this case when it comes to the antiquity of a triggering conviction. This is an issue discussed in R v McDonagh [2006] 1 Cr App R(S) 111 at [10]; R v Gallone [2014] EWCA Crim 1140 , [2014] 2 Cr App R(S) 57 at [19]; and Marland at [25-27] and [32]. The effect of the authorities is summarised in Marland at [32]: “The length of time since the last qualifying offence and implicitly since the last offence is not a circumstance which renders the imposition of the mandatory sentence unjust of itself, although it may be a matter to be taken into account." 7. Turning to the facts of this case, the prosecution followed street observations by a police officer on 19 th April 2019. The appellant was seen by the officer to hand something to a female in the street. Although nothing was found on searching her, the police conducted a search of the appellant's bedsit. In the course of that search he volunteered that there were drugs in some Kinder Egg shells wrapped in a sock. So it proved. They were later found to contain 25 wraps of cocaine and 21 wraps of heroine, estimated to have a street value of £500. Each wrap represented a 1 gram deal for street selling. A fuller search of the address identified a further Kinder Egg in a jacket containing about twice as many wraps as had been found in the eggs identified by the appellant. The drugs found in the jacket amounted to 80 wraps of cocaine and 35 wraps of heroin, with an estimated street value of £1,150. 8. The officers' search also harvested paraphernalia associated with drug dealing, including a tick list, razors, scales, pieces of plastic and six mobile telephones. Those phones were examined. Three of them were found to contain messages relating to selling drugs, one of which indicated a wish to use someone's flat as a base to sell 8 ounces of drugs a day. 9. At the time of sentence the appellant was aged 58. He had a total of 21 previous convictions for 58 offences between 1978 and 2012, sixteen of which were drug offences, dating from between 1986 and 2008. Four convictions were drawn to the attention of the sentencing judge. 10. The first was on 28 th May 1986, when the appellant was sentenced in the Crown Court at Reading to a total of three years' imprisonment for two offences of supplying a controlled drug, two of possessing drugs and breach of a suspended sentence order, with a consecutive term of six months' imprisonment for a Bail Act offence. 11. Secondly, on 5 th August 1992, he was sentenced by magistrates to 60 hours of community service for possessing a controlled drug with intent to supply, possessing a controlled drug, and cultivating cannabis. 12. Thirdly, on 23 rd June 1997, in the Crown Court at Southampton, he received a suspended sentence of two years' imprisonment for being concerned in supplying Class A drugs, being concerned in supplying Class B drugs, and possession of Class B drugs. 13. Fourthly, on 7 th March 2008, in the same court, he was sentenced to 42 months' immediate imprisonment for supplying and being concerned in supplying Class A drugs. 14. Little was known, and little was said to the judge, about the facts and circumstances of the 1986 and 1992 offences. The appellant maintains that the first occasion involved cannabis and amphetamines, and the second cannabis only. The prosecution has been unable to provide details of these old offences. We proceed on the assumption, which seems reasonable, that the offending did indeed relate to controlled drugs of Class B. 15. The offences in 1997 and 2008 did, however, involve Class A drugs. As the sentencing judge was told, the drugs were LSD in 1997, and heroin in 2008. It is these which were correctly treated below as the “trigger” convictions for the purposes of section 110 . (We pause to observe that although section 110 only applies when the third drug trafficking conviction relates to an offence committed on or after 1 st October 1997, there has never been any restriction on the dates of the earlier offences which can operate to trigger the minimum sentence provisions.) 16. Sentencing the appellant, the judge observed that examination of his telephones showed that he was an entrenched, habitual user of Class A drugs and that he was selling them either to make a profit or to obtain a discount to feed his own drug habit. This was street dealing in category 3. The appellant may have been providing to friends, but he was providing for profit and his role was significant. The judge identified the appropriate starting point, before aggravating or mitigating features and before consideration of the guilty plea, as four and a half years' custody after a trial. He then referred to the appellant's previous offending and observed that it would have been apparent to the appellant from 1997 that a further drug trafficking offence would lead to a seven year minimum term. The appellant was fortunate, the judge suggested, that in 2008 he had received only three and a half years' imprisonment. The judge rejected the suggestion that it would be unjust to impose the minimum term with a reduction for the guilty plea. He said: "The fact of the matter is you must have known that dealing in Class A drugs would expose you to the minimum term … because of what happened in 2008." 17. The judge gave what he described as "more credit for your plea than you deserve", reduced the minimum sentence by one year, and ordered the resulting sentences of six years' imprisonment to run concurrently. 18. Granting leave to appeal, the single judge directed the preparation of a pre-appeal report. That report describes the appellant as having a long-standing and entrenched addiction to illicit drugs. It began with the misuse of cannabis at the age of 15 and escalated to Class A drugs over 40 years ago, when he was aged 17. There have been periods of reduction, but these have been followed by relapses. Previous sentences have been ineffective in addressing his addiction. Personal relationships have been problematic and have broken down due to his drug misuse. He has deliberately distanced himself from all of his seven children, the purpose being, he says, to spare them the impact of his substance misuse. He has obtained some work in the past, but there is no evidence of employment since 2012. 19. The report notes that the present matter is the appellant's fifth drug conviction, representing a pattern of offending behaviour. In interview with the probation officer, the appellant sought to justify and minimise his behaviour. He maintained that his supply was only to friends and that it spared them the dangers and expense of buying from street dealers. He claimed to have been engaging with a local substance misuse support agency, but enquiries by the Probation Service contradicted that account. 20. We also have from the prosecution some additional details about the offences of 1997 and 2008. The 1997 offences involved possession of 45 LSD tablets, 112 grams of herbal cannabis and £325 in cash. The 2008 conviction resulted from undercover police operations in the course of which the appellant was observed street dealing £10 wraps of heroin. In interview he admitted dealing, claiming to be a runner for a local dealer. This is the offending which led to a sentence of three and a half years' imprisonment, after reduction for the guilty plea. 21. Mr Underhill, in his submissions to us today, has addressed the further information now available. He has pointed out that the amount of drugs supplied in 2008, as now known from the prosecution, was very small. He has, however, acknowledged that this point, for what it is worth, could have been made to him by the appellant by way of instructions. 22. Mr Underhill has also acknowledged that the pre-appeal report is "mixed", but he has drawn attention to the periods of reduction of drug use and what he characterises as genuine attempts by the appellant to address his addiction. Broadly, Mr Underhill has submitted that the circumstances which he relied on as mitigation below, as supplemented by the further information now available, can and should be treated as “particular circumstances” that would make it unjust to impose the minimum term. There are four such circumstances identified in the Notice of Appeal: (i) A “significant gap” in offending behaviour, with no offences since 2012, and no drug offences since 2008; (ii) the historic nature of the "trigger offences"; (iii) the appellant was a long-standing user who had made attempts to deal with his habit; and (iv) his habit was significant and developed from a young age when he became addicted. 23. It can be seen that two of those are circumstances relating to the offences, and two of them are circumstances relating to the offender. 24. We have reflected on these submissions, but find ourselves unpersuaded. We start, as did the judge, with the guidelines. In 2019, the appellant played a significant role in street dealing of heroin and cocaine. The guideline starting point for a single such offence is four and a half years' custody, with a range from three and a half years to seven years. Here there were two offences. The appellant was found in possession of a total of 161 grams of Class A drugs – more, one would suppose, than is common when dealing only to friends. The starting point for a category 3 offence that is not street dealing is based on 150 grams. 25. On any view, the appellant's four previous convictions for involvement in the supply of drugs represented a significant aggravating factor. The Class B offences, although not trigger offences for the purposes of section 110 , were nonetheless part of the overall picture of previous offending. It is legitimate to treat the 1986 offences as relatively serious, given the length of the sentence imposed following a guilty plea for involvement in the supply of Class B drugs. 26. The most recent Class A offences were street dealing. They were committed after the appellant had been subject to a suspended and then an immediate custodial sentence for Class A dealing which, in the case of the 2008 offending, was also street dealing. In the light of what we now know about the previous offences, the picture is one of escalating offending, albeit over a period of some 20 years. We note that on the account contained in the pre-appeal report, the appellant was throughout those 20 years a heavy drug user. 27. There is little to be said in mitigation. It may be that the appellant was only supplying drugs to which he himself was addicted; but in the light of the array of phones, the messages on them, and the other dealing paraphernalia, the judge was clearly entitled to take the view that the supply in this case was not just social, but for profit. The pre-appeal report does not assist the appellant in this respect. 28. In all the circumstances it would be hard to criticise a notional sentence of six years or more after a trial. The appellant's very late plea of guilty could not justify a reduction of more than fifteen per cent. The appropriate sentence, without regard to section 110 , would therefore be in the range of five years and one month to five and a half years' custody. In our judgment, the sentence actually imposed of six years overall cannot be characterised as "markedly more severe" than this. Nor are we able to agree with Mr Underhill that there are any “particular circumstances” which would make it unjust to impose that longer sentence. 29. It may be that the judge should have ordered a pre-sentence report, although we do not ourselves read the authorities as suggesting that this is mandatory in all cases. It may, in our judgment, be arguable that there is a threshold requirement for a defendant to give at least some indication of the kinds of circumstance capable of amounting to particular circumstances within section 110 that might be disclosed or corroborated by such a report. Certainly, an application for a pre-sentence report will be the stronger if the advocate can point, one would expect on instructions, to some particular circumstance in relation to which further information could be expected to be obtained by the National Probation Service. We do not need to decide that point as we now have the pre-appeal report, and counsel's submissions upon it. We also have as much information as can be provided about the facts and circumstances of the previous offending that was relied on at the sentencing hearing. We are, therefore, for practical purposes in the position that the appellant says should have been enjoyed by the sentencing judge. 30. The pre-appeal report portrays an all-too-familiar picture in the context of offending of this kind. We have not identified anything in the report that qualifies as a “particular circumstance” relating to the appellant, such as to satisfy the test of injustice under section 110 . The mere fact that the appellant is a long-term abuser of Class A drugs with a significant habit cannot count, and the report does not suggest that this appellant has made any very meaningful attempts to address his addiction. Nor can we regard the details of the Class A offences as including any such circumstance. The timing of the convictions was known to the judge. The new information adds nothing on the question of timing. The mere fact that the first qualifying conviction was over 20 years before the third cannot be enough. Nor can the fact that the second was ten years old at the time of the latest conviction. As for the additional details, besides being largely matters that the appellant himself could have told his counsel, they are unsurprising and in no way unusual. 31. It is now apparent that the judge was wrong to conclude that section 110 had been engaged when the appellant was sentenced in 2008. That was only the second, and not the third, qualifying offence for the purposes of the statute. But the judge was entitled to say, as he did, that from 2008 onwards the appellant was at risk of a seven year minimum sentence and should have been aware of that. 32. In conclusion, although it might be said that the sentencing process had some blemishes, we cannot fault the judge's conclusions. He was right to conclude that the statute mandated a minimum sentence of seven years, minus 20 per cent. His sentence, after discount for the guilty plea was not wrong in principle, nor was it excessive. 33. Accordingly, the appeal is dismissed. __________________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] ________________________________

```yaml citation: '[2019] EWCA Crim 2249' date: '2019-12-12' judges: - LORD JUSTICE HOLROYDE - MR JUSTICE WARBY ```

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 1872 Case No: 2011/01259/A2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WARWICK CROWN COURT His Honour Judge Harris QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/07/2011 Before : LORD JUSTICE THOMAS MR JUSTICE RYDER and MR JUSTICE CALVERT-SMITH - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Robert James Cooper Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms H Kubik for the Appellant Mr I Wicks for the Crown Mr M Heywood QC for The Home Office as Interveners Hearing date: 1 July 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Thomas : 1. On 20 October 2010 at the Crown Court at Warwick before His Honour Judge Harris QC the appellant was sentenced to three consecutive sentences of six years imprisonment after a plea to three counts of rape, making a total of 18 years. 2. An order was made under s.28 of the Criminal Justice and Court Services Act 2000 ( the 2000 Act ) disqualifying the appellant from working with children. He was handed a standard form notice to this effect which he signed to acknowledge receipt. The judge did not tell the appellant, as he has been required by the Safeguarding Vulnerable Groups Act 2006 ( the 2006 Act ) to do since 12 October 2009, that he would be barred from working with children under that Act. 3. The appellant appeals with the leave of the Single Judge on two issues: i) Was the sentence manifestly excessive? ii) What is the court’s duty under the 2000 and 2006 Acts? Should the court have made an order under s.28 in addition to informing the appellant he would be barred under the 2006 Act ? 4. The second issue has arisen for decision in this case following a lack of certainty as to the continued duty of the courts to make an order under the 2000 Act and a request by the Home Office that the court review its recent decision in Attorney-General’s Reference No 18 of 2011 [2011] EWCA Crim 1300 in relation to that issue. Issue 1: Was the sentence manifestly excessive? 5. S, the victim, was born in 1996. She lived with the appellant, her brother, and other members of her family. When she was about 11 the appellant (who had been born in 1984 and is about 12 years older) started to become interested in her sexually. He began by touching her over her clothes, then touching her vagina under her clothes and then having sexual intercourse with her. On the first occasion she said that she had asked him to stop but he did not. From then until about 2010 he had sexual intercourse with her regularly; the frequency varied from time to time, but occasionally it was on a daily basis. There was some other sexual activity. He used no form of coercion or force, but told her that if she told anyone he would go to prison. The last time he had sexual intercourse with her was in 2010. A little later that year she informed her relatives and confronted the appellant. The police were informed. He admitted having sexual intercourse with her but could not accept that it amounted to rape. 6. He pleaded guilty at the first available opportunity to two counts of rape when she was under the age of 13 and one count when she was over the age of 13. 7. The appellant left school without qualifications. He was employed with a manufacturing company; when he was dismissed he committed an offence of arson against that company in 2004 as revenge, for which he was punished in the community. He then worked for another company until becoming self-employed as a scrap metal dealer. He had had no sexual partner during his life. He was described in the pre-sentence report as having emotional deficits and being a loner. The pre-sentence report referred to a psychiatric report that had been obtained at the time of the offence of arson where he had been assessed as suffering from depression; records indicated that he had been hearing voices; it also appears that that psychiatric report indicated some of his previous acts of fire setting in woods were deemed to be a form of attention-seeking. That psychiatric report was not available for the sentencing judge or, despite our enquiries, for this court. 8. Although the judge was referred to the sentencing guidelines by the advocates for the Crown and for the appellant, he did not refer to them in his sentencing remarks. Nor did he indicate the starting point he took, though it is clear that the starting point he must have taken was a sentence of 27 years, as the appellant was entitled to a discount of a third for a guilty plea. 9. The sentencing guidelines applicable indicated a starting point of 15 years after a trial with a range of 13-19 years for sexual activity of this kind with a child under the age of 13. In our judgement there was no reason to depart from the guidelines in this case. Had the judge referred to the guidelines and followed the obligation to explain why he was departing from them, we have no doubt he would not have imposed the length of sentence he did. 10. In our judgement, taking into account the previous character and conviction of the appellant and the length of the conduct, the appropriate sentence would have been, after trial, one of 18 years imprisonment. As he pleaded guilty at the first available opportunity the total sentence should have been one of 12 years. We therefore propose to uphold the sentence on count 6 of six years and on count 7 of six years, and the judge’s order they be consecutive to each other, but make the sentence on count 8 for six years concurrent with the other sentences, making a sentence in total of 12 years, such sentences taking effect subject to credit for time on remand. Issue 2: The continued duty of the court under s.28 of the 2000 Act (1) The statutory provisions (i) The regime under the Criminal Justice and Court Services Act 2000 11. Under Part II of the 2000 Act entitled Protection of Children, a regime was established for disqualification orders. S.28 governs mandatory orders for adults; there are corresponding provisions for juveniles. The general effect is that the court is obliged to disqualify from working with children any person convicted of a qualifying offence against a child where the sentence is 12 months or more. The court has to do so, unless satisfied that the person will not commit any further offence against a child. S.29A provides for a discretionary power to disqualify both adults and juveniles when no qualifying sentence was imposed 12. The consequences of such an Order are set out in s.35 of the 2000 Act – the person disqualified from working with children is guilty of a criminal offence (punishable by 5 years imprisonment) if he knowingly applies for, offers to do, accepts or undertakes work in a regulated position. A regulated position is defined in s.36. 13. That regime has operated, so far as the courts are concerned, satisfactorily. The person is immediately disqualified and a notice is given to him by HMCTS on behalf of the judge whilst still at court after the judge has passed sentence. That notice notifies the convicted person of the general effect of the order. (ii) The Safeguarding Vulnerable Groups Act 2006 14. However, although the process involving the court under the 2000 Act does not appear to cause any serious problems for the court, the Bichard Enquiry arising out of the Soham murders, showed the apparent need for significant reform of all of the schemes for vetting and barring those working with vulnerable groups. The result was the 2006 Act , a legislative measure of very considerable complexity. 15. The 2006 Act was intended to replace the 2000 Act by a new regime. As the 2006 Act has been subject to complicated amendment and gradual implementation, it is only possible to follow the provisions of the Act, as they currently are in force, by using a computer print which indicates the current statutory regime. As we shall explain, not all of the Act has been implemented; the new regime as currently in force has been subject to a review and the Act will be further amended before it is fully brought into force. 16. In very broad outline, the regime established by the Act presently operates (insofar as material to the issue before the court) as follows: i) The provisions of the 2006 Act extend not only to working with children but to vulnerable adults. It is not necessary to refer to the provisions relating to vulnerable adults as the issue concerns solely the inter-relationship between the regime of the 2000 Act relating to children and that of the 2006 Act relating to children. ii) The 2006 Act establishes what was originally known as the Independent Barring Board, the name of which has been changed by amendment to the Independent Safeguarding Authority (the ISA). iii) The terminology of the 2000 Act which speaks of disqualification from working with children has been changed to barring. The ISA is under a duty to establish barred lists. iv) Persons are placed on a barred list under criteria specified in Schedule 3. The Schedule also gives the Secretary of State power to establish criteria for the ISA to place persons on barred lists. The relevant criteria were specified under the Safeguarding Vulnerable Groups Act 2000 (Prescribed Criteria Miscellaneous Provisions) Regulations 2009 ( 2009 SI No. 37 ). These regulations came into force on 20 January 2009. These highly complex regulations include provisions for a list of qualifying convictions which result in an automatic inclusion in the list of barred persons. It will be necessary to describe how that operates in practice at paragraph 27 below. v) When a person is included in the barred list, then the person is barred from engaging in what is described as a regulated activity relating to children (s.3(2)). A regulated activity is defined by s.5 and Schedule 4. It corresponds to, but is not identical with, the activities described as a regulated position set out in s.36 of the 2000 Act to which we have referred at paragraph 12 above. vi) S.7 of the 2006 Act provides that a person commits an offence if he seeks or offers to engage in a regulated activity or engages in such an activity, though it is a defence for such a person charged to prove he did not know and could not reasonably be expected to know that he was barred from that activity. The maximum sentence of imprisonment is 5 years. vii) Under the regime established under the 2006 Act , the court does not have to make an order as it was required to do under s.28 of the 2000 Act . Instead the court is required by paragraph 25 of Schedule 3 to inform the person at the time he is convicted that the ISA will include him in the barred list concerned. (iii) The commencement and transitional provisions of the 2006 Act 17. As the Act envisaged a change from the 2000 Act regime to the 2006 Act regime, the 2006 Act provided for the Secretary of State to make transitional provisions and for extensive Henry VIII powers entitling the Secretary of State to make changes to other legislation for the purposes of implementing the scheme under the 2006 Act . The Act was brought into force by a number of Commencement Orders. 18. It is the Commencement Order made on 1 October 2009 by the Parliamentary Under Secretary of State which has given rise to the present issue. The Order was entitled the Safeguarding Vulnerable Groups Act 2006 (Commencement No. 6, Transitional Provisions and Savings) Order 2009 (the 2009 Commencement Order). It came into force on 12 October. Article 3(2) of the Order provided as follows: “The provisions of CJCSA [ the 2000 Act ] referred to in paragraph (1) shall cease to have effect for the purposes of enabling a disqualification order to be made in relation to a person who is barred from regulated activity by virtue of section 3(2) of the Act.” The provisions referred to in Article 3(2) included the provisions relating to the duty of the court to make an order under s.28 of the 2000 Act . (iv) The alternative contentions 19. The issue that has arisen is the effect of this provision. There are two possible meanings: i) Does it mean that the court must continue to make orders under s.28 of the 2000 Act with a consequence that the regime under the 2000 Act continues to apply to such persons, when at the same time it also informs the person that he will be barred under the provisions of the 2006 Act and therefore the regime of that Act will also apply to him? or ii) Does it mean that a court is no longer under a duty to make an order under s.28? In that event, the convicted person will not be subjected to the regime under the 2000 Act , but will be informed he will be barred and thus subjected only to the regime under the 2006 Act . (2) The statutory language (i) Matters of common ground 20. A number of matters are not in issue: i) If a person is to be barred by the ISA under the provisions of the 2006 Act , the court does not need to make an order. All it has to do is to comply with the duty to inform the person he will be barred. ii) Once a person has been barred under the provisions of the 2006 Act , Article 3(3)-(5) of the 2009 Commencement Order has the effect that a person can no longer be prosecuted under s.35 of the 2000 Act for it ceases to have effect for the purposes of making it an offence if he knowingly applies for, offers to do, accepts or undertakes work in a regulated position (see paragraph 12 above). iii) Nonetheless, even though such a person can no longer be prosecuted, he remains subject to the prohibition under the 2000 Act without limitation in time, as well as being barred under the 2006 Act . iv) Although there is a very significant overlap between what is prevented under the 2000 Act and what is prevented under the 2006 Act , the activities are not identical. It is at least possible that there are some activities which are prevented by one Act but not by the other. There are probably not very many, but there may be some. (ii) The decision in Attorney General’s Reference No.18 of 2011 21. The fact that there was a difference of opinion about the interpretation of the 2009 Commencement Order with the consequences to which we have referred, was highlighted by views expressed by Dr David Thomas at page 112 of his Sentencing Referencer and by the editors of Archbold at paragraphs 5-854 to 5-857 (2011 edition). In the light of that conflict and the necessity of ensuring that courts know whether they have to continue to make orders under s.28 of the 2000 Act , the Registrar of the Court of Appeal Criminal Division raised the issue with the Crown Prosecution Service and with the Office of the Attorney-General. He asked if the court could be addressed on the issue when it considered the argument in AG Reference No. 18 of 2011 [2011] EWCA Crim 1300 . That was a case where a judge had not only made an order under s.28 but had also given the information to the convicted person that he would be barred under the 2006 Act . In a decision given on 12 May 2011 the court held that for the future an order under s.28 was no longer necessary, giving effect to the second meaning of the 2009 Commencement Order set out in paragraph ii). (iii) The position of the Home Office 22. The Home Office informed the Registrar of the Court that it was concerned that the court may have misinterpreted the provisions of the 2009 Commencement Order, as it had not had all the relevant considerations and practical consequences drawn to its attention. The court wrote to the Home Office inviting its attendance on an appeal where an order for disqualification had been made under s.28. Arrangements were then made for counsel on behalf of the Home Office to apply to intervene in the present appeal. 23. Mr Heywood QC appeared before us to seek to intervene. Counsel for the Crown and counsel for the appellant made no objection to his intervention; in the course of the argument that followed each provided helpful submissions, including drawing to the attention of the court issues of practical significance as appeared to them. It was a matter of regret to the court that the Home Office did not attend itself by anyone other than counsel, despite the fact that it had asked to intervene and was concerned as to the practical operation of highly complex legislation and statutory instruments for which it was responsible. We therefore had to adjourn the matter for questions we had asked to be answered; these were matters which counsel could not have been expected to answer without detailed instructions by someone present in court. (iv) The grant of leave to the Home Office to intervene 24. We consider that the Home Office should be granted leave to intervene. We do so because we consider it is open to this court to reconsider the guidance that it gave on 12 May 2011. Although it could be argued that the view the court expressed on 12 May 2011 was obiter in the sense that it did not actually set aside the order under s.28, we do not wish to base our decision on that ground. It is clear that the court which expressed a view on the issue in Attorney-General’s Reference No 18 of 2011 was making a determination as to the position having heard argument. 25. We prefer to address the Home Office’s application that we reconsider the position on the basis that if material and argument had not been put before the court at the earlier hearing, it would be open to the court, bearing in mind its role in relation to sentencing and the practical operation of the Crown Court, to reconsider an issue relating to the practice and procedure of the Crown Court. The further information (i) The contention of the Home Office 26. The Home Office contends that the ordinary and literal meaning of the Commencement Order 2009 is that a court must continue to make an order under s.28, unless the person who has been convicted is actually barred under the 2006 Act . That literal construction coincides with the intention of the draftsman of the 2009 Commencement Order because the making of an order under s.28 of the 2000 Act is presently essential in ensuring that there is no gap between the time at which the person is convicted and the convicted person is added to the barring list by the ISA; in addition it appears there are a very few offences (including manslaughter and false imprisonment) where a person would be disqualified under s.28 but not automatically be included in the barred list. Thus considerations as to the practical operation of the regime established under the 2006 Act , as it was being implemented support the literal construction. (ii) The present operation of barring – the gap 27. In contradistinction to s.28 of the 2006 Act where the disqualification takes place immediately on the making of the Order, the convicted person is not barred under the 2006 Act until he is included on the list. Although his inclusion is automatic, it requires the following: i) In some courts, though not in the particular Crown Court where this appellant was sentenced, the form used for the purposes of notification under s.28 (to which we referred at paragraph 13) has been amended by the addition of a box at the end which notifies the defendant, subject to written confirmation by the ISA that: “As a consequence of the Safeguarding Vulnerable Groups Act 2006 (Commencement No 3) Order, this court is required to inform you that the [ISA] will bar you from working with children as a result of the court making this order.” The notice also informs the defendant that he will also be barred from working with vulnerable adults. It is clear that the notice is a notice of what will or may happen. He is not barred. A number of steps have to follow. ii) First, after the judge has passed sentence, that sentence has to be recorded on the court’s Exhibit computer system. iii) The record on the court’s computer system has then to be checked and transmitted electronically to the Police National Computer (PNC). iv) The data then has then to be analysed in the PNC and transmitted from the PNC to the ISA for the ISA to place the person on the barred list. v) It usually takes 60 days after conviction for the process described to be completed and the person placed on the barred list. It can take longer in complex cases. vi) When the ISA has placed the person on the list, he is notified either by recorded delivery or through the prison governor; the person is informed of his right to make representations, where he has such a right. 28. As two months elapsed after conviction before he was barred, the convicted person is not prevented under the 2006 Act from working with children. There will be a gap in the protection of children where the convicted person is not imprisoned. It was, we were told, the intention when drafting the commencement order that this gap be filled by continuing the regime under s.28 of the 2000 Act for the present. (iii) The original intention of Parliament 29. It is first necessary to see what the intention of Parliament actually was. 30. When the Act was passed, the original intention was to repeal the whole of the 2000 Act regime; it would have been astonishing if Parliament had had any other intention. It was intended that the Act be implemented in stages and when implemented in full the 2000 regime would be repealed. 31. The steps to implementation which the Secretary of State originally decided to adopt included: i) Transferring to the lists barring them under 2006 Act those who are disqualified under the 2000 Act from working in a regulated position; ii) Bringing into force s.8 of 2006 Act. This section would make it an offence to engage in a regulated activity, unless subject to monitoring under the monitoring provisions of that Act (s.24 and following). The monitoring provisions of the 2006 Act were intended to provide extensive protection to children or vulnerable adults by making it a requirement that those who worked with children or vulnerable adults applied under a further system under which certain checks would be made. If s.8 was in force, it would not matter that there was a delay between conviction and being placed on the barred list, as the convicted person would be subject to the monitoring provisions and thus could be prevented from working with children. iii) Resolving how to deal with offences covered by s.28 but which were not automatic barring offences. 32. Those disqualified under the 2000 Act and those whose names were notified by the Secretary of State to the ISA were “migrated” to the barred lists under the provisions of the Safeguarding Vulnerable Groups Act (Transitional Provisions) Order 2008 (SI 2008/473) which came into force on 7 April 2008; however although “migrated”, their status continued to be governed by the 2000 Act pending the bringing into force of the provisions prohibiting those on the barred list from working with children – these subsequently commenced under the 2009 Commencement Order. 33. It was intended by the Secretary of State to commence s.8 and the provisions relating to monitoring at the same time as the commencement of the provisions that barred those on the barred list from working with children. This would have had the effect that there would have been no gap between conviction and being placed on the barred list, as a person could not work in a regulated activity unless he applied to be monitored. However, for what we were told were operational reasons which arose in 2009, this was not done at the same time as it was decided to implement the barred lists and the requirement that the court notify a convicted person. (iv) The gap 34. This left a gap. The intention was to fill this by continuing the regime under the 2000 Act including s.28 until s.8 was commenced, but mitigating the effects by providing that the convicted person would not commit a criminal offence under the 2000 Act once the person had been placed on a barred list. It was intended by the then Secretary of State, we were told, that this be a temporary measure, as it was intended to bring s.8 and the monitoring regime into force in late 2010. 35. However, after the 2010 election, a review was carried out of the monitoring regime. After the publication of a review in February 2011, it was decided to abandon the monitoring regime and to modify other parts of the 2006 regime. Legislation to give effect to this decision is before Parliament – the Protection of Freedoms Bill. Clearly provision will have to be made to cover the gap, as continuing the 2000 Act regime alongside the 2006 Act regime for anything other than a temporary period will give rise to serious confusion and would offend against the elementary principles of good governance and administration as well as the necessary clarity of legislation. Conclusion (a) A purposive construction 36. It was our view, as was the view of this court in AG Reference No 36 of 2011 , until we were provided with the legislative history set out in paragraphs 29 to 34 that Parliament cannot have intended the regime under the 2000 Act to have continued indefinitely alongside the 2006 regime. If the court continued to be under a duty to make an order under s.28 continuing the application of the regime under the 2000 Act to each convicted person in addition to the regime under the 2006 Act , the convicted person would be under that regime in perpetuity (unless he applied to be removed) and the person would, on having his name entered upon the list under the 2006 Act , be subject to the regime under that Act. As this court pointed out in AG Reference No 36 of 2011 , the person would be subject to regimes that were not identical. 37. It was therefore to be inferred that Parliament must have taken the view that the gap would be of no material importance (as the offender would likely to be in custody), or otherwise it would have devised a solution simpler than keeping the entire regime under the 2000 Act in being for that purpose. The circumstances in which a person might be at liberty to engage in an activity prohibited under the 2006 Act before he had been placed on the barred list are very small. In the overwhelming majority of cases the person would be in custody; if he was not and had not been sentenced, then it was inevitable that conditions of bail would prevent him working with children. 38. It would also have been wrong and, as we have said, contrary to elementary principles of good governance and administration as well as the necessary clarity of legislation for a person to be subject in such circumstances to two statutory regimes, unless there were very special reasons, none of which were originally put before the court. 39. For those reasons, therefore, a literal construction of the Act could not have accorded with the intention of Parliament or the draftsmen of the 2009 Commencement Order. (b) The literal construction 40. However, it is clear that this was not the intention of Parliament. Once the history of the legislation and the steps that have been taken to implement it were put before the court, the literal meaning of the 2009 Commencement Order could be placed in the context of the draftsmen continuing the 2000 Act regime as part of the transitional provisions. 41. We have therefore come to the conclusion that the literal meaning must have been what the draftsmen intended as it also accorded with a purposive construction. For these reasons therefore, the construction given in Attorney-General Reference No. 18 of 2011 was not correct as the court was not provided with the material information necessary in relation to the phased implementation of the Act. The literal meaning must be given effect, as it gives effect also to the purpose of the 2009 Commencement Order. 42. Judges must therefore continue to make orders under s.28 as well as notifying convicted persons that they will be barred. HMCTS should produce to all courts as soon as possible the modified form. Postscript 43. There are four important points that emerge: i) Criminal justice legislation has been made very complicated. No draftsman, however skilled he may be in the art of legislative drafting, can begin to produce clear legislation without a proper understanding of the system and its practical operation; courts should generally not be put in a position where they have to be provided with the detailed explanation given in this case before the legislation can be understood. Very careful thought needs to be given to improving the process by which legislative and transitional provisions in criminal justice legislation can be drafted and implemented so that they operate properly in practice and those who have to operate them can understand them much more easily. The issues that have arisen on this appeal would have been avoided if there had been better drafting and close consultation between the draftsman and those responsible for the practical implementation of the courts, disqualification orders and the transmission of information. ii) As the material provided by the Home Office in answer to questions raised by the court at the hearing demonstrated, it is important that at hearings such as this, a senior civil servant from the Home Office attends so that the Court’s questions in relation to the practical operation of the system can be answered. It is perhaps unsurprising that, if the Home Office does not assist the court as it should on such issues, material matters are not drawn to its attention. iii) It is essential that the present transitional regime is discontinued as soon as possible; it is simply wrong to subject a person to two different and highly complex regimes for any thing other than a temporary transitional arrangement. iv) The hearing of this appeal illustrates the ability of this court to reconsider issues of practical importance where a concern arises that all the material considerations had not been placed before the court on an earlier occasion. We have already explained the steps taken in this case which demonstrate how quickly this can be done.

```yaml citation: '[2011] EWCA Crim 1872' date: '2011-07-26' judges: - LORD JUSTICE THOMAS - MR JUSTICE CALVERT-SMITH ```

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

Neutral Citation Number: [2011] EWCA Crim 1607 Case No: 201001036B1 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT IPSWICH His Honour Judge Goodin T20097128 Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/06/2011 Before : LORD JUSTICE LEVESON MR JUSTICE KEITH and HIS HONOUR JUDGE PERT Q.C. (sitting as a judge of the Court of Appeal) - - - - - - - - - - - - - - - - - - - - - Between : C Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Martyn Levett for the Appellant Mr Stephen Spence for the Crown Hearing date : 9 June 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Leveson : 1. On 29 January 2010 in the Crown Court at Ipswich before His Honour Judge Goodin and a jury, C was convicted of two counts of Indecent Assault contrary to s. 14(1) of the Sexual Offences Act 1956 , two counts of Buggery contrary to s. 12(1) of the Sexual Offences Act 1956 and Rape. He was sentenced to 10 years imprisonment on each count of rape and buggery and 8 years imprisonment for each count of indecent assault, the sentences to run concurrently making 10 years in all. He now appeals against conviction by leave of the single judge: following the order of this court on a prior occasion that the appellant’s anonymity should be protected pending a further trial, that order should remain until a determination by the trial judge in the further prosecution that it is no longer necessary in the interests of justice to do so. 2. This prosecution arose out of a ‘cold case’ review and centred, in large part around DNA evidence supported, essentially, by proximity of the appellant’s home to the scene. In short, at 8.57 pm on 14 January 1990, the complainant who was then 17 years old, telephoned the emergency services and reported that she had just been attacked by a stranger on a path in the Gippeswick Park and that she had been forced to perform oral sex, and that she had both been raped and buggered. Clothing of the complainant was sent for examination and semen was found and extracted from the complainant’s singlet vest and her bra. Lesser traces of material were found on her knickers. There was no identification of a suspect or profile at that time although during the course of the investigation, along with a number of other local people, the appellant had been interviewed. His statement of 21 March 1990 recorded that he thought that he had been at home at the relevant time. He declined to provide a blood sample. 3. The forensic evidence was reviewed in 1997, 2003, 2006 and 2008 when improved techniques and particularly the use of low copy DNA led to there being found an alleged link between a DNA profile from the material with the appellant. He was arrested in July 2009. He declined to answer questions in interview but provided written statements denying any involvement. The prosecution alleged that the appellant was the complainant’s assailant: he lived less than a mile from where the attack had occurred and DNA found on the complainant’s bra and knickers had a single major male profile which was an exact match with the appellant such that the probability of obtaining a match if the DNA did not originate from the suspect but came from someone not related to him (known as the match probability or random occurrence ratio) was one in a billion. The appellant served an alibi statement and maintained at the trial that he was at home, watching American football from 8.45 pm; the defence case was that the DNA evidence was flawed, unreliable and unfair. 4. By the end of the trial, the issues for the jury were therefore comparatively straightforward and were summarised in the questions whether the jury were sure that the appellant had been subjected to the assaults that she had described and, if so, whether they were sure that the appellant had been the assailant. In the light of the issues that have been raised on appeal, however, we start by setting out a summary of the evidence upon which the jury were asked to consider these matters. The Evidence 5. The complainant, who by the time of the trial was 37 years of age, gave evidence that on 14 January 1990 she had left home at approximately 7pm. She had visited a friend who was not at home. She left the address and walked into the town centre. This would have been at approximately 7.25 pm. She had said initially that she had walked around the town but said later that she had walked in a rather direct route towards the railway station. She explained that, as she walked parallel to the railway lines, a man came out from the shadows. She described him as of big build, wearing dark clothes and a ski mask; which later was seen to cover an unshaven jaw. He spoke to her as she passed and then grabbed her from behind and placed his hand over her mouth. He was holding a knife. 6. The man spoke throughout in a local accent; and smelt dirty. He dragged her to behind a hut and told her to strip. He forced her to kneel and perform oral sex, before whilst she was standing but bent forwards he raped and buggered her. Before ejaculation he had asked her if she took the contraceptive pill and when informed that she did not, he ejaculated into her mouth. She spat his semen on to the ground. She confirmed that at no time had she offered physical resistance to her attacker who, having completed the attack, wiped himself, zipped up his trousers, told her to wait and left. She waited before she made her way to a telephone box and telephoned the police. 7. The police evidence was comparatively brief. The first officer who attended in response to the emergency call stated that the complainant seemed shaken and upset; red eyed but not crying; a female officer said that, when she arrived at the scene, the complainant presented as relatively composed. A medical examination at approximately 10.30 pm that night revealed no injuries to the complainant but there were fissures to her anus which could be consistent with recent penetration or several other events which he confirmed. She had dirt on one knee. A police search of the area revealed a knife that had been carried by the complainant which she said she had dropped and, of particular significance, a number of leaves which were covered with a clear fluid (which he took into his possession). 8. As for the evidence from the scene, the clothing of the complainant was sent to the laboratories of the Forensic Science Service and, on 19 January 1990, was examined. Material identified as semen had been found on her singlet vest and her bra. There were lesser traces of semen on her knickers most likely caused by secondary transfer. The liquid which had been identified on the leaves was also examined and was found to be semen. 9. The initial investigation had led to enquiries over a wide compass covering “hundreds of local men” and the appellant was himself seen and, on 21 March 1990, made a statement as a witness. He was asked to provide a blood sample so that he might be eliminated from the enquiry but he declined to do so on the basis (subsequently admitted) that he had done so for an earlier enquiry from which he was eliminated but that, in doing so, he had suffered such bruising that he had been off work for a week. When he was arrested after the DNA evidence pointed towards him, he provided written statements denying involvement and making it clear that he had a poor memory which had deteriorated since he had commenced to take medication for his heart. He confirmed that the was “an avid fan of American football … ever since it was introduced into British TV”. A written statement after the alleged confirmation of his DNA was to the effect that he did not know who the victim was, could not say whether he had had sexual contact with her but had no recollection of ever having had sex in the park. He had no knowledge of the incident and could not account for his movements on any of the dates with which he had been provided. 10. We turn to the critical scientific evidence which came from no fewer than five forensic scientists. Initially, Frank Gore was concerned with the investigation and Dr Jonathan Whittaker spoke of the extraction and further examination in 1997 of the DNA material from the complainant’s bra. The material had been contained and had been confirmed as being semen although the examination failed to extract a sufficient STR/DNA profile for database inclusion or comparison. In 2003, a further review was undertaken and a partial profile from material forming part of the bra was obtained which contained five of the designated ten sites. Three of those matched the complainant’s profile. Two could not be compared for lack of a clearer profile from her. 11. In 2006, Isobel Setford examined the slides of the material from the vest and knickers and sent them for low copy number (“LCN”) analysis and profiling. Whilst it was found that there had been contamination on a blank or control slide caused by a member of staff within the laboratory, when cross-examined, she made it clear that the samples themselves were contained on hermetically sealed slides and that thus were not themselves subject to risk of contamination. There was a third run on the vest in an attempt to confirm the alleles or gene pairs in the analysis. There was no such third run on the knickers following the lack of any significant data on the first or second runs. She was aware of, but, along with the generally held scientific opinion, unconcerned by what were described as ‘stutters’ on some of the readings; these stutters did not interfere with the interpretation of a larger, major profile and were within acceptable scientific limits. 12. Miss Setford also received an envelope containing two small pieces of fabric, one cut from the bra, one from the knickers. They were also sent for profiling. It was on the fabric as distinct from the slide, that the analysts found two full DNA profiles; which were identical. The DNA profile was sent to the national database where a similarity was noticed in the DNA of a close member of the appellant's family. The appellant was arrested and his DNA profile taken which proved to be a complete match. 13. Miss Setford did not accept that there were difficulties with the results or conclusions. She explained the methodology of testing and retesting and the reasons why some results were not agreed and placed in the consensus box. Where they had not received a satisfactory level on the test it would be indicated by a blank marking in the relevant window. She was satisfied that there were two full and useable profiles; one on the bra, one on the knickers. It was to them that the probability ratio of someone else in the population having the identical DNA was assessed. In this case, there was also a partial male profile found on the semen and swab from the singlet which was a partial match to the appellant; this component was estimated to be found in a ratio of one in eight and one in 37 males respectively. 14. In short, Miss Setford’s conclusions were that the results showed a strong, single major profile, evenly balanced X and Y on the swatches; the minor components simply did not affect it. The swatches had not been susceptible to contamination; they had been stored in self sealed polythene bags within the envelopes. She accepted that they were not sealed as the slide had been. 15. Another scientist, Karen Radford, gave evidence that the inconsistent readings within the profiles on the knickers, and on each of the two relevant items of clothing did not affect the conclusions that the scientists had reached. She answered that such artefacts were not uncommon in the science. They are not duplicated within either sample and there is such a low level as not to affect interpretation of the full profile. 16. It was common ground that whilst the material on the slides was identified as semen, the material on the two pieces of fabric cut from the underwear was never scientifically identified as semen. It was also explained that the scientists had not tested further to confirm the nature of the cells on the fabric cut from the underwear for fear of destroying the DNA because its age was such that, although deterioration would not alter DNA, it might totally be lost. In answer to the defence that there was no certainty that the profiles came from one person, Mr Gore confirmed there could be a degree of transference of DNA from clothing during washing, for example in circumstances where there were houses of multiple occupancy (such as that of the appellant at the time). The defence also contended that, in the results which showed apparently clear profiles, there were readings highlighted by the appellant's counsel in cross examination suggestive of a mixed and therefore unreliable analysis and profile: for the reasons that we have sought to explain, the scientists did not accept the proposition. 17. Turning to the case for the defence, the appellant gave evidence that at that time he worked in Felixstowe and that he was working from 6 am to 2 pm on the 15 January; as a result, he got up at approximately 4 am. During the course of the previous evening, he may have made a short journey to the shops (which could account for the evidence of his neighbour to which we shall refer). His partner finished work at 8.30 pm and would have returned to their flat at approximately 9.15pm. He did not like to be absent when she returned home. On that evening, as he had told the investigation at the time, between 8.45 pm and 1.00 am (notwithstanding his work start time), he had watched American football on the television. 18. The appellant also confirmed his appearance in 1990. He did have designer stubble at the time but he had put on weight since 1990; he would then have weighed closer to 11 or 12 stone. At that time he routinely wore strong after shave and also wore a watch and a ring none of which the complainant had mentioned in respect of her assailant. Further, on the prosecution evidence, the attacker had left in a direction inconsistent with that which he would have had to take to get home that evening. He explained that he had declined to give a blood sample during the routine investigations in 1990 because he had previously suffered a bad reaction to providing blood. 19. In January 1990, Mrs Katrina Clarke was a neighbour of the appellant and she also gave evidence, having made a statement to the police in June 1990 at the time of the original investigation. The 14 January was a relationship anniversary and so the date had been clear in her mind. In her original statement, she had said that she remembered seeing the appellant disposing of something in the bins as she left to go for a walk. When she gave evidence many years later, however, her timings were far more imprecise. At approximately 7.30 pm to 8 pm she received a telephone call from her partner following which she set off to meet him. She may have delayed before doing so for half an hour or even an hour. She confirmed that the appellant had designer stubble at that time and that he wore strong perfume or aftershave. Application under s. 23 of the Criminal Appeal Act 1968 20. Before embarking on a consideration of the grounds of appeal advanced by Mr Levett on behalf of the appellant, we must first deal with an application made by Mr Spence on behalf of the Crown to adduce fresh evidence under s. 23 of the Criminal Appeal Act 1968 (“ the 1968 Act ”) in support of the argument that the conviction is not unsafe. That evidence concerns another old (and archived) investigation dating back to 1987, when a stranger broke into the home and sexually assaulted the female occupier. It is unnecessary to identify the evidence now available alleged to implicate this appellant. Suffice to say that Mr Spence argues that this evidence is admissible both as bad character and is supportive of the correctness and integrity of the DNA case in this case. 21. There is no doubt that fresh evidence can be admitted at the behest of the prosecution (see, for example, R v. Hakala [2002] EWCA Crim 730 per Judge LJ at para. 11 referred to and followed in R v. Hanratty decd [2002] 2 Cr App R 30 at paras. 101-105) but, as Judge LJ made clear, all fresh evidence cases must continue to focus on the facts before the trial jury, in order to ensure that the right question – the safety, or otherwise, of the conviction – is answered. In Hanratty , the relevant evidence was recent DNA analysis of material available at the trial in 1963 the significance of which was entirely unknown, genetic profiling only being developed from the 1980s, with techniques (as the present case reveals) becoming more sophisticated as the years have passed. The court concluded that “the DNA evidence standing alone is certain proof of James Hanratty’s guilt” (para. 127). 22. In circumstances such as existed in Hanratty , it is clear that the interests of justice legitimately required that the DNA be admitted; there was a direct relationship between the fresh evidence and guilt. In the application made by the Crown in this case, there is no such direct relationship. The evidence (which is challenged) is undeniably collateral to the issues in this case and, if admitted at the trial, would have to have been the subject of a warning that, even if true, did not mean that he had committed these offences or had been untruthful in relation to the issues which the jury had to determine; they were but one relevant factor, the significance of which would have to be assessed in the light of all the other evidence (see R v. Hanson et al [2005] 2 Cr App R 21 ). 23. We are fortified in that conclusion by a consideration of R v. Fitzgerald [2006] EWCA Crim 1655 , in which this court refused to admit new evidence in relation to causation which, in a manslaughter conviction, was directly relevant to the link between the unlawful act and death albeit that the link had not previously been formulated in the way which the Crown then wished to advance. Keene LJ put the matter in this way (at para. 35): “It was clear to us … that the prosecution was now seeking to advance a wholly new basis for the causation element in the manslaughter charge, a basis which had never been put before the jury. While this court can receive fresh evidence from the Crown not only in rebuttal of the appellant’s fresh evidence but also to demonstrate the safety of the conviction generally (see Hanratty [2002] EWCA Crim 1141 ; [2002] 3 All ER 534 ), it is not open to the Crown to seek to put in fresh evidence so as to enable it to advance an entirely new basis for a conviction which was never put before the jury. That would require this court to act as if it were a jury and would run counter to the House of Lords decision in Pendleton [2001] UKHL 66 ; [2002] 1 WLR 72 …” 24. We do not read that observation as impacting on Hanratty itself (where the court relied on DNA evidence which most certainly had not been advanced at trial as a basis on which the jury could convict) but rather where the evidence is intended to stand in place of a mechanism for causation discredited on appeal but which had been advanced at trial. Quite apart from the general proposition, we do not consider that the type of evidence upon which the Crown now seeks to rely has any place in the re-examination of the safety of a conviction, the challenge to which depends essentially (albeit not entirely) on the way in which the judge directed the jury in relation to the all important DNA evidence. In whatever way the test for the safety of a conviction is to be approached, if the judge failed properly to direct the jury as to that evidence, a decision adverse to the complainant on disputed bad character evidence could not save it. In the circumstances, we refused to admit the evidence. The Cross Examination of the Appellant 25. At the commencement of the cross examination of the appellant, Mr Spence embarked upon a series of questions designed, as he explained, to ascertain what the appellant’s case was. The tenor comes from the first question: Q. From what you have heard and doubtless what you have read, do you accept that [the complainant] was raped on 14 January? A. I can’t answer that. That is – would be speculation. Q. You can with respect. From what you have read and what you have heard, do you think, do you accept that she was raped and buggered in Gippeswick Park on 14 January 1990? A. From the evidence I’ve heard, I would have to say no. 26. Mr Levett then objected to the questions on the basis that the appellant was being asked for his opinion and that the opinion was of no more value than that of the police officer or anyone else. The judge observed that although the complainant had never been challenged as to the truth of what she had said, Mr Levett thereafter had embarked on questions of other witnesses about the knife which was in her possession, about distances, telephone calls etc which seemed to suggest that something else had happened. In those circumstances, he ruled the questions admissible. 27. Mr Spence pressed and the appellant explained his view on the basis that the complainant had lied about the circumstances in which she came to be carrying a knife and her reason for choosing the route that she had taken that evening. He said that he was not asking the jury to discount the suggestion that she had been raped but was answering the question put to him. He was also asked whether he accepted that his DNA profile matched that removed from the bra and knickers: he said he was not accepting anything because “the evidence doesn’t seem to be there”. He later said that he did not understand DNA or how it worked. He was then asked a series of questions as to whether there might be an innocent explanation for his DNA being found: he did not have one and accepted that he had never met the complainant, been to her flat or, effectively, been in a situation where his DNA might innocently have been transferred. 28. In this court, Mr Levett challenges this line of cross examination on the basis that the appellant was a witness of fact only and that to invite him to comment or express an opinion was wrong. The impact, he argues, of permitting this line of questions was to reflect adversely on the appellant’s credibility which was highly relevant when the jury came to consider his evidence of fact, touching both upon his appearance at the time (which it was contended did not correspond with the description of the complainant’s attacker) and his alibi namely that he had been at his flat, intending to watch and then watching American football on the television. Mr Spence, on the other hand, maintains that, given the approach that had been adopted by Mr Levett in cross-examining witnesses other than the complainant (with the prospect of a possible submission to the jury that the basic elements of the offence had not been established) he was entitled to clarify what the defence was. 29. Whereas the questions directed to excluding the possibility of innocent contamination of the complainant’s clothing with the appellant’s DNA were clearly admissible and appropriate, we agree with Mr Levett that questions directed to facts which (on his account) were not within his knowledge invited impermissible speculation. That was so both in relation to the issue of rape and buggery and the validity of the DNA evidence (upon which it is clear that the appellant simply had no expertise to bring to bear). They should not have been allowed. 30. The entirely appropriate issue of the nature of the case to be advanced on behalf of the appellant should have been directed to Mr Levett. If, as the judge was clearly concerned was the case, questions had been asked of witnesses aimed at providing a platform to attack the credibility of the complainant as to the fact of rape and buggery, Mr Spence was entitled to ask the judge to require Mr Levett to make that clear so that, if it was so, the complainant could be recalled so that it might be put to her fairly and squarely. The judge could equally have taken that course of his own motion. In that regard, there is a difference between the factual evidence of a defendant and the case being mounted on his behalf. 31. Although the questions were not permissible, we do not, however, consider that their admission in themselves impacts on the safety of the conviction. Mr Levett argues that, as a result of what the appellant said, he was constrained to raise the concerns as to the credibility of the complainant with the jury so as not to be seen to undermine his own client’s credibility but it is difficult to see to what end the questions which concerned the judge were directed if it was not to raise the point. Further, nobody who fairly evaluated what the appellant actually said in answer to the questions could conclude that these answers (which were clearly based on his opinion) undermined his credibility in relation to his own defence whatever justification might have been advanced by the prosecution: in any event, the judge made it clear that it was the answers to question that constituted evidence, not the questions themselves. We shall return to this issue when reviewing the overall safety of the conviction in the light of all the complaints which Mr Levett advances. The DNA Evidence 32. Mr Levett argues that the learned judge failed properly to put the defence case in relation to the LCN DNA evidence which it was accepted was fundamental to the case against the appellant and which emanated from unknown cellular material extracted from a small swatch of fabric cut from a bra and knickers worn by the complainant. The context was that semen with fresh spermatozoa had been found on the bra, knickers, a slip and leaves (on which she had spat) in the area of the attack. 33. The prosecution case was that LCN DNA was recovered from samples of the bra, knickers and slip which provided a full profile in the case of the knickers, an almost full profile in relation to the bra and a partial profile in the case of the slip. These profiles were male (X, Y) and came from items on which semen had been previously identified; it was the clear and unshaken evidence of Isobel Setford that this was a single male profile. 34. Mr Levett refers to the previous attempts in 1997, 2003 and 2006 by scientists to obtain a sufficiently informative DNA profile from matter identified as spermatozoa recovered from the complainant’s clothing. The random chance of repeated occurrence of the identified alleles in each of the profiles in relation to these samples was 1:4, 1:8, 1:37 and 1:220. In relation to the further work undertaken without any preferential extraction of the spermatozoa (so that the complainant’s DNA could be anticipated as present because the stain was on her clothing), results were achieved which he contends, on analysis, revealed an allele at D19 (11.2) which was not part of the appellant’s DNA and thus revealed a mixed profile (involving someone other than the complainant and the appellant), thereby undermining the conclusions that could be reached about the analysis. 35. Mr Spence responds by submitting that this contention is simply not borne out by the evidence. The document prepared by the defence showed the presence of alleles additional to those of the appellant without indicating amount or how this finding fitted with the other alleles. As to 11.2 at locus 19, he argues that the un-contradicted evidence was to be found in the Genemapper charts and logs referred to by Miss Setford who examined the profiles and peak heights; she reported on the proper interpretation of the results. 36. As to this particular result, when cross-examining, Mr Levett pointed to the 11.2 peaks but the witness explained: “Well the thing is with the profile from the knickers there is a distinct major profile that is, the presence of these really low level peaks that actually you have highlighted in green there don’t affect the interpretation of the major profile which stands alone as a full male profile. So the fact that you have got these very small, even if they were duplicated, it wouldn’t affect the interpretation of the major profile that I was to put on the database.” 37. Mr Levett returned to the topic later in the cross examination. Referring to 11.2, the evidence proceeded in this way: “Q. So there is no doubt that this is an allele that has been identified. So the reason why you have not placed this as part of the profile which had been loaded onto the database is because what you are trying to do is to obtain the best profile that might produce a result on the database? A. No. I am identifying a profile that I think is a complete male profile. Q. Right. So you ignore the 11.2? A. Because when you look at the results that is a much lower level and what you have actually got is a complete full major profile with ... lower level unconfirmed peaks.” 38. It is, of course, critical to examine what the evidence actually was, rather than the assertions or contentions of counsel during the course of questions: it is then for the jury to assess the extent to which they rely on the expert evidence (or, to put it another way, the extent to which they are not prepared to base any conclusion on the opinion of the scientists because of the effectiveness of cross examination). In that regard, it is important to underline that Mr Levitt did not call any scientific evidence to contradict that which had been given by the Crown: he simply relied on the argument that he had developed based on his analysis of the forensic results. 39. With that introduction, we turn to the summing up. Judge Goodin provided the standard direction about experts and made it clear that the jury did not have to act upon the expert evidence of any expert whose evidence and opinions they did not accept. He later embarked on a detailed examination of the evidence occupying about one third of the transcript of his summing up. He made it clear that the reliability of the evidence was for the jury and that its reliability had been called into question. He reminded the jury of the evidence of Isobel Setford and the defence point that although the material on the slides had been identified as semen, the material on the two pieces of fabric had not been (explaining that no test to identify the nature of the cells was undertaken for fear of destroying the DNA which might be lost entirely). The judge went on: “The defence case is you cannot be sure these profiles came from one person but Mr Gore confirmed there can be a degree of transference of DNA in the sharing of towels, perhaps in other cases in houses of multiple occupancy, like 9 Waterloo Road and supporting that and independently of it, look at the defence case fully, these apparently clear profiles contain other readings highlighted as green on Defence 3 and Defence 4 suggestive, say the defence, of a mixed and therefore unreliable analysis and profile. Well, you have been told by Jane [ sic ] Setford that this is what you are looking at on these tables is a strong, single, major profile, evenly balanced X and Y and minor components as the scientists say these are, simply will not affect it. That is the science and that is the expert evidence but, you must ask yourselves, were the swatches of material themselves ... susceptible to contamination? They were contained, she told you, in self sealed polythene bags within the envelopes. They were not sealed as a slide is. If you think that this is or may be a strong point, then, of course, you will bear it in mind. It was put directly and unambiguously to Miss Setford, but her evidence remained unaltered as it did on the very natural question put to her, of course, that [the complainant] had spat out her attacker’s semen, so there would have been at least an element of her own DNA present from inside her mouth, the saliva, as well as already on her clothing from dead cells or elsewhere. Well, again, Miss Setford put forward and accepted as an expert told you, that this does not resemble a female profile. It is evenly balanced. It is, she told you, a male profile. The inconsistent readings within these profiles on Defence 3 and Defence 4, bra and knickers, you have got what the defence naturally point to – if you look at Defence 3, you have got an 11.2 highlighted in green at D19 which also appears, the defence rightly point out, at D19 over the page at the foot on the knickers, so in other words, you have got an inconsistent reading at D19 on each of these two items of clothing; each of these two analyses. Miss [Radford’s] answer was that such artefacts, as she called them, are in the science not uncommon ... not least because even if an allege rather than an artefact, even if a pair of genes within the chromosome, they are not repeated within either sample. They are not duplicated on the run within either sample and there is such a low level as not to affect interpretation of the full profile. That is the science. That is the expert evidence.” 40. The judge also dealt with 14.4 at D8, 16.4 on the knickers at D3 and VWA. As to 12.2 at D.19, he went on: “It is a raised baseline. It hardly comes of the baseline and creates a spike, so there it is recorded, but it is at such a low level that it cannot possibly, you were told, affect the analysis or the readings or the conclusions therefrom.” 41. He then concluded this part of his summing up in this way: “The defence have rightly probed the prosecution case. It is true, as Mr Spence has reminded you, that they have called no expert evidence to contradict or undermine the Crown’s DNA evidence in this case, but you must not speculate, please, about why that might be, or about anything else indeed. As I said at the outset, you try the case on the evidence you have. Remember the prosecution must prove its case and while questions asked by a barrister of any witness can never be evidence, a question can never be evidence, it is the answer, if there is any, that is evidence. Where questions are raised, as they have been here, it is right that you consider those questions. Although the opinions of the experts remain unaltered by the questions for the reasons they severally gave, you decide what evidence you accept without, of course, very importantly, trying to turn yourselves into experts. Please do not do that. You decide, nevertheless, what evidence you accept.” 42. We have cited extensively from the summing up in order to address the appellant’s complaint. Mr Levett argues that the Judge only reminded the jury of the features which supported the prosecution and failed to summarise the point made by the defence regarding the importance of the bra supernatant consensus profile and its implication upon the prosecution’s case. He relied on the observations of the Thomas LJ in R v. Reed and Reed [2010] 1 Cr App R 23 , page 310 at para. 55 in these terms: “[W]here it is not accepted that the DNA is that of the defendant, then if evidence as to match probability is to be placed before the jury so they can evaluate the probabilities in the context of all the other evidence in the case, then the judge must explain its relevance, the other evidence which provides the context which gives the match probability its significance and must draw attention to any evidence which might exculpate the defendant.” 43. In our judgment, that is exactly what the judge did. As we have said in the context of the complaint about the cross examination of the appellant, the evidence does not come from the questions but the answers. There was no evidence (as opposed to assertion by Mr Levett) that the 11.2 allele at D19 was, in fact, part of a profile or was not to be discounted as Isobel Setford said on several occasions. In our judgment, with an exception to which we shall now turn, the summing up reflected the DNA evidence in a way that does not afford any ground of complaint. 44. Before leaving the issue of DNA, Mr Levett sought to advance a new ground of appeal which had not been foreshadowed in the notice of appeal or any of the skeleton arguments. It is based on the judge’s direction in relation to the DNA and his enunciation of the well known ‘prosecutor’s fallacy’ identified in R v. Doheny and Adams [1997] 1 Cr App R 369. The judge said this: “The significance of DNA evidence is essentially this, that if it was … the defendant who left the material at the scene from which the DNA was extracted, then the scientists and you, indeed, of course, would expect it to match his DNA. That is to state, really, the blindingly obvious. Of course you will and as you know in this case, the evidence is of an exact match of a single male profile say the prosecution on the bra and knickers worn by [the complainant]. The expert hypothesis goes on if it was not the defendant who left it, if it was not him, if it came from someone else, then the profiles, his and the crime scene profile can only match by chance. There is no other explanation for it and in this case, the prosecution evidence is that those two profiles on bra and knickers are such that the chance of obtaining a match from someone other than the defendant is in the order of one in a billion, a billion being a thousand million and, to put that in context, the population of the world, spread over its five or six continents, depending on how you were educated is about six … and a half billion it is said. If that is the position, if you accept the Crown’s evidence on that ratio, the decision you have to reach on all of the evidence is whether you are sure it was one man, the defendant, who left that material, or whether it is possible that it was someone else, one of the small group of people in the world who share the same DNA and you have that probability ratio says the Crown the prospect of it being someone other than him by chance, about one in a billion.” 45. There is no doubt that the judge had accurately described the approach to the statistics throughout this direction until the words “the prospect of it being someone other than him by chance, about one in a billion” which do constitute the prosecutor’s fallacy: if he had said “the prospect of it being a random match being about one in a billion”, the direction would have been accurate. Mr Levett points to the fact that, at this moment, the judge adjourned for lunch so that the incorrect ruling would be the perception with which the jury would have been left. That may be so but Mr Levett also makes the point that, although he had addressed the jury about the fallacy, neither he nor Mr Spence noticed the error, either then or subsequently: indeed, until the morning of the hearing of the appeal, this point was not taken as a ground of appeal. 46. It is important to understand the effect of the fallacy on the safety of any verdict. In R v. Doheny and Adams [supra], the case of Doheny concerned a random occurrence ratio of the DNA profile shared by him and the crime stain of 1 in 40 million; in Adams , the random occurrence ratio was 1 in 27 million. Phillips LJ observed (at 379A): “The more remote the random occurrence ratio, the less significant will be the adoption of the ‘prosecutor’s fallacy’, until the point is reached where that fallacy does not significantly misrepresent the import of the DNA evidence. Such was the position on the figures advanced by Mr Davie [the forensic scientist in the case].” He repeated the point in relation to Adams observing (at 384F) that the fallacy did not significantly alter the picture. 47. In this case, where the random occurrence ratio is no less than 25 times that of 1 in 40 million, the lack of significance is all the more potent. Given the explanations by the many scientists who gave evidence at the trial, the care taken by Mr Levett in his closing remarks and the substantially correct direction and the proportions of the ratio involved, we do not accept that the direction or its timing starts to create a viable argument that the verdict is unsafe on these grounds. The Alibi and the Defence case 48. On 23 June 1990, Katrina Clark made a very short statement to the police recalling 14 January on the basis that she was intending to go out with her boyfriend to celebrate their anniversary but had an argument which led to her going out to cool down. She said that just before 8.00 pm she saw the appellant “outside his door putting something in his dustbin”. When she was seen by a police officer in July 2009, she went through her short statement and said that she could not say with 100% certainty that 8.00 pm was the correct time because she cannot say if she looked at a clock. She went on to say that she did not believe it would have been earlier than 8.00 pm but how soon after leaving the flat and seeing the appellant at the bins, she could not say with 100% accuracy. We are told by Mr Levett that he put these statements to Mrs Clark without objection by the Crown. 49. The reason for the significance of the statements is that, at trial, Mrs Clark’s evidence was more vague. She spoke of seeing the appellant coming down the steps and dispose of something in the bin as she went for a walk but her estimate of timing was different. The telephone call from the boyfriend was likely to have been 7.30 pm to 8.00 pm; she probably paced the floor for a while but might have left the house immediately on receipt of the call, after half an hour or after an hour. The timing was significant for the appellant because the one certain time (the 999 call) was fixed at 8.57 pm and the judge commented that the assault must have been over by 8.37 at the latest. 50. When the judge came to sum up the case, he directed the jury to be careful with times save only for the timing of the 999 call and he later recounted the evidence of Katrina Clark and observed: “In terms, if her times are right, that means that she may have left soon after 7.30 pm and seeing the defendant coming back from a walk and putting something in his bin, if 7.30 is indeed when ~Duke called her or indeed at any time between then and 9.00 pm if you accept those timings. So you have got a window on her evidence to you of 7.30 pm to 9.00 pm, if you accept her timings and they are hers. They did not come from anywhere else. It is right to say that in June of 1990, she told the police it had been just before 8.00. Well, that is what she said then. You decide whether or not her evidence is capable of providing any alibi for the defendant or whether in fact it is just too imprecise with the best will in the world, too imprecise to be capable of doing that.” 51. Mr Levett complains that this direction was neither balanced nor fair. The witness had accepted that her memory in 1990 was better or likely to have been better than nearly 20 years later and the judge should have placed far greater emphasis on her contemporaneous account. In argument (but not in his grounds of appeal or skeleton argument), Mr Levett expanded the criticism and submitted that the judge did not advance the defence case in a coherent way. He provided examples by reference to other evidence from Katrina Clark concerning the appellant’s use of heavily scented aftershave (to be contrasted with the complainant’s evidence that her attacker smelt dirty) and the fact he wore a watch and rings (not noticed by the complainant on her attacker). 52. During the course of his summing up, the judge made each of the points upon which Mr Levett relies and there is no suggestion that he misrepresented the evidence. Essentially, he argues that he should have provided a more coherent analysis of the case from the defence standpoint. The judge could, indeed, have said a little more about the significance of Katrina Clarke’s 1990 statement but that is a long way from saying that his summing up was either unfair or unbalanced because he did not. The jury had heard the witnesses, they had heard powerful statements of the rival contentions from Mr Spence and Mr Levett. The judge then properly identified the issues and focussed the attention of the jury on the task they had to perform: he provided proper directions about the way in which his summary should be treated and how to treat matters that he might have omitted, correctly warned the jury about the effect of delay and provided proper directions on the alibi. We do not read the summing up as making rhetorical prosecution points: the judge posed the questions that the jury had to answer. There is nothing in this ground of appeal either specifically in relation to the evidence of Katrina Clark or generally. Conclusion 53. The only ground of appeal with which we find established concerns the cross examination of the appellant in relation to his opinion but we repeat that, on its own, it is insufficient to cause us to conclude that this verdict is unsafe. There being no other basis to undermine the safety of the conviction based, as it is, on the jury’s acceptance of the scientific evidence as to which there was no contrary evidence, this appeal is dismissed.

```yaml citation: '[2011] EWCA Crim 1607' date: '2011-06-29' judges: - LORD JUSTICE LEVESON - HIS HONOUR JUDGE PERT Q.C. ```

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

Neutral Citation Number: [2009] EWCA Crim 655 Case No: 2007/3297/D4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BRADFORD CROWN COURT His Honour Judge Benson T20060236 Royal Courts of Justice Strand, London, WC2A 2LL Date: 7 April 2009 Before : LORD JUSTICE MOSES MR JUSTICE HEDLEY and HIS HONOUR JUDGE RUSSELL, THE RECORDER OF PRESTON - - - - - - - - - - - - - - - - - - - - - Between : Shah Nawaz Pola Appellant - and - The Crown (Health and Safety Executive) Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr R Smith QC and Mr P Greaney (instructed by Kamrans Solicitors ) for the Appellant Mr S Jackson QC and Mr I Wright (instructed by Addleshaw Goddard LLP ) for the Respondent Hearing date: 19 th February 2009 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Moses : 1. The issue in this appeal is whether there was evidence on which a reasonable jury could conclude that the appellant was an employer and, if so, whether the judge adequately directed the jury as to that issue. That was the only live issue in the case. 2. On 24 May 2007, at Bradford Crown Court, the appellant was convicted of an offence under s.33(1)(a) of the Health and Safety at Work Act 1974 ( the 1974 Act ) in failing to discharge a duty pursuant to s.2(1) of that Act and of contravention of the Work at Height Regulations, contrary to s.33(1)(c) of that Act. He was convicted of another offence irrelevant to this appeal. The only dispute was whether the appellant fell within the scope of the Act. If he did, it was not disputed that he was in breach of the relevant provisions of the Act and Regulations. We can, accordingly, deal with the facts shortly. 3. During 2005 the appellant took charge of the building of an extension to a detached house in Bradford. A number of unqualified Slovakian nationals were paid between £25 and £30 per day to work at the site. On 28 November 2005 one of them, Dusan Dudi, fell from a raised platform where he was demolishing a wall. When he fell, the wall collapsed and fell on top of him. Tragically, he suffered severe brain injuries, leaving him with permanent disabilities relevant to the application for permission to appeal against sentence. 4. The issue, as we have indicated, was whether the prosecution could prove that the appellant was an employer of any of the Slovakian men within the meaning of the 1974 Act . By s.53 of the 1974 Act :- “‘Employee’ means an individual who works under a contract of employment…and related expressions shall be construed accordingly;” The essential submission of the defendant at trial, both before the judge, at the close of the prosecution case, and before the jury, was that none of the Slovakian workers were employees within the meaning of s.53. The full court gave leave to argue that the judge wrongly ruled that there was evidence on which a reasonable jury, properly directed, could conclude that the appellant employed one or more of the Slovakian workers. It appears the full court did not give permission in relation to the related ground as to the terms in which the judge directed the jury. We shall do so. 5. The scrupulous accuracy of submissions advanced by Mr Robert Smith QC, who did not appear at trial, enables us to avoid any lengthy exegesis as to the principles by which employment can be identified for the purposes of the 1974 Act . Mr Smith submitted that before the jury could be sure that the defendant was an employer there first had to be evidence of a contract. This required evidence of what has been described as “mutual obligations”, in other words, evidence that both the defendant and a worker owed each other obligations. That would be sufficient only to establish a contract. Secondly, the prosecution had to prove that the nature of the contract was one of employment, in other words, that in return for payment the worker placed himself under an obligation to work. It is on that issue that the appeal is focussed. Thirdly, if the worker was under an obligation to the defendant to work, it was necessary to prove that the contract was one of employment and not for services. For that purpose the prosecution would have to prove that the worker was under the control of the defendant. In the instant case, Mr Smith submitted, there was no evidence that any Slovakian worker was under any obligation to the defendant. True, some of them, in fluctuating numbers, turned up daily to work on the site and when they worked for a day they were paid. But it was not possible to infer from that fact alone that during the day any worker was under any obligation; there was no evidence to establish other than that he was free to leave at any time he chose. 6. Framed carefully as those submissions were, they accurately represent the relevant legal principles. Indeed, we did not understand the prosecution to dispute them. There is ample authority for the proposition that a worker who is under no obligation to work every working day and who chooses when he will turn up for work may, nonetheless, be under a contract of employment, during the period he is working. Casual workers may be working under a contract of employment, when they choose to work. Difficulty has arisen because of confusion between cases in which it was necessary to identify a global contract of employment pursuant to which a worker is obliged to turn up for work and an employer is obliged to provide work, and those cases in which despite the absence of any overarching contract, whilst working his stint, the worker is, nonetheless, under an individual contract of employment. 7. The distinction was observed in Carmichael v National Power PLC [2000] IRLR 43 , the case of the guides working on a “casual as required basis”. Lord Irving LC noted that the case was not advanced on the basis that when actually working as guides the claimants did so under successive ad hoc contracts of employment (see §§ 3 and 20 of his speech). Contrast the case of Cornwall County Council v Prater [2006] IRLR 362 in which a teacher did work under a contract of service even though the local authority was not under any contractual obligation to offer pupils and she was under no contractual obligation to accept them. In that case the issue was whether, whilst she taught, she was teaching pursuant to a contract of service (see Longmore LJ, § 43). Nowhere, we respectfully suggest, is the issue more clearly put than by Elias J in Stephenson v Delphi Diesel Systems Limited [2003] ICR 471 :- “11. The significance of mutuality is that it determines whether there is a contract in existence at all. The significance of control is that it determines whether, if there is a contract in place, it can properly be classified as a contract of service, other than some other kind of contract… 13. The question of mutuality of obligation, however, poses no difficulties during the period when the individual is actually working. For the period of such employment a contract must, in our view, clearly exist. For that duration the individual clearly undertakes to work and the employer undertakes to pay for the work done. This is so, even if the contract is terminable on either side at will. Unless and until the power to terminate is exercised, these mutual obligations (to work on the one hand and to be paid on the other) will continue to exist and will provide the fundamental mutual obligations. 14. The issue whether the employed person is required to accept work if offered, or whether the employer is obliged to offer work if available, is irrelevant to the question whether a contract exists at all during the period when the work is actually performed. The only question then is whether there is sufficient control to give rise to a conclusion that the contractual relationship which does exist is one of a contract of service or not.” As that judge was later to point out in a different statutory context, the fact that there is no overarching or umbrella contract and therefore no employment status in the gaps does not preclude such a status during the period of work (see James v Redcats (Brands) Limited [2007] IRLR 296 § 84). Elias J adopted the observations of Waite LJ in McMeechan v Secretary of State for Employment [1997] IRLR 353 that:- “The better view is not whether the casual worker is obliged to turn up for, or do, the work, but rather if he turns up for and does the work, whether he does so under a contract of service or for services.” (page 359) 8. If a casual worker is under a contract whilst at work the question then arises whether the degree of control over the worker is sufficient to recognise a contract of employment and not for services (see Ready Mix Concrete (South East) Limited v Minister of Pensions and National Insurance [1967] 2 QB 497 at 515-516). 9. Mr Smith submits that there was no evidence that even when the Slovakian workers turned up for work at site they were under any obligation to remain for any period of time on the particular day they appeared. True, there were some Slovakian workers who regularly appeared for work; others made clear in evidence that they regarded themselves as free to turn up or not. But even when they did turn up for work on site there was no evidence they regarded themselves as under any obligation to stay at work on that particular day, nor evidence that the defendant expected them to do so. 10. Ground 1 of this appeal contends that the judge wrongly failed to appreciate the importance of evidence as to the nature of any, if any, obligation a Slovakian worker was under when he did turn up for work. When ruling at the close of the prosecution case, the judge merely considered the issue of control without grappling with the logically prior issue of the nature of any obligation the worker was under whilst at work. 11. In giving his ruling the judge referred to the need to establish an “irreducible minimum of mutuality of obligation”. Mr Greaney, on behalf of the defendant, had relied on the evidence of casual workers who made it clear that they did not regard themselves as being under any obligation to turn up for work on site and would go home to Slovakia when they chose. The judge identified evidence of control whilst the men were on site. He also referred to what he described as “the economic reality” supported by aspects of the evidence which established that the defendant paid for the labour and provided transport for them, sometimes picking them up, bringing their lunch and providing materials for their work. On that basis he ruled that the jury would be entitled to conclude that the relationship of employer and employee existed. 12. Mr Smith rightly points out the judge made no explicit reference to the question whether the workers, when they did turn up for work, were under any obligation to remain at work until the end of that working day. Rather, having noted that their evidence was they were under no obligation to turn up for work at all, he focussed his attention on the issue of control and the transport and food provision the defendant from time to time made available to the workers. 13. We agree that the judge ought, more explicitly, to have directed his attention to the essential issue whether those workers who did turn up for work on any particular day were under an obligation to work and remain at work during the day for which they were paid. 14. It seems to us that the reason why the judge did not explicitly deal with that issue is attributable to the way the defence case was canvassed before him at that stage of the trial. The defence statement had contended that “there was insufficient mutuality of obligation between those said to be employees and the person in charge to render those people employees”. The judge correctly identified the legal principles in his citation of Harvey on Employment Law . He noted that Mr Greaney, on behalf of the defendant, had relied upon Carmichael v National Power PLC but that, as we have demonstrated, does not deal with the question relevant in this case, namely whether, during the period they worked, the Slovakians worked under a contract of employment. Mr Greaney had referred to evidence relevant only to the question whether there was any overarching obligation to turn up for work. But that evidence did not deal with the question of the nature of any obligation when at work during the day. In those circumstances it is not surprising that the judge made no specific reference to the question whether there was evidence that a Slovakian was under an obligation to work throughout the day at the end of which he expected to be paid. The question for us is whether there was, at that stage of the case, evidence that each worker who turned up for work was under an obligation to work and remain at work throughout the day for which he expected to be paid. 15. In our view there clearly was such evidence. Although no specific question was asked of any Slovakian worker, it seems to us fanciful to suggest that once a worker had turned up for work or had been brought to work in transport provided by the defendant he would have regarded himself as free to quit the site during the day, leaving others to get on with the work. The obvious inference from the circumstance of turning up for work seems to us to be that the worker expected to work during that day and to be paid for that work at the end of it. Some evidential support for that natural inference is to be derived from the fact that from time to time the defendant picked them up, provided transport and sometimes brought them their lunch. It would be odd if he bothered to do that if they felt free to work for half an hour and then leave. On the contrary the judge notes evidence that the working hours of the day were 9 to 5. 16. In those circumstances, whilst we acknowledge the point was not explicitly taken, nor referred to by the judge, there was evidence, at the close of the prosecution case, on which a jury could reasonably conclude that once the worker had turned up at the beginning of the day he was under an obligation to remain at work until the end of that working day. It was for that that he was paid. For those reasons we reject the first ground of appeal. 17. We turn then to the manner in which the judge directed the jury. Two substantial criticisms are made of the summing up. The first criticism is that the judge failed properly and clearly to identify the issues on which the jury had to reach conclusions before it could convict the defendant, as an employer, and thus within the scope of the 1974 Act . We stress how important this was in a case such as this. A worker had suffered a terrible injury which was likely to attract the sympathy of the jury. The only defence advanced was, so it might appear to the jury, technical. It was thus all the more important that the judge should make clear to the jury the issues it was necessary to resolve against the defendant before they could convict and to remind them of the evidence which went to those issues. 18. The judge started his directions of law by correctly telling the jury that it had to be sure that a contract of employment existed between the defendant and some or all of the workers. He then referred to Mr Greaney’s reference, on behalf of the defendant, to “mutuality of obligations”. It is true that that was a phrase which readily springs to the lips of the Employment Appeal Tribunal and of the Court of Appeal (see e.g., the EAT in McMeechan and the Court of Appeal in Clark v Oxfordshire Health Authority [1998] IRLR 125 at § 22). It is not however a phrase, we imagine, familiar to a Bradford jury. The judge accurately explained that it meant that the jury would have to be sure that there should be more than just work provided on the one hand, in exchange for payment on the other. He reminded the jury of the defence submission that the relationship between the Slovakians and the defendant was so casual that it did not amount to the relationship between employer and employee. That, as it seems to us, is not particularly informative as to how the jury should judge whether such a relationship existed. 19. The judge then turned to what he described as the badges or indicators of a contract of employment. He referred to control, selection, supervision, responsibility for payment and what he described as “continuity of a body of individuals”. But he continued:- “Those are some of the factors. They are not exhaustive and, at the end of the day, it is for you to consider the evidence and decide firstly does it establish that Pola was in charge of the site so as to be responsible for the activities on it and secondly…you must go on to consider whether he was, in fact, the employer of the Slovakian workers…” 20. The judge went on to outline the evidence given. It is apparent that neither any worker called on behalf of the prosecution nor the defendant or his witnesses explicitly dealt with the question now raised as to whether any worker who turned up for work was under an obligation to remain on site until the end of the working day. 21. In our judgment the judge did fall into error in failing to explain to the jury what factors it should deploy to test the question whether the relationship between Slovakian workers and the defendant was so casual as not to amount to a contract of employment. Furthermore, when dealing with what he described as the badges or indicators of a contract of employment the judge dealt with those factors compendiously even though they went to different issues. The factors which he identified went to the question of whether there was any contract at all, and also to the question of whether even if there was a contract, it was a contract of service as opposed to a contract for services. By dealing with the factors compendiously the judge failed to focus the jury’s attention on the separate questions which they were bound to answer. 22. Furthermore, the judge failed to direct the jury that it had to consider those different factors before it could reach a conclusion adverse to the defendant. By using the expression “the factors I suggest you consider” and referring to them as being “some of the factors”, his directions were insufficiently prescriptive. Without proper consideration of those relevant features the jury could not reach a conclusion as to whether the prosecution had proved there was a contract of employment? For the effect of those errors, it is necessary to look at the directions as a whole in the context of the factual issues and evidence to which the judge referred. It must have been plain to the jury as a result not only of the submissions advanced on behalf of the defendant, a copy of which we have seen, but of the directions to the jury that they had to be sure that there was a contract of employment with one or more of the Slovakian workers. Moreover, although the factors were dealt with compendiously and by way of suggestion rather than direction they were the only factors which had been canvassed before the jury. In those circumstances we reject the possibility that the jury were left to speculate as to whether there were other factors which they might have taken into account. 23. We then turn to the second ground on which the summing up is criticised. As we have accepted, the jury had to be sure, before it convicted, that when at work the worker was under an obligation to work during the day for which he was paid. The jury had to be sure that a worker was not entitled to leave work on a particular day as and when he chose. Mr Smith QC rightly points out that the jury’s attention was never drawn to this issue nor was it drawn to any evidence which went to the resolution of that issue. Counsel for the defence had made it clear in his submissions that there was no evidential basis on which the jury could be sure that any of the Slovakian workers were under an obligation to work. But he had gone on, as he had done in submission, to refer to evidence from the workers that they could turn up for work when they wanted. As we have already remarked, that did not directly go to the question whether they were under an obligation to work after they turned up for work at the beginning of the day. 24. We accept the submission that the judge ought to have made that point clear to the jury, even though he may have been deflected from doing so by the way the defence put its case. 25. But despite that criticism it does not follow that the verdict, based on the conclusion that the defendant was an employer, is unsafe. The point had not been canvassed directly before the jury because no witness had been asked about it directly. Of course, it was for the prosecution to establish the point but we are not surprised that no witness was asked directly about it. The answer seems to us to have been obvious. It seems to us fanciful to suggest that any particular worker, when they turned up for work at the beginning of the day to a building site, regarded himself as free to walk off site during the course of the day, leaving his fellows to get on with their work. We are prepared to infer from the very nature and pattern of the work on the building site no one who turned up for work expecting to be paid for a day’s work would have regarded himself as free to leave during the course of that day. In those circumstances we reject this ground of appeal also. In doing so we wish to acknowledge the difficulty of providing clear and comprehensible directions to a jury in a branch of the law which has produced, despite so much learning, abundant difficulty. Despite that difficulty, we also wish to emphasise the importance of a judge making clear to the jury, in comprehensible language, the issues which it must determine and the evidence on which it was necessary for the jury to focus in order to resolve each issue. However, for the reasons we have given, the appeal against conviction is dismissed. Mr Justice Hedley: SENTENCE 26. The applicant renews his application for leave to appeal against sentence confining his submissions to the making of the compensation order in the sum of £90,000 in respect of his sentence on Count 4 of the indictment. We propose to grant leave on that limited ground. 27. Compensation orders are now governed by the provisions of Section 130 Powers of Criminal Courts (Sentencing) Act 2000 . It is accepted that the judge had power to make such an order in this case, the question being whether he should have exercised that power. The provisions requiring a court to give reasons why it is not making a compensation order – Section 130(3) – and those giving priority to a compensation over a fine – Section 130 (12) – strongly suggest an intention on the part of Parliament to encourage the making of such orders. 28. In this case there is no doubt but that the person affected by the breach of Regulations has suffered personal injuries and that the appellant is good for the sum of £90,000 ordered by the judge. It is noteworthy that the fines were tailored to accommodate the compensation order and that no prosecution or defence costs were ordered. It follows that it is very much for the appellant to show why no order (or indeed this order) should have been made. 29. Count 4 involved a breach of the Work at Height Regulations which were themselves made under the Health and Safety at Work Act 1974 . The incident arose out of a fall sustained by one Dusan Dudi, a Slovakian citizen who was working on the appellant’s premises in circumstances in which the jury found the appellant to be subject to the duties of an employer. Mr Dudi sustained serious injury described in the report of 30 th March 2006 by Dr. M. Busby, a consultant neurologist, as follows – “…..a severe head injury. This has resulted in him being left in a severely disabled and dependent state. I think it highly unlikely that he is going……..to be able to return to work. Indeed I think it likely that he will be left in some state of dependency for the rest of his life.” The Judge had two further pieces of written evidence available to him. The first was evidence from an occupational therapist and the second was a statement from Mr. Dudi’s brother-in-law in Slovakia (whence Mr. Dudi had returned) which described his continuing dependent state and disabilities. 30. The judge gave a full and careful ruling in respect of the making of the compensation order. The learned judge carefully reviewed and considered the above evidence. He reminded himself that he could have regard to the Judicial Studies Board “Guidelines for the Assessment of General Damages in Personal Injuries Cases.” In the 9 th Edition (2008), if one took this to be moderate brain damage in which there is moderate to modest intellectual deficit, the ability to work is greatly reduced if not removed and there is some risk of epilepsy, the suggested bracket for general damages for pain and suffering alone is £58,000 to £96,000. There are some features which might arguably put this case in a higher bracket. 31. The judge had satisfied himself that this injured man could not benefit from an insurance policy and was unlikely to have an effective civil remedy in damages (mainly because of the appellant’s means and the incidence of costs). It was also clear that he was entitled to state benefits neither here nor in Slovakia and, of course, the offence committed was not within the criminal injuries compensation scheme. In all the circumstances it was unsurprising that the judge should conclude that it was just to make the order that he did. 32. It was submitted to the judge, and repeated to this court, that he should not have exercised his powers as he did. This submission is founded in a series of cases which emphasise that compensation orders should be confined in their use to simple and straightforward cases where the amount of compensation can be readily and easily ascertained – see Donovan [1981] 3 Cr.App. R (5) 192 per Eveleigh LJ at 193. This approach has been adopted and followed in Hyde v Emery [1984] 6 Cr.App R (5) 206, Briscoe [1994] 15 Cr. App. R. (5) 699 and Berwick [2008] 2 Cr.App R (5) 31. It is noteworthy that Berwick (by some way the most recent case) involved detailed and complex matters as well as disputed oral evidence in a case of cheating the revenue. 33. This court has, however, derived assistance from an early consideration of compensation orders by Scarman LJ (as he then was) in Inwood [1975] 60 Cr. App. R. 70 where at p.73 he says this – “Compensation orders were not introduced into our laws to enable the convicted to buy themselves out of the penalties for crime. Compensation orders were introduced into our law as a convenient and rapid means of avoiding the expense of resort to civil litigation when the criminal clearly has means which would enable the compensation to be paid. One has to bear in mind that there is always the possibility of a victim taking civil proceedings, if he be so advised. Compensation orders should certainly not be used when there is any doubt as to the liability to compensate, nor should they be used when there is a real doubt as to whether the convicted man can find the compensation. It is true the section leaves a considerable area of judgment to the court. The statue requires only that the courts shall have regard to the means of the convicted man, so far as they appear or are known to the court. In a number of recent cases before this Court, however, it has been made clear that the courts must follow a common sense course, bearing in mind the factors to which I have referred.” This court also notes that since the time even of Briscoe the courts have developed expertise in financial assessment from experience in the now frequent confiscation proceedings under the Proceeds of Crime Act 2002 and its statutory predecessors. It may be that the very cautious approach adopted in the early cases needs some modification and full weight to be given to the words of Scarman LJ. 34. It is submitted on behalf of the appellant that on the basis of the actual information available to the judge, he should not have made the order he did. It is contended both that the information is partial and inadequate and also that the complexities raised by it take this outside the ambit of those cases for which this Court has said compensation orders are designed. Even if it be accepted that in simple cases (e.g. those below the criminal injuries compensation minimum award) a compensation order may be made in respect of personal injuries, it should not be done in a case of this medical complexity. 35. We have considered with care both the reasoned ruling of the learned judge and the criticisms of it made on behalf of the appellant. We are satisfied that the judge was not only entitled to make the order that he did but was right to do so. Our reasons are as follows. First, there was a clear causal link between the conviction and the injury. Secondly, the judge had available to him sufficient evidence of the gravity of the injury to demonstrate that it was worth far in excess of anything that he was minded to award. Thirdly, the judge had satisfied himself that there was no more convenient or practicable alternative route of which Mr. Dudi might avail himself. Fourthly, the judge had satisfied himself that the appellant had the means to satisfy the order that he had in mind. Fifthly, the order was compliant with both with the policy of Section 130 of the 2002 Act and its practice in that he gave priority to the compensation order over any other financial order. Lastly, and in our view importantly, the order was just and proper in the context of the proven culpability of the appellant. 36. Accordingly whilst we give leave to appeal against the making of the compensation order, the appeal is itself dismissed.

```yaml citation: '[2009] EWCA Crim 655' date: '2009-04-07' judges: - LORD JUSTICE MOSES - MR JUSTICE HEDLEY - HIS HONOUR JUDGE RUSSELL, THE RECORDER OF PRESTON ```

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

No. 2007/00687/A4 Neutral Citation Number: [2007] EWCA Crim 878 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday 17 April 2007 B e f o r e: MR JUSTICE BURTON and THE RECORDER OF BIRMINGHAM ( Sitting as a Judge of the Court of Appeal Criminal Division ) __________________ R E G I N A - v - ADEKUNLE ADEBAYO __________________ 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 MARIA ELENA CANDILIO appeared on behalf of THE APPELLANT ____________________ J U D G M E N T MR JUSTICE BURTON: 1. On 15 January 2007, in the Crown Court at Snaresbrook, before His Honour Judge Pardoe QC, the appellant pleaded guilty to two counts of possession of an identity document with intent to deceive. He was sentenced to two years' imprisonment on each count concurrent and was recommended for deportation. He appeals against the sentence of imprisonment by leave of the single judge. 2. The facts of the case were that on 7 November 2006 the appellant went to an employment agency called Future Force. In order to show his entitlement to obtain work, he produced a National Insurance card and a Nigerian passport. By virtue of the diligence of the attendant at the agency it was concluded that the documents were fake. The police were contacted and the appellant was arrested. When asked whether he was legally in this country and how he came to be here, he replied, "I'm just trying to get a job and survive". 3. In interview the appellant's account was that he had entered the United Kingdom in 1997 (although there was no evidence to support that date). He said that he had come with a Nigerian passport, that he had lost the passport, had not reported it lost and had not tried to obtain another. He said that he had been referred to someone in 2002 (four years earlier) and had paid £2,500 for the two false documents which he produced in November 2006. When asked whether he had received any other such documentation, he said that he had also been given a Home Office letter but did not have it with him at the time of his arrest. He asserted in interview that he believed the passport was authentic. He admitted that he had used the passport and the National Insurance card to try to obtain a bank account via the internet. 4. The mitigation that was placed before the judge centred on the appellant's good character and on his plea of guilty, notwithstanding the initial stance taken in interview. However, Miss Candilio did not draw to the attention of the sentencing judge the two authorities on which she now relies, neither of which are guideline cases but both of which are of significance: R v Kolawole [2005] 2 Cr App R(S) 13 at page 71 and R v Mutede [2006] 2 Cr App R(S) 22 at page 161. Untutored by those authorities, the judge made no reference to authority in the sentence that he imposed. He said that the appellant was an illegal immigrant. He had obtained false documents from an acquaintance at the Mosque he attended for the payment of £2,500, who had used the documents in an attempt to obtain employment; they were flagrant offences; and the behaviour with which he was charged was precisely within the mischief that the Identity Cards Act 2006 (in breach of section 25 of which the appellant had admitted he was) was designed to prevent and to punish. Despite his early plea of guilty, a custodial sentence was inevitable and a term of two years' imprisonment was imposed. 5. The grounds of appeal, besides referring to his previous good character and his early guilty pleas, base themselves on the assertion that both documents were used at the same time and for a single purpose, namely to obtain employment. It was asserted that the facts of the case merited a lower threshold for sentencing. Two fortifications are put forward for that argument: first, the case of Mutede , upon which counsel has relied to support the primary proposition that the sentence should be six months' imprisonment; and second, the case of Kolawole , in which a bracket of twelve months to eighteen months' imprisonment was recommended by the Court of Appeal: Miss Candilio argued for a sentence at the lower end of that bracket. 6. In granting leave, the single judge mentioned three other recent decisions of this court in which reference was made to Kolawole : R v Dogan [2007] EWCA Crim 110 ; R v Adekayaoja [2007] EWCA Crim 584 and R v Cakraj [2007] EWCA Crim 766 . Copies of those have been provided to us by the Court of Appeal Office. 7. We turn first to the question of whether a sentence of six months' imprisonment, for which Miss Candilio primarily contended, is arguably appropriate on the facts of this case by reference to Mutede . In Mutede the appellant pleaded guilty to possession of a counterfeit National Insurance card and counterfeit letters which were used to obtain employment in the United Kingdom whilst she was prohibited from doing so. It was accepted in that case that the appellant had a legitimate passport and a legitimate reason to be in the country, but that she had obtained the false immigration letters and the false National Insurance card to enable her to work in the United Kingdom. Having referred to Kolawole , in giving the judgment of the court Cresswell J said: "10. It is, in our view, necessary to distinguish between using a false passport to obtain entry into this country or to remain here (as in the present case) using false immigration letters to enable a person who was permitted to enter this country, to obtain work here." Miss Candilio submits that the sentence of six months' imprisonment, which was substituted by the Court of Appeal in that case, is also appropriate for this appellant. 8. We do not agree that Mutede leads to that conclusion or is a basis for lowering the tariff which is referred to in Kolawole , to which we shall come. Insofar as the Court of Appeal distinguished Kolawole , we are satisfied that it distinguished it on the primary basis that the use of a false passport is of very considerable significance to the security of this country and to the propriety of immigration laws. To use a false passport to enter the country is a serious offence, as was made clear by the Vice-President, Rose LJ (as he then was) in Kolawole . In Mutede the appellant had a genuine passport, but used false documents in order to obtain employment. 9. However, if and insofar as Miss Candilio relies upon a broader distinction to be drawn from Mutede , there is a favourable comparison for the appellant to be drawn between someone who uses a false passport to enter the country and someone who uses similar false documents to obtain employment, we do not agree. In Dogan at paragraph 4 in this Court I said: "The representation made on his behalf today by Mr Hobson is that on this occasion the passport and false documents were not used to enter the country, and were attempted to be used for a different purpose as we have described [an attempt to open a bank account]. We can see no distinction in that regard. No doubt if they had been required to be used to enter the country, they would have been. In some ways at least it can be understandable that unlawful immigrants are desperate to get into the country and might use false documents, but not necessarily so understandable if they then used those same documents once they are here." Put at its lowest, it is difficult to see a distinction between using a false passport to enter the country and using a false passport to remain here. As the appellant said when he was arrested, he was only trying to survive once he had arrived illegally, as appears to have been accepted for the purpose of the trial. Mr Candilio says that the appellant's case always was that he had lost the passport that he had had, but there was no acceptance by the prosecution that there had ever been a valid passport. On his own account, the appellant had remained illegally in this country for many years. In those circumstances we see no basis upon which the outcome of this case is assisted by what was said in Mutede . 10. In Kolawole , although not a guideline case, clear guidance was nevertheless given by the Court of Appeal in relation to an appellant who had not one but two false passports, although it was found inappropriate to pass a separate sentence in relation to each. In giving the judgment of the court, the Vice-President said that where a single false passport was being used (contrary to what was then the Forgery and Counterfeiting Act 1981 , and it is apparent from the authorities to which we have referred that the present Act would lead to the same result), the appropriate sentence, even on a guilty plea by a person of good character should now usually be in the range of twelve to eighteen months. For that purpose, therefore, we can ignore the fact that it was two passports in that case, in the light of the words of the Vice-President which we have quoted. 11. This case appears to us to be indistinguishable from Kolawole . Miss Candilio has submitted that it falls towards the lower end of the twelve to eighteen months' bracket. She has referred also to Cakraj in which a sentence of twelve months was substituted for one of two-and-a-half years, which was found to be manifestly excessive on the basis that the sentencing judge had been in error in regarding the case as much more serious than that of Kolawole . However, in Dogan , where again the sentence was reduced by this court, the sentence that was substituted was eighteen months, in a case which seems difficult, if not impossible, to distinguish from the facts of this case. If anything, it is more serious to use false documents to seek to obtain employment than to open a bank account. 12. We see no basis upon which this case can be said to be at the bottom of the bracket; nor was Miss Candilio able to identify one when invited to do so. We conclude that this case falls within the bracket of twelve to eighteen months. Consequently, we consider that the sentence of two years' imprisonment was manifestly excessive. We quash the sentence of two years' imprisonment and substitute one of fifteen months' imprisonment, concurrent on each count. To that extent this appeal is allowed. There will be taken into account any time served in custody. 13. During the course of the hearing an application was made for leave to appeal out of time in respect of the recommendation for deportation. However, that application was withdrawn. If there are any matters to be raised by the appellant with the Home Secretary, that can be done (if he is in time to do so) on an appeal against any deportation notice served before the Asylum and Immigration Tribunal. _____________________________

```yaml citation: '[2007] EWCA Crim 878' date: '2007-04-17' judges: - MR JUSTICE BURTON ```

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. Neutral Citation Number [2023] EWCA Crim 1310 … IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT MRS RECORDER DHALIWAL Case No 202301433/B2 Royal Courts of Justice, Strand, London WC2A 2LL Thursday, 26 October 2023 Before: LADY JUSTICE ANDREWS DBE MR JUSTICE GOSS SIR NIGEL DAVIS REX V HARRY JOHN WARD __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR P CRAMPIN appeared on behalf of the Appellant MR V MISRA appeared on behalf of the Crown _________ APPROVED JUDGMENT LADY JUSTICE ANDREWS: 1. On 31 March 2023 at the Central Criminal Court, following a trial before Mrs Recorder Dhaliwal and a jury, the appellant was convicted of one count of assault occasioning actual bodily harm, which was count 3 on the indictment. He was acquitted of the three remaining counts. He appeals against that conviction on the basis of a judicial misdirection to the jury which he alleges renders his conviction unsafe. 2. The complainant was the appellant's former partner. The matter of which he was convicted arose out of an argument in the complainant's bedroom on the morning of 10 September 2022, towards the end of their 10-month relationship. The couple had planned to go out for the day, but the appellant changed his mind about that when he realised that his phone was broken. The complainant's version of events was that the appellant became upset and agitated about the phone and rejected all her efforts to calm him down. As the argument escalated it became physical. 3. The complainant alleged that the appellant had repeatedly thrown her onto the bed, making her feel sick. He also threatened to punch her. He grabbed her around the throat, making it difficult for her to breathe (this was the subject of count 4, a charge of intentional strangulation, of which he was acquitted). She called her mother in the midst of the altercation asking her to call the police. She tried to push the appellant out of the bedroom door, but he came back to collect some of his belongings and struck her to her face. This caused her to land back on the bed. When one of her children began screaming he said: "now look what you made me do" before saying goodbye to the child and leaving. 4. The complainant went to hospital the same day. It was an agreed fact that the following injuries were noted: strangulation marks, mild bruising to both arms, and bruising and a mild laceration to her left shin. There were also photographs of her injuries which we have seen. 5. The appellant's case in respect of this count was that he had acted throughout in self-defence. The complainant had become angry and upset when he told her that he was not going on the planned trip. In the course of the ensuing argument he had said that he no longer wanted to be with her. She had stormed off crying and he had started to pack his bags. When she saw this, matters escalated and she had physically tried to stop him from leaving. She had pulled him back onto the bed. They had rolled around together until she was on top of him and ripped his top in half. She was refusing to let him go. At one point he managed to remove her hands and free himself. 6. He went to leave, but then realised he had forgotten something, and returned. Again, the complainant physically tried to stop him from going. In the end, the only way he had been able to leave was to pin her down by her shoulders. He had not struck her in the face and he had not tried to strangle her. He left the house without putting on his shoes, quickly grabbing his bag. In his haste he had left some of his belongings behind. He had no idea how she sustained any injuries, because he had only pinned her down by her arms once. 7. At trial, both the complainant and the appellant gave evidence. The complainant's mother gave evidence about the telephone call. The photographs of the complainant's injuries were adduced. There was also evidence of What’sApp messages between the appellant and the complainant following the incident, in which she repeatedly stated that he did not punch her in the face, after he had complained that she had told her mother that he did. The appellant said that one of these messages, in which he stated that he had only pinned her down so that he could stop everything happening and he could leave, was a truthful account. 8. The appellant contends that his conviction is unsafe because the Recorder misdirected the jury in her written route to verdict document on count 3 by suggesting that it was for the defence to prove to the criminal standard that the degree of force used when acting in self-defence was reasonable. 9. The proposed legal directions to the jury were posted on the digital system on 30 March 2023. At page 10 of the route to verdict document three questions were posed as a route for the jury to take in order to reach a verdict on count 3. These were: "1. Are we satisfied so that we are sure that the defendant was the aggressor i.e. the defendant was not acting in self-defence? If your answer is Yes, your verdict will be 'Guilty' to count 3. If your answer is No, go on to consider question 2. 2. Are we satisfied so that we are sure that it was reasonable in the circumstances for the defendant to use some force against the complainant? If your answer is no, you will find that the defendant did not act in self-defence and will find the defendant guilty of count 3. If your answer is yes – go on to question 3 3. Are we satisfied so that we are sure that the degree of force used by the defendant was reasonable, in the sense that it was no more than was proportionate in the circumstances? If your answer is no, you will find that the defendant did not act in self-defence and will find the defendant Guilty of count 3. If your answer is yes, you will find that that the defendant acted in self-defence and find the defendant Not Guilty of count 3." 10. Question 3 was a clear and obvious misdirection. The correct question that the jury should have been told to ask themselves was: "Are we sure that the degree of force used by the defendant was unreasonable in the sense that it was more than was proportionate in all the circumstances? The directions as to what they should find depending on their answer to that question would also have been commensurately adjusted. 11. Unfortunately the misdirection was not drawn to the Recorder's attention when counsel were first asked to comment on the proposed legal directions before the summing-up. Defence counsel did not spot the problem at the time. The Recorder therefore commenced her summing-up on 30 March by reference to the documents which she had prepared. 12. As is now the usual practice, the legal directions preceded counsel's closing speeches and the Recorder's summary of the evidence followed them. The Recorder gave the standard direction on the burden and standard of proof. As regards self-defence, she initially said this: "... on count 3 the defendant has raised self-defence. It is still for the prosecution to prove the case. So, it is for them to make you sure that the defendant was in fact the aggressor, and was not acting in lawful self-defence. I will go back to that in due course. The important point for you is that the defendant does not have to prove his innocence, in fact he does not have to prove anything at all." 13. The specific legal directions relating to count 3 were dealt with later in the Recorder's summing-up on the early afternoon of 30 March. She said this: "... if you are to convict on this particular count on the indictment the prosecution must prove so that you are sure the three – or in fact the two emboldened headings I have put." It is unclear which two of the three of the emboldened headings she was referring to. Next, she explained that the prosecution must prove, so that the jury were sure, that the defendant assaulted the complainant thereby occasioning actual bodily harm and that an assault meant using unlawful force. Force used in lawful self-defence did not amount to an assault. She correctly directed them that actual bodily harm meant some bodily injury, even if that injury is slight, and that bruises would suffice. 14. She then summarised the rival accounts of the protagonists and said this: “… the prosecution have to prove the case, so it is for them to make you sure that it was the defendant who was the aggressor, and that he was not acting in lawful self-defence." She repeated this a few lines later. She then gave detailed directions on the law of self-defence. She directed the jury perfectly properly that if the jury were not sure that the defendant was the aggressor it was for them to decide whether the force he used was reasonable, and that they must do it in the light of the circumstances as they found the defendant believed them to be. Having elaborated on these matters in terms which were unexceptionable, she then turned to the Route to Verdict document. In introducing it, she said the following: " Now, you may not have taken all that on board because, as I said to you at the outset it is complex, but I am now going to take you through the Route to Verdict to encompass everything that I have said , and to make sure that you cover all the necessary elements. So the one way for you to arrive at your verdict is to answer the following questions in order... " [emphasis added] 15. She then took the jury through the three questions in the Route to Verdict document and directed them entirely in accordance with it, including the third question. She told them, orally, that they had to be satisfied so that they were sure that the degree of force used by the defendant was reasonable in the sense that it was no more than was proportionate in the circumstances. If their answer to that question was no, they would find that he did not act in self-defence and find him guilty on count 3. She ended her directions on count 3 by telling the jury that they should, " please stick to those rules, and you will find that you get to the right decision for the right reasoning ... " 16. After the Recorder had given most of the remaining legal directions, the closing speeches followed. We were told by Mr Misra, who prosecuted the case at trial and appears for the Crown in front of us today, that he opened his closing speech by reminding the jury of the burden and standard of proof on the prosecution. He said that as far as he could recall he would have said to them that it was for the Crown to prove that the force used was unreasonable. However, it is always the case that when the judge comes to sum up, they will remind the jury that counsels' speeches are merely suggestions and that they should follow the judge’s legal directions in all matters. Therefore, even if his recollection were correct, Mr Misra very properly accepted that what he said would not have been enough to have cured the misdirection. 17. By the time that the Recorder had finished summing up the evidence and was coming to her final legal directions, it was late in the afternoon, and she very sensibly decided not to ask the jury to retire to consider their verdicts until the following day. 18. Mr Crampin, who was counsel for the defence at trial, and who also appeared before us today, spotted the misdirection in the Route to Verdict when he considered the document again overnight. The following morning he drew it to the attention of the Recorder, and submitted that question 3 should be amended to show that it was for the prosecution to prove to the criminal standard that the defendant acted with unreasonable force. 19. The Recorder was not particularly taken by that submission. She asked Mr Misra for his views. He accepted that throughout her directions the Recorder had pointed out that it was for the Crown to prove the defendant's guilt, but said that he could “see Mr Crampin's point”. However, instead of accepting the force of it, he sat on the fence. He used the somewhat curious expression that he 'did not object' to defence counsel's view, after which he said that he felt that there was nothing he could profitably add. 20. Where, as in this case, there is a clear misdirection to the jury there is an obligation on the Crown to endorse the correction that has been put forward very properly by the defence. Prosecuting counsel's failure to do so in this case was wrong, and it is deeply regrettable that he did not more firmly associate himself with the position that was adopted by Mr Crampin. Had he done so, it is possible that this case would not have come before this court. 21. It is equally regrettable that, although the Recorder did have an opportunity to correct the position before the jury retired to consider their verdicts, and the correction would only have required minimal alterations to her directions, she refused to do so. She relied on the fact that she had already told the jury repeatedly that there was no burden whatsoever on the defendant. Whilst that was true as far as it went, it failed to take account of the fact that at the end of the directions that had been specifically tailored to the issue of self-defence, (which only arose on count 3) and which she had rightly identified as being complex, the Recorder had set out the approach that they must take and the questions that they must ask themselves in the Route to Verdict. Moreover, she had told them in terms that they must stick to those rules, and that by so doing they would not go wrong. But if they did stick to the Route to Verdict, they would have gone badly wrong. 22. It is unnecessary for the appellant to prove that the jury did follow the written directions they were given. It is enough that they may have done so. Although it is impossible to tell whether they reached question 3 on the Route to Verdict document, it can be inferred from the fact that they acquitted on count 4 that they did not wholly accept the complainant's account of the argument (in particular, the allegation of attempted strangulation). 23. Mr Misra sought to persuade the court that the conviction was nevertheless safe because if one looked at the summing-up as a whole, the clear indication that was being given to the jury was that the burden was on the Crown and that the defence had nothing to prove. In some cases that may be an answer where there is a misdirection. However, in this case we are satisfied that it is not, given the circumstances in which the misdirection came about at the end of the summing-up, specifically in a Route to Verdict document on which the jury was directed in the way that the Recorder directed them. For those reasons, we are not satisfied that the repeated directions to the jury concerning the burden of proof were enough to cure the mischief caused by the misdirection so as to enable us to conclude that this conviction is safe. 24. Mr Misra very fairly did not seek to urge upon us an argument that the conviction was safe because the evidence was overwhelming, in the light of the fact that the defendant was acquitted on all the other counts on the indictment. 25. For those reasons, we allow this appeal and we quash the conviction on count 3. Mr Misra, I think that despite the fact that you told my Lord in answer to a specific question that you were instructed not to seek a retrial, that you wish to now do so? MR MISRA: Yes, my Lady, I do apologise. I had the wrong Ward email open on my laptop. I am instructed to seek a retrial in this appeal. SIR NIGEL DAVIS: Did you have such directions to seek a retrial before the hearing before this court started? MR MISRA: I did, my Lord, yes. SIR NIGEL DAVIS: So why did you tell the court otherwise on my Lady's question and on my question? MR MISRA: My Lord, I had the wrong email open. It is simply a matter of I was reading the wrong URN. Having correctly looked after having said 'No', that was when I saw that I had the wrong one and that is why I immediately sought to correct it. SIR NIGEL DAVIS: You have some other case which is extant before the Court of Appeal? MR MISRA: My Lord, simply, yes. It is a matter called Ward that -- I had simply typed "Ward" into my CJSM and that is why I was looking at the wrong URN. SIR NIGEL DAVIS: Had you not checked the position before the hearing started? MR MISRA: My Lord, I must admit I did not double check downstairs before I walked in and I should have. MR JUSTICE GOSS: The sentence passed in the lower court was one of 12 months' imprisonment. MR MISRA: And had already been served at the time. MR JUSTICE GOSS: Yes. He has now served that sentence. MR MISRA: He has. He had served it at the time of conviction. MR JUSTICE GOSS: Although he will not be in custody, he will still be serving it because it was March 2023. LADY JUSTICE ANDREWS: Yes. MR JUSTICE GOSS: There was a restraining order made? MR MISRA: There was, my Lord, yes. MR JUSTICE GOSS: And of course the statutory surcharge. MR MISRA: There is no objection to the restraining order, and in terms of the custodial element Mr Ward had already served the custodial element at the time of sentence. LADY JUSTICE ANDREWS: In the light of those matters, why is the Crown seeking a retrial? MR MISRA: My Lady, I am simply told that I am asked to request a retrial. LADY JUSTICE ANDREWS: Just because? MR MISRA: Indeed, my Lady. I have attempted to get further instructions as to why but have only been informed that this is the views of the OIC. SIR NIGEL DAVIS: One trusts the complainant's views have been sought? MR MISRA: My Lord, yes, they have been. SIR NIGEL DAVIS: But you do not know. MR MISRA: They have been sought, the views have been sought but the views have not been shared with me. It is only the view of the OIC that is shared with me. MR JUSTICE GOSS: I do not want to delve into the decision making process but the officer in the case has said a retrial should be sought in the event of the conviction being quashed. The Crown Prosecution Service have expressed no view, they have not said we have applied our mind to it, to consider whether the public interest would be served or it is appropriate for there to be a retrial, they have just said the officer in the case has said there should be a retrial, we therefore say there should be a retrial. MR MISRA: Indeed, my Lord. "Counsel is to request a retrial if the convictions are quashed. You will have seen the email I have sent to the OIC." I have received no further update as to the views of the complainant. I suspect the complainant has not responded and that is why. LADY JUSTICE ANDREWS: We had better ask Mr Crampin what he says. MR CRAMPIN: My Lady, it is a matter for the court in the exercise of discretion. This is a matter which goes back now to April 2022 so it is not particularly of any antiquity, but it is right to say that the defendant was released immediately upon conviction for that, having been in prison for six months and served the custodial part of the sentence. What my learned friend says is correct. There was no objection taken to the imposition of a restraining order and of course in these circumstances my understanding is a restraining order can stay in place if required. There is no need for a conviction for a restraining order to be put in place by the court. So in the circumstances, in my submission it would seem, to put it frankly, otiose to have a retrial in these circumstances. SIR NIGEL DAVIS: You raise no objection to the continuance of the restraining order even if there is no conviction on the record? MR CRAMPIN: That is right, my Lord. The position was, and again I do not have specific instructions from Mr Ward as of today, but his instructions at the time of the end of the trial were that he was happy for the condition of the restraining order to be in place because their relationship had finished and there was no need for him to have any further contact with the complainant. They had no shared children. He was happy to, as I say, happy and content to walk away from the relationship. SIR NIGEL DAVIS: I am a little rusty on these things. A restraining order can be imposed in the absence of any conviction? MR JUSTICE GOSS: On acquittal, yes. LADY JUSTICE ANDREWS: On acquittal, yes, it can. MR JUSTICE GOSS: It is a six year order, I remind myself. MR CRAMPIN: Yes. (The court adjourned to consider retrial) LADY JUSTICE ANDREWS: On the basis of what the court has been told and taking into account the specific circumstances of this case, the court does not consider that it is appropriate for it to order a retrial in this matter. But for the avoidance of any doubt the restraining order that was imposed will remain in place. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2023] EWCA Crim 1310' date: '2023-10-26' judges: - LADY JUSTICE ANDREWS DBE - MR JUSTICE GOSS - SIR NIGEL 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: 200502137 C1 Neutral Citation Number: [2006] EWCA Crim 1464 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 16th May 2006 B E F O R E: LORD JUSTICE GAGE MR JUSTICE FORBES MRS JUSTICE COX DBE - - - - - - - R E G I N A -v- GERALD GRIMES - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - Non-Counsel Application - - - - - - - J U D G M E N T 1. MR JUSTICE FORBES: On 7th September 2004 in the Liverpool Crown Court, this applicant was convicted of failure to comply with an enforcement notice, contrary to section 43(2) as applied by section 74(3) of the Planning (Listed Buildings and Conservation Area) Act 1990. On 8th October 2004, he was sentenced to a fine of £2,000 with 28 days' imprisonment in default. He was also ordered to pay £3,000 towards the costs of the prosecution. The applicant now applies for an extension of time in which to renew his applications for extensions of time and leave to appeal against sentence, following refusal by the Single Judge. His application for leave to appeal against conviction was also refused and that has lapsed in the absence of renewal. The applicant submits that his applications were not lodged and renewed in time because he was suffering from depression and severe arthritic back pain during the relevant period. 2. The brief facts are these. The case concerned property at 10-14 High Street and 1a Grange Terrace, Liverpool 15. That property is in the Wavertree Village Conservation Area. The property was owned by the applicant. However, in September 1996 the building that originally existed on the site was demolished. On 20th January 1997, Liverpool City Council issued a Conservation Area Enforcement Notice under the terms of the 1990 Act. The requirements of the notice specified the rebuilding of the property in accordance with plans attached to the notice of rebuilding or accordance with any planning permissions subsequently given for the redevelopment of the site. 3. No appeal was lodged against that notice, which took effect on 24th February 1997 and required compliance by 24th August 1997. However, work on the rebuilding of the property had commenced prior to the issue of the enforcement notice and had continued after the notice came into effect. Also, planning permission has been granted to redevelop the site, although it was the planning authority's case that the earlier demolition had required the consent of the Local Planning Authority, which had neither been granted nor sought. It was also the Local Planning Authority's case that the building works currently being carried out were not in accordance with approved plans nor was the new development being constructed in the same physical form as that which had previously existed: that is to say, in accordance with the plans that had been attached to the enforcement notice itself. As a result, the applicant was prosecuted for failing to comply with the enforcement notice on 20th January 1997. 4. The applicant pleaded guilty to that charge on 8th July 1999: namely, that he had failed to comply with the notice at issue. So far as concerned the planning permissions that had been granted in respect of the site, there were two such planning permissions. The first had been granted in July 1997 and the second in November 1999. However, only the latter planning permission is relevant and was subject to conditions requiring the submission of detail relating to external materials and the window frames to the Local Planning Authority for its approval: see conditions 2 and 5 of the planning permission in question. The applicant did not appeal against the imposition of any of the conditions. A planning officer visited the site on 28th April 2000. He noticed that the works being carried out on the construction of the development, as permitted by the second planning permission, had commenced. However, the planning officer advised that there were outstanding details yet to be submitted in accordance with the conditions, including a sample of natural slate and working drawings of the timber sliding sash windows that were to be installed. As a result, a warning was issued that any works undertaken not in accordance with the approved plans would be carried out at the applicant's own risk. There was correspondence to the same effect. 5. A further visit to site was made on 4th October 2000. On that occasion, the planning officer noted that the windows that had been installed on the upper floor were of an unapproved design and constructed with an inappropriate material, namely UPVC. It was further noticed that the roof had been covered in tiles that were not approved by the Local Planning Authority. Again, correspondence to that effect was exchanged with the applicant. The letter from the Local Planning Authority issued an instruction that the windows and slates were to be removed within one month of the date of the letter: namely by 9th November 2000. However, a further visit was made on 17th November 2000 and the planning officer noticed that the unapproved windows and the tiles still remained. It was the council's view that the development had not been constructed in accordance with the relevant planning permission. 6. So it was that further proceedings were brought against the applicant for failure to comply with the original enforcement notice. He was convicted of an offence on 14th May 2001. Following that, the Council met with the applicant on November 2001 to address the non-compliant windows and tiles. It was then noticed that newly constructed balconies had been put up and that these were not in accordance with the approved plans. So it was, in April 2002, that the applicant submitted a planning application to vary conditions 2, 5 and 9 of the original planning permission in order that he might lawfully retain the UPVC windows, concrete roof tiles and balconies constructed to the rear of the property. That application was refused on 19th June 2002. The applicant appealed against that refusal on 9th July but his appeal was dismissed on 27th January 2003. The Council again advised the applicant by letter dated 5th February 2003 that he was obliged to comply with the original enforcement notice. However, the planning officer visited the site on 18th September 2003 and noted that the incorrect windows, roof tiles and balconies were still in place. He also noted that no details had been submitted for the windows or roof tiles as required by conditions 2 and 5 attached to the relevant planning permission. It was as a result of these matters that the applicant was charged with and eventually convicted of the index offence. 7. As to sentence, it is said in grounds of appeal of the applicant's own composition that the sentence passed was manifestly excessive in light of the offence, previous conviction and the applicant's means. When refusing leave to appeal, the Single Judge observed as follows: "Given the history of this matter, as summarised in the Judge's sentencing remarks, I do not think it arguable that the level of fine or costs were excessive. The Judge went into matters very carefully." 8. So far as the question of an extension of time was concerned, the Single Judge said this: "There has been very considerable delay in pursuing this matter, and although I take account of the fact that you have been unwell, the fact remains that your application has no merit." 9. We agree with both those sets of observations. In our judgment, given the planning history involved in this matter, the sentence passed was entirely appropriate, as was the order for costs. 10. Accordingly, for those reasons, we refuse these applications.

```yaml citation: '[2006] EWCA Crim 1464' date: '2006-05-16' judges: - LORD JUSTICE GAGE - MR JUSTICE FORBES - MRS JUSTICE COX DBE ```

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

Neutral Citation Number: [2013] EWCA Crim 642 Case No: 2012/03612B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM QUEEN’S BENCH DIVISION Mrs Justice Dobbs T2011/7162 Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/05/2013 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE ROYCE and MR JUSTICE GLOBE - - - - - - - - - - - - - - - - - - - - - Between : Elliott Vincent Turner Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - A Donne QC and J Gau for the Appellant T Mousley QC and S Jones for the Crown Hearing dates: 24 th April 2013 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: 1. We now provide our reasons for our decision on 24 April. This is an appeal by Elliot Turner against his conviction on 21 May 2012 in the Crown Court at Winchester before Dobbs J and a jury of the murder of Emily Longley, his girlfriend. On the following day he was sentenced to life imprisonment with a minimum term of 16 years. He also appeals against the minimum term. 2. The appellant was convicted on his own guilty plea during the trial of doing an act tending and intended to pervert the course of justice. His father, Leigh Turner, and his mother, Anita Turner, were convicted by the jury of the same offence. They were sentenced to 27 months imprisonment, and the appellant was sentenced to a custodial term of 9 months, to run concurrently with the sentence for murder. 3. The single ground of appeal against conviction arises from the rejection of Dobbs J of the submission that the indictment should be stayed as an abuse of process arising from the use of intrusive covert surveillance in the appellant’s home; alternatively, that the evidence derived from that surveillance was unfairly admitted in evidence, when it should have been excluded under s.78 of the Police and Criminal Evidence Act 1984. It is therefore unnecessary to recite the evidence in detail. 4. On 7 May 2011 at 9.50a.m. as a result of a telephone call made by Anita Turner, an ambulance was driven to the appellant’s address. There the appellant’s girlfriend, aged 17 years at the time, was found lying on a double bed with two pillows under her neck. She was dead at the scene and rigor mortis had already set in. 5. On that day a post mortem was carried out. The cause of death was unascertained, although the pathologist concluded that, given the physical findings of haemorrhaging to the deceased’s eyes, and a red line to her neck, there was a possibility of asphyxiation involving neck compression. The physical findings recorded by the pathologist were reviewed. The findings were consistent with pressure being applied to the neck of the deceased by manual application or forearm pressure, and the absence of any marks indicative of a struggle suggested that her ability to resist was limited in some way, for example, by restraint or as a result of the consumption of alcohol. 6. At the scene itself, a pillowcase was found on the bed and make up suggested that the deceased’s face had been imprinted on it. Indeed there appeared to be a “face mask”, with marks left on the pillow by the mouth, nose, cheeks and eyelids of the deceased. Later a DNA “match” with the deceased’s saliva was found in the “mouth area” of the mask and make up and mucus from the deceased were found on the shirt worn by the appellant that evening. 7. The appellant told the ambulance crew that he had had a violent argument with the deceased before they went to sleep, but that she had drunk a glass of water at about 4.30a.m. before falling asleep with a headache. He said that the deceased never woke up. In the immediate aftermath of the arrival of the police he said that he had defended himself and fended her off. Anita Turner also said that she had seen the deceased fetching herself a glass of water at about 5a.m. 8. The relationship between the appellant and the deceased was short, but turbulent, and it was steadily deteriorating, with the appellant keener on the continuation of the relationship than the deceased. She visited New Zealand, her home country, between 5 and 29 April 2011. It is clear from text messages that the appellant believed that she may have been unfaithful to him and on her return that led to quarrels. The case for the prosecution was that the appellant was possessive, jealous and violent and that he murdered his girlfriend because she was not sufficiently interested in him and had made a fool of him publicly by associating with other men. Based on his language in his own text messages and voice messages to his family and friends, the Crown suggested that the appellant’s anger with the deceased arose from self centred concern about how his reputation would suffer if she ceased to be interested in him rather than any particular affection for her. 9. The deterioration in the relationship, and his violent reaction to it was well established. For example, on 30 April 2011 the appellant left a voice message, stating that “out of every single bird, I’m gonna fucking mess this one (the deceased) up. I’m gonna fuck her off soon. Absolutely fuck her off soon. Definitely”. And that evening he was seen to hold her up against a wall by her neck and forcibly to bang her head on a table in a bar. 10. On 6 May he sent a text message to his mother stating that he would not live without the deceased and apologising to his family and saying goodbye. On the night before the murder he pretended to his friends that he had killed the deceased. He said, “she’s never going to have a family. She’d pushed me to it. She knew what she was letting herself into. She pushed me. She is never going to have kids. I would always have been her boyfriend”. On the same evening he threatened to smash her face in, saying “I’ll kill her. I’ll go to prison. I’ll still be a millionaire. I’ll do 10 years. It won’t bother me. I’ll still be a millionaire”. Earlier that day the appellant demonstrated what is described as a “sleeper hold”, a wrestling/martial arts move which restricts the victim’s ability to breathe. Together with the use of a pillow, this would cause asphyxiation. 11. Having spent the evening and night of 6 May together with friends, in the early hours of 7 May, the deceased and the appellant left together to go to his home shortly before 1.00a.m. They were still arguing. 12. The defence case statement put the prosecution to proof that the deceased had been unlawfully killed or that the appellant had caused her death. However if he were responsible for her death, he relied on self defence, and loss of control. At trial he gave evidence in his own defence that during the evening before the deceased went to sleep, she attacked him in his room. Her violence was completely out of character. He used reasonable force to restrain and calm her and after the altercation she was still alive. In the event the loss of control defence was not advanced to the jury. 13. The appellant was arrested. During interview on 8 May he made no comment. By then he was legally represented and had discussed his defence with his legal advisors. His parents were interviewed as potential witnesses on the previous day. Covert evidence 14. This was a case of the utmost gravity in which a young woman had died while staying overnight with the appellant in the home of his parents. The post mortem evidence did not conclusively exclude the possibility that she had died from natural causes, but she was a very young woman, in apparently good health, and there was no apparent reason why she might have done. When interviewed, the appellant had not offered any comment on or about the circumstances of her death in his bedroom. 15. On 17 May at 9.28a.m. the Chief Constable of Dorset authorised the use of intrusive surveillance in the appellant’s home. At 12.25p.m. the authorisation was approved by the Surveillance Commissioner, Sir William Gage. It was valid for three months. Covert surveillance began on 18 May and lasted until 14 June. 16. In due course the approval form was disclosed to the judge. The available content of the recordings made on the basis of the approval was similarly disclosed to the defence in accordance with prosecutorial disclosure obligations. No disclosure was made of the documentation relied on by the Chief Constable and the Surveillance Commissioner in the authorisation and approval processes, but it is clear that the prosecution remained alert to their disclosure obligations throughout the trial, and in particular, in the context of the submission that the content of the recording should be excluded on fairness grounds. 17. The covert recordings provided clear evidence that the appellant had killed the deceased, and that he and his parents attempted to pervert the course of justice. Among the extracts the appellant was recorded on 21 May, saying, “I felt this angry for about a month before. I felt it in me, felt the aggression. Like I felt it every day. Then she just hit me in the face and I was putting up with it. I contained myself for about 20 seconds. She kept punching me and kicking me. I just fucking grabbed her as hard as I could. I just flipped. Grabbed her as hard as I could and went fucking hell. Grabbed her liked that and pushed her like that”. His mother intervened to say “No Elliot. You didn’t do that”. He said “I knew something was wrong at that moment. My mind knew something was wrong. Couldn’t do anything. I went to sleep” and he then described the deceased as a “fucking manipulative cunt”. 18. On 29 May he looked up the law relating to self defence on his father’s computer. On 1 st June the appellant was talking to his brother. He said “I was looking yesterday on-line. Death by strangulation. … typed in, death by strangulation, death by suffocation, manslaughter trial, how to get off innocent, how to get away with serious crimes”. Later that day he said that there was no proof that Emily was killed, and the question was, how did he kill her? 19. On 14 June he said that on the Tuesday, Wednesday and Thursday before 7 May the deceased was a cunt. He talked about the violent thoughts going through his head. He was going “psycho”. No girl had ever pushed him that far and there was nothing he could say to frighten her. 20. Without setting out all the references, the appellant made significant admissions of his responsibility for the death of the deceased. The surveillance also revealed strong evidence that he and his parents were conspiring together to pervert the course of justice. That is the background to the issues raised in the appeal. 21. The single ground is that Dobbs J’s decision was wrong and that the submissions made to her on behalf of the appellant should have found favour with her. The prosecution should have been stopped as an abuse of process: alternatively, none of the evidence derived from the covert surveillance should have been admitted. 22. The foundation for this submission is legal privilege. We agree with Mr Anthony Donne QC that legal privilege is an essential ingredient of the common law system, and indeed the jurisprudence of the European Court of Human Rights. The importance of the principle and its impact on the administration of justice, both as a substantial right and as an evidential rule, has been emphasised in numerous judgments in the House of Lords and the Supreme Court. We need not repeat them. In the present context, it is perhaps more important to underline that the process of covert surveillance by the authorities is intended to be and should be controlled so that it is subject to proper safeguards against misuse and legal privilege, if and when covert authorisation is granted, is properly protected. When granted, and exercised in accordance with the grant, covert surveillance is lawful. 23. The processes are governed by the Police Act 1997 and the Regulation of Investigatory Powers Act 2000. Neither statutory provision addresses questions about the admissibility of evidence at any criminal trial. Nevertheless, as Mr Donne pointed out in argument, considerable attention is paid to the potential danger of interference with legal privilege. The relevant Code of Practice, deriving from the Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) (Order 2010) permits the use of covert surveillance even when the surveillance may result in the acquisition of knowledge of matters subject to legal privilege as defined in s.98 of the 1997 Act. Nevertheless the fact that this result may follow requires to be addressed when an application for covert surveillance is being made. Indeed if covert surveillance is likely to result in the acquisition of knowledge and matters subject to legal privilege, the appropriate authorisations or approval cannot be made unless there are exceptional and compelling circumstances justifying it. although it is permissible for covert surveillance to be authorised even if the result may involve the acquisition of legally privileged matters, the risk should be recognised, and so far as possible removed entirely. Unless the risk can be entirely removed, it is necessary for steps to be taken and for the application to explain the steps which will be taken to ensure that any such information will not be used, either for the purposes of further investigations or during the course of any subsequent criminal trials. 24. Without a laborious exposition of all the relevant provisions, it is clear that arrangements for covert surveillance must focus meticulous attention on a need to preserve legal privilege, and where, for one reason or another, the relevant precautions have failed, to ensure that the interests of the potential defendant during the course of the investigation itself, or at any other subsequent trial, are not prejudiced in consequence. Thus the arrangements for authorised covert surveillance recognise the sensitivity and importance of legal privilege. 25. The covert recordings which took place in accordance with the approval granted by the Surveillance Commissioner covered something very close to 300 hours of recorded conversations between the appellant and his parents, his grandmother, and a friend. If the appellant had known about the surveillance neither he nor his parents would have said anything which would potentially incriminate them. Presumably, too, he would not have said anything about his discussions with his lawyers. At trial, the judge allowed the Crown to adduce potentially incriminating admissions made by the three defendants, as recorded during the covert surveillance. She was not invited to, and she did not admit, any evidence which might have been subject to legal privilege, or which repeated or reflected anything said by the appellant and his legal advisors to each other, or indeed what the appellant said to others he had said to or been told by his legal advisors. Moreover there is nothing to suggest that any information which might have been subject to legal privilege was disclosed to investigating officers, and none of the evidence adduced against the defendants by the Crown reflected evidence obtained as a result of communications to investigating officers of material subject to legal privilege. 26. An issue relating to possible waiver was advanced by the Crown before Dobbs J. Mr Donne suggested that any argument to the effect that the appellant had waived privilege should be rejected. We are inclined to agree, but need not decide, that waiver of legal privilege extending to the world at large, including an unsuspected listener, is unlikely to follow from a conversation between a man and his immediate family in which he and they may reasonably discuss the legal advice he has received about a problem which will or may have a dramatic effect on his and indeed their lives. If Mr Donne’s submission based on legal privilege were otherwise well founded, we should assume that waiver was not apt to describe anything overheard by any member of the surveillance team. 27. Mr Donne drew careful attention to a number of instances which he contended showed, first, that privileged material was recorded; second, that officers in charge of the recording process switched the recording equipment off, yet continued to listen in to privileged material; and third, the barrier designed to keep the investigating officers separate from those responsible for surveillance was not fully maintained. We examined the relevant passages in the material during the hearing in open court. There were indeed limited brief references by the appellant to his solicitor and what was said by him. Occasionally, for very brief moments the officers continued to listen to the conversation after the recording equipment was disconnected from the audio feed. Nevertheless what a study of the material as a whole reveals is that those responsible for the surveillance used their best efforts to comply with the principles relating to legal privilege, and to implement covert surveillance so as to avoid any infringements. We cannot discern any basis for suspecting that there was any deliberate or intentional breach of legal privilege or that any of the officers responsible for covert surveillance acted otherwise than in good faith. What is more, having examined the evidence as a whole, it is entirely apparent that nothing which became known to the surveillance officers resulted in any further or wider investigations, or produced a single item of incriminating material to strengthen the case against the appellant, other than properly recorded observations he made to his parents. 28. We can now place Mr Donne’s submissions in their proper context. The lawfulness of the approval to surveillance granted by the Commissioner cannot be impugned. (Section 91(10) of the Police Act 1997). The surveillance was lawful. The relevant disclosure took place. The record of incriminating conversations was unchallenged. We understand that there may be extreme cases in which the prosecuting authorities (using the words in a comprehensive way) may interfere so significantly with the legal privilege of a defendant that the very integrity of the administration of justice may be undermined. That, however, did not happen here. Lawful covert surveillance produced damaging evidence against all three defendants. The process worked lawfully: any flaws were minor and short, and inconsequential. There were no grounds to justify a stay. 29. Mr Donne suggested that this material must, at the least, give rise to concern whether or not the application for authorisation and subsequent approval of covert surveillance may have been flawed. Therefore Dobbs J should have examined the material on which these different processes were based. She declined to do so. The prosecution assured her that they had given proper thought to their disclosure obligations, and there was no relevant material in their possession which would be of assistance to the appellant. That was a sufficient basis for the application by Mr Donne to be refused. In any event given the provisions of s.91(10) of the 1997 Act we wonder what might have followed if the material sought by Mr Donne had indeed been disclosed to him. He suggested that it would have reinforced his application to exclude evidence under s.78 of the 1984 Act. To that question we can briefly turn. 30. The s.78 application (which for present purposes encompasses Article 6 and 8 of the European Convention of Human Rights) was doomed to failure. As to the authorisation and approval, it seems clear that the prosecution would have disclosed any material helpful to Mr Donne. From the fact that none was disclosed, we deduce that there was none. In any event none of the evidence of the conversations between the appellant and his family adduced in evidence was tainted by unfairness falling within s.78. The only unfairness was that the appellant chose to say the things that he did because he did not realise that they were being recorded. The object of covert surveillance of the kind deployed in this case was to discover the truth, and, the evidence of what the appellant said about the death of the deceased was put before the jury while anything containing even a whisper of conversations protected by legal privilege was excluded. That was not unfair. 31. Having examined the ground of appeal, we are satisfied that the appellant was convicted on overwhelming evidence after a fair and proper trial. This conviction is safe and the appeal was accordingly dismissed. Sentence 32. The judge carefully addressed the relevant factors bearing on sentence. She acknowledged that the deceased was a lovely girl, brought up in a close knit family, whose life had been extinguished suddenly and needlessly. The appellant did not understand the meaning of love and his attitude to the relationship had been entirely self focussed. She noted his lack of remorse and his behaviour and the boasts he had made about how he would be a millionaire even after doing 10 years in prison. The contents of an interview he had had with a newspaper in New Zealand were galling and breathtaking. His attitude to the deceased after he had killed her demonstrated that he did not have the slightest glimmer of remorse for what he had done or its impact on the deceased and those who loved and knew her. 33. No credit was appropriate for a guilty plea. 34. In accordance with statute the agreed starting point but, we emphasise, the starting point, was a minimum term of 15 years, but on examining the evidence, and the cross-examination of the appellant, the judge concluded that there was an element of pre-meditation in the defence which was committed against a background of bullying, harassment and violence. Despite Mr Donne’s submission, we can discern no basis for criticism. The evidence does not suggest that the killing was planned in the sense that the appellant had decided that he would kill her that night in the precise circumstances in which he did kill her, but it is clear that for some time, because of wounded pride, he entertained murderous thoughts, which culminated in her death. The judge was prepared to allow for an element of mitigation, bearing in mind that the appellant was not quite 20 years old at the date of the offence. She made some allowance for his relative youth. 35. In essence Mr Donne submitted that however the sentencing decision was approached, there was no justifiable basis for departing from the statutory starting point. We disagree. Dobbs J reflected on all the relevant issues. With the starting point clearly in her mind, she carefully considered all the relevant features bearing on her decision. At the end of a trial in which she had ample evidence from the appellant’s own mouth, both in the form of texts, and in the form of conversations during the covert surveillance, and in his evidence at trial, to assess the appellant’s criminality and his attitude to the dreadful crime he had committed. No basis for interfering with her decision has been shown. 36. Accordingly the appeal against sentence was dismissed.

```yaml citation: '[2013] EWCA Crim 642' date: '2013-05-09' judges: - MR JUSTICE GLOBE ```