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

No: 2007/6377/A6 Neutral Citation Number: [2008] EWCA Crim 707 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 5 March 2008 B e f o r e : LORD JUSTICE DYSON MR JUSTICE PENRY-DAVEY SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - - R E G I N A v JAMES MACDONALD - - - - - - - - - - - - - - - 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 Upton appeared on behalf of the Appellant - - - - - - - - - - - - - - - J U D G M E N T 1. SIR CHRISTOPHER HOLLAND: James Terence George MacDonald is aged 23. On 9th November 2007 at Lewes Crown Court he pleaded guilty to an offence under the Criminal Justice and Public Order Act. The offence had originally been indicted as intimidation, contrary to section 51(1) of that Act, but we are told that in the event the indictment was amended so that he pleaded guilty to revenge, contrary to section 51(2) of the Act. In the event he was sentenced to four years' imprisonment, the judge directing that that period be discounted by a period of 75 days that the judge believed he had spent in custody on remand. He appeals against that sentence with the leave of the single judge. 2. Turning to the facts, they are as follows. The matter starts on 29th September 2006 when he was convicted of affray at Lewes Crown Court following a trial. A Crown witness at that trial had been a gentleman, David Rees-Avery. The end result of that conviction was that he was sentenced to 12 months' imprisonment and there was a 12 month extension period imposed for the licence. 3. On 10th May 2007 this appellant was released from custody on licence. On 22nd July 2007 the victim, David Rees-Avery was with his teenage sons in the Asda supermarket in Brighton. Also present in the supermarket was this appellant. One of the sons was approached by the appellant who said: "You're part of the Avery family". The appellant then noticed the victim and threatened: "I'm going to fucking have you outside, I'm going to fucking do you, I'm going to kill you." The appellant was accompanied by another person who tried to intervene. The victim went down another aisle in the supermarket and continued with his shopping until he saw the appellant again, who walked straight towards him and said: "I'm going to have you, you fucking arsehole". The appellant then swung a punch at the victim. The victim tried to duck out of the way but the punch landed on his right ear. The victim's ear became red and sore and he suffered a headache. The victim report the matter to the police and the appellant was arrested. In interview he made no comment to all the material questions, but he was subsequently picked out by the victim at an identification procedure. The victim made a victim impact statement indicating that the incident had made a profound impression upon him and there were long-lasting effects. 4. Turning to the other material that was before the sentencing court, first, the appellant had a bad record for violence. Second, however, there was a letter before the court from the CARAT team (Counselling, Assessment, Referal, Advice, Throughcare team) at Lewes Prison indicating that the appellant whilst in custody had been addressing his problems and had indicated to the team that he had a genuine desire to make changes to his lifestyle. 5. The judge in his sentencing remarks indicated that he took a very strong view about this form of conduct: "You have now exacted revenge upon a decent member of the public who you called as a witness in a criminal trial. Intimidation and revenge on those who give evidence is a very serious offence. As I am sure you appreciate, it strikes at the very heart of our criminal justice system. Why? Because responsible law-abiding members of society are required, often, to do their public duty as a witness and give evidence. If they are prevented from doing that vital duty because they live in a climate of fear that some brutal thug is going to come and get them either if they give evidence or in order to prevent them giving evidence, our entire system of Criminal Justice crumbles into nothing." He then said: "Taking into account your plea, and I give you full credit for that, and taking into account your antecedent history, which is dreadful, consistent with my duty to the public, and in order to impose a deterrent sentence to deter others from assaulting those that have testified against them, or intimidating them, the least sentence I impose upon you is one of four years' imprisonment." 6. The essential point taken by counsel on behalf of this appellant relates to the fact that the maximum sentence for this offence as prescribed by Parliament is five years. Thus it is arguable that the judge had as his starting point the maximum sentence and thereafter made some discount against it in order to arrive at four years. That then raises the second point which is this, that if that is the judge's thinking then the amount of discount was wholly inadequate. It should have been more like a third. That is if he was minded to start with the maximum sentence then the end result should have been a sentence of three years four months. This then leads on to the next submission and it is to this effect, this was not a case in which the maximum sentence could be justified. Granted it was serious, but it was not at that level of seriousness. 7. These points have weighed with this court. In the judgment of this court an appropriate starting point was four years. That should have been discounted by a third for the plea of guilty and that leads to the sentence of two-and-a-half years. Our first decision therefore is to quash the sentence of four years and substitute for it a sentence of two-and-a-half years' imprisonment. 8. There are two further matters. The first is this. The judge was unhappily misled by counsel in the court below. He was led to believe that the appellant had been in custody on remand awaiting sentence whereas the true position was that he had been in custody subject to recall, that is, serving the sentence originally imposed in September 2006. Two points therefore arose. The first was as to whether the judge should have given any direction as to whether this fresh sentence should be served concurrently or consecutively. Before us today Miss Upton helpfully points out that the matter is governed by the Criminal Justice Act 2003, section 265 , which indicates that the fresh sentence should be served concurrently. Therefore we make the position clear that the two-and-a-half year sentence is to be served concurrently with the sentence that was imposed in September 2006. By the same token, however, there was no basis for the order made by the judge, namely that the 75 days spent in custody should count against the sentence. We make no order in that regard. The period spent in custody prior to sentence was spent serving the original sentence of imprisonment. 9. In summary, therefore, the sentence of four years is quashed and in its place there is a sentence of two-and-a-half years, to be served concurrent to the preceding sentence.

```yaml citation: '[2008] EWCA Crim 707' date: '2008-03-05' judges: - LORD JUSTICE DYSON - MR JUSTICE PENRY-DAVEY - 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} ======

Neutral Citation Number: [2022] EWCA Crim 962 Case No: 202101151 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT IN PRESTON HHJ SLINGER QC T20067558 Royal Courts of Justice Strand, London, WC2A 2LL Date: 12/07/2022 Before: LORD JUSTICE WILLIAM DAVIS MRS JUSTICE CUTTS DBE and HHJ DEBORAH TAYLOR Sitting as a Judge in the Court of Appeal - - - - - - - - - - - - - - - - - - - - - Between: PAUL CRERAND Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Matthew Stanbury (instructed by Youngs Law ) for the Appellant Mr Peter Glenser QC (instructed by The CPS ) for the Respondent Hearing date: Thursday 30th June 2022 - - - - - - - - - - - - - - - - - - - - - Approved Judgment I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. Covid-19 Protocol: this judgment was handed down by the judge remotely by circulation to the parties’ representatives by email and release to The National Archives. The date and time of hand-down is 14:00 on Tuesday 12 th July 2022 MRS JUSTICE CUTTS DBE : 1. On 30 June 2022 we heard this appeal and the psychiatric evidence at the conclusion of which we granted the application for leave to appeal against sentence and to adduce fresh evidence. We quashed the sentence and substituted a hospital order with a restriction under sections 37 and 41 of the Mental Health Act. These are our reasons. 2. On 11 December 2006 at the Crown Court at Preston, following his earlier plea of guilty to an offence of wounding with intent contrary to s.18 of the Offences Against the Person Act 1861, the applicant was sentenced to life imprisonment with a minimum term of 2 years, 9 months and 25 days. 3. He seeks an extension of time of approximately 14 years and for leave to appeal against that sentence on the basis that in the light of the evidence now available the appropriate disposal was a hospital order with restriction pursuant to ss. 37 and 41 of the Mental Health Act 1983. 4. There was no psychiatric report before the sentencing judge as the applicant did not wish to have a medical report. It is conceded therefore that the judge could not have imposed a hospital order at that time. 5. From 2009, whilst in custody the applicant has been receiving anti-psychotic medication. He remained within the custodial estate until he was transferred to Ashworth Hospital on 14 March 2017 under s.47 of the Mental Health Act 1983. A diagnosis of paranoid schizophrenia was considered in prison but was not made conclusively until after his admission to Ashworth hospital. It is the view of Dr Collins, his responsible clinician at Ashworth Hospital, that he was suffering from this condition at the time of the offence with which this appeal is concerned. 6. The outcome this appellant seeks to achieve is to have his release and terms of release determined by the First Tier Tribunal under the Mental Health Act 1983 and care after release being provided through health services rather than having a determination on release and the terms of release determined by the Parole Board and the regime after release superintended by the applicable licence regime and supervision by the Probation Service. The appellant seeks to appeal his sentence to achieve that objective in reliance on fresh evidence which he seeks to have admitted under s.23 of the Criminal Appeal Act 1968. 7. The question for this court is therefore whether to admit the fresh evidence and, if so, whether on the basis of that evidence, we can conclude that the sentence passed by the judge should have been a hospital and restriction order or whether the sentence of life imprisonment was correct. We agreed to hear the evidence of Dr El Metaal, a consultant forensic psychiatrist called by the applicant and to consider the reports of Dr Collins and Dr Cummings (the latter instructed on behalf of the respondent) de bene esse. The facts and background 8. The applicant had a significant antecedent history before the offence with which this court is concerned. In June 1997, aged 14 years, he was sentenced to 5 years detention for possession of an explosive substance and violent disorder in which he was part of a gang that threw petrol bombs into a shop. On 21 May 2001 he received a sentence of two years detention for affray and criminal damage. Whilst in custody for those offences he and an associate imprisoned and attacked another detainee, pouring boiling water mixed with sugar on him and beating him with the leg of a chair. The prison authorities were unable to free the victim to give him medical attention for a period of five hours. The applicant was sentenced to five and a half years detention and was released on licence only two weeks before committing the offence, the sentence for which is the subject of this appeal. Between his conviction aged 14 and being remanded for that offence he had spent only fifteen weeks at liberty. 9. Having been released on licence, the applicant returned to live with his mother and brother. On 26 July 2006 at just after 5 PM the applicant approached the victim from behind as he was sitting on the communal steps to the block of flats in which they both lived and struck him once to the head with a hammer in an unprovoked attack. The wound was pouring with blood and required stitches. A neighbour intervened and the applicant was arrested shortly afterwards. He was later to tell the author of the pre-sentence report that he would have been willing to continue the attack and did not care if he killed the victim but he noticed that there were children present who were upset. The motivation for the attack was said to be an earlier altercation between the victim and the applicant and tensions between the applicant’s family and the victim which escalated when the applicant was released from prison. Sentence 10. As we have said, the applicant, who was aged 24 years at the time of sentence, refused to have a medical report for the purpose of sentence. The judge had the benefit of a pre-sentence report dated 6 December 2006 written by a Probation Officer named Doug Smith. Mr Smith knew the applicant well as he had been his Supervising Officer since his release on YOI licence in February 2001. In the report Mr Smith set out the applicant’s account of the offence which spoke of a history of problems between the victim and the applicant’s family. On the day of the incident, after the earlier altercation, the applicant said he had gone for a walk to calm down but remained very angry and brooding. He then made the decision to attack the victim and cause him serious injury. The applicant said he was at pains to be very honest in his account to Mr Smith. He said he had no remorse or regret regarding the victim although on reflection he was relieved not to have killed him. 11. The report set out what was described as an “appalling record of violent or aggressive incidents” towards both staff and inmates since his incarceration. The applicant was not considered suitable for parole when serving either previous sentence. When asked to explain his violent offending the applicant would justify it in terms of reacting to some perceived insult or threat. On reflection sometime later he would say that perhaps they did not deserve it after all and that he over reacted. In the view of Mr Smith the applicant seemed unable to conceive of an alternative way of dealing with such problems as insult or threat. He reacted badly to perceived insults or provocations. His aggression had been a feature of his behaviour since childhood. Mr Smith knew of no psychiatric or psychological issues. He considered the applicant to be a very high risk to anyone with whom he became angry. With sadness he could offer no arguments against a life sentence. The applicant himself said that he would prefer such a sentence to help him stay out of trouble when released. 12. In sentencing the applicant, the judge observed that he had a history of violent offending and causing danger to others. He noted that the applicant had said he did not wish a medical report which could have given the court wider information as to his position and might have set out reasons against the imposition of a life sentence. The judge accepted that the applicant recognised that he had a real problem and was anxious to receive help. The judge concluded that the applicant posed a significant risk of causing serious harm by the commission of similar offences and that with all he knew about the applicant the sentence had to be a discretionary life sentence with the minimum term we have already specified. The applicant’s history in custody. 13. In the course of his sentence the applicant has been placed in a number of prisons. In 2007 and 2008 he committed further acts of violence on staff and other inmates. 14. In April 2009 he engaged with psychology to look at the link between violence and his paranoid thoughts. A psychiatrist started him on antipsychotic medication. 15. On 6 th October 2009 the applicant completed his tariff. 16. The applicant has remained on antipsychotic medication since April 2009 although there were occasions when he would stop taking it. At various times the dosage was increased and changed. He has received a total of fourteen adjudications in the course of his sentence. He has been denied parole on four occasions. 17. The applicant has most frequently spoken of recurring violent and paranoid thoughts which he has said began at the age of thirteen or fourteen. The frequency and intensity of them fluctuates over time. The applicant has said that not only have many of his assaults in prison been related to these thoughts but so were the offences he committed in 2001, 2002 and the offence the subject of this appeal in 2006. On two occasions in 2016 he handed in weapons he had made in the hope of assaults being prevented. 18. As we have already said the applicant was admitted to Ashworth hospital on 14 March 2017. He was seven years past his tariff at this point. It seems he settled there until the Spring and summer of 2018 when his symptoms exacerbated. He improved in October 2018 and in 2019 moved to a medium dependency ward where he remains. He started attending a course entitled “Life minus violence”. On 7 February 2020 he was granted ground parole. The plan in 2020 was, if he remained settled, to be referred to his Regional Secure Unit for an assessment of suitability to transfer there which would require the agreement of the RSU and the Ministry of Justice. 19. It is said by Dr Collins, the applicant’s responsible clinician, that in the three years since his admission to Ashworth there has been no consideration of him being returned to prison. His illness is difficult to treat and he is prescribed the strongest of the available antipsychotic agents. His symptoms are now so reduced that in the protected environment of Ashworth and with the support of staff he can manage his behaviour. He complies with his medication even though it causes him significant side effects. He is compliant with his care plan. The fresh evidence 20. The applicant seeks to rely on the fresh psychiatric evidence from Dr Collins in the written report to which we have already referred and the written and oral evidence of Dr El-Metaal, a consultant forensic psychiatrist. 21. Dr Collins considers that the applicant suffers from paranoid schizophrenia. That is a diagnosis with which all psychiatrists, including Dr Cumming for the respondent, agree. In his view the applicant was suffering from this condition at the time of the offence with which we are concerned. It has been the dominating influence in his life and the main instigator of his repeated aggression. In consequence his adult life has been spent almost entirely in one or other form of secure detention. In reaching this conclusion, Dr Collins relies on the applicant’s account, his mitigation in 2006 to the effect that he overreacted to perceived insults and the pre-sentence report in which the author spoke of his violent response to perceived insults or threats. 22. In Dr Collins’ view the applicant’s decision not to have a medical report at his sentence was understandable in circumstances where he had had little contact with psychiatric services, did not know that he was suffering from a mental illness and feared the stigma in custody of being thought to have a mental illness. In Dr Collins’ opinion, had the applicant been willing to see a psychiatrist whilst on remand and had spoken about his experiences as openly as he has at Ashworth, a hospital order with a restriction would have been a suitable disposal of the case. It is his view and that of his current care team that he is better managed in the mental health system rather than the prison system. 23. In his written report and in his oral evidence before us , Dr El-Metaal agrees with the opinions of Dr Collins. The applicant he says is suffering from paranoid schizophrenia and it is more likely than not that he was suffering from this condition at the time he committed the offence with which this appeal is concerned. It was due to his decision not to be assessed by a psychiatrist that the court did not have significant psychiatric evidence that may have been relevant to sentencing. In his oral evidence, Dr El-Metaal observed that the applicant suffers from a learning disability in addition to paranoid schizophrenia. In his view it is the combination of these conditions which most likely explains the applicant’s unwillingness in 2006 to comply with the obtaining of a psychiatric report. 24. In Dr El-Metaal’s opinion there is significant reliance in managing risk on the applicant complying with his prescribed medication regime. He currently has capacity to consent to his medication and has the ability to withdraw that at any time. Therefore the mainstay of his future risk management would be in the treatment of his psychotic illness, careful monitoring of his mental state and of his medication compliance. The expertise required to effectively achieve that would be via mental health services and in the first instance a community forensic mental health team. It is clear that when he is assertively treated with antipsychotic medication there is a significant improvement in the applicant’s mental state and a concurrent reduction in violent incidents. In Dr El-Metaal’s view the applicant will need lifelong treatment and supervision by mental health services for his mental disorder. 25. In his view it is important that individuals with the right level of mental health expertise are involved in leading and monitoring the applicant’s presentation. It is essential that he has access to urgent psychiatric treatment when required, particularly in the review of early signs of relapse and for him to have clear accessible urgent psychiatric treatment without delay if insight is lost via the Mental Health Act. He points out that prison has been unsuccessful in treating and containing the applicant’s risk to others and he would have concerns about the suitability of the prison in managing any future risk relevant paranoid episodes. The applicant has benefitted from the well-established rehabilitation pathways in secure psychiatric services. An order under s.37/41 of the Mental Health Act would ensure that pathways into hospital are clear and immediate in the event the applicant breaches his mental health conditions in the community. 26. In his oral evidence Dr El-Metaal assisted the court further on the applicant’s present situation and the best way to protect the public should he be released. i) There is little if any prospect of the applicant being returned to prison from hospital. If he were to be returned to prison there would be every prospect of him being sent back to hospital before he could attend any parole board. His treatment does not only consist of medication but also the support of the nursing staff and psychological and other interventions which are not available in prison. In the doctor’s view he is likely to relapse if returned to prison. He will remain a patient indefinitely. ii) He is unable to apply for parole in the ordinary way whilst a patient in hospital as a result of a transfer under s.47 of the Mental Health Act.  Before he could apply for parole, the applicant first would have to obtain a determination from the First Tier Tribunal that the criteria for detention in hospital no longer were met.  Only then would he be able to apply for parole.  As a general rule that application will be made from hospital.  The test for release on parole is different to the criteria for detention in hospital.  If the applicant were not to satisfy that test, the Ministry of Justice would consider whether to return the applicant to prison or whether he should remain in hospital. iii) The applicant is highly treatment resistant which means that he does not respond to normal anti-psychotic medication. He is on almost 200% of what would be considered as the normal dose. This has significant side-effects which he has been willing to accept. The risk of relapse is high if there is even a slight adjustment to his medication. iv) There is compelling evidence that when his medication is optimally prescribed and taken the risk of violence is effectively minimal. This is evidenced by the fact that the applicant has been moved from conditions of high security to a medium dependency ward. v) The applicant is going to need a significant support package if he is deemed suitable for release. In all probability he will be placed in accommodation which is run 24/7 by trained medical staff who will monitor him. He is likely to have a care plan which requires him to take his medication in the presence of staff. Should he not comply with requirements set by the FTT he would immediately be recalled to a secure psychiatric setting. He would be unable to change his accommodation without the express approval of the Ministry of Justice who would be notified significantly in advance of any proposed move. He would be graded and assessed all the time. vi) Dr El-Metaal also drew the court’s attention to chapter 22 of the Code of Practice issued for the Mental Health Act 1983 which governs the recall of conditionally discharged restricted patients. Paragraph 22.79 requires quarterly reports from the patient’s clinical and social supervisors which should detail his progress, current presentation and any concerns about risks to themselves or others. If at any other time the clinical teams become concerned over a patient’s behaviour or presentation they must investigate them and contact the Ministry of Justice straight away. Paragraph 22.82 sets out that a patient will be recalled where it is necessary to protect the public. Public safety will always be the most important factor. Recall does not require evidence of deterioration in the patient’s mental health, only a change since the discharge decision. Because recall decisions always give precedence to public safety considerations this may mean that the Secretary of State for Justice will decide to recall on public safety grounds even if the patient’s supervisors are of the view that recall would be counter therapeutic for the patient. Dr El-Metaal said that he had seen that happen on occasions. 27. Dr Cumming in his written report confirms the diagnosis of paranoid schizophrenia both now and at the time of the offence. He does not consider that in 2006 a diagnosis of mental illness would have been high on the list of explanations for the applicant’s behaviour given his peer group and the impulsive nature of his offending. As time has gone on there has been the opportunity for further exploration of reasons for his behaviour. Having a psychiatric report at sentence would not therefore have necessarily led to the diagnosis of mental illness. He defers to the applicant’s treating team on the question of whether the applicant is likely to be safe to be released in the foreseeable future. Appeal 28. Mr Stanbury, who appears for the applicant today although not in the court below, submits that on the basis of the fresh evidence the appeal should be allowed and a hospital order with restriction substituted in its place. 29. He submits that the explanation for not adducing psychiatric evidence at sentence as explained in Dr Collins’ report is understandable in circumstances where the applicant did not know that he had a mental illness and sought to avoid the stigma of a possible diagnosis. It is clear that the applicant requires lifelong treatment or his illness. The evidence of Dr El-Metaal shows that the index offence was a manifestation of the applicant’s chronic persecutory belief system and attributable to his illness. Although serious, the offence was committed by reason of his illness by which his culpability was reduced and the primary need therefore is for treatment as opposed to punishment. The appropriate regime upon release, to provide maximum protection for the public is on the evidence that under the Mental Health Act. 30. Mr Glenser QC on behalf of the respondent submits that the sentence imposed by the judge was neither wrong in principle nor manifestly excessive. He points to the fact that although the applicant was first seen by a psychiatrist in April 2009 and prescribed antipsychotic medication, he was not transferred to hospital until 8 years later in 2017. Dr Cummings has stated that the diagnosis might not have been made even if the applicant had been assessed by a psychiatrist before sentence. In this regard the applicant is in no different position from any other prisoner serving an indeterminate sentence that develops into a psychiatric illness whilst in custody. Further he submits there may be a tension between what is best for the applicant and what best protects the public. Should the court decide to quash the sentence imposed he invites us to substitute a hybrid order under s.45A of the Mental Health Act in its place. Discussion 31. It is plain that at the time of sentence the judge had no power to make a hospital order under the Mental Health Act. There was no evidential basis for him to do so. It is clear that the judge would have liked a psychiatric report to assist him in sentencing but the applicant’s refusal in that regard gave him no choice but to impose the discretionary life sentence that he did. The applicant was plainly dangerous. No possible criticism can be made of the judge in that regard. 32. It is now common ground amongst the psychiatrists that the applicant suffers from paranoid schizophrenia and in all likelihood did so at the time of the offence. It is important to observe that even if the judge had a report to that effect, he was not bound to impose a hospital order on the applicant. As this court made clear in R (Vowles) and Secretary of State for Justice and the Parole Board [2015] EWCA Civ 56 it is for the judge to decide the proper disposal of the case on all the evidence in the case. The judge must consider the alternative sentences open to him or her. 33. This case was sentenced in 2006. If the judge had been in possession of a psychiatric report which contained a diagnosis of paranoid schizophrenia and a recommendation under s.37 and 41 of the Mental Health Act he would have had two options – either to make such an order or to impose a sentence of imprisonment. The so called hybrid order under s.45A of the Act was not open to him. Until the amendment of the section which came into effect in 2008, such an order could only be made where the offender suffered from a psychopathic disorder. Dr El-Metaal said that although this would have been explored as a possibility in 2006 it is now known that the explanation for the applicant’s behaviour is his paranoid schizophrenia. That is not a psychopathic disorder. 34. As Vowles makes clear at [54(iii)] where a court is considering a life sentence under the Criminal Justice Act 2003, (following the guidance in R v Burinskas [2014] EWCA Crim 334 ) as the judge was in this case, if the mental disorder is treatable, once treated there is no evidence he would be in any way dangerous and the offending is entirely due to that mental disorder, a hospital order under s.37/41 is likely to be the correct disposal. The judge should also consider whether the powers under s.47 of the Mental Health Act for transfer to prison for treatment would, taking account of all the other circumstances, be appropriate. In this regard the judge would be considering the extent of culpability attributable to the mental disorder, the need to protect the public and the regime on release. 35. Against that background we have considered the fresh evidence in this case. We are grateful to Dr El-Metaal who was thorough in his approach and a distinctly impressive witness. 36. It is clear on that evidence that the applicant was suffering from paranoid schizophrenia at the time of the offence in 2006 and that the offending was attributable to that illness. We were concerned that it was by the applicant’s own refusal to co-operate that no psychiatric report was before the judge for his sentence but are satisfied on the evidence that this was likely due to the combination of his learning disability and mental illness. 37. We have considered what was said in Vowles at [48]. We acknowledge that the court must examine with care the broader issues of the need to protect the public and of the regime on release. We note what was said in relation to the second of those issues in Attorney-General’s Reference (No 54 of 2011) [2012] Cr App R (S) 635. Attention was drawn to the distinction between the recall regime when a person is released from a prison sentence and the recall regime applicable to a patient subject to an order under the Mental Health Act. Whatever the position then, we consider that the Code of Practice to which we have referred at [26(vi)] above and which was published in 2015 has diminished the distinction significantly. Accepting that, in the case of someone like the applicant, public safety must be a primary concern, that concern in the circumstances of this case can be met by a disposal under the Mental Health Act. 38. We note that the applicant is highly unlikely ever to be returned to prison for the reasons Dr El-Metaal gave. In those circumstances it is highly unlikely that he will be considered for release by the Parole Board. It is appropriate in our view for the doctors who are responsible for his care to consider whether he is suitable for release and, if so, to propose the necessary conditions for a First Tier Tribunal to consider and determine. 39. We conclude that, taking into account the nature of his mental illness, its causal connection with the offence, its treatability and the clear evidence that his condition will be better managed on release under the Mental Health Act regime and the public better protected, this appeal succeeds. We grant leave for an extension of time, for leave to appeal and to adduce fresh evidence. We quash the sentence of life imprisonment and substitute for it a hospital order under s.37 with a restriction under s.41 of the Mental Health Act.

```yaml citation: '[2022] EWCA Crim 962' date: '2022-07-12' judges: - LORD JUSTICE WILLIAM DAVIS ```

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

Neutral Citation Number: [2014] EWCA Crim 102 Case No: 201001241 C1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON A REFERRAL BY THE CRIMINAL CASES REVIEW COMMISSION PURSUANT TO SECTION 9 OF THE CRIMINAL APPEAL ACT 1995 Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/01/2014 Before : LADY JUSTICE RAFFERTY DBE MR JUSTICE IRWIN and MR JUSTICE JEREMY BAKER - - - - - - - - - - - - - - - - - - - - - Between : REGINA Appellant - and - ERROL CLIVE HEIBNER Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment. Copies of this transcript are available from: WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7414 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Sarah Whitehouse (instructed by Crown Prosecution Service ) for the Appellant Henry Blaxland QC and Rebecca Trowler QC (instructed by Bindmans LLP ) for the Respondent Hearing date: 10 th December 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lady Justice Rafferty: 1. Errol Clive Heibner now 65 on 18 November 1978 in the Central Criminal Court was convicted by a majority of 10 to 2 of murder and sentenced to life imprisonment. On 1 December 1978 the Full Court refused his application for leave to appeal against conviction. His co-accused Robert Rossi was acquitted of murder. 2. He appeals against conviction upon a reference by the Criminal Cases Review Commission (‘the CCRC”) under s.9 Criminal Appeal Act 1995 on the following grounds: i) His confession statement was incorrectly admitted and/or inadequately dealt with. ii) New evidence relating to DC Tyers had the jury been aware of it might have affected Tyers’ credibility and led to a different verdict. 3. The CCRC thought potentially relevant to the safety of the conviction: i) the direction that the jury should consider the “truth” of the confession statement; ii) an imbalance in the range of examples the Judge gave for any absence of instruction to his legal advisors; iii) discrepancies in contemporaneous interview notes, going to allegations of oppression; iv) Detective Superintendent O’Brien’s bad character; v) disclosure. 4. He seeks leave to argue further Grounds, going to non-disclosure and to the bad character of police officers. 5. On 8 September 1975 Mr Gold left his family textile business in Goswell Rd, Islington at 5pm with Sheila Brown, the company secretary, leaving Mrs Beatrice Gold in the building. Between 5-5.30pm she was shot 3 times with a .32 revolver. 6. On the day of the murder the Appellant Heibner was on bail awaiting trial for robberies. He was later sentenced to 15 years imprisonment, which he was serving when tried for the murder of Mrs Gold. Before and after the murder he was, in respect of the robberies, under surveillance headed by DCI Adams. 7. The Crown’s case was a contract killing by Heibner acting alone as gunman at the request of persons it could not name. Rossi it suggested was the middle-man. 8. It led evidence that Charles Fagan said Heibner tried to recruit him to injure someone. At the murder Fagan was in custody awaiting trial for armed robbery. He blamed Heibner for his arrest and candidly admitted that his evidence against the Appellant was driven by malice but claimed it was true evidence. Heibner confessed in a written statement of 22 nd October 1975 (exhibit 32, the confession statement) albeit the Crown suggested he had labelled himself as the look-out so as to trivialise his involvement. DC Tyers shortly before the shooting saw him near Angel underground. He lied in his interviews. He changed his alibi notice. He was short of money before the killing and in funds afterwards. He agreed he had burned some of his clothes shortly after the murder. 9. His case was that he had not been involved in any way. He told the jury his treatment over two days in custody coerced his confession that he had been look-out for the gunman. Although he had signed the confession statement he had not said all it recorded. Pre-murder 10. Fagan said that at the beginning of September Heibner suggested Fagan for £1,000 should hurt someone but gave no name. At a public house in Haringey Heibner said he was going to meet someone to find out who was the victim and if not back in 15 minutes Fagan should go to the Trafalgar in Southgate. Fagan saw Heibner outside talking for a couple of minutes to a man before the pair walked towards Manor House underground. Fagan went to the Trafalgar but did not see Heibner. 11. Fagan said on Saturday 6th September Heibner rang saying everything was all right. At 8.30pm the two went to a pub where Heibner explained that he had seen the victim who was to be murdered on Monday 8 th September at a Clerkenwell clothing firm. Fagan told the jury that once he realised this was to be a murder he told H he did not want to get involved. Day of the murder 8 September 12. Heibner, watched by police who were interested in possible robberies, met Rossi. Each man told the jury the meeting was linked to Heibner’s attempts to sell stolen jewellery, Rossi the go-between. Heibner was driven by Parker to the Strand Palace Hotel where he got into a car driven by Rossi. Rossi gave Heibner a box and dropped him near Angel at about 2pm. PC Tyers said that by chance he saw Heibner outside Angel underground station at about 5pm, the time he came off duty. Post murder 13. Parker told Fagan on the day after the murder that he had helped Heibner burn some clothes. On 10 September Fagan saw Heibner give Parker £50 from a roll of bank notes. Joy Heibner Heibner’s step-mother said he arranged that if asked where he were that week she should say he was with her. Elaine Smith his sister said Heibner told her, “I’ve done something nice, and you need not know anything more about it”. Later he said he had “done a jewellers”. Arrest and interviews 14. On 12th September when arrested for robbery Heibner seemed very frightened. He gave a series of explanations for possession of £600. He said he spent 8th September painting his mother’s house. He breathed a sigh of relief when told police were investigating a robbery. On 13th September he made a short statement admitting he had lied to avoid revealing his negotiations about selling the jewellery. He said the truth was that on 8th September he met a man in Gray’s Inn Road at 12.30pm and £600 was repayment of a loan. 15. On 20th October Heibner was arrested again. DS Stimpson interrupted a conversation between Heibner and DCI Adams to say he was investigating something far more serious than robbery. Heibner said, “Oh my God”, shook and trembled violently. 16. On 22nd October he was interviewed four times. From 10.40 to 11.59 and 3.05 to 4pm by Det Supt O’Brien, between 4.15 to 6.15 by DCI Dixon and between 7.30 and 10.35 by Det Supt O’Brien. At the final interview he signed his witness statement, the confession, exhibit 32. 17. Interview 1 – O’Brien said he was with Stimpson who took down a contemporaneous note. He told a shaking Heibner that police thought him the gunman who had been seen in Goswell Road at Angel at 5pm. Heibner said he had not been there. Asked whom he had met outside Haringey dog track on 4th September Heibner said, “Fucking bastard” and added, “I can see it all now. That fucking Fagan has done this because I set him up. That’s it isn’t it”. He admitted meeting Fagan on 5th September. Asked whether he had told Fagan the job involved hurting someone he said “I’ll kill that fucking Fagan. He’s doing this out of spite” and “It’s not a wise thing Fagan’s done to grass me. These people will have him”. Asked whom he said “You’ll see”. He claimed he did not remember giving clothes to Parker to burn. He did not tell Parker to burn his shoes, he gave them to Parker who needed a pair. 18. Interview 2 O’Brien said Heibner denied meeting Rossi in the Strand on 8th September and said “I know I am in the shit but I can’t put other people in it…I’ll never shop that man. If I do I’m dead. If I tell you everything I am dead. What do you think my chances are on this?”. He asked to speak to DCI Dixon as he did not trust O’Brien. 19. Interview 3 as recorded shows DCI Dixon told Heibner just to tell the truth. Heibner said “It’s a big step. Do you realise what I face?” and asked to see his wife. Statements by Fagan and Parker were read to him and he said they had “done him in good”, but he would deny it. He said, “I’ll tell you the truth but I can’t mention any names. I trust you because you were fair to me before….I want to tell you all about it but life’s a long time and then there’s the other people. If I go on remand I’ll never go for trial. I’ll be dead”. His wife was brought in and Dixon recorded her saying “Just tell the truth. That’s all I want you to do”. 20. Interview 4 as recorded shows that when his wife had left Heibner said, “How can I admit it? I think I might take my chance. Look I can’t put my hands up to the shooting. I’ll never come out”. “Did anyone see me go inside the place, or was I just seen outside?” He was asking because he could say he was minding a bloke’s back. He said he would make a written statement. 21. Exhibit 32 was his statement under caution. In it Heibner said he had been given a photo of a man, “the face”, by the man who set up the murder and who told him to meet the face outside Angel underground at 5pm on Monday. H did, and kept watch while the face, whom he had not seen before, did the shooting, gave him the gun at the bus stop as earlier arranged and walked off. Heibner got just under £4,000. 22. Rossi’s interview was on 27 October . O’Brien said Rossi admitted he gave a gun to Heibner. The defence case 23. Heibner told the jury he met Fagan and with another discussed a wages snatch of 17th September in Catford. He had not invited Fagan to hurt someone, rather he had explained that someone might get hurt. If he rang Fagan on Saturday 6th September and said everything was all right it referred to the Catford job. Their only discussions were about robberies, not a murder. 24. He asked Rossi to drive him to Fagan’s flat as Fagan knew a fence for the jewellery. Rossi played no part in the jewellery deal. He took from Rossi in the car a box of jewellery, not a gun. He and Rossi separated at about 2pm. Heibner reached his home in the East End at 6pm. 25. On the afternoon of the murder he was at Angel underground at about 4.35pm having used nearby public conveniences. Then from a stop in Upper Street he caught a bus home. He was on it at the time Tyers said he was outside Angel. The £600 he had on arrest on 12th September was the proceeds of the sale of the stolen jewellery. Suspecting he was under surveillance he burned his clothes to destroy incriminating evidence from the robbery. He told his step-mother to say he was with her for the week because he was planning another robbery. 26. He was in custody for 42 hours before interview. He was left in a lighted cell, one officer in it, another outside. Dixon said he had an obligation to keep his family (some of whom Heibner knew had been interviewed) out of it. Jewellery had been found and he was the only one who could get them out of trouble. Once they had his statement he would get whatever he wanted, as opposed to only cups of tea. When he started the statement he was knackered and just wanted to get out of the room. Stimpson frightened him by saying “Whatever happens, we’ll get it out of you, if we have to kick you from one end of the room to the other”. When he saw the statement in court he couldn’t even remember it. 27. Rossi told the jury he collected a parcel of, he understood, jewellery and went to the Strand Palace where he met Heibner who asked for a lift home and got into Rossi’s car. He denied saying in interview that there was a gun in the parcel. He denied agreeing that he gave Heibner the gun to carry out the shooting. During a third interview, tape-recorded, he said he might make a statement in return for protection. When he asked for a solicitor his request was brushed aside. Leslie Joyce told the jury that in prison he had heard Fagan apologise to Heibner for telling lies about him. Fagan said that DCI Adams and his “little firm” had engineered the situation. 28. In April 1976 Heibner said in an alibi notice that at 4.45-5pm he was in a lavatory in Upper St and at 5pm on a bus. In October 1976 he served an amended notice saying that he got a lift in a car for the first part of the journey. Submissions on this appeal 29. For Heibner Mr Blaxland QC put nine grounds within three categories: the confession, evidence of which the Crown knew but H did not, and evidence post-trial of the bad character of three police officers. Ground 1: the confession and preceding interviews should have been excluded. i) Length of custody 30. H was held for 42 hours before interviews began. Although the Judges’ Rules, which then governed the topic, did not prohibit detention for such a period, under the subsequently enacted Police and Criminal Evidence Act 1984 (“PACE”) the approval of a Superintendent would be required for anything exceeding 36 hours. No explanation was provided for the delay. Even leaving aside Heibner’s complaints about sleeping, approaching 50 hours detention by the time exhibit 32 was written is likely to be relevant to its reliability. 31. In our view it is important to see this submission in context. That Heibner had been at the police station for a considerable period by the time of his statement was explored both on the voir dire and in front of the Jury. Heibner had previous convictions for serious offences, including armed robbery. He was no stranger to police stations or to the routine of arrest and interview. Custody for him was unlikely to have been as challenging as for a detainee unfamiliar with the system or familiar only with criminal allegations lower on the ladder of seriousness. We do not attach importance to this complaint. ii) Access to a solicitor 32. No solicitor was present. DCI Dixon said that he at one stage said: “What you need is a brief” and Heibner replied, “I don’t want a brief”. Heibner denied the exchange. In evidence-in-chief, asked, “Did you ask for Reg Dixon to come?” Heibner said “No I didn’t. I asked for a solicitor.” He claimed he wanted but was not allowed one throughout. Rossi made a like claim. H told the jury “My wife got in touch with my solicitor and they phoned up Bow Road police station, where I was…” at which point the Judge prevented any more being said since it was hearsay. Nothing indicates that O’Brien was cross-examined about it. Nothing suggests it was raised on the voir dire. 33. Although the law in relation to the significance of refusal of access to a solicitor has developed, the right privately to consult a solicitor pre-dated PACE where it was restated in S.58. That said, even a breach of the principle was not determinative of the admissibility of a confession At the time of this trial the focus of challenges to the admissibility of confessions was, necessarily, on voluntariness: Prager (1972) 1 WLR 260 where the court rejected a submission that a breach of Rule II should itself have led to the exclusion of the confession and stated: “Its acceptance would exalt the Judges' Rules into rules of law. That they do not purport to be, and there is abundant authority for saying that they are nothing of the kind. Their non-observance may, and at times does, lead to the exclusion of an alleged confession; but ultimately all turns on the judge's decision whether, breach or no breach, it has been shown to have been made voluntarily.” 34. A judge’s discretion is not now so confined: Peart 14/02/2006 (2006) UKPC 5 . The Board said the criterion for admission of a statement is fairness. If a statement is voluntary, that is strongly in favour of admitting it, notwithstanding a breach of the Judges’ Rules, but the court may rule that it would be unfair to admit it even were it voluntary. 35. Peart aligns the approach to admissibility under the Judges’s Rules to that under PACE, in which the court has to consider the question of voluntariness under S.76 and fairness under S.78. Applying current standards the denial of access to a solicitor, one of the most important and fundamental rights of a citizen, Mr Blaxland argues should without more prompt us to conclude that the entirety of the interviews should have been excluded. 36. He relied on the prevailing winds at the time of the trial. It was, he thought, probably conventional wisdom that were a challenged police officer to explain his fear that a solicitor would alert others the court would accept his anxiety as justification. Additionally, for a suspect, saying one wanted a solicitor was a sign of weakness or seen as such. 37. He invited us to reach a firm conclusion that Heibner was denied access to a solicitor for whom he had asked. He suggested it would be fanciful to think Heibner would have decided he did not need one. His proposed route was that we should find breaches of standards then in place, apply modern approaches, and be led inexorably to the conclusion that the conviction is not safe. 38. Invited to relate that philosophy to these facts he submitted that we should not ask ourselves what Heibner would be likely to have done or said, rather we should address the reality: had proper procedures been followed it is very likely a solicitor would, as Mr Blaxland put it, have “got in the way of a confession”. 39. As to what account we should take of the likely mindset of this particular suspect, a man experienced in the ways of arrest, detention, serious crime, trial, and long-term imprisonment, he argued that we cannot know what Heibner would have said had that cast of mind and experience been put to him. His evidence to the jury (that he wanted but was refused access to a solicitor) is on record but beyond that lies speculation. 40. For the Crown the submission is that it is asserted, as if fact, that Heibner was denied access to a solicitor. The Crown does not accept that he was. It argues that this is one of several examples within the submissions of the dangers of speculating, after 38 years, about what happened during the investigation. 41. It is not possible for us, now, to be confident whether the absence of a solicitor were or were not raised on the voir dire or explored before the jury. There is no evidence that it was. True, Heibner told the jury he had asked for a solicitor. However, it was common ground that, for example in evidence Heibner challenged more of DCI Dixon’s evidence than was put. His evidence on at least that topic, a matter to which we shall return, may have been inconsistent with his instructions. It is impossible now to test the plausible contention that the first his counsel knew of his claim to have asked for a solicitor was when Heibner gave evidence. It would be an unwary court which assumed that all he claimed in his evidence was true. On the other hand we can be confident that at trial parties put their minds to this issue. The submission is at this distance so clouded by conjecture that we are not persuaded that it achieves the power for which Mr Blaxland argued. If we sought fortification for our rejection of it we should find it in the equally plausible possibility that Heibner had indeed given instructions on the topic, but they were that the Crown’s evidence was correct and he had not sought a solicitor. To that extent too, his counsel might, for all this court knows, have heard the contrary assertion for the first time when the jury heard it. We reject these first two aspects of the submissions on Ground 1. i) Failure to caution during the Dixon interview, a breach of Rule II Judges’ Rules. 42. The Judges’ Rules in a preamble read where relevant: “These Rules do not affect the principles (a)… (b)… (c) That every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the processes of investigation or the administration of justice by his doing so; (d)… (e) That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression.” The principle set out in paragraph (e) is overriding and applicable in all cases. Within that principle the following Rules are put forward as a guide to police officers conducting investigations. Non-conformity with these Rules may render answers and statements liable to be excluded from evidence in subsequent criminal proceedings. 43. Rule II where relevant read: “As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence.” 44. Rule IV (e), all written statements made after caution, read: “When the writing of a statement by a police officer is finished the person making it shall be asked to read it and to make any corrections, alterations or additions he wishes. When he has finished reading it he shall be asked to write and sign or make his mark on the following Certificate at the end of the statement: - “I have read the above statement and I have been told that I can correct, alter or add anything I wish. This statement is true. I have made it of my own free will.”” 45. Mr Blaxland placed great emphasis – “it leaps from the page” - on the absence of the Dixon caution, a point not taken at trial and a Ground not advanced by the CCRC. It was he argues a significant and substantial breach of the Judges’ Rules and should have led to the exclusion of the Dixon interview and of the statement under caution. 46. Since the requirement to administer a caution under Rule II applied to all questions and further questions Mr Blaxland submitted that a caution was required at the outset of the Dixon intervew, particularly so that Heibner did not think it a confidential talk with an officer with whom he had a relationship. 47. It was agreed that Dixon did not remind Heibner of the caution. The Crown’s case was that he had already been cautioned at the beginning of the two earlier O’Brien interviews and was once more at the subsequent O’Brien and Stimpson interview. Heibner’s case was that he was not. He also disputed much of Dixon’s evidence, denying he had asked to speak to him. 48. Examination of what if any inculpatory material emerged from the Dixon interview is revealing. According to Dixon it started with Heibner saying, “I’m in the shit, can you help me out?” and Dixon’s “Well you’d better tell me what it’s all about.” 49. As we have already rehearsed, the jury heard that Dixon told Heibner to tell the truth, Heibner described doing that as a big step, said he would deny the damaging Fagan and Parker statements, and that though he wanted to and would tell police the truth, names could not be mentioned, since [were he to identify individuals] he would be killed. 50. Mr Blaxland argued that the Dixon dialogue set the scene for the confession made after caution as O’Brien entered. He conceded there was to Dixon no overt confession but submitted that the content of that interview could not be ignored when assessing what happened in the confession interview with O’Brien. 51. There are insurmountable difficulties in the way of this submission. First, at the start of the confession statement Heibner’s signature appears after “I have been told that I need not say anything unless I wish to do so and that whatever I say may be given in evidence”. Heibner was cautioned three times during 22 nd October and signed a note recording that he was aware of his rights under the caution. Nothing we have heard persuades us that this aspect of the evidence is so called into question as to make us uneasy about it. Yet more compellingly, however, the content of the Dixon dialogue is of limited inculpatory weight, if inculpatory it be. The damage done to Heibner’s defence is done in the O’Brien interview when the confession statement emerges. H was not naïve about police interviews or about mixing with experienced criminals who played for high stakes. We approach this submission with an eye to context. Though Mr Blaxland positioned it as his strongest card, we are not persuaded that it undermines the safety of the conviction, seen as a freestanding argument or, as we shall see, taken together with the balance of the submissions. i) The meeting with Heibner’s wife 52. It was agreed that Heibner asked to be and was allowed to speak to his wife June Westburgh. At some point she was detained for questioning and at the time Heibner was making the confession statement so too was his girlfriend Gloria Priestaff (Miss Westburgh’s sister) and his sister Elaine Smith. Heibner told the jury his decision to confess was clinched when he understood it would mean they were released. 53. Mr Blaxland submits the meeting would have affected Heibner’s state of mind and the reliability of his confession. The police, who allowed the visit, made a contribution to that unreliability. They let him talk to his wife because it was likely to break his resolve, and so it proved. Mr Blaxland argues that even though Heibner made the request it should have been rejected. 54. Once again it is important to see this issue in context. Such meetings were common in the 1970s. There is no suggestion of bad faith in allowing it, and we remind ourselves that Miss Westburgh was not, without warning, brought in to see Heibner, rather he had asked to see her. He told the jury he confessed because he had been led to believe he alone “could get [his family] out of the situation”. The jury had all the evidence necessary to reach a conclusion, if it thought it necessary on this topic, so as to reach a verdict and we see nothing in the point to challenge the safety of the conviction. i) Breach of Judges’ Rule IV (e) 55. Mr Blaxland accepted that even were we with him this was not as important a breach as the failure to caution or the denial of solicitor. The requirement for the Certificate at the end of the statement under caution to be written by the suspect acted as a safeguard against a police officer simply placing a statement before him and saying “sign that”. Here, absent a solicitor, to ensure the confession was voluntary the submission is that the Rules provided a minimum protection against oppression in a police interview. 56. The original handwritten statement was available at trial, seen by counsel, and Heibner had it with him in the witness box. It would be astonishing if, given its importance, counsel did not ask to see it. Though defence counsel were aware that in apparent breach of the Judges’ Rules questions were asked by O’Brien in the course of taking the statement no point seems to have been taken on it. We remind ourselves that Heibner conceded having uttered the most inculpatory words, those upon which the Crown confidently relied. If, on these facts, any difference were made by the manuscript being that of a police officer not of Heibner, it was not great. We are not persuaded that the safety of this conviction is called into question by the words at the top of the confession not being in Heibner’s hand. Ground 2: The evidence of the officers who interviewed Heibner was so lacking in credibility that no jury could safely rely on it. 57. The first two interviews lasted in total 2 hours and 14 minutes. Mr Blaxland submits that the record of the interviews takes less than 10 minutes to read at normal conversational speed and Dixon’s witness statement significantly less time to repeat than the 2 hours the interview was said to last. There is a stark difference between the length of the transcript of Rossi’s taped interview and the length of the transcript of the other interviews with him. 58. However, there is no indication in the summing-up that these points were made. In Maynard and Dudley No.200003731 S1 C.A. 31/07/02 the Court of Appeal quashed a conviction from 1977 on the basis of fresh evidence that an allegedly contemporaneous interview with Dudley could not have been recorded in the time alleged. Mr Blaxland is obliged to concede that such analysis has not been conducted in this case. Additionally, during the interview, statements were read to Heibner. That said, Mr Blaxland relies on the apparent discrepancy as raising serious doubts about the veracity of the police evidence. 59. We do not agree. Experience teaches that dialogue is as likely to include pauses impossible to reduce to writing, repetition not necessarily included in the record, completely irrelevant dialogue not included in the record etc etc as it is to be an automaton-like, measurable progress through exchanges. The notes of interview were described as contemporaneous but no-one suggested they were a verbatim record. There is no evidence before us of, for example, the speed at which Stimpson wrote and whether Heibner spoke slowly, or quickly, or at dictation speed for his benefit. There is recorded Heibner sitting nodding and wringing his hands. He went to the lavatory, deducting a minimum of four minutes from the time spent with the officers. 60. In any event, this material was available to be used had defence counsel thought it useful, important, relevant, or any combination thereof. The mores of the time are likely to have been familiar to counsel, who was well placed to make his own assessment of the overarching conditions surrounding recordings such as this. Finally, counsel would have been likely to ask himself whether, given that it is difficult to identify inculpatory remarks, challenge on the basis set out here was worth the candle. 61. There is nothing in this point. The Dixon attendance point 62. The evidence about the attendance of Dixon at Kings Cross police station is said by Mr Blaxland to defy credibility. According to O’Brien, towards the end of the 3.05 p.m interview Heibner asked to see Dixon of the Regional Crime Squad (“RCS”) whom he trusted. O’Brien said he would arrange it and the interview is shown as ending at 4 p.m. The dialogue with Dixon began 15 minutes later. 63. Dixon told the jury that about midday, angry because interrupted, he got a message to go to the police station. He had no involvement in the murder investigation and simply by chance was in the area when called. This timing did not fit with O’Brien’s evidence. The Judge in summing up described Dixon, who had been cross-examined on the point, as slightly imprecise and not positively saying that he got the call at 12 o’clock. 64. On O’Brien’s account Dixon had fewer than fifteen minutes to master what Mr Blaxland described as detail. Asked “Is it true about the others shopping me?” Dixon could say “Yes they are telling the truth, your relations have made statements and so have other people.” He said he had read Fagan’s and Parker’s statements. 65. That Dixon had mastered the facts and had with him some important documents Mr Blaxland asserts completely destroys his and O’Brien’s account of how Dixon came to be present at Kings Cross police station and to interview Heibner. 66. The summing-up does not reveal whether the speedy grasp of detail point were taken. The discrepancy between O’Brien’s timing and Dixon’s reference to midday was explored, as the summing-up shows. 67. The Judge absent the jury raised with counsel for Heibner what he described as a small matter. He said: “…you were making a point very forcibly this morning….about Mr Dixon having been called to the police station. ……it did not altogether agree with my recollection……….I have checked with the shorthand writer….it seemed to me [her note] was not as positive as you were able to suggest……” And later, to the jury, he said: “Heibner says he never asked for Dixon who came uninvited by him and the suggestion made in Heibner’s defence is that O’Brien brought in Dixon because he thought Dixon would have more success in getting a statement of confession of Heibner than he had had……….[Counsel] ……put before you the point that O’Brien’s evidence as regards Dixon could not be right because……Heibner…..must have asked about Dixon….if he did, shortly before four o’clock, whereas Dixon himself said that he had received a message to go somewhere about midday…..” 68. Mr Blaxland conceded that on this issue he was inviting us, on an evidential matter, to venture in to the role of the jury. That in our view is but one of the difficulties attaching to the argument. Nevertheless Mr Blaxland argued that confronted with such palpable evidence of dishonesty no reasonable jury would have relied on the evidence of either O’Brien or Dixon. He contends that we are entitled to consider whether, had these matters been properly explored, they might have affected the jury’s confidence in the confession and so prompt us to doubt the safety of the conviction 69. Dixon was less than precise about the timing of his summons. Assuming first, since it is of greater advantage to Heibner, that he was called during the later part of the day, arriving at the police station at about 4 o’clock and beginning to talk to Heibner by 4.15, we are not persuaded of a suspicious mastery of detail. The point amounts to no more than how quickly an experienced officer absorbed enough to behave as the record shows. There is no evidence of what he was told over the telephone when summoned. There is no evidence of the detail in which he had mastered the statements he mentioned, the record simply shows that they were read to Heibner. The preponderance of Dixon’s part in the antiphony is on one reading more generalised than Mr Blaxland suggested. Even were Dixon summoned later in the day we are not persuaded that the time available to him to put himself in the position to conduct the conversation as he did must have been beyond what was achievable by an officer of his experience. It follows that were he summoned earlier, as the summing-up shows on the evidence might have been the case, the point dies away. Ground 3. The judge failed to direct the jury that if the confession might have been a result of oppression or other improper conduct, it should disregard it 70. The Judge gave two directions on the correct approach to the confession. “That statement, members of the jury, is of the utmost importance. If it is true and recites accurately what happened you may think it virtually fatal. If it is false, the prosecution’s case against Heibner is undermined virtually to the point of collapse, isn’t it? In considering whether it is true, you must have regard as to how it came into existence and how it fits with the rest of the evidence in the case. It contains a great deal of detail. Some of the detail, of course, he denies saying, but he does not suggest that in general all the detail was put in his mouth by the police. He says he was inventing as he went along, fabricating a story in order to get out of the room where he was being questioned. You may want to ask yourselves the question: is such fertility of imagination the act of an exhausted, as he describes himself as being, or can it only have come from a person who knew what he was talking about, and knew because he was there at the scene he was describing then? That is a very important question in this case.” And later: “With regard to Heibner, exhibit 32 [the confession] is vital. You must decide whether it is genuine or not, or whether it might have come into existence because he was so worn down by the treatment he received from the police and by anxiety for his family, worn down to the extent that he indulged in fantasy and invention, although on the face of it you may think the things he admitted inventing would get him into far greater trouble rather than get him out of trouble.” 71. Though the CCRC considered it a misdirection to invite the jury to consider its truth, Mr Blaxland sensibly accepted that the jury would have known the Crown’s case was that it was true only to a limited extent – Heibner admitted participation as lookout, its case was that he was the gunman. Mr Blaxland criticized the first direction as misleadingly suggesting that reliability could be tested by consideration of the statement’s detail. He suggests absence of significant detail or special knowledge on the one hand and inclusion of details the Crown suggested were false on the other. The Judge should have directed the jury to take into account the false details in assessing reliability. 72. More importantly he suggests that since the trial the law on the required direction when voluntariness is in issue has been clarified in R v Mushtaq (2005) 1 WLR 1513 . The House of Lords considered both S.76 PACE and the privilege against self-incrimination protected within Article 6 ECHR. The majority decided that a direction was required that if the jury found the confession obtained by oppression or other improper conduct it should disregard it. It follows that although the direction conformed with the then jurisprudence, to modern eyes it was a misdirection. A Mushtaq direction Mr Blaxland argued would have focused the jury’s attention on the real issue, whether Heibner provided a partially dishonest confession because of pressure. What was necessary was a clear separate direction on voluntariness. For this reason alone, he argued, the conviction is unsafe. 73. We have decided that without close analysis of the merits of the submission we shall adopt the position for which Mr Blaxland argued, since that approach extends maximum advantage to Heibner. The Crown conceded that a Mushtaq direction would have directed disregard of any confession obtained by oppression or by improper conduct even were a jury sure it was true. 74. The position is not complicated. If the jury thought Heibner’s partial confession consequent upon oppression we should be astonished were it to give it any weight. Nothing the Judge said in his directions undermines that position. His words told the jury that either the confession were genuine or it was a fabrication because of oppression and anxiety. There was no third option of a conclusion that it was true but born of oppression. Consequently, loyal to the direction if the jury found it consequent upon oppression we think it highly unlikely it would have relied on it as true. We remind ourselves that even the Crown did not suggest it was wholly true. 75. Additionally, examination of what is said to amount to oppression reveals more than 42 hours in custody before beginning to confess, tiredness, and anxiety about his family. Those factors must be viewed with a sense of reality. Heibner had been committing crimes for fifteen years. Some offences were serious, and he was at trial serving fifteen years for armed robberies. He knew the system, indeed told the jury he had just been sitting there relaxing “I’ve been in that situation like hundreds of times”. He knew Dixon. Dixon was easy to talk to. There is evidence that Heibner was at some points during his interrogation extremely anxious, but that the anxiety was triggered by the allegation he faced and by his sense of the net closing in. He is recorded more than once as expressing words to that effect. Additionally, his own case was that the confession was untrue and not what the police wanted to hear. The inference is that he realized the potential for advantage at sentence were his to be thought an ancillary role. 76. We do not accept that even if all Mr Blaxland’s complaints were made out it is established that they would so have oppressed this experienced criminal as to prompt him to make the confession recorded. We reject this Ground. Ground 4: The direction on adverse consequences for Heibner’s credibility of his evidence about matters not put in cross-examination was unfair . 77. The Judge told the jury: “ When a prosecution witness gives evidence it is the duty of the defence counsel to put to him…the accused man’s case……….[Counsel] …did that very painstakingly …but when Heibner gave evidence himself….he said a number of things which were never put to the witnesses at all…….You remember at one stage of the trial I checked with [counsel] that had happened and he agreed it had. . When that sort of thing does happen it may mean that counsel, if he is inexperienced, has forgotten to put the things he should. That does not happen with skilled and competent counsel such as we have had in this case. It may mean the accused…has failed to instruct his advisors properly and Counsel did not know what was to be challenged, and it may mean that the accused…has changed his story, saying things his counsel was not aware of, or improvising or making it up as he goes along, or perhaps he has forgotten what he told his advisors.” 78. Paul Garlick QC expressed his concern about the ‘real imbalance’ between Heibner’s defence team and both the Crown’s team and that for Rossi. Heibner’s leading counsel had to return the brief at short notice, junior counsel who took over was seven years call and Mr. Garlick, two years call, came into the case the night before the trial. The suggestion by Mr Blaxland is that the defence was disadvantaged by inexperience and that for the Judge to invite adverse conclusions gave a false impression of the experience of counsel. There was a mass of detail. The difficulties of preparation were significant. 79. Further, the direction failed to introduce the consideration that Heibner might simply have misremembered what had been said and when in the interviews. Without such a qualification the direction was unbalanced. Heibner, Mr Blaxland told us confidently, more than once struggled to recall what was said and often could not recall his instructions. 80. For the Crown the submission is that the supposed inequality, assumed 37 years later, may not have been as marked to those involved in the trial as it might seem today. The Judge commented that leading counsel had taken the appellant through his evidence carefully and skilfully. In any event, Miss Whitehouse argues, the factual and legal issues were not complex. 81. In our view if this Ground goes to anything it is to an uncomplicated question of professional ethics. The presentation of Heibner’s defence was certain to have been a considerable responsibility for junior counsel to assume at short notice. That said, the justification for two counsel includes just this eventuality. The jury was likely to have been less sensitive to this aspect than were counsel, since, in our view, a professional task was properly done. The Judge said as much. Had counsel for Heibner realised that an omission needed attention, his duty was to invite the court to permit him to remedy it so as to protect the position of the defendant. After dialogue there might have been an application for the recall of a witness, or counsel might have made a judgment call that it was best to avoid concentrating the mind of the jury on something particular and might have elected to make a closing speech in cautious terms. 82. Counsel took Heibner through his confession statement line by line. It was always open to Heibner to say, of any topic, that he could not recall and his counsel could have made that submission to the jury. In our view the trial process is well equipped to deal with situations like this, which are familiar to members of the profession and are very far from unusual. Advocates and judges deal with them with a sense on the one hand of judgment and on the other of grounded reality. 83. We do not accept that hindsight perfected over the intervening thirty-eight years shows this an error by the Judge. He did no more than set out possibilities. Juries, as the Crown reminded us, live in the real world and can work out how hard it is to remember detail. There is nothing in this Ground. Ground 5 New evidence . 84. Since the CCRC considered this case, two witness statements from the original police investigation have been disclosed, which it is asserted had not been disclosed at trial. Heibner seeks leave to argue that they should have been disclosed in accordance with the then disclosure regime set out in Bryant & Dickson (31 Cr. App. R 146) and that once disclosed, no competent counsel would have failed to call those witnesses as the effect of their evidence would have been to exclude Heibner from participation in the murder. Consequently the conviction is unsafe. 85. Douglas Cobb and Patricia Strachen made statements to the police on 11 th and 23 rd September 1975 respectively. Cobb said that at about 5.25pm on the day of the murder he was driving along Goswell Road when, paused outside number 364, he saw a young male run from his right across the front of his car, turn left and disappear back down the road. The male was blond, slim and about 20 years old, wearing a shirt and dark drainpipe trousers. He had an unidentified object in his left hand. Miss Curran said that at some time after 5.25pm on the day of the murder, standing at the Angel she saw a young male run up Goswell Road and disappear down St John’s Street. He was slim about 20 years old with fairish hair wearing a jacket and faded jeans. She could not see whether he carried anything. 86. On 9 th April 1976 the Director of Public Prosecutions wrote to solicitors for Heibner disclosing the names and addresses of material witnesses not be relied upon by the Crown. Neither of the two witness’s names was on the list. A letter of 28 th May 1976 advised Solicitors that various documents, including the statement of persons not tendered at committal, could be inspected on a counsel-to-counsel basis by arrangement with counsel for the Crown. 87. It is at least possible that these statements were included within those offered for inspection. However in a recent witness statement dated 1 st May 2013 Paul Garlick QC, junior defence counsel at trial, states that the existence of those witnesses had not been disclosed to trial counsel. Had they been they would have played a part in the defence case, undermining the Crown’s case that Heibner was the gunman. On the basis that these statements had not been seen by trial counsel, the question is whether this is sufficient to provide Heibner with an arguable ground of appeal. 88. As to the timing of when Mrs Gold was shot, although there is no direct reference in the summing up to the witnesses Elaine Tibbetts and Alice Campbell who were walking past 364 Goswell Road on the day of the murder and heard bangs between 5.10 and 5.20pm, the Judge reminded the jury that the shooting was at about 5.15pm. It is argued that not only are the two witnesses likely to be describing one and the same man but also that there is a real possibility that he, whose description did not match that of Heibner, participated in the murder, undermining the Crown’s case that Heibner was the gunman. 89. Because of the first witness’s likely direction of travel, north from work to home, there is doubt as to whether the two were describing one and the same man. Moreover there must be real doubt as to whether, given the timings, the man could realistically be put forward as the gunman. It would be odd were a gunman to remain at the scene rather than flee it immediately after the killing. 90. However of even greater difficulty for Heibner is that, as he argues in relation to the previous grounds, one, if not the central, piece of evidence was his voluntary statement, exhibit 32, in which, whilst admitting aiding and abetting the killing, he denied being the gun man. Thus, although possible these statements could have been used to suggest that he was telling the truth about that, their effect may have been more likely to support the veracity of the voluntary statement. 91. We refuse leave on this ground. 92. Ground 6 - The CCRC reviewed witnesses statements of Richard Reeves and John Galvin dated respectively the 17 th and 24 th of September 1975. Neither prompted the CCRC to identify arguable grounds of appeal against conviction. H however suggests that this evidence tended to undermine the Crown’s case and should have been deployed at trial. Unlike the witness statements relied upon under ground 5, the existence of evidence from Reeves and Galvin was disclosed in a 9 th of April 1976 letter from the Director of Public Prosecutions. Although Paul Garlick has no recollection of the existence of these statements, he is sure his leader would have inspected the unused material. 93. The evidence of John Galvin is that about 12 to 18 months pre-murder he was on two occasions approached by a man in a public house in Fulham and asked whether he would be interested in killing Mrs Gold on behalf of her husband for £5000.00. Despite telling the man that he was not interested, Galvin claimed he was provided with written details of the identity of Mrs Gold which, after the murder, was seen by Temporary Detective Constable Reeves. 94. The possibility that the murder was at the behest of her husband was clear from the known circumstances, namely the absence of himself and Mrs Brown from the premises at the time of the killing. Heibner’s argument rests upon the description of Galvin’s interlocutor not matching that of Rossi, something confirmed by Detective Chief Superintendent Lamont in his 25 th of July 1979 report. This evidence deployed at trial would, it is contended, have undermined the Crown’s case against Rossi and by implication against Heibner. 95. We see no force in this argument. Not only is it likely these witness statements were seen by Heibner’s leading counsel, but also a decision not to rely upon them is wholly understandable. They were capable of supporting the evidence of Fagan that the murder was indeed a “contract killing.” Furthermore, although the evidence could have been used to show that Galvin’s interlocutor 12 to 18 months pre-murder was not Rossi, it is doubtful whether this would significantly have undermined the Crown’s case against him, since the obvious point to be made was that an intermediary might have been used. We are even less persuaded this would have undermined the Crown’s case against Heibner. We refuse leave on this ground. Ground 7 Evidence now available concerning the bad character of DCI Adams may have led to the defence exploring the significance of his involvement in the investigation and the consequent impact on the reliability of Heibner’s confession . 96. Adams retired in the rank of Commander in 1993. Between 1987 and 1989 he was the subject of an investigation by DAC Winship into allegations of corruption and misconduct. He faced neither criminal charges nor disciplinary proceedings as a result. However, the core facts Mr Blaxland argues provide cogent material for cross-examination as to credit. It is not a condition precedent to the introduction of such material that there should have been an adverse disciplinary finding or criminal conviction. 97. A number of allegations recorded by the MPS Department for Professional Standards was not investigated because Adams had by then retired. The picture which emerges is said to mean he could not now be put forward as a witness of truth. 98. We were taken to extracts from the Winship report which we summarise. Some information about Adams could have amounted to a conspiracy, and an innocent explanation was difficult to identify. Adams’ behaviour was at least unprofessional and unbecoming. He had close connection with King a former police officer who kept in contact not only with serving officers but also with a criminal family. Adams employed him and took holidays with him. Alex Leighton another former officer worked for the notorious Adams (no relation to Commander Adams) family and Burrows family. Most significant, according to Mr Blaxland, was that a DS Coles had been investigated for corruption but Adams, disregarding orders, put Coles onto the RCS. Coles was an officer allowed anonymity at the Lawrence Inquiry and Adams, giving evidence to it, denied knowing him. This, said Mr Blaxland, would be evidence of perjury, would fatally have undermined Adams’ credibility and have supported a submission on the dishonesty of the overall operation. 99. Whilst allegations subsequently made against Adams should have been disclosed at trial, had the Crown known of them (impossible, as they were made post-trial) that does not equate to their automatic admissibility. They were unsubstantiated, some as to events many many years later. We are confident, given Adams’ limited involvement in the murder investigation and the lack of any evidence of collusion or conspiracy with other officers, that rigorous examination would have been applied to whether, on these facts, they were relevant. It is not an invariable rule that evidence of misconduct post-trial in which the integrity of the officer was impugned inevitably leads to a successful appeal. It depends on the facts. 100. The material disclosed is unsubstantiated. Before it could be introduced any judge would be bound to consider the extent of satellite litigation it would generate. Winship's conclusions would be inadmissible, so were the material ruled appropriate for exploration the jury would have to hear all allegations, tested for the first time. The satellite litigation would in our view have been on a scale so enormous that any tribunal would have paused on this ground alone before admitting it. 101. We are far from convinced that this material would have been admitted. In any event, to what would it go? 102. The extent of Adams’ involvement in this murder investigation is as follows: He ran RCS surveillance and had arrested Heibner for robberies. Despite intense interest in Heibner and though he was seen with Rossi on 4th and 5th Sept, on 8th he was seen to get into a car with Rossi which drove off and of which officers lost sight. Surveillance was called off, said Adams. 103. Mr Blaxland advanced this as possibly an inconsequential point or possibly of significance in connection to PC Tyers. At trial a deal of time and effort went into contesting his evidence. True, Heibner's case was that he had indeed been at the Angel but precise timing (he said he was there at 16.55) was disputed and his precise location disputed. 104. Supporting evidence for the Tyers account could have come from the confession. But Heibner’s counsel used the attack on Tyers - not part of the surveillance team - to attack the credibility of the entire police body of evidence. It was open to the defence to say it cannot be true. Why would the surveillance be called off? This rhetoric question Mr Blaxland argued showed how ludicrous it was that it should have been, at least without ulterior motive. He confidently asserted that far from being abandoned it was continued. Officers would have seen Heibner at the Angel, just as Heibner told the jury he was. If he were at Angel, he was not at Goswell Road murdering Mrs Gold. 105. This complicated submission relied on a number of building blocks. Before the Dixon interview Dixon knew Heibner had been seen by Tyers at Angel. One explanation is that Adams, who had the Tyers information, knew from his own team that Heibner had been at Angel but needed to conceal the continuing surveillance operation. Adams thus needed someone to say Heibner had been at Angel. Had surveillance continued the team of observers would have known Heibner did not commit the murder. Tyers filled that gap. Tyers, Mr Blaxland suggested, only makes sense if someone knew Heibner had in fact been at Angel between 4.55- 5. Adams, he asserts, knew and specifically recruited Tyers to make a false statement. Tyers had to know about the surveillance operation because Tyers would have known that the defence case was that Heibner had not gone to Goswell Rd. 106. Invited to take us to the evidence for all this, Mr Blaxland said it was an avenue which would have been explored. Its foundation is Adams’ bad character, revealed in the Winship report. Adams took witness statements (in the robberies investigation) from Miss Priestaff and from Parker. Although not involved in the murder investigation he was involved in the arrest of Heibner for robberies. Finally Leslie Joyce, a fellow prisoner, lent support to the contention that Adams had an important orchestration background role. 107. The first of many difficulties in the way of such a bold submission is indeed the role Adams played in the murder investigation. We have set it out. He was investigating robberies and was in charge of the 8 th September surveillance team which watched Heibner. He interviewed Heibner about the robberies on 12 th and 13 th September 1975. That was the extent of his involvement. 108. To make good the submission, the following would have been required. Adams had to frame a wholly innocent man, destroy records, and corrupt an entire team, unless we assume it was already corrupted. There is nothing to suggest Adams knew on 8th September that Heibner would be arrested on 20th October, so it was in October that he must have decided to frame Heibner. The conspiracy had to be complete before matters were put to Heibner in interview. Then, so the reasoning goes, Adams needed someone to say Heibner was seen at Angel. There is not the slightest evidential basis for any such proposition. 109. To suggest it is surprising the surveillance was called off is speculation 38 years after the event. The importance for Heibner of it being called off is that it deprived him of an alibi if he did not commit the murder. The implication seems to be that Adams knew the murder was going to happen and wanted to inculpate Heibner by depriving him of an alibi. This requires so much confidence in matters not canvassed, not put, and wholly unsupported by evidence that the argument is fanciful and we reject it. 110. There is nothing in this Ground and we refuse leave. 111. Ground 8 O’Brien was suspended from duty in July 1977 on the basis of an allegation that he failed to report an accidental meeting at Royston Heath Sporting Club on 24 July 1977 with Alexander Eist, a former police officer then on bail. O’Brien had previously informed a superior officer that he was “liable to meet” Eist, and been told to report it if it happened. 112. Information on file was that O’Brien suggested to a junior officer that an allegation of corruption against another officer should not be reported. This suggestion was never the basis of a disciplinary charge. 113. Both these matters related to events after Heibner’s trial. O’Brien retired on 22 April 1978 on medical grounds, and the Eist meeting allegation was never tested in disciplinary proceedings. O’Brien therefore had no disciplinary finding against him. He had no criminal conviction. There was no proven matter indicating bad character. 114. There was little challenge to the content of the interviews he conducted. He faced an attack on the timing and circumstances of the involvement of Dixon, and a suggestion that Heibner’s treatment in custody before his confession amounted to oppression. 115. The first point was fully canvassed before the jury and we have dealt with it in detail above. Dixon was unsure when he got the call to the police station. O’Brien said Dixon was asked to attend at about 4pm. Heibner says that cannot be right, since Dixon was fully briefed and prepared with copy witness statements, on the basis of which he “broke the appellant’s resolve”, within too short a time. 116. The second point was also fully developed as relevant to the reliability of the confession. 117. Mr Blaxland submits that the evidence of bad character now available would be admissible and powerful evidence in favour of Heibner. We should conclude that it renders the conviction unsafe. 118. We reject this submission on both grounds. We consider it highly unlikely that unproven allegations of this kind, taking place (if they did take place) well after the trial, would be admitted. If admitted they would add little or nothing to the jury’s thinking. The suggestion of lying and manipulation by police officers was fully explored, the attack on O’Brien forceful. Even if this material were before the jury, any judge would give the strongest possible warning about relying on such unproven allegations as providing safe support for an allegation of a major conspiracy to pervert justice. This material does not render the conviction unsafe. 119. Ground 9 goes to bad character evidence now available in relation to Tyers. He was required to resign from the police in 1980 following proof of three breaches of discipline, in that he had three meetings in 1977 with John Goss, a man with serious previous convictions. Some thirty years later, Tyers was formally cautioned for theft of £240 cash from his employer. 120. Mr Blaxland argues that the jury aware of these matters would have viewed in a different light the attack on Tyers’ and that the conviction is consequently unsafe. 121. We are content to assume it more likely than not that these matters would be admitted at trial today, and to a degree would damage his credibility. However that does not render the conviction unsafe, for a number of reasons. 122. The underlying disciplinary misconduct and the much later theft are very different in nature from and markedly less seriousness than a conspiracy to pervert the course of justice in a murder investigation. The caution came decades later. The jury would have to be warned to be very careful in drawing conclusions from these matters beyond the immediate question of the reliability of the witness. 123. In any event only the detail, not the substance, of Tyers’s evidence was in issue. Heibner’s case was that he was in the vicinity of the murder at the relevant time. Tyers’s credibility was put firmly in issue, as is clear in the summing-up. However, the Judge told the jury, in fairly strong terms, that even if it assumed Tyers had given honest evidence, such identification evidence was very unreliable. Hence, even if an honest witness, Tyers gave inherently unreliable evidence of facts which were not really in issue. 124. The matter does not end there. Were this bad character evidence admitted it might be deployed to support the suggestion that Tyers was giving dishonest evidence to support the Crown’s case, and thus to support the general allegation of conspiracy. That would be followed by a clear direction that the jury should be careful about drawing such broad conclusions from this type of evidence, for the reasons we have given. In our view this evidence neither strikes away any important plank in the case, nor is capable of supporting a conspiracy by senior officers to the extent that the conviction is unsafe. General points 125. Miss Whitehouse made an overarching submission on the passage of time. Much material has been lost, some participants in the trial are dead and those who remain have an incomplete memory. On the other hand the Judge, jury and counsel had a complete record and familiarity with detail. Heibner now relies on speculative theories which give rise to a danger of usurping the trial process. We agree. 126. This case is about the safety of the conviction, no matter the label attached to any Ground. We have considered the Grounds advanced in consequence of the CCRC referral, singly and compendiously, and those for which leave was sought, also singly and compendiously. We took time to review the entirety of the arguments. 127. Were the trial conducted now its shape and its founding procedures would be different. Statute and developed jurisprudence have had as their aim the fortification of the likelihood that the interests of justice are served. It is almost inevitable, thirty-eight years on, that exhaustive examination, especially in skilled hands, will point up areas which in hindsight would or should have been approached differently. Miss Whitehouse put it well. One can find lots of holes but holes do not make a garment unwearable. 128. We repeat: we have applied tests advantageous to Heibner so as to extend to him the greatest available protection as he prosecutes his appeal. 129. We see nothing to make us doubt the safety of this conviction and this appeal is dismissed.

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No: 200504913/A5 Neutral Citation Number: [2005] EWCA Crim 3534 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 21st December 2005 B E F O R E: MR JUSTICE GRAY MRS JUSTICE COX DBE - - - - - - - R E G I N A -v- JAMES KIRKWOOD - - - - - - - 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 KOLODYNSKI appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T (As Approved by the Court) - - - - - - - Crown copyright© 1. MR JUSTICE GREY: On 15th July 2005 in the Crown Court at Birmingham the appellant James Kirkwood pleaded guilty to ten counts of possessing goods with a view to sale or distribution bearing a sign identical to or likely to be mistaken for a registered trade mark, two counts of possessing a video recording of unclassified work for the purpose of supply and finally to two further counts of possessing an article designed or adapted to make copies of a sign identical to or likely to be mistaken for a registered trade mark. On 18th August 2005 the appellant was sentenced by His Honour Judge Taylor to 30 months' concurrent on each of the first ten counts, to two years' imprisonment concurrent on the next two counts and to 30 months' imprisonment concurrent on the last two counts. The total sentence was, therefore, one of 30 months' imprisonment. 11 other similar counts were ordered to lie on the file on the usual terms. 2. The appellant now appeals that sentence with the leave of the single judge. 3. The facts of the offences were these. On 23rd December 2003 officers from Birmingham City Council Trading Standards Department, working with the police, raided the appellant's home. A large number of items, mainly CDs and DVDs, were seized. In total over 500 blank discs, approximately 50 hard CD or DVD covers and several hundred plastic CD covers and ten CD folders, containing roughly 100 CDs or DVDs each, were seized. The contents included films, games and music. Accompanying artwork had also been printed off for some of the discs. The counts on the indictment were sample counts reflecting samples of the material seized. 4. 394 of the discs contained films. A sample of 40 were sent to the Federation Against Copyright Theft ("FACT") who confirmed that 32 of them were counterfeit copies infringing trade marks owned by Universal, Warner Brothers and Colombia. Those were counts 1, 3 and 4 on the indictment. 5. 239 of the disks contained computer games. The Entertainment and Leisure Software Publishers Association confirmed that they were copies infringing its members' trade marks, including PlayStation and EA. Those were counts 6, 8 and 9 on the indictment. 6. 1898 of the disks contained music. A sample of the music CDs was sent to the Mechanical Copyright Protection Society who confirmed that they were copies infringing trade marks belonging to its members. Those were counts 11, 12, 13 and 15 on the indictment. 7. A number of the titles of films seized were sent to the British Board of Film Classification who confirmed that 108 of the film titles had been not issued with classification certificates at the date of the raid. Some of the films were photographic in nature. Those were counts 19 and 22. 8. Three personal computers were also seized. All of them had copying facilities. Also seized was a stand alone DVD duplicator unit. Within it was a DVD and a recordable DVD which indicated that copying had taken place or was about to take place. The computers also had DVD ripping software installed which enabled the user to circumvent the copy protection device used on commercial DVDs. Those were the last two counts on the indictment, counts 23 and 24. 9. A number of files printed off the computers contained lists or images or titles of films, or music or games running to 2700 pages of exhibits. Those lists indicated that 400 film DVDs were for sale at £5 each, totalling £2,000. An expert assessed the notional loss to member companies at over £7,000. Another expert from the Mechanical Copyright Protection Society assessed the retail value of the music albums contained on five MP3 discs at over £1,000. There were in all 14,000 MP3 files. Roughly calculated, the retail value of the music on those files was £17,000. We should, however, make clear that those figures are based on high street retail prices. 10. It was difficult to assess over what period the offences occurred, but some of the music lists on the computers dated back to 2000 and some of them had been accessed in December 2003, as late as the morning of the raid. 11. There was a basis of plea in this case. The appellant pleaded guilty on the following basis: "2(a) sale and distribution was not on an organised commercial basis. I did not sell any items at a stall (for example car boot stall) or at any formal market setting. I did not sell any items by way of postal orders/internet orders for films, games, music et cetera. I did not advertise. (b) the 'distribution' of such items was at first mainly to friends and family. (c) any 'sale' of such items was on an ad hoc basis where people approached me. Any proceeds were minimal and were spent on either the children or normal household items or other CDs et cetera. (d) my initial interest in collecting films, music and games was as a hobby in which I have been interested since a child. 3. When I distributed or sold the items as described above, I copied them." 12. The appellant is a man of 42 years of age. He has a number of disparate previous convictions. Amongst the most recent offences is a conviction in 1995 for arson. It appears that the explanation for that offence may derive, at least in part, from the fact that the appellant sadly is a depressive. He is described in the pre-sentence report as an avid music and film buff with an absorbing interest in computers. He was at that time living alone, but we are told that he and his partner have now made up their differences. The appellant has been unable to work since 1987 owing to a slipped disc. The risk of reoffending in his case is assessed to be medium. 13. The author of the pre-sentence report suggested a community sentence. However Mr Kolodynski, who has appeared on behalf of the appellant and for whose submissions we are grateful, sensibly accepts that this case crosses the custody threshold. Mr Kolodynski identifies a number of mitigating factors in this case, including the early guilty plea, the absence of any previous convictions of a similar nature, the fact that proceeds from the venture were minimal, the fact that the commercial aspect of the offending was ad hoc and there was no direct marketing. In addition, Mr Kolodynski relies on the considerable length of time between the start of the investigation in December 2003 and the sentence hearing which did not take place until August 2005. It is submitted that this offending was borne out of an obsessive hobby rather than an organised fraudulent venture from the start. 14. In his written advice Mr Kolodynski referred us to three cases Ansari [2000] 1 Cr App R(S) 94, Gleeson [2002] 1 Cr App R(S) 112 and Passley [2004] 1 Cr App R(S) 70 and relies on the sentences which were imposed on in those cases, where, submits Mr Kolodynski, the enterprise was on a more commercial basis than in the present case. 15. In addition, Mr Kolodynski has referred us today to two further cases, firstly, the case of Gross [1996] 2 Cr App R(S) 189. That was a case where sentences totalling two years' imprisonment for making copies of video tapes on a commercial scale were reduced by this court to a total of 12 months. The facts in brief were that the appellant pleaded guilty to two counts of offences under the 1988 Copyright Design and Pattens Act and two counts of fraudulently using a trade mark contrary to the Trade Marks Act of 1938. Police officers executed a search warrant at the appellant's home and found 50 video record recorders and 971 tapes of which 753 contained copies of copyright works. He was sentenced to 18 months' imprisonment with six months' consecutive for similar offences. The appellant appealed and the sentence was reduced in the way we have indicated. 16. Mr Kolodynski draws attention to the scale of the offending in that case and to the fact that it appears that the pirated videos were produced in such a manner as to invite the inference that this was a professional operation carried out for profit. We accept that that is so. On the other hand, it appears from the judgment in that case that the offending, albeit on quite a large scale, was over a far briefer period than in the present case. There is no indication in the report of the extent of the profit made by the appellant there. 17. In addition, we have been referred this morning to the case of Lewis [1997] 1 Cr App R(S) 208. That was another case where the sentence of imprisonment was reduced in this court from 27 months to 12 months. The appellant had pleaded guilty to distributing infringing articles contrary to the 1988 Act. He had operated a computer bulletin which was used to exchange copyright computer games. Callers could download computer games on to the appellant's computer system and upload games from that system. Over a period of three months 934 games were downloaded and 592 were uploaded. The value of each game to the copyright owner was about £40. As we say, the sentence was reduced to one of 12 months. The judgment in the case suggests that the total value of the 990 games would have been about £90,000. On the other hand, as in the case of Gross , the offending was over a shorter period. However, it is right to note that the appellant in that case had a previous similar conviction. 18. As we have already said, we consider that a custodial sentence was necessary here. We say that largely because of the large scale of the infringing acts and the prolonged period over which the appellant was engaging in them. It has to be borne in mind in this class of case that pirating videos or DVDs or similar does inflict commercial damage on those who produce such material. We accept that this operation began as nothing more than a hobby for the appellant, but it plainly did develop into a commercial operation, albeit not a particularly profitable one. The profits are plainly less than in Ansari and Gleeson , although broadly comparable with the profit made by the appellant in Lewis . We believe that the appellant must have been well aware that what he was doing was unlawful. 19. However, in all the circumstances, and bearing in mind the various mitigating factors to which Mr Kolodynski has referred us, we have concluded that the sentence in this case was to a degree excessive. In our judgment, the proper custodial term in this case is one of 21 months. We, accordingly, quash the existing sentence of 30 months and substitute for it a sentence of 21 months. To that extent this appeal is allowed.

```yaml citation: '[2005] EWCA Crim 3534' date: '2005-12-21' judges: - MR JUSTICE GRAY - 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: [2014] EWCA Crim 1861 Case No: 2014/02393C1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MR JUSTICE NICOL Mr Justice Nicol T2013/7502 Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/09/2014 Before : LORD JUSTICE GROSS MR JUSTICE SIMON and MR JUSTICE BURNETT - - - - - - - - - - - - - - - - - - - - - Between : GUARDIAN NEWS AND MEDIA LTD, ASSOCIATED NEWSPAPERS LIMITED, BBC, BSKYB LIMITED, EXPRESS NEWSPAPERS, INDEPENDENT PRINT LIMITED, ITN, MIRROR GROUP NEWSPAPERS LIMITED, NEWS GROUP NEWSPAPERS LIMITED, TELEGRAPH MEDIA GROUP, TIMES NEWSPAPERS LIMITED, PRESS ASSOCIATION Appellants - and - 1. EROL INCEDAL 2. MOUNIR RARMOUL-BOUHADJAR Defendants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Anthony Hudson and Ben Silverstone (instructed by In-House Solicitor, Guardian News and Media Ltd ) for the Appellants Henry Blaxland QC and Richard Thomas (instructed by Birnberg Pierce and Partners ) for the First Defendant Naeem Mian (instructed by G T Steward Solicitors ) for the Second Defendant R Whittam QC and Stuart Baker (instructed by CPS ) for the Prosecution Hearing date: 4 June 2014 - - - - - - - - - - - - - - - - - - - - - Judgment The Rt Hon Lord Justice Gross: INTRODUCTION 1. The Defendants, Erol Incedal and Mounir Rarmoul-Bouhadjar (hitherto AB and CD), face the following charges: i) Erol Incedal is charged with an offence contrary to s. 5 , Terrorism Act 2006 (“ TA 2006 ”, preparation of terrorist acts) and an offence contrary to s.58 , Terrorism Act 2000 (“ TA 2000 ”, collection of information). ii) Mounir Rarmoul-Bouhadjar is charged with an offence contrary to s.58 TA 2000 (collection of information) and an offence contrary to s.4 , Identity Documents Act 2010 (“ IDA 2010 ”, possession of false identity documents etc with improper intention). 2. By order dated 19 th May, 2014 (“the order”), Nicol J ruled: i) The entirety of the criminal trial of the Defendants should be in private (i.e., “in camera”, with the public and media excluded) and the publication of reports of the trial be prohibited. ii) The names and identities of the Defendants should be withheld from the public and publication of their names/identities in connection with the proceedings be prohibited. iii) The publication of reports of the hearing in open court on 19 th May, 2014 and the open judgment handed down on that day be postponed until the conclusion of the trial or further order. The order was made by Nicol J pursuant to his common law powers, together with those contained in s.11 and s.4(2) , Contempt of Court Act 1981 (“ CCA 1981 ”). 3. Pursuant to s.159 , Criminal Justice Act 1988 (“the CJA 1988 ”), the Applicants (for convenience, “the media”) sought leave to appeal from the order and contended that it should be set aside. We treated the hearing on the 4 th June as if it were the hearing of the substantive appeal and, in the course of the subsequent hearing on 12 th June (see below), formally gave leave. We make it plain that we did not treat the hearing as a review of the decision of Nicol J but have instead come to an independent conclusion on the material placed before us: see, Ex p Telegraph Group [2001] EWCA Crim 1075 ; [2001] 1 WLR 1983 , at [3]. 4. So far as concerns the procedure followed, Nicol J was dealing with an application by the Crown that the trial should be held in private in its entirety and that the Defendants should be anonymous. That application was supported by Certificates (“the Certificates”), setting out the reasons relied on in support, signed by the Secretary of State for the Home Department (“SSHD”) and the Secretary of State for Foreign and Commonwealth Affairs (“SSFCA”). Further material was provided in Schedules to the Certificates (“the Schedules”). The Certificates but not the Schedules were provided to the Defendants and their legal representativeS and edited versions of the Certificates were shown to the legal representatives of the media, on terms as to confidentiality. 5. The Judge heard part of the application in open court. He then heard part of the application in private, i.e., in the presence of the Defendants, their legal representatives and the media’s legal representatives. All had access to some secret material relied upon in support of the application. Finally, the Judge considered further material in the absence of all except the Prosecution (“the ex parte hearing”). 6. We followed the same course – i.e., part of the hearing in open Court, part of the hearing in private and part (a very small part) ex parte . 7. As will be apparent from the order under appeal, the three principal issues are conveniently dealt with under the following headings: i) Issue (I): Trial in camera ; ii) Issue (II): Anonymisation of the Defendants; iii) Issue (III): S.4(2) , CCA 1981 . 8. It had been indicated that the matter was urgent as the criminal trial was (then) due to commence on Monday 16 th June at the Central Criminal Court. Accordingly, in the course of the 4 th June hearing, we indicated that we would give our Decision as soon as possible, with fully reasoned Judgments to follow in due course. The reason for speaking of “Judgments” – plural – is that we are producing an Open Judgment, a Private Judgment and an Ex Parte Judgment, reflecting the procedure followed during the hearings and when giving our Decision. This is our Open Judgment. 9. We gave our Decision (in Open, Private and Ex parte versions) on the 12 th June. All concerned were supplied with copies of our Open Decision (“the Decision”). For present purposes it suffices to repeat our overall conclusions: i) To the limited extent indicated in the Decision, we varied the order made by Nicol J for the trial to be in camera . ii) We allowed the media’s appeal from the order made by Nicol J for anonymisation of the Defendants. iii) We allowed the media’s appeal from the s.4(2) , CCA 1981 order imposed by Nicol J in respect of that part of the 19 th May hearing held in open Court, together with his open judgment of that date. iv) We had already indicated, on the 4 th June, that anything said in the open hearing before us on that day could be reported. THE FRAMEWORK OF PRINCIPLE 10. The Rule of Law is a priceless asset of our country and a foundation of our Constitution. One aspect of the Rule of Law – a hallmark and a safeguard - is open justice, which includes criminal trials being held in public and the publication of the names of defendants. Open justice is both a fundamental principle of the common law and a means of ensuring public confidence in our legal system; exceptions are rare and must be justified on the facts. Any such exceptions must be necessary and proportionate. No more than the minimum departure from open justice will be countenanced. See: Scott v Scott [1913] AC 417 ; Att.-Gen. v Leveller Magazine [1979] AC 440 , at pp. 449-45; In re Trinity Mirror plc [2008] EWCA Crim 50 ; [2008] QB 770 ; R v Marine A [2013] EWCA Crim 2367 ; [2014] 1 Cr App R 26 , at [83] – [85]. 11. These principles as to open justice were essentially not in dispute before us. However, it was also common ground that there are exceptions. For example, as rightly accepted by Mr. Hudson (for the media), the Court has a common law power to hear a trial (or part of a trial) in private (“ in camera ”): Re A and Others [2006] EWCA Crim 4 ; [2006] 2 Cr App R 2 , esp., at [11], [41] and [42]; R v Wang Yam [2008] EWCA Crim 269 , esp. at [6]; Bank Mellat v HM Treasury (No. 2) [2013] UKSC 38 ; [2013] UKSC 39 ; [2013] 3 WLR 179 , esp. at [2] (judgments on jurisdiction issue). The Court does not require a party to destroy the right it is seeking to assert or protect as the price of its vindication. We detect no difference of substance in this regard between the common law and Art. 6 of the European Convention oN Human Rights (“ECHR”). 12. It is important to underline that a hearing in camera involves a departure from the principle of open justice, not from natural justice. Concerns as to natural justice will or may arise under closed material procedures, where a party is excluded from the proceedings or full participation in the proceedings; such concerns do not arise when the hearing is in camera . The defendant in an in camera hearing has the right to know the full case against him and to test and challenge that case fully. In Al Rawi v Security Service [2011] UKSC 34 ; [2012] 1 AC 531 , Lord Dyson JSC (as he then was) put it this way: “ …..As Lord Bingham of Cornhill said in R v Davis [2008] AC 1128 , para. 28, the rights of a litigating party are the same whether a trial is conducted in camera or in open court and whether or not the course of the proceedings may be reported in the media….. ” 13. National security is itself a national interest of the first importance and the raison d’ etre of the Security and Intelligence Agencies (“the Agencies”), who themselves operate within a framework of law and oversight. For the Agencies to operate effectively, at least much of their work is secret and must remain so as a matter of necessity. 14. The policy of the United Kingdom, as is well-known, is to deal with terrorism (at least in part) through the Criminal Justice System (“CJS”). A necessary corollary, itself in the interests of justice (see, Re A and Others, supra, at [11]), is that the Crown should not be deterred from prosecuting cases of suspected terrorism by the risk of material, properly secret, becoming public through the trial process. 15. It is readily apparent that, from time to time, tensions between the principle of open justice and the needs of national security will be inevitable. All the more so, given the emergence of the Agencies from the shadows, their close cooperation with the Police in the CJS and the extension of the law’s reach over the past decades. 16. It is well established in our law that these tensions are resolved along the following lines. First, considerations of national security will not by themselves justify a departure from the principle of open justice: Att.-Gen. v Leveller Magazine (supra), at p. 471. 17. Secondly, open justice must, however, give way to the yet more fundamental principle that the paramount object of the Court is to do justice: Scott v Scott (supra), at pp. 437 – 439 ; Att.-Gen. v Leveller Magazine (supra), at pp. 450 and 471; Al Rawi (supra), at [27]; Bank Mellat (supra) , at [2]. Accordingly, where there is a serious possibility that an insistence on open justice in the national security context would frustrate the administration of justice, for example, by deterring the Crown from prosecuting a case where it otherwise should do so, a departure from open justice may be justified. 18. We take the “serious possibility” test from the authorities: Re A and Others (supra) , esp. at [11] and [42]; Wang Yam (supra) , esp. at [7]. In both these decisions, the test was expressed in terms of risk and possibility; neither suggests a balance of probability test – and, for our part, we can understand why not: (1) the inherent uncertainty at the stage when an in camera hearing is sought, emphasised by constitutional authority as to the power to discontinue a prosecution resting with the Attorney General and Director of Public Prosecutions while the concerns may very likely emanate from the Agencies; (2) the desirability of avoiding even the appearance of a “threat” or “blackmail” on the part of the Crown as to the discontinuance of the proceedings; (3) the fact that satisfaction of the test does not deprive the Court of decision-making power; the risk that the Crown might be deterred from prosecuting means the Court may (not must ) permit a departure from the principle of open justice. At all events, it is unnecessary for us to go further. Given our view on the facts of this case (see below), further consideration of the desirability of some higher test (if indeed some higher test would be desirable) can be left for another day. 19. Thirdly, the question of whether to give effect to a Ministerial Certificate (asserting, for instance, the need for privacy) such as those relied upon by the Crown here is ultimately for the Court, not a Minister. However, in the field of national security, a Court will not lightly depart from the assessment made by a Minister. See, generally: The Secretary of State for Foreign and Commonwealth Affairs v Assistant Deputy Coroner for Inner North London [2013] EWHC 3724 (Admin) , at [28] – [36]. A QUESTION OF JURISDICTION 20. As already indicated, a very small part of the hearing before us was ex parte . Before proceeding ex parte , we rejected an argument advanced by Mr. Hudson that, unlike Nicol J, we were not entitled to have regard to such material. Our reasons follow. 21. The Crown’s application for the trial to be in camera was brought before Nicol J pursuant to Rule 16.6 of the Criminal Procedure Rules (“CPR”). That Rule makes provision for material to be adduced and for the Court to proceed on an ex parte basis: see, esp., CPR, Rule 16.6 (4) and (6). 22. The media appealed to this Court pursuant to s.159 , CJA 1988 , which provides, so far as material, as follows: “ (1) A person aggrieved may appeal to the Court of Appeal, if that court grants leave, against – (a) an order under section 4 or 11 of the …[ CCA 1981 ]….made in relation to a trial on indictment; …. (b) any order restricting the access of the public to the whole or any part of a trial on indictment or to any proceedings ancillary to such a trial; and (c) any order restricting the publication of any report of the whole or any part of a trial on indictment or any such ancillary proceedings; and the decision of the Court of Appeal shall be final. …… (4) Subject to Rules of Court made by virtue of subsection (6) below, any party to an appeal under this section may give evidence before the Court of Appeal orally or in writing. (5) On the hearing of an appeal under this section the Court of Appeal shall have power – …… (b) to confirm, reverse or vary the order complained of; ….. (6) ….Rules of Court may make in relation to trials satisfying specified conditions special provision as to the practice and procedure to be followed in relation to hearings in camera and appeals from orders for such hearings and may in particular, but without prejudice to the generality of this subsection, provide that sub section (4 ) shall not have effect. ” 23. Rule 65, CPR contains the general rules for appeals to the Court of Appeal. So far as relevant, Rule 65.6 provides as follows: “ (1) The general rule is that the Court of Appeal must hear in public – (a) an application, including an application for permission to appeal; and (b) an appeal…. but it may order any hearing to be in private. …. (3) Where the appellant wants to appeal against an order restricting public access to a trial, the court – (a) may decide without a hearing – (i) an application, including an application for permission to appeal; and (ii) an appeal; but (b) must announce its decision on such an appeal at a hearing in public.” 24. Rule 69, CPR deals specifically with the procedure on an appeal against an order restricting public access to a trial and includes the following provisions: “ Duty of applicant for order restricting public access 69.5 (1) This rule applies where the appellant wants to appeal against an order restricting public access to a trial. (2) The party who applied for the order must serve on the Registrar – (a) a transcript or note of the application for the order; and (b) any other document or thing that that party thinks the court will need to decide the appeal……. Respondent’s notice on appeal against reporting restrictions 69.6 (1) This rule applies where the appellant wants to appeal against an order restricting the reporting of a trial. ….. (6) The respondent’s notice must – ….. (f) identify any other document or thing that the respondent thinks the court will need to decide the appeal. ” 25. Mr. Hudson’s submission can be shortly summarised. Without explicit statutory permission, the Court lacked jurisdiction to operate a closed material procedure. Our consideration of material not seen by the Defendants or the media would contravene the principles of natural justice. This was a fresh hearing, not a review of the decision of Nicol J. As this was a fresh hearing, the Court could (and should) refuse permission to a party to adduce evidence if that evidence was proffered on an ex parte basis only. 26. We cannot agree. First, the submission would lead to absurd results. There is no appeal against the decision of Nicol J to receive and consider ex parte materials, on the face of it, something he was clearly entitled to do. It would be curious in the extreme if, when considering whether to confirm, reverse or vary the order, we should be precluded from considering some of the materials which contributed or may have contributed to the Judge making the order. 27. In Bank Mellat (supra) , the Supreme Court held that it was entitled to conduct a closed material procedure if such a procedure had been lawfully conducted in the court/s below from which it was entertaining an appeal: see, esp., at [35] – [47] and [62] of the judgments on the jurisdiction issue. Were it otherwise, as Lord Neuberger of Abbotsbury PSC observed ( ibid) at [44]: “ ….for this court to entertain an appeal without considering the closed material would, at least in many cases, not be doing justice, either in the sense of fairly determining the appeal or in the sense of being seen fairly to determine the appeal, notwithstanding that the material will be considered in a closed hearing.” 28. In our judgment, the same or similar considerations are applicable here. No Court utilises a closed procedure (or its equivalent) without anxious thought. But, as it seems to us, we are and must be empowered to receive and consider the ex parte materials and to sit ex parte to do so, if we are to do justice to the appeal. The source of our power is derived by necessary implication from our power to deal with appeals under s.159(5) (b) of the CJA 1988 , augmented by CPR, Rule 69.5(2) and 6(f). It would make no sense to require the Respondent to such an appeal to identify and furnish us with the documents it thinks the Court will need to decide the appeal, for us then to decline to consider them. Further and, if need be, we would be prepared to hold that CPR, Rules 16.6 (4) and (6) – which expressly empowered Nicol J to consider information and to proceed ex parte when dealing with the application – applied by analogy to the hearing and disposal of the appeal. 29. Secondly, the fact that the appeal under s.159 , CJA 1988 involves a fresh hearing rather than a review of Nicol J’s decision furnishes a wholly insufficient foundation for the argument that, therefore, we should decline to receive materials only available to us ex parte . The nature of the appeal does have an important bearing on the scope of our inquiry; it neither permits nor obliges this Court to decline receipt or consideration of materials which will or may assist in the fair disposal of the appeal. 30. Thirdly, the background to the enactment of s.159 , CJA 1988 was explained by this Court in Ex p Telegraph Group (supra) , at [2]. The intention was to make statutory provision for a right of appeal by “persons aggrieved” – primarily the media – against orders restricting or preventing reports of, or restricting public access to, court proceedings. S.159 thus recognised that, in Nicol J’s words, the interests of the media were not simply their private concerns: Judgment, 3 rd March, 2014, at [17]. The section did not, however, have the effect of making the media parties to the criminal prosecution, as the Judge correctly held: ibid , at [16] – [18]. The position of the media is thus distinguishable from that of parties to ordinary civil litigation, considered in Al Rawi (supra) or the parties to the application for a production order, dealt with in R (BSkyB Ltd) v Central Criminal Court [2014] UKSC 17 ; [2014] 2 WLR 558 . That said, as already underlined, we reached our decision to consider materials and to proceed ex parte only after careful consideration and with a view to doing justice to the appeal; our decision was not based on any narrow or technical view as to the true status of the media parties. ISSUE (I): TRIAL IN CAMERA 31. We have already outlined the Court’s power to hear a trial or part of a trial in camera . This case is exceptional. We are persuaded on the evidence before us that there is a significant risk – at the very least, a serious possibility – that the administration of justice would be frustrated were the trial to be conducted in open Court. For good reason on the material we have seen, the Crown might be deterred from continuing with the prosecution. The relevant test is thus satisfied. Indeed, we go further: on all the material, the case for the core of the trial to be heard in camera is compelling and we accede to it. 32. In his open judgment, dated 19 th May, Nicol J referred to the witness statement dated 12 th May, 2014, made by Ms Mari Reid, the Unit Head of the Counter Terrorism team in the Special Crime and Counter Terrorism Division of the Crown Prosecution Service. Ms Reid there made reference to both the Certificates and the Schedules. She explained that should the factors of concern to the Secretaries of State be ventilated in a public trial, she was “likely to be presented with representations” to the effect that the case should not continue. Against that background, Ms Reid confirmed that there was a “serious possibility” that the trial may not be able to go ahead if (so far as immediately relevant) the application for an in camera hearing was not granted. 33. A short additional witness statement from Ms Reid, dated 16 th May, 2014 (“the second statement”), was placed before the Judge but only in the ex parte hearing. Having considered its content, we formed the preliminary view that much of its substance might be provided to those involved in the private hearing and that a gist might be produced for reference in our open judgment. We raised the matter with the prosecution who were receptive to these suggestions. Accordingly, we are able to say that the second statement explained further the position of the relevant interested parties in respect of a small number of discrete matters. It was likely that representations would be made that the case should not continue if evidence of any of these matters were to be disclosed publicly, and inevitable as regards one of those discrete matters. 34. We are well able to understand the difficulty about the factors of concern – both those in the Certificates and the discrete matters in the Schedules – being ventilated in a public hearing. The phraseology of Ms Reid is understandably cautious (see above). However, appreciating as we do, the potential consequences of public disclosure, the risk that the administration of justice would be frustrated if the core of the case was heard in open Court is overwhelming. We are further satisfied that the discrete matters dealt with in the Schedules require the additional protection given in the Order made following our Decision. 35. With a view to minimising any departure from the principle of open justice, we have obviously considered a split trial – i.e., with the core of the trial split into open and in camera hearings. We are, however, of the clear view, for reasons upon which we cannot elaborate in our Open Judgment, that in this case it is unreal to contemplate a split trial. It follows, as a matter of necessity, that the core of the trial must be heard in camera . 36. It is important to reiterate that a defendant’s rights are unchanged whether a criminal trial is heard in open Court or in camera and whether or not the proceedings may be reported by the media: thus the defendant in such a hearing has the right to know the full case against him and to test and challenge that case fully. This is a very proper consideration but it does not, in any way, lessen the need for close scrutiny of any suggested departure from the principle of open justice. 37. As already underlined, no departure from the principle of open justice must be greater than necessary. While we are driven to conclude that the core of the trial must be in camera , on the material before us, we are not persuaded that there would be a risk to the administration of justice were the following elements of the trial heard in open Court: i) Swearing in of the jury. ii) Reading the charges to the jury. iii) At least a part of the Judge’s introductory remarks to the jury. iv) At least a part of the Prosecution opening. v) The verdicts. vi) If any convictions result, sentencing (subject to any further argument before the trial Judge as to the need for a confidential annexe). Our Order has been drawn up accordingly. 38. We were further of the view – and so directed – that the position as to publication is to be reviewed at the conclusion of the trial, thus permitting (if need be) a further application for leave to appeal under s.159 , CJA 1988 . For the avoidance of doubt, as trials are dynamic processes, our Order does not preclude a review by the Crown and the Judge in the course of the trial, in the event of a substantial change of circumstances. 39. Still further, one issue canvassed before the Judge in open Court was whether a small number of “accredited journalists” might be invited to attend the bulk of the trial (subject to being excluded when the few discrete matters are discussed in accordance with the Certificates and the Crown’s submissions), on terms which compelled confidentiality until review at the conclusion of the trial and any further order. Notably, this issue as to the attendance of accredited journalists was raised in the Certificates and supported by the SSHD and SSFCA. The Judge was not persuaded, essentially on grounds of practicality. We respectfully disagree, for the reasons which follow. 40. First, the proposal emanates from the SSHD and SSFCA. Departures from the principle of open justice are to be kept to a minimum. It is accordingly difficult to see on what basis this proposal should be rejected – once supported by the Secretaries of State – unless it is either objectionable in principle or unworkable. 41. Secondly, in our view, the proposal is not objectionable in principle. Importantly: i) The selection of the journalists in question is not in the hands of the Secretaries of State. Instead, as provided in our Order, up to ten accredited journalists (as defined in the Order) may attend the trial subject to the terms as to confidentiality there set out. As further provided in our Order, any disagreement about which accredited journalists should be permitted to attend the private parts of the trial is to be resolved by the Appellants amongst themselves or, failing such resolution, is to be referred back to this Court. ii) Journalistic presence at a criminal trial fulfils two distinct but related purposes: public scrutiny of the proceedings, coupled with contemporaneous reporting. We acknowledge that what will be lost is contemporaneous reporting – but that is an inevitable corollary of an order for an in camera hearing and will, in any event, be reviewed at the conclusion of the trial. However, the proposal for the attendance of accredited journalists means that the scrutiny function of the media will be preserved throughout the trial (save for the discrete ex parte aspects). 42. Thirdly, we do not think the proposal is unworkable. The practical arrangements can be and have been dealt with in our Order. Any breach would obviously carry the likelihood of severe sanctions and, as has been observed on previous occasions, reliance must be placed on the responsibility of the media. Further and in particular, any doubts with regard to policing are resolved by the fact that this is a proposal emanating from the SSHD and SSFCA, serving to minimise the extent of the departure from the principle of open justice. 43. We do not repeat here the full terms of our Order. We do, however, wish to emphasise that a transcript of the public and private proceedings (excluding the specific and discrete ex parte matters) will be available for review by any of the accredited journalists at the conclusion of the trial. Practical arrangements in this regard should be made in good time, so that the interests of all concerned can be accommodated, subject to the direction/s of the trial Judge. The ex parte segment of the trial will be recorded but, for obvious reasons, the transcript will not be made available for review by any of the accredited journalists at the conclusion of the trial. 44. Any decision to hold a criminal trial in camera is troubling. However, for the reasons given, we are persuaded that there is a compelling case for doing so. We are further satisfied that the solution arrived at in this Court means that everything possible has been done to minimise the departure from the principle of open justice. ISSUE (II): ANONYMISATION OF THE DEFENDANTS 45. This issue is to be approached on the footing that the core of the trial is to be conducted in camera , as set out above. On this footing, we were not persuaded, on the material before us, that there was a risk to the administration of justice warranting anonymisation of the Defendants; nor did we think that, properly understood, the Crown’s material supported that outcome, provided the bulk of the trial was in camera . In this regard, we respectfully parted company with the Judge and permitted the Defendants to be named. We are unable to expand on these reasons in this Open judgment but will do so in the Private and Ex Parte judgments. 46. Mr. Whittam QC for the Crown submitted that the preservation of anonymisation might serve to protect flexibility at the end of the trial: the anonymity of the Defendants might (we underline might ) turn out to permit more to be published at that stage than might otherwise be the case. We were not persuaded and thought that the nettle needed to be grasped. For our part, we regarded the preservation of flexibility until the conclusion of the trial as an inadequate foundation upon which to base this significant departure from the principle of open justice in the absence of a clear justification at the stage when the issue arose before us. 47. We add only this. We express grave concern as to the cumulative effects of (1) holding a criminal trial in camera and (2) anonymising the Defendants. We find it difficult to conceive of a situation where both departures from open justice will be justified. Suffice to say, we were not persuaded of any such justification in the present case. ISSUE (III): S.4(2) , CCA 1981 48. S.4(2) of the CCA 1981 provides as follows: “ In any such proceedings [i.e., legal proceedings held in public] the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose. ” 49. The hearing before us: For the duration of the hearing before us, we “held the ring” by imposing an order under s.4(2) , CCA 1981 . At the conclusion of the hearing, we indicated that the order would not be continued in respect of the hearing in open Court before us on the 4 th June. We could not see any good reason to postpone publication of any open part of that hearing. The effect of our order was that the ordinary reporting restrictions applying to appeals from preparatory hearings (strictly so called) should not apply to the extent that anything said in the open hearing before us could be reported: see, s.37(4) , Criminal Procedure and Investigations Act 1996 (“ CPIA 1996 ”). 50. The hearing before Nicol J on the 19 th May: We were likewise not persuaded of the justification for a s.4(2) order in respect of that part of the 19 th May hearing before Nicol J which took place in open Court and the open judgment given by the Judge on that day. That said, we underline that the hearing before Nicol J was a preparatory hearing and therefore subject to reporting restrictions contained in s.37 , CPIA 1996 . The media’s success in this regard may therefore be limited, at least so far as it relates to the open proceedings before Nicol J. However, our conclusion also means that the open judgment of the 19 th May given by the Judge ceased to be subject to any s.4(2) order because its material parts were referred to before us.

```yaml citation: '[2014] EWCA Crim 1861' date: '2014-09-24' judges: - LORD JUSTICE GROSS - 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} ======

Case No: 201202246 B2 & 201202650 B2 Neutral Citation Number: [2013] EWCA Crim 1394 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CENTRAL CRIMINAL COURT His Honour Judge Beaumont QC T20117292 Royal Courts of Justice Strand, London, WC2A 2LL Date: 31/07/2013 Before: LADY JUSTICE RAFFERTY DBE MR JUSTICE SIMON and MRS JUSTICE CARR DBE - - - - - - - - - - - - - - - - - - - - - Between: R Respondent - and - SHIRLEY BANFIELD & LYNETTE BANFIELD Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - William Clegg QC and Adam Kane for the Appellant Shirley Banfield Jeffrey Samuels QC and Phillip Parry for the Appellant Lynette Banfield Crispin Aylett QC and Louis Mably for the Respondent Hearing date: 9 th July 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lady Justice Rafferty: 1. Shirley Banfield (“SB”) (65) and Lynette Banfield (“LB”) (41) on 22 December 2011 in the Central Criminal Court pleaded guilty to conspiracy to defraud (Count 2), forgery (Count 4) and conspiracy to pervert the course of justice (Count 5). Shirley Banfield pleaded guilty to dishonestly retaining a wrongful credit (Count 3). 2. On 3 April 2012 both Appellants were convicted of murder of Donald Banfield (“DB”) (Count 1). 3. On the same date, Shirley Banfield was sentenced as follows: COUNT OFFENCE SENTENCE 1 Murder Life imprisonment with a minimum term of 18 years, 2 Conspiracy to defraud 18 months imprisonment, to run concurrently 3 Dishonestly retaining a wrongful credit 12 months imprisonment, consecutive to Count 2 but concurrent to Count 1 4 Forgery 12 months imprisonment, consecutive to Count 2 but concurrent to Count 1 5 Conspiracy to pervert the course of justice 12 months imprisonment, consecutive to Count 2 but concurrent to Count 1 4. The total was life imprisonment with a minimum term of 18 years 5. Lynette Banfield was sentenced as follows: COUNT OFFENCE SENTENCE 1 Murder Life imprisonment with a minimum term of 16 years, 2 Conspiracy to defraud 18 months imprisonment, to run concurrently 4 Forgery 12 months imprisonment, consecutive to Count 2 but concurrent to Count 1 5 Conspiracy to pervert the course of justice 12 months imprisonment, consecutive to Count 2 but concurrent to Count 1 6. The total was life imprisonment with a minimum term of 16 years 7. Each appeals against conviction by leave of the Full Court. 8. SB married DB in 1980 and they had Kevin born in 1968 and LB born in 1971. In May 2001 DB disappeared aged 63. His body has never been found. There was evidence he was a heavy gambler and a womaniser. He had on 22 January 2001 retired from William Hill, bookmakers, at short notice. 9. He and SB lived in their family home in 146 Lockett Road (“Lockett”) in Harrow. The marriage was turbulent. He drew a pension from William Hill and in February and March 2001 he had drawn down lump sums from it. 10. In spring 2001 the sale of Lockett for £179,000 was agreed. Proceeds of the sale were to be split equally between DB and SB. 11. On 11 May 2001 DB told PC Riley his concerns about the malign attitude of his family. He co-signed the contract for the sale of Lockett, the last substantiated independent evidence of him in life. He has not been traced since. 12. On 15 May 2001, as SB had asked, LB forged a letter to his pension administrators asking that his pension go into his joint Nationwide account with SB. On Saturday 19 May 2001 DB was reported missing by his friend, Mr McIntosh. 13. The Crown’s case was that between 11-16 May 2001 the Appellants both murdered DB. The defence was that absent a body and any evidence DB had in fact been killed, the Crown could not prove a death let alone a murder, nor that either or both appellant/s had committed it or was present at the time of it. The case was speculative and circumstantial. 14. The Appellants relied on evidence that DB had previously disappeared from his native Trinidad and intended once again so to do prior to his disappearance in 2001. He had debts of £50,000. His financial affairs were tangled. He had drawn down £30,000 from his pension shortly before his disappearance. PC Savage saw him driving locally after he was said to have been murdered. His mobile telephone had been used on 14 May 2001 and was charged and able to receive calls for months after the alleged murder. The disposal of a body would have been extremely difficult and possible burial sites had been thoroughly investigated. The lies and deception of the Appellants were not evidence of murder. The Appellants confessed to the jury that their motive to the crimes of which they had pleaded guilty was financial gain but also initially to force DB to return, when they could hope to regularise the sale of Lockett. 15. The Crown relied upon evidence documentary and oral that DB complained to his doctor, the police, his friends and family of assaults it suggested were highly indicative of failed murder attempts by both Appellants shortly before his disappearance and on his expressed concerns that they would kill him. In the period leading up to his disappearance, DB described to Dr Karia his GP, the police and his friends domestic tension between himself and his wife and daughter, and their assaults on him. He told Mr McIntosh SB had tried to suffocate him as he slept and that he woke to find his hands handcuffed, a plastic bag nearby. He had started kicking and screaming and LB had released him. He thought his post was being interfered with. Once Mr McIntosh allowed him to have his mail sent to Mr McIntosh’s address letters addressed to DB started arriving. His post was intercepted and he found a stash of letters addressed to him behind the sofa including cheques from William Hill. Nothing like this happened prior to his retirement. He did not want the police to do anything. He could not risk his wife knowing he had gone to them. His house was about to be sold and he was thinking about returning to Trinidad. 16. Dr Karia recorded this account: “A couple of weeks ago, in the middle of the night, he found himself having been handcuffed behind his back and his wife trying to tie down his legs and put a plastic bag over his head. He says that he woke up and was able to salvage the situation. Another time his daughter tried to spray in his eyes whilst he was asleep and when he tried to confront her, his wife started screaming at him, at which point his wife brought a knife and they both said to him, ‘Why don’t you die?” 17. The last independent evidence of DB alive came from PC Riley. On 11 May 2001 he signed her pocket book entry that he did not want the police to take any further action. The same day he co-signed the contract for the sale of Lockett. 18. On Saturday 19 May 2001, after he had not heard from DB for over a week, Mr McIntosh reported him missing. When police visited the Appellants that day SB said he had a habit of disappearing. Told that Mr McIntosh had reported DB missing she said Mr McIntosh had mental health problems (as to which she was correct). 19. Next day, Sunday 20th May 2001, LB telephoned the police saying that about three months ago her father had started moving his possessions out of the house and she had now noticed his passport missing. 20. On 22 June 2001 SB made a witness statement to the High Court in support of an application for the appointment of a trustee to complete the sale of Lockett. She alleged that after DB had gone missing he had been seen locally. She did not provide the police with further details. The sale was completed, and the proceeds paid to SB. Mr Banfield’s state pension 21. On 22 January 2003, his 65 th birthday, DB would have become entitled to his state pension. The Appellants made a claim in his name, and from 22 February 2003 to 17 February 2008, a (gross) £26,811 was paid in and from 18 February 2008 to 4 May 2009, a further (net) £7,571. 22. On 31 December 2004 SB took early retirement from the Inland Revenue. On 10 June 2005 she submitted a claim for Disability Living Allowance including an entry purportedly by DB but written by LB detailing SB's disability. 23. The Crown relied on DB’s disappearance being immediately after he had signed the contract for the sale of Lockett which SB wrongly believed entitled her to complete the sale on her own. After he was reported missing, both Appellants were in the contention of the Crown unconcerned and both reported seeing him on Sunday 13 May 2001. They subsequently gave what the Crown said were misleading and untrue accounts to police and the High Court including: i) LB said he had voluntarily removed possessions and his passport from Lockett months before his disappearance and, in a joint statement with SB, that she had seen him at Christmas 2007 and 2008. ii) SB said he had a habit of disappearing, Mr McIntosh the friend who reported him missing had mental health issues (as was correct), DB had been seen locally in betting shops after his disappearance and, as PC Savage had said, driving a car in August 2001. iii) She and LB saw him at Christmas 2007 and 2008. She told police he had probably returned to Trinidad and was ill. 24. Within six months of his disappearance the Appellants used the proceeds of the sale to set up home together, 200 miles away. 25. In July 2009, DB by now missing for over eight years, the investigation was re-opened. Defence evidence 26. SB told the jury that during their long relationship and marriage DB would frequently disappear. He indulged in gambling and womanising. SB put up with all this because she loved him and they were mutually supportive. 27. As his retirement approached they made plans to move to the North East where property was cheaper. SB did not know DB had personal debts of £50,000 or that he was writing to his sister in Trinidad. After his retirement he became very depressed and his behaviour irregular. She denied any attempts to kill him and said and there was no truth in his complaints to others. 28. When they signed the contract for sale on Friday 11th May 2001 SB knew it was only the first stage of the process. The Saturday was a normal day. DB returned in the evening and may have left early on Sunday morning. After some time he did not return and she noticed he had taken personal belongings. Concerned about how the deed of transfer would be done and the sale completed without DB, on the Monday or Tuesday she telephoned LB and on Tuesday her solicitors told her exchange had taken place. LB told SB that DB had been moving his clothes for the last 2-3 months. They rang his mobile which rang but was not answered. SB immediately decided to transfer his pension into their (his and her) joint account, calculated to bring him back when he discovered it, since SB needed him to sign the transfer deed. LB agreed to forge the letter - it was clear DB had left for good. It was thoroughly dishonest and SB intended to repay William Hill. 29. SB did not contact the police since he had gone missing before and had taken all his clothes. SB gave the police his contact numbers and was in regular contact with them. The disappearance caused many problems for SB and she lied to the solicitors about having been told that she and DB had to sign the transfer deed. Through the Citizens Advice Bureau she instructed another solicitor and two applications were made to the High Court to convey the house and release the sale proceeds. SB then moved to the north east as originally planned. 30. His 65 th birthday on 22 nd January 2003 left DB eligible for a state pension. SB telephoned the Department for Work and Pensions and, as she had done with the William Hill pension, arranged for it to be paid directly to their joint account. SB had pleaded guilty to this offence and was ashamed about it. She also lied on a claim for Disability Living Allowance but that was more out of stupidity. She lived in fear of her frauds being discovered but four years after the disappearance was still hopeful that he would return. She lied about seeing him so as to cover up the frauds. 31. SB lied in police interview because she panicked. She went on the extravagant holiday to Grenada as she had not been on holiday for a long time and the plan had been to make inquiries about the deceased in Trinidad. 32. LB said she originally worked at a solicitors firm before reading an undergraduate degree at Bristol University. She visited SB regularly and then moved in with her parents to help care for her grandfather. She took out a mortgage to buy her grandfather’s council flat and moved in with him to help with his care. LB got on well with DB who often confided in her. He did not cope well with retirement and she knew nothing of her parents’ finances. There had been no incidents of violence or threats towards DB whom she and SB had never harmed. 33. LB was present when the papers were signed on Friday 11th May 2001, the last time she saw DB. His disappearance was not unusual. On the Tuesday, SB asked her to forge the pension letter to complete the house sale. They knew that if the pension were transferred DB would be very angry and come back. Hence LB agreed. She did not understand the seriousness of the forgery and also thought SB was being melodramatic. After a couple of years they had to keep the pension payments going because they were worried about what William Hill would do. They still hoped DB would return. He would have been angry but they could have sorted it out and he would not have gone to the police. 34. LB had told the police what she knew but had not mentioned the pension letter. She thought DB had wanted to disappear and was surprised to hear he had been seen driving locally. LB was not involved in the applications to the High Court but was aware of the problems with the solicitor and agreed to be a trustee so as to help. She signed a statement in those proceedings but did not read it. 35. LB knew SB claimed his state pension. Part of this was to conceal the fraud on the William Hill pension. LB agreed they had lied about seeing DB and in interview and said this was because she was worried about being implicated in the pension frauds. 36. The Appellants called Alan Strickland who said he had seen DB between 2005 and 2007. Ruling on submission of no case 37. The Appellants submitted that the evidence was insufficient to prove (a) which Appellant was responsible for the murder, or (b) whether both were responsible. They relied on R v Strudwick and Merry [1993] 326 in which Farquharson LJ said: “This case has considerable similarities with R v Lane and Lane (1986) 82 Cr.App.R 5, when the court was confronted with the same problem. It involved a charge of manslaughter of a child against the mother and stepfather. As in the present case neither of the accused made any admission and the Crown invited the jury to find that the accused were responsible. It was proved that they had told lies, but these did not lead to the inference of that appellant's presence. The defendants' purpose was to "alibi" each other, but as Croom-Johnson LJ pointed out, if the lie was shown to be false it did not advance the prosecution case. There are cases in which the present problem is overcome if the presence of both accused can be established at the time the assaults took place. An example is to be found in R v Lawson and Thompson (unreported) where the presence of both appellants was admitted at a time when the child victim was heard screaming by the next door neighbour. If of course evidence of that kind is available it avoids the problems which arise in the present appeal. For these reasons we are of the opinion that the Crown had not made out a prima facie case of manslaughter against the appellants and those convictions will be quashed.” 38. Arguing successfully that the case should be left to the jury, the Crown relied upon: i) The letter of 15th May 2001 - diversion of pension - forged by LB for the benefit of SB. ii) The joint actions and responses of both prior to and after the disappearance, including their lack of helpful input into the Missing Persons Inquiry and the false trails they created. iii) Their £26,365 holiday to Grenada booked on 22 March 2010 for departure in April 2010. iv) Their purchase within 6 months of May 2001 of a property 200 miles away. v) They acted jointly in the deception offences over 7 years. vi) They benefited financially. vii) They admitted lies that they had seen DB alive after May 2001. Their only motive was to create false trails. 39. The Judge said the evidence was sufficient directly to implicate each and that the case was not akin to R v Lane & Lane [1986] 82 Cr.App.R 5 or R v Strudwick and Merry [1993] 326. 40. By the time he came to sum up the Crown could also rely on the Appellants’ failure in interview to mention matters they sought to rely on at trial. 41. The Judge provided to the jury a document headed Route to Verdicts, only Question 3 of which need concern us. It read: “Are we sure that the defendant whose case we are considering caused DB’s death by either being involved directly in the fatal attack on DB or else was present at the time of that fatal attack and encouraged the other who carried it out to do what she did that caused DB’s death? If the answer is (sic) No, then that defendant must be found Not Guilty of his Murder and no alternative verdict of Manslaughter arises. If the answer is Yes then (Q4)” 42. Grounds of appeal for each Appellant are that the Crown was unable to say which of the two killed him, or that it must have been both acting jointly. The submission at the close of the case for the Crown should have succeeded. Submissions developed 43. There was acceptance that Question 3 in the Route to Verdict was, so far as it went, an accurate statement of applicable law. The criticism is that it failed to reflect the lacuna identified in the Grounds and advanced during submissions at the close of the case for the Crown. “…. either being involved directly in the fatal attack on DB or else was present at the time…….” (our emphasis). The Appellants argue that the fatal act could not be excluded as having been carried out by one or other Appellant. That being so, the Crown could not prove that it must have been carried out jointly. The evidence was as consistent with one Appellant acting alone later assisted by the other as it was with a joint enterprise murder. 44. The Crown submitted that a substantial body of evidence demonstrated they had acted together in recently assaulting him, in diverting his pension shortly after he was last seen (demonstrating confidence that he was dead), and in maintaining the pretence that he was still alive for their own financial gain. These facts were capable of establishing a pre-meditated joint enterprise to murder. This was not a case where the evidence could go no further than establishing that the offence was committed by one or other or possibly both, rather it was capable of proving the positive case of joint enterprise. 45. For SB Mr Clegg QC with whom Mr Parry, for LB agreed made three concessions: DB was murdered, his death was between 11 th and 16 th May 2001, and he was murdered either by both Appellants together or by one of them. The indictment did not plead, though it could have done, conspiracy to murder. Rather the Crown led a simple joint enterprise choate offence. Had the conspiracy been pleaded against SB he concedes that the way he puts her appeal today would not be open to him. 46. He postulated five explanations for the death of DB: i) The applicants acted in concert. ii) SB killed him and LB encouraged her. iii) LB killed him and SB encouraged her. iv) SB killed him absent LB. v) LB killed him absent SB. 47. It was agreed that to succeed the Crown must prove that at the infliction of fatal injury both women were present and acting in concert. Mr Clegg QC argued that since the Crown could not even prove presence of either, necessarily proof of concert fell away. He challenged its reliance on ante and post mortem joint activities as permitting an inference that the murder was also joint. He conceded from the outset that were the Crown able to prove the Appellants acted in concert it did not have to prove who was the principal and who the secondary party. 48. The Crown relied insofar as was permissible on ante mortem events which it advanced as capable of being seen as attempts upon the life or at least health of DB and as involving both Appellants. This Mr Clegg QC pointed out was accurate only in some respects. Some assaults were alleged as by individual Appellants. The Crown suggested that SB tried to poison him, used a knife upon him, and cuffed and smothered him whilst he was in bed. Some of these indignities were said to be in the presence of LB but not all. (DB had said LB rescued him when he was in bed and awoke cuffed). The Crown suggested one Appellant hit him whilst he slept. It suggested LB had a knife, squirted polish into his eyes and wanted him dead. 49. For LB it was argued that the Crown could not even positively assert that LB was in the house at the time of the killing. She lived elsewhere and did not habitually stay at her parents’ house. The Crown however relied upon the words of DB to a third party that LB still lived with her parents. We did not need to resolve this issue. 50. For the Crown Mr Aylett QC sought to distinguish the ruling of the Judge at the conclusion of the case for the Crown from his summing-up. By the time of the latter SB and LB had told the jury that there was nothing in what DB had said which was to their disadvantage. By the time they gave evidence, he argued, their joint responsibility was strongly made out. At the close of the case for the Crown there was ample evidence, he suggested, of concert. He relied on what he called evidence of a pattern of dishonest conduct from Tuesday 15 May 2001 until arrest. Additionally each woman was unconcerned. The two lied on and on, and the lies were common to each. Discussion and conclusion 51. This was an alleged joint enterprise murder with no body, no suggested mechanism of death, no identified day when the murder was said to have occurred, no time and no place and no suggestion of what happened to the body. 52. The appeal turns on whether there were evidence at the close of the case for the Crown from which the jury could infer that the two defendants must have killed together and not one in the absence of the other. 53. It is true that the test for the Judge hearing a submission was whether a jury could infer joint responsibility, not whether it were obliged so to do. The test for the jury was whether the Crown had made it sure of joint responsibility. The Crown’s difficulty is readily apparent. If at the close of its case the evidence were consistent both with inculpation and exculpation of either defendant then it had not established a prima facie case of murder, against either. 54. If circumstantial evidence, upon which much of this case was built, were to allow of but one interpretation, then a jury would be driven to a finding of guilt. That was not the position here. 55. The Crown relied on animus. It contended it had proved the intention to cause grievous bodily harm, and that each Appellant had both opportunity and motive. Mr Aylett accepted it was unusual that the Crown had pleaded so narrow a range of dates. 56. The Crown also argued that one Appellant woman alone would have found it difficult to kill DB. We were unpersuaded. The courts regularly see proved allegations of homicide against a woman acting alone. A moment’s reflection demonstrates the fallacy in the Crown’s argument – for example a knife used whilst the victim is unwary or asleep. Disposal of the body is more readily argued as difficult for one woman alone but post mortem activities are not capable without more of proving guilt of murder. If it were otherwise, every relative assisting in the disposal or delayed finding of a body would be guilty of murder. The Crown is entitled to suggest such activities give rise to suspicion but suspicion without more does not equate to proof. 57. Given its decision to indict murder but not conspiracy to murder (which latter would at the very least significantly have modified the submissions open to the Appellants, as Mr Clegg readily conceded) the Crown’s consequential difficulty was its inability to prove that the two women acted in concert to bring about DB’s death. It could, many would accept, prove that they had a motive so to do, and that each, singly and with the other, had in his life done enough to suggest animus. It could fortify that in reliance upon the post mortem dishonesty of both, jointly. What it could not do was prove a joint enterprise to be present when he was murdered either as killer or as participant in a joint enterprise. 58. As the authors of Smith and Hogan’s Criminal Law, 13 th Ed, para 8.4.1.5 remark, if all that can be proved is that the principal offence was committed either by the first or the second accused, each must be acquitted: Richardson (91785) 1 Leach 387; R v Abbott [1955] 2 QB 497 . We have reminded ourselves of the example given by Finnemore J and referred to in the judgment of Croom-Johnson LJ in Lane: If two sisters were provably in the room when X was murdered, and either both together or one alone were responsible, there is no prima facie case against either since the Crown would be unable to exclude either. We have reminded ourselves too that in that case there had been no suggestion that two had acted in concert, rather that one or the other was responsible. Nevertheless, the logic of the approach is not weaker as a consequence. 59. In our judgment t he words of Farquharson LJ in Strudwick resonate as powerfully in this case as then they did: It was proved that [the Appellants] had told lies, but these did not lead to the inference of [a single] Appellant's presence, let alone participation. These Appellants by their pleas and in evidence admitted lies, but the subject-matter even allied to motive came nowhere near proving their presence at the killing of DB. 60. We were grateful for the sharp focus on reality of Mr Clegg QC who accepted that the likelihood is that one or other appellant murdered DB. This case however demands the application of established law to fact even if the outcome appears troubling. As the LCJ said in Abbott: “Although it is unfortunate that a guilty party cannot be brought to justice, it is far more important that there should not be a miscarriage of justice and that the law should be maintained rather than that there should be a failure in some particular case.” 61. The five postulations as to what might have explained the death, lucidly set out by Mr Clegg QC, are an useful guide to the problem the Crown’s choice of a count of murder not of conspiracy to murder created. i) SB killed him and LB encouraged her. ii) LB killed him and SB encouraged her. iii) SB killed him absent LB. iv) LB killed him absent SB. v) The applicants acted in concert. 62. The first four show how obvious were the tenable alternatives which could have led to DB’s death. Once the Crown was unable to identify of which of the four options the jury could be sure, the fifth could not on the evidence provide a backstop. 63. The submission of no case to answer should have been allowed. These appeals will be allowed and both convictions will when we complete this judgment be quashed.

```yaml citation: '[2013] EWCA Crim 1394' date: '2013-07-31' judges: - LADY JUSTICE RAFFERTY DBE - MR JUSTICE SIMON - 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: [2024] EWCA Crim 487 Case No: 202300696 A3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT PETERBOROUGH HHJ ENRIGHT T202117216 Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/05/2024 Before : PRESIDENT OF THE KING'S BENCH DIVISION MRS JUSTICE YIP and MRS JUSTICE FARBEY - - - - - - - - - - - - - - - - - - - - - Between : REX Respondent - and - AURIOL GREY Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Adrian Darbishire KC, Mr Chris Henley KC, Mr Tom Doble and Mr Brad Lewis (instructed by Hickman & Rose Solicitors ) for the Appellant Mr Simon Spence KC (instructed by CPS appeals Unit ) for the Respondent Hearing dates: 8 May 2024 - - - - - - - - - - - - - - - - - - - - - Approved Judgment ............................. WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Dame Victoria Sharp, P.: 1. On 24 February 2023, in the Crown Court at Cambridge sitting at Peterborough, before His Honour Judge Enright and a jury, the appellant was convicted, after a retrial, of manslaughter. On 2 March 2023, she was sentenced by the judge to 3 years’ imprisonment. At a hearing on 19 May 2023 before the full court, she was refused leave to appeal against sentence. At that stage, she had been advised that there were no arguable grounds of appeal against conviction. Following a change of legal representation, she sought leave to appeal against conviction. An extension of time and leave to appeal was granted by this court (Dame Victoria Sharp, P., Yip J and Calver J) on 19 March 2024. 2. We turn to the facts. On 20 October 2020 at about 2.20 pm, the appellant was walking along the pavement on the Huntingdon ring road. Pedestrians and cyclists may have had shared access to that part of the pavement, although that was never clearly established one way or another at trial. Mrs Celia Ward was riding on her bicycle on the same pavement but in the opposite direction. She was an experienced cyclist who generally cycled on pavements or cycle paths owing to difficulties she had with her hearing. Mrs Ward was travelling in the same direction as the flow of traffic. The road itself was subject to a speed limit of 30 miles per hour. 3. As Mrs Ward approached her, the appellant gesticulated towards her, waving her left arm. She shouted at Mrs Ward: “Get off the fucking pavement.” She continued to walk towards Mrs Ward who fell off her bicycle into the road and into the path of a car whose driver had no chance to stop or take action. Tragically, the car drove over Mrs Ward causing catastrophic injuries. Despite a quick response from medical staff at a nearby GP surgery and the paramedics who attended, she was pronounced dead at the scene. Mrs Ward was 77 years old. 4. The appellant was 46 years old at the time. She had suffered cerebral palsy since birth when she sustained brain damage that resulted in epileptic seizures; and as a child, she underwent brain surgery to remove the part of the brain causing the epilepsy. As a result of that operation and brain injury the appellant had been left with a weakness to the right side of her body, significantly impaired vision and a degree of cognitive impairment. She walked with a limp and wore a lower leg brace. She had lost half her sight in each eye. The agreed facts at trial record that the consultant ophthalmologist who examined her, said that as a result of her brain operation, where part of the left hand side of her brain was removed, she has a total loss of visual field to the right side of view; i.e. each eye has a total loss of the right half of the visual field (which is completely different from closing your right eye and assuming that is what it looks like). At the time of the incident, as now, the appellant lived in supported accommodation. 5. When interviewed by the police, the appellant referred to her difficulties with mobility and eyesight but said that she did not consider that she had a mental disability. She said that the cyclist had been travelling towards her at speed and that she had “flinched out” with her left arm to protect herself and avoid being hurt. She told the police that she was not sure what she had said. After the CCTV with audio was played to her, she said she could not explain why she had spoken in that way but maintained that her actions were to protect herself. 6. The appellant was in due course charged with manslaughter. The charge was pursued as unlawful act manslaughter. The prosecution case was that the hostile reaction of the appellant to Mrs Ward cycling on the pavement was unlawful. It had caused Mrs Ward to fall off her bike and into the carriageway, resulting in her death. The words “Get off the fucking pavement” characterised the appellant’s mindset of hostility to cyclists riding on pavements. There was ample space for both the appellant and Mrs Ward to pass one another but the appellant had deliberately obstructed Mrs Ward’s path, waving her arm in such a manner that it either briefly made contact with Mrs Ward or caused her to take evasive action, leading to her falling into the road to her death. 7. The incident was captured on harrowing CCTV footage which we have viewed. In addition, the prosecution relied on evidence of motorists and passers-by. The driver of the car that struck Mrs Ward, saw two stationary people, one on a pushbike; they seemed to be chatting. Mr Walker, the driver of the car immediately behind, noticed two stationary women on the pavement and saw an arm movement from the pedestrian aimed at the cyclist which caused the cyclist to wobble and veer to the left. It was not clear to him whether contact was made. Ms Ainley was the driver of the car behind Mr Walker. She saw a pedestrian thrashing her arms around and waving her arms above her head four or five times. Another motorist whose statement was read, saw that the appellant had something in one arm and was using the other arm to shoo a cyclist who was on the pavement. Her arm was being used in a waving action. 8. In addition to CCTV of the incident, the prosecution relied on CCTV from a Sainsbury’s supermarket, taken immediately prior to the incident, showing the appellant’s ability to avoid obstacles and oncoming shoppers. Evidence of Police Constable Sean Redman confirmed that the incident lasted a matter of seconds. He estimated that Mrs Ward had been riding at 4.7 miles per hour. Finally, the prosecution relied on the comments made by the appellant in police interview to demonstrate her disapproval of cyclists on pavements. 9. The appellant’s defence case statement indicated that she was not aware that cyclists were permitted to use the pavement. She had felt anxious and feared that she would be hit by the cyclist who was approaching her at speed. She remembered moving her arm to alert the cyclist and shouting in her direction to make her slow down. She had acted instinctively and lawfully to prevent the cyclist from colliding with her. 10. The appellant did not give evidence at trial. In line with her interview and defence case statement, she advanced the defence of accident or self-defence. The appellant’s case was that, owing to her agreed medical difficulties, she perceived Mrs Ward to be coming towards her suddenly and at speed. The appellant’s arm motion was a result of her fearing she would be hit. Mrs Ward would likely have been able to see the appellant from some 85 metres away and, despite the appellant’s unusual gait, did not stop. It was possible that Mrs Ward had slowed down to pass the appellant, lost momentum, wobbled and fallen into the road. 11. The prosecution now accepts that, by the time that the judge summed up the case to the jury, there was no evidence which could make the jury sure that the appellant had made any physical contact with Mrs Ward. The evidence was that the appellant had gesticulated and shouted at Mrs Ward using a swear word. There was however no evidence to make the jury sure that the appellant pushed or in any way touched Mrs Ward. 12. The judge’s written directions show that the issues that left to the jury were whether the defences of accident or self-defence were made out and, if not, whether “a sane and reasonable person” would realise that doing what the appellant did would inevitably expose Mrs Ward to some harm. The reference to “sane” in this context was an error: a sober person, is the correct legal formulation, see R v Church [1966] 1 Q.B. 59), but the judge’s error in this regard was immaterial. 13. The judge provided the jury with written legal directions and with a written route to verdict. The material parts were as follows: “Manslaughter A person commits manslaughter if he/she does an unlawful act that a sane and reasonable person would realise would inevitably expose another person to the risk of some harm (and that other person dies as a result). If you concluded that what took place was or may have been an accident, then you will find the defendant not guilty. If you were sure that what took place was not an accident but found that the defendant was or may have been acting in self-defence, then you will find her not guilty.” “ROUTE TO VERDICT Q 1 Was what took place or may it have been an accident? If so, your verdict is not guilty. Go no further. If not, go to Q2. Q 2 Did she believe, or may she have believed it was necessary to use force to defend herself? If not, self-defence fails and you will go straight to Q4. If yes, go to Q3. Q3 Was the force that she used reasonable, or may it have been reasonable? If yes, verdict not guilty. Go no further. If no, self-defence fails. Go to Q4. Q4 Would a sane and reasonable person realise that doing what she did, would inevitably expose Mrs Ward to some harm? If yes, verdict guilty. Go no further. If no, verdict not guilty.” 14. On behalf of the appellant, Mr Adrian Darbishire KC with Mr Chris Henley KC, Mr Tom Doble and Mr Brad Lewis (who did not appear at trial) submits that the Judge failed to specify to the jury the act constituting the relevant “unlawful act” (sometimes called the base offence) that was the alleged cause of death. Neither the Judge nor the parties identified any such act during the trial. As a consequence, the elements of the base offence were never left for the consideration of the jury. The issue was never addressed, and no base offence proved. Mr Darbishire submits that the factual elements which were left to the jury were insufficient in law for a conviction for manslaughter to follow. 15. Mr Darbishire further argues that there was insufficient evidence for the jury to be sure that any base offence had been committed so that the elements of unlawful act manslaughter could not as a matter of law be proved. In answer to an argument advanced on behalf of the respondent that the fact that no submission of no case was made at the conclusion of the trial amounted to a concession as to the base offence, Mr Darbishire says that this illustrates the problem at the heart of this case. The requirement to prove the elements of the base offence had been entirely overlooked by everyone, that is counsel on both sides and the judge. 16. On behalf of the respondent, Mr Simon Spence KC accepts that the judge did not leave the elements of any specific base offence to the jury. He accepts that the base offence could not be a battery as the jury could not be sure of any physical contact. He submits that, on the facts of the case, the only base offence that could have been applicable was common assault, which is defined as an act by which a person intentionally or recklessly causes another to apprehend immediate unlawful violence. Even though the judge did not give any directions to the jury about common assault, Mr Spence submits that the jury were nevertheless directed in terms such that they would inevitably have found that common assault was committed. The cumulative effect of the evidence, the legal directions and the route to verdict was such as to enable the jury properly to understand the issues in the case, and most fundamentally, that they were concerned with the unlawfulness or otherwise of the appellant’s actions. Mr Spence submits that the conviction is therefore not unsafe. 17. In R v Goodfellow (1986) 83 Cr. App. R. 23, 27, Lord Lane CJ stated: “The questions which the jury have to decide on the charge of manslaughter of this nature are: (1) Was the act intentional? (2) Was it unlawful? (3) Was it an act which any reasonable person would realise was bound to subject some other human being to the risk of physical harm, albeit not necessarily serious harm? (4) Was that act the cause of death?” 18. In R v Kennedy (No 2) [2007] UKHL 38; [2008] 1 A.C. 269, the House of Lords confirmed that the unlawful act must be a crime. Lord Bingham said [at paragraph 7]: “To establish the crime of unlawful act manslaughter it must be shown, among other things not relevant to this appeal: (1) that the defendant committed an unlawful act; (2) that such an unlawful act was a crime … and (3) that the defendant’s unlawful act was a significant cause of the death of the deceased …” 19. A person is only guilty of manslaughter therefore if he or she has carried out an act that itself contravenes the criminal law. All elements of the base offence must be proved before a jury can properly find that a person is guilty of manslaughter. 20. In R v Lamb [1967] 2 Q.B. 981, the defendant shot his best friend when he pointed a revolver at him in jest and pulled the trigger. The revolver had two bullets in the chambers but neither was in the chamber opposite the barrel. The defendant did not understand the mechanism of the weapon and did not realise that his actions would cause a live shot. The deceased also treated the incident as a joke. The trial judge took the view that the pointing of the revolver and the pulling of the trigger could of itself be unlawful even if there was no attempt to alarm or to injure. He directed the jury that “using a revolver, in the circumstances of the case, in such a manner as in the contemplation of any ordinary man, possessed of his reason, will cause real and unnecessary risk of injury to another, is an unlawful act, whether or not it falls within any recognised category of crime.” The Court of Appeal found that this was a misdirection. On appeal, the Crown conceded that there was no evidence to go to the jury of any assault of any kind. It was acknowledged that a charge of assault could not have been maintained if the pulling of the trigger had not resulted in a shot being fired and the deceased being killed. The Court of Appeal held that it was necessary to prove the mens rea for an assault as well as the actus reus. This case illustrates that it will often be helpful to consider what offence might have been charged if no death had occurred. 21. It is common ground that the appellant could only be convicted of manslaughter if she had committed the offence of common assault, this being the only possible base offence. It is also common ground that the elements of the base offence were never specified at trial, whether by the prosecution or by the judge, nor was the failure to do so recognised by those then representing the appellant. This was not simply a failure to provide a label for a base offence about which the jury were otherwise properly directed. The jury were provided with no directions at all about any of the elements of the base offence, whether relating to the actus reus or the mens rea. They were simply not asked to consider the factual elements required to prove a common assault. This amounted to a failure to direct the jury about an essential ingredient of the offence of manslaughter. 22. We reject Mr Spence’s submission that the judge’s failure to deal with common assault made no practical difference. It cannot realistically be maintained that the jury were, notwithstanding the absence of any legal directions on common assault, aware of the elements that must be proved. Nothing in judge’s legal directions or in his summary of the evidence implies that the jury were sure that the appellant committed a common assault which caused death. 23. The elements of common assault, which should have been identified for the jury, are: i) The actus reus or conduct element, namely that the appellant’s conduct caused the deceased to apprehend immediate unlawful infliction of force; ii) The mens rea or mental element, that is, that the appellant’s threat of force was intentional or reckless. 24. To prove recklessness, the prosecution had to prove that the appellant: i) Was actually aware of the risk that the deceased would apprehend immediate unlawful violence; and ii) Nevertheless went on to take the risk; and iii) In the circumstances known to the appellant, it was an unreasonable risk for her to take. 25. The judge’s legal directions did not address any of these issues. They focused instead on accident and self-defence. The route to verdict first asked whether “what took place” was or may have been an accident. This could not have greatly assisted the jury on the facts of this case. In one sense, “what took place” was an accident. No one suggested that the appellant intended that Mrs Ward would fall into the road and be killed. In another sense, the appellant’s actions were not accidental. It was not an “accident” that she waved her arm (or arms) and uttered the words that she did. Posing this question did not and could not have invited the jury to consider whether the elements of common assault were made out. 26. In his directions on self-defence, the judge said: “If you reject self-defence, it means you have found that she used unlawful force.” This was a misdirection in law. The jury had to consider whether the elements of common assault were otherwise made out before considering whether the defence of self-defence might apply. They had not been invited to do so. 27. The prosecution case at trial was that the appellant waved her arm towards Mrs Ward in a swinging motion, shouted at her to get out of the way using obscene language and walked towards her. The trial did not address the issue of whether such actions caused Mrs Ward to apprehend the immediate unlawful infliction of force. 28. In his summing up, the judge described the parties’ respective cases as follows: “The Crown case is that the defendant was angry at the sight of the bike approaching her. She could have stopped, could have stepped aside but, instead, kept moving forward, shouting angrily and striking out in anger and, whether that blow connected or not, it caused the cyclist to topple slowly sideways, perhaps in apprehension of a blow. That’s the Crown case and the Crown say if you apply the legal directions, there can be only one outcome. The defence say, essentially, that she may have been taken by surprise by the sight of a bike coming down the pavement and feared for her safety and acted instinctively; accident, self-defence.” 29. Even if this accurately encapsulates the prosecution’s case, it follows from this that, the prosecution case taken at its highest was that Mrs Ward perhaps apprehended a blow. It was not enough however for the prosecution to prove that the appellant’s conduct may have caused Mrs Ward to apprehend immediate unlawful force. The prosecution had to make the jury sure that the appellant’s actions did have that effect. The jury were simply never asked to consider that issue. 30. The prosecution appear to have approached this case on the basis that hostility on the part of the appellant was enough to establish that her actions were unlawful. The legal directions did nothing to correct that misunderstanding. There was no focus on the appellant’s subjective state of mind. There was no identification of what the appellant needed to have appreciated in order to establish recklessness. No attention was given to whether she recognised that there was a risk of Mrs Ward apprehending that she would be violent towards her. The jury were not asked to determine what circumstances were known to the appellant or to decide whether she ran an unreasonable risk in those circumstances. The mental element of common assault was simply not addressed at all. 31. Had the issues been properly identified at the outset, it is likely that much greater attention would have been given to the evidential basis upon which the prosecution case was founded. The prosecution and the judge invited the jury to focus particularly on the CCTV evidence as the best evidence of what happened. That evidence plainly could not establish what was in the mind of either woman as they encountered each other. However, one possible view of the movements captured on the CCTV footage is that Mrs Ward altered her course to avoid the appellant walking towards her and lost her balance. That reflects how the prosecution case was ultimately left to the jury, that is that there was uncertainty as to whether Mrs Ward toppled in apprehension of a blow or for another reason. 32. We discern no possible grounds for concluding that the jury could properly have been sure that Mrs Ward apprehended immediate unlawful violence. If anyone at the trial had appreciated that the jury should be provided with directions about the base offence, it would have been obvious that the prosecution case was defective. The only question was whether the jury were sure that Mrs Ward apprehended a blow; what she may perhaps have apprehended was legally insufficient to found a conviction. In our judgment, the prosecution case was insufficient even to be left to the jury. 33. Had the prosecution been able to overcome the first hurdle of establishing the actus reus for a common assault, the appellant’s state of mind would then have required close attention. If the parties had properly identified the issues for the jury, the evidence at trial may well have been different. Although the jury had some evidence of the appellant’s disabilities, we anticipate that they may have been given greater attention had the necessary elements to establish recklessness been clearly identified. In this regard we have the benefit of considering a medical report prepared for the appellant’s sentencing appeal, and a helpful and perceptive letter from the appellant’s brother-in-law. He was not aware of the appellant’s prosecution or sentence, but having been made aware of it after the event by reports in the media, brought about the instruction of her fresh legal team. 34. The jury would have required careful directions as to how to approach such evidence, that is, of the appellant’s cognition and her disabilities, and its impact on her actions and perceptions at the time. As it was, the jury were simply not directed to consider the mental element. There is no possible basis for inferring that they answered questions that were not posed. The issues they were asked to determine did not address the fundamental question of whether any base offence was established. 35. Mrs Ward’s death was a tragedy and the circumstances of it were horrific. We recognise the huge distress caused to her family and acknowledge that the outcome of this appeal may add to that. The appellant’s actions that day contributed to Mrs Ward’s untimely death. It seems to us that this formed the starting point for the prosecution. Had Mrs Ward not died, we regard it as inconceivable that the appellant would ever have been charged with assault in circumstances where it could not be established that she had made any physical contact with the cyclist. The death of Mrs Ward is plainly of great significance and undoubtedly called for proper investigation of any criminal responsibility. However, the requirement to prove all the legal elements of common assault remained the same and were simply not addressed as they should have been. 36. In all the circumstances, we have no hesitation in concluding that the appellant’s conviction for manslaughter is unsafe. The judge’s legal directions contained fundamental and material misdirections of law. That stemmed from the failure of all involved to properly identify and address the issues to be determined by the jury. Had the need to identify and prove a base offence been recognised, the evidential insufficiency of the prosecution case would have been recognised. There was, in our judgment, simply no proper basis for the appellant to be convicted of manslaughter in this very tragic case. 37. This appeal is therefore allowed, and the conviction will be quashed. 38. We are obviously grateful to all counsel but should particularly mention the appellant’s new legal team, including counsel and solicitors who advised and prepared this appeal pro bono.

```yaml citation: '[2024] EWCA Crim 487' date: '2024-05-08' judges: - MRS JUSTICE FARBEY ```

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

Neutral Citation Number: [2004] EWCA Crim 1981 Case No: 2004/2759/D IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BRISTOL CROWN COURT GRIGSON J T2003337041 TO 45 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/07/2004 Before : LORD JUSTICE LATHAM MR JUSTICE GIBBS and HIS HONOUR JUDGE RICHARD BROWN DL - - - - - - - - - - - - - - - - - - - - - Between : JONES & MILLING, OLDITCH & PRITCHARD, AND RICHARDS Appellant - and - GLOUCESTERSHIRE CROWN PROSECUTION SERVICE Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - James Lewis, QC & James Hines (instructed by The Stokoe Partnership ) for the Appellants Jones & Milling Vaughan Lowe & Alison McDonald (instructed by Bindman & Partners ) for the Appellants Olditch & Pritchard Keir Starmer, QC & Hugo Charlton ( instructed by The Stoke Partnership ) for the Appellant Richards Prof Malcolm Shaw QC , Mark Ellison & Peter Blair (instructed by the Crown Prosecution Service ) for the Respondent Hearing dates : 29/30 Jun 04 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Latham: Introduction 1. These appeals arise out of rulings given by Grigson J at a preparatory hearing under the provisions of Section 29 of the Criminal Procedure and Investigations Act 1996 on the 12 th May 2004. Those rulings relate to a common issue raised in the three prosecutions with which we are concerned, namely the extent to which the defendants in the proceedings can rely on their beliefs as to the lawfulness of the United Kingdom’s actions in preparing for, declaring, and waging war in Iraq in 2003. The background facts. 2. i) R –v- Jones and Milling These defendants are jointly indicted with conspiring together, contrary to Section 1(1) of the Criminal Law Act 1997 on the 13 th March 2003, to cause criminal damage. At about 2145hrs on that day, the defendants were discovered together by a senior USAF airman in the secure fuel installation complex inside the perimeter fence of RAF Fairford, which was at the time a 24 hour operational military airbase and NATO stand-by base, as well as being home to Allied US visiting forces. They were in possession of tools which had enabled them to enter the airbase, and which they intended to use to cause damage to equipment on the airbase. By the time that they were apprehended, they had damaged three refuelling trucks, two munitions trailers and their tractor units. When arrested they both stated that it was their intention to prevent the United States and the United Kingdom from using the base for what they described as a launching pad for war crimes. ii) R –v- Olditch and Pritchard These defendants are charged with two counts. The first count is conspiracy contrary to Section 1(1) of the Criminal Law Act 1977 between the 16 th and 19 th March 2003 to cause criminal damage. The second is having articles in their custody or control on the 18 th March 2003 intending to destroy or damage property in a way which they knew was likely to endanger the lives of others contrary to Section 3(b) of the Criminal Damage Act 1971 . At about 5.25am on the 18 th March 2003, the defendants were discovered lying in the grass inside the perimeter of RAF Fairford. They both had rucksacks in their possession containing items which were clearly intended to cause damage, although no damage had in fact been occasioned before they were arrested. Each of them asserted in prepared typed statements that they were intending to take action against the bombers on the airbase in such way as to immobilise them if possible on the grounds that the United Kingdom and the United States of America were acting unlawfully. iii) R –v Richards. This defendant is charged with three counts. The first count is attempted arson on the 18 th March 2003 being reckless as to whether the life of another would thereby be endangered. The second is having articles in his custody or under his control on the same date intending that they should be used to destroy or damage property in a way which he knew was likely to endanger the lives of others contrary to Section 3(b) of the Criminal Damage Act 1971 . And the third is Criminal Damage contrary to Section 1(1) of the Criminal Damage Act 1971 . The defendant was discovered at 0210hrs on the 18 th March 2003 just outside the perimeter fence of RAF Fairford close to where a section of the perimeter fence had recently been cut. He was in possession of a rucksack in which petrol and washing-up liquid was found mixed together, which he said were intended to set fire to the wheels of a bomber. He stated that he had intended to take this action in order to stop a crime in that the bombers were taking part in an illegal war. The Preparatory Hearing 3. The defence statements for the purposes of the trials were based on the assertion that the attack on Iraq was an unlawful act which they were attempting to prevent. As a result, each submitted that they were entitled to rely upon three defences: a. duress of circumstance/necessity; b. the defence of lawful excuse under Section 5(2)(b) of the Criminal Damage Act 1971 , which provides as follows: “A person charged with an offence to which this section applies shall …. be treated as having a lawful excuse – …. (b) if he destroyed or damaged or threatened to destroy or damage the property in question, or in the case of a charge of an offence under Section 3 above, intended to use or cause or permit the use of something to destroy or damage it, in order to protect property belonging to himself or another or a right to an interest in property which was or which he believed to be vested in himself or another at the time of the act or acts alleged to constitute the offence he believed – (i) that the property, right or interest was in immediate need of protection, and (ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances: (3) For the purpose of this section it is immaterial whether a belief is justified or not if it is honestly held.” c. the prevention of crime under section 3 of the Criminal Law Act 1967 , which provides: “A person may use such force as is reasonable in the circumstances in the prevention of crime.” 4. The prosecution sought rulings from the judge in relation to the following questions: “(i) Can a defendant facing criminal proceedings in an English court challenge the legality of the use of force by the UK Government and/or the government of the USA and other states, against Iraq in March 2003 in reliance upon UN Security Council Resolutions? (justiciability)” a) If the answer to question 1 is “No”, is the defence of necessity available to the defendant as a matter of law, on the most favourable view to him on the material available and likely to be available? b) If the answer to question (i) is “No”, is the defence of use of reasonable force in the prevention of crime under Section 3 of the Criminal Law Act 1967 available to either of the defendants on the most favourable view to them on the material available or likely to be available? i) Is the defence of lawful excuse under Section 5 of the Criminal Damage Act 1971 available to the defendant on the most favourable view to him of the material available or likely to become available? ii) Does the defence provided by Section 3 of the Criminal Law Act 1967 extend to the reasonable use of force by them against the person?” 5. The judge declined to give a ruling on the basis of any assumptions as to the facts. No one suggests that he was wrong to take that course. As far as the question relating to Section 3 of the Criminal Law Act was concerned, that confined itself in argument to an issue of what, if any, crime or crimes could be relied upon by the defence. The judge’s decision 6. The judge concluded that the issue of the legality of the war was not justiciable in domestic courts on the basis that the United Kingdom government was exercising its prerogative powers in relation to foreign policy and the deployment of the armed forces, which were issues into which the courts would not enquire. As far as the defence under Section 5 of the Criminal Damage Act 1971 was concerned, he concluded that the only matters which were relevant were those expressly set out in the sub-section, so that a defendant had a lawful excuse if he acted in order to protect property, and at the time he so acted he believed that the property was in immediate need of protection and that the means adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances as the defendants believed them to be. He ruled that there was no requirement that the damage to the property which the defendants sought to prevent was the result of an illegal act. As far as Section 3 was concerned, he ruled that this must mean a crime in domestic law. He rejected the defendants’ submissions that there was an international crime of aggression which was triable in domestic courts. But he ruled that under the International Criminal Court Act 2001 , certain war crimes committed by individuals were triable in domestic courts, so that the defendants were entitled to argue that they had not acted unlawfully in so far as they were able to establish that they believed that any force they used was reasonable force to prevent such offences from being committed. As to necessity or duress of circumstance, he said as follows: “49. As it seems to me, for the defence of necessity to be available, a defendant must show: (i) that he committed what would otherwise be an offence of criminal damage in order to prevent an act of greater evil. There is no requirement that the act of greater evil should be unlawful, nor that it take place within the jurisdiction. (ii) that the greater evil was directed to those whom the defendant reasonably believed he had responsibility or for whom the situation made him responsible. It would be a matter for the jury to decide whether a defendant could reasonably believe he was responsible for the citizens of Iraq against whom his own government had decided or might decide (in the exercise of prerogative power) to use force. (iii) that the actions were reasonable and proportionate to the evil to be avoided. (iv) that on the facts the defendants believed them to be he was driven to act as and when he did to avert harm that was about to happen.” 7. He concluded that the actual legality or illegality of the war against Iraq was accordingly not a relevant issue in the trial. He gave leave to each of the defendants to appeal against his ruling on justicability, and gave leave to both the prosecution and the defence to appeal his rulings on the specific defences. The Appeals 8. The defendants have appealed against the judge’s ruling on justiciability and his conclusion that the alleged crime of aggression is not a crime for the purposes of Section 3 of the Criminal Law Act 1967 . The prosecution has appealed against his ruling in relation to the defences of duress of circumstance and lawful excuse under Section 5 of the Criminal Damage Act 1971 in so far as that permitted the jury to take into account in determining the reasonableness of the defendants actions the inevitable consequences of a declaration of war. The prosecution do not appeal against the judge’s ruling that the jury is entitled to consider a defence based upon the prevention of alleged offences under the International Criminal Court Act 2001 . The Issues 9. We have heard extensive argument on domestic and international law, a substantial proportion of which has been directed to the issue of justiciability. That is a difficult and controversial topic which has already been the subject of a decision of this court in relation to what was then the threatened war in Iraq in The Campaign for Nuclear Disarmament –v- The Prime Minister of the United Kingdom & Others [2002] EWHC 2759 (QB) . The Campaign for Nuclear Disarmament sought to obtain in judicial review proceedings a declaration as to the true meaning of Resolution 1441 adopted by the United Nations Security Council on the 8 th November 2002 and a declaration as to whether or not it authorised States to take military action in the event of non-compliance by Iraq with its terms. A Divisional Court of three, presided over by Simon Brown LJ, dismissed the application. The Court held that the questions raised by the allegation were non-justiciable. Simon Brown LJ gave as his reasons, firstly that the court had no jurisdiction to declare the true interpretation of an international instrument which had not been incorporated into English domestic law and which it was unnecessary to interpret for the purposes of determining an individual’s rights or duties under domestic law; secondly that the court would in any event decline to embark upon the determination of an issue if to do so would be damaging to the public interest in the field of international security or defence. 10. Maurice Kay J gave as his principal reason for rejecting the claim the fact that the subject matter of the application was one which was within forbidden area for the courts, citing a passage from the speech of Lord Fraser in CCSU –v- Minister for the Civil Service [1985] AC 374 at page 398: “Many of the most important prerogative powers concerned with the control of the armed forces and with foreign policy and with matters which are unsuitable for discussion or review in the Law Court.” 11. Richards J considered that the claim was an attempt to limit the Government’s freedom of movement in relation to the actual use of military force, so that took it squarely into the fields of foreign affairs and defence. He said at paragraph 59: “In my view it is unthinkable that the national courts would entertain a challenge to a government decision to declare war or to authorise the use of armed force against a third country. That is a classic example of a non-justiciable decision.” 12. This echoes a comment by Simon Brown LJ at paragraph 15: “CND must inevitably recognise that any future decision to take military action would plainly be beyond the courts’ purview.” 13. These passages neatly identify the respective arguments put before us. The defendants submit that unlike the CND, they are not asking for a declaratory judgment, but are seeking to obtain the court’s ruling on matters which affect their rights or duties under domestic law. It is accordingly necessary for the court to enquire into the lawfulness of the government’s actions in declaring war; or to be more exact, it will be necessary for the judge to direct the jury as to the ingredients of the international crime of aggression, which is the basis of the defendant’s contention that the Government’s action was unlawful, so as to enable the jury to determine whether or not the defendants’ beliefs as to the facts justify the conclusion that that crime was about to be committed. It is further submitted that to assert that that enquiry was non-justiciable on the grounds that it related to the exercise of the executive’s undoubted prerogative powers in relation to foreign affairs and the disposition of armed forces would be, in effect, to grant the executive immunity from the criminal law. The prosecution on the other hand submit that this would involve the court through the respective roles of the judge and the jury in the trial, in enquiring into subject matter which is quintessentially incapable of being explored by the courts for the reasons given by the judges in the CND case. 14. There is, it seems to us, considerable force in the argument that the CND case does not, in itself, provide the answer to the issue of justiciability in the present case for both of the fundamental reasons advanced by the defendants. But that issue simply does not arise if the judge’s other rulings are correct. If he is right that under Section 3 of the Criminal Law Act 1967 , a crime must be a crime in domestic law and the alleged international crime of aggression was not part of domestic law, that answers the question in relation to the proposed defence under Section 3 . If he is right that the lawfulness or otherwise of the executive’s actions were irrelevant to the jury’s considerations under Section 5 of the Criminal Damage Act, and in relation to the defence of duress of circumstance, again the issue simply does not arise. It seems to us, therefore, that it is essential to determine the correctness of those parts of the ruling by the judge in order to determine whether the issue of justiciability is one which needs to be addressed, and if so its context. Section 3 of the Criminal Law Act 1967 15. The first question is whether or not the word “crime” in Section 3 means a crime in domestic law, or has some wider meaning. Mr Lewis, QC on behalf of Jones and Milling submits that we should give a broad meaning to the word. He has referred us to Smith and Hogan’s Criminal Law, 10 th Edition, in which Sir John Smith cites at page 19, from the judgment of Lord Atkin in Proprietary Articles Trade Association –v- A-G for Canada [1931] AC 310 at 324: “The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: is the act prohibited with penal consequences?” 16. Further on at page 22, Sir John Smith says that when asking the question how, in effect, is a judge to determine whether or not any actions are criminal; the answer must be: “Surely, only by ascertaining whether the legislature (or the courts in the case of a common law crime) have prescribed that the proceedings shall be criminal; and this must depend, primarily, upon whether it is intended to be punitive.” 17. It seems to us that the citation from Smith and Hogan begs the question. Whilst accepting that an international crime may exist independently of any procedure proscribed by general consent or treaty for their trial and punishment, it can only be a crime if the consequences to the perpetrator amount to punishment, which can only be the case if what is described as the international crime is, in the absence of any international tribunal given jurisdiction in relation to that crime, triable and punishable in domestic law. 18. There is no definition of “crime” in the Criminal Law Act. But is seems clear to us that the section, which gives protection in domestic law to those acting to prevent crime can only have intended that protection to apply where a criminal offence in domestic law is involved. If it were otherwise, it is difficult to see how any satisfactory definition of the word “crime” could be arrived at. It could not be intended to refer to something which would amount to a crime in another jurisdiction, for that would give extra territorial effect in England to the criminal laws in another jurisdiction. In the case of an alleged international crime, it could only amount to a crime on Sir John Smith’s formulation if it were punishable somewhere. If it was punishable in another jurisdiction but not in the United Kingdom, this would give rise to the same objection. 19. Whether the alleged international crime of aggression is a crime in domestic law depends upon the effect of public international law rules in English Law. Sir William Blackstone in his Commentaries on the Laws of England (1769) (Book 4 Public) Chapter V at page 66 deals with what he describes as Offences against the Law of Nations: “The law of nations is a system of Rules, deducible by natural reason, and established by universal consent among the civilised inhabitants of the world, in order to decide all disputes to regulate all ceremonies and civilities and to ensure the observance of justice and good faith, in that intercourse which must frequently occur between two or more independent states, and the individuals belonging to each. This general law is founded upon this principle, that different nations ought in time of peace to do one another all the good they can; and in time of war do as little harm as possible, without prejudice to their own real interests. And, as none of these states will allow a superiority in the other, therefore neither can dictate or prescribe the rules of this law to the rest. But such rules must necessarily result from those principles of natural justice, in which all the learned of every nation agree: or they depend upon mutual contact or treaties between the respect of community, in the construction of which there is also no judge to resort to, but the law of nature and reason, being the only one in which all the contracting parties are equally conversant, and to which they are equally subject. In arbitrary states this law, wherever it contradicts, or is not provided for by the municipal law of the country, is enforced by the royal power: but since in England no royal power can introduce a new law, or suspend the execution of the old, therefore the law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be part of the law of the land.” 20. In West Rand Central Gold Mining Company –v- Rex [1905] 2 KB 391 at page 406, Lord Alverstone CJ said: “The second proposition urged by Lord Robert Cecil, that international law forms part of the law of England, requires a word of explanation and comment. It is quite true that whatever has received the common consent of civilised nations must have received the assent of our country, and that to which we have assented along with other nations in general may properly be called international law, and as such will be acknowledged and applied by our municipal tribunals when legitimate occasion arises for those tribunals to try questions to which doctrines of international law may be relevant. But any doctrines there invoked must be ones really accepted as binding between nations, and the international law sought to be applied, must, like anything else, be proved by satisfactory evidence, which must show either that the particular proposition put forward has been recognised and acted upon by our own country, or that it is of such a nature and has been so widely and generally accepted, that it can hardly be supposed that any civilised state would repudiate it.” 21. In Trendtex Trading –v- Bank of Nigeria [1977] 1 QB 529 it was accepted that the principles of international law relating to sovereign immunity were part of English law. The debate was over the extent to which that was a static concept. 22. In that context, Lord Denning said at page 554 G: “Seeing that the rules of international law have changed – and do change – and that the courts have given effect to the changes without any Act of Parliament, it follows to my mind inexorably that the rules of international law, as existing from time to time, do form part of our English law.” 23. And finally, if any further citation on this were necessary, Nourse LJ said in Maclaine Watson & Co –v- Department of Trade [1988] 3 WLR 1033 at page 1115 H: “For up to two and a half centuries it has been generally accepted amongst English judges and jurists that international law forms part of the law of this country. In all events if it can be shown there is an established rule which, first, is derived from one or more of the recognised sources of international law and secondly, has already been carried into English law by statute, judicial decision or ancient custom.” 24. There is no doubt, therefore, that a rule of international law is capable of being incorporated into English law if it is an established rule derived from one or more of the recognised sources, that is a clear consensus, evidenced by the writings of scholars or otherwise, or by treaty. The second requirement referred to be Nourse LJ, namely that it has been carried into English law by statute, judicial decision or ancient custom is, it seems to us, more doubtful. Whilst clearly its recognition by statute will ipso facto, give it effect, in so far as it is suggested that there must be either a previous judicial decision or ancient custom, in other words, in effect, some clear acceptance by the court of the existence of the rule as part of English law, that would emasculate the principle. It would in effect prevent any clearly established rule of international law becoming part of English law other than by statute. In our view, the question as to whether or not a rule of international law forms part of English law is governed by the principle of certainty; and the question as to whether or not it constitutes a crime depends upon an analysis of whether or not a breach of the rule can properly result in penal consequences. The mere fact that an act can clearly be established to be proscribed by international law, and is described as “a crime” does not necessarily of itself determine its character in domestic law unless its characteristics are such that it can be translated into domestic law in a way which would entitle domestic courts to impose punishment. 25. The defendants submit that there are essentially five recognised international law crimes which fall into that category. These are war crimes, crimes against humanity, crimes against peace, which include the crime of aggression, piracy and torture. It is submitted that these are all crimes which are recognised in domestic law and are, accordingly, crimes for the purposes of Section 3 of the Criminal Law Act. 26. The defendants have only, however, been able to identify one case as support for the proposition that any of those “crimes” is, merely by virtue of international law, a crime in English law. That is the case of In re Piracy jure gentium [1934] AC 586 . That case arose out of charges of piracy brought against Chinese Nationals who had pursued and attacked a cargo junk. They were indicted in Hong Kong for the crime of piracy and found guilty subject to the following question of law: “Whether an accused person may be convicted of piracy in circumstances where no robbery has occurred.” 27. The full court of Hong Kong came to the conclusion that robbery was a necessary ingredient of the offence of piracy and the accused were acquitted. The question of the correctness of that order was submitted to the Privy Council, which concluded that a frustrated attempt to commit piratical robbery was equally piracy jure gentium. 28. In considering that question, the Board approached the question on the basis that the offence that was charged was not the domestic offence of piracy as defined in domestic law that is, the statutory laws applying to Hong Kong, but was the international law of piracy. Viscount Sankey stated that the question therefore had to be determined by reference to the principles of international law. He said at page 589: “With regard to crimes as defined by international law, that law has no means of trying or punishing them. The recognition of them as constituting crimes, and the trial and punishment of criminals, are left to the municipal law of each country.” 29. And later at page 594, having considered domestic authorities in relation to the definition of piracy, he said: “These, however, are immaterial for the purpose of this case, because it must always be remembered that the matter under present discussion is not what is piracy under any municipal Act of any particular country but what is piracy jure gentium.” 30. We accept that this case is authority for the proposition that a rule of international law is capable of being incorporated into domestic law so as to found an indictment which, if proved, can result in punishment. To that extent we accept the submission that international law is capable of being incorporated into English law so as to create a crime punishable in domestic law. That is clearly so in relation to piracy, which has a history of proscription in international law which was established as early as the 16 th Century. For our purposes it is important to note that the decision of the Board was based upon the analysis and development of the concept of piracy over the centuries, so that early statements of the law which suggested that an actual robbery should be proved were no longer valid. At page 600 Viscount Sankey said: “A careful examination of the subject shows a gradual widening of the earlier definition of piracy to bring it from time to time more in consonance with situations either not thought of or not in existence when the older juris consultances were addressing their opinions.” 31. This is an example of the principle which Lord Denning affirmed in Trendtex, namely that English law reflects the state of international law from time to time, and does not apply the principle of binding precedent to a determination of its content. 32. On the basis of that authority, the defendants submit that the English courts can and should recognise the international crime of aggression as a crime in domestic law. They submit that it is clearly established as a crime, above all by the proceedings of the Nuremberg Tribunal which was established by the Agreement and Charter which was the exercise of the sovereign and legislative power of the countries to which the German Reich unconditionally surrendered. In the decision as to jurisdiction given by the Nuremburg Tribunal, reported in 41 AJIL (1947) 172, the Tribunal, having set out the provisions of the Kellogg-Briand Pact which was binding on the 63 signatories, including Germany, Italy and Japan, and renounced war as an instrument of national policy, said at page 218: “In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy, necessarily involves the proposition that such a war is illegal in International Law; and that those who plan and wage such a war, with its inevitable and terrible consequences are committing a crime in so doing.” 33. There was debate before us as to the extent to which the Tribunals which were set up thereafter to try individuals were exercising jurisdiction as courts exercising jurisdiction under the Agreement and Charter, or were domestic courts applying international law principles. We were referred, for example, to the decision of the British Military Court in Holland in the case of In Re Sandrock and Others 13 International Law Reports 297. It was submitted that this was a court constituted under an Order in Council and was accordingly a domestic court. 34. We do not consider that we need to resolve that issue for the purposes of the present case. For there is no doubt that international law has moved on from the position immediately following the Second World War. The legal landscape is now very different. Pursuant to the Rome Statute of the International Criminal Court, that court has jurisdiction under Article 5 over the crime of genocide, crimes against humanity, war crimes and the crime of aggression. Genocide, crimes against humanity and war crimes are defined. The crime of aggression is not. An introductory note to a press release from the court dated the 16 th July 2003 states: “The court cannot exercise jurisdiction over alleged crimes of aggression until the crime is defined and the conditions for the exercise of jurisdiction are set out.” 35. This reflects the position which had been reached in September 2003 when the report of the Second Session of the Assembly of States Parties to the International Criminal Court set out in Annexe II a discussion paper on the definition and elements of the crime of aggression prepared by a working group. The definition of the crime of aggression was put forward for debate in the following terms: “1. For the purpose of the present Statute, a person commits a “crime of aggression” when, being in a position effectively to exercise control over or to direct the political or military action of a state, that person intentionally and knowingly orders or participates actively in the planning, preparation and initiation or execution of an act of aggression which, by its character gravity and scale, constitutes a flagrant violation of the Charter of the United Nations. Option 1: Add “such as” particular war of aggression or an act which has the object or result of establishing a military occupation of, or annexing the territory of another state or part thereof.” Option 2: Add “amounts to a war of aggression or constitutes an act which has the object or the result of establishing a military occupation of or, annexing, the territory of another state or part thereof. Option 3: Neither of the above. 2. For the purposes of paragraph 1, “acts of aggression” means an act referred to in United Nations General Assembly Resolution 3314 (XXIX) of 14 December 1974 which is determined to have been committed by the state concerned, Option 1 : Add “in accordance with 4 & 5” Option 2 : Add “subject to a prior determination by the Security Council of the United Nations. …..” 36. The present position in domestic law, so far as statutory provisions are concerned, is that the International Criminal Courts Act 2001 has brought into effect in the United Kingdom the offences defined under the Rome Statute. This Act, accordingly, gives a statutory basis for the incorporation of those three crimes in domestic law in the same way as the Geneva Conventions Act 1957 did in relation to breaches of the Geneva Convention, and the Criminal Justice Act 1988 sections 134, and 135 did in relation to the international crime of torture. 37. We were referred by both the defendants and the prosecution to the decision of the House of Lords in R –v- Bow Street Metropolitan Stipendiary Magistrate and Others ex parte Pinochet Ugarte [2000] 1AC 61 , sometimes described as Pinochet No 3 , in the context of the crime of torture. The defendants submitted that properly understood, the decision in this case depended on the extra territorial provisions of the Criminal Law Act 1988 which was the basis for the recognition that charges relating to matters after the passing of that Act laid in Spain were capable of constituting offences under domestic law. The House recognised at least implicitly that torture was an international crime capable of constituting a crime under domestic law, albeit subject to common law jurisdiction or limits. In fact only Lord Millett expressly asserted that torture was always an international crime having effect in domestic law. 38. We accept entirely that the majority of their Lordships in Pinochet No 3 decided the issue with which we are concerned on the basis that it was only when the Criminal Law Act came into force that domestic law had extra-territorial effect. And we also accept that Lord Hope, with whose speech Lord Hutton agreed, appeared in a passage at page 237 D to accept that the international crime of torture was a crime in domestic law albeit without extra-territorial effect prior to the Criminal Law Act. The decision did not, however, answer the question as to the status of the international crime of aggression, or its effect in domestic law. 39. The only modern domestic law decision to which we have been referred which deals with the effect of a rule of international customary law in this context is the case of Hutchinson –v- Newbury Magistrates Court (2000) ILR 499 . In that case the appellant was convicted of criminal damage to a fence at the Atomic Weapons Establishment at Aldermaston. Her conviction was upheld on appeal by the Crown Court; and she appealed by way of case stated to the Divisional Court. She maintained that she had acted in order to halt the production of Trident nuclear warheads at Aldermaston and contended that the threat or use of nuclear weapons was contrary to customary international law as reflected in the Advisory Opinion of the International Court of Justice in the Case Concerning the Legality of the Threat or Use of Nuclear Weapons (1996) 110 ILR 161 . 40. In giving the judgment of the Divisional Court, Buxton LJ, having set out the relevant parts of the Advisory Opinion, concluded that there was no clearly established rule, but nonetheless went on to discuss what would have been the effect in domestic law had such a rule been capable of identification. At page 506 he said: “ The English Rule . It is agreed that a rule of international customary law, if it is sufficiently agreed in international law to be such, is translated automatically into English domestic law. The question however is how it should be characterised once it arrives here? Mr Mercer contended, after some hesitation, that the rule that he had formulated was in English law a rule of substantive criminal law, making conduct by the Crown or British Government in contravention of it a criminal act. That is a very striking submission in view of the context of the rule in its terms. I say nothing in passing as to the susceptibility of the Crown to criminal process. It is also in my view impossible to reconcile that contention with the debate Pinochet No 3 which concluded, illuminatingly subject to the specific dissent on this point by Lord Millet, that although state torture had long been an international crime in the highest sense (to adopt the formulation of Lord Browne-Wilkinson [2000] 1AC page 198 A-F) and therefore a crime universally in whatever territory it occurred, it was only with the passing of section 134 of the Criminal Justice Act 1998 that the English Criminal Courts acquired jurisdiction over “international”, that is to say extra-territorial, torture. I hold, therefore, that Mr Mercer is wrong on this point, and that the unlawfulness of the United Kingdom Governments conduct that is established in English Law by the transformation of the rule of International Law is unlawfulness of a more elusive nature than is to be found in the substantive criminal law. What exactly that nature is was never satisfactorily explained to us, despite the courts efforts to seek elucidation.” 41. Domestic courts have, however considered the effect of a gross breach of international law in English civil law in the case of Kuwait Airways Corporation –v- Iraqi Airways Company (Nos 4 and 5) [2002] 2AC 883 . The English courts were there concerned with the effect in English law of an Iraq decree after the annexation of Kuwait by Iraq as to the ownership of certain assets of the Kuwait Airways Corporation in an action for conversion. The question arose in the context of the public policy rule as to the recognition of the provisions of foreign law. It was accepted that the courts of this country could take into account infringements of human rights as an exception to the general rule that the courts of this country would not enquire into the legality of decrees of a foreign state. But it was submitted that that did not extend to breaches of international law. The House of Lords held that the English court could do so where there had been a breach of an established principle of international law committed by one state against another when the breach was plain, and indeed acknowledged: see the speech of Lord Nicholls at page 1081A. In determining that question, the House had regard to the fact that the Iraqi invasion of Kuwait was a clear breach of the United Nations Charter and that the actions of the Iraqi government in passing the relevant decree were clear breaches of a number of resolutions of the United Nations Security Council. The House therefore held that it was entitled to conclude that to give effect to the decree would be contrary to public policy. 42. Although not spelt out expressly as being justified on the grounds that Iraq had been guilty of the international crime of aggression, that was the effect of the decision. It seems to us that this case is therefore authority for the proposition that the rule of international law underlying the concept of the international crime of aggression is capable of having effect in domestic law. But the case does not, it seems to us, go further than acknowledge in accordance with the principles that we have already discussed, that the rules of international law have effect in domestic law. The question that we have to determine is whether or not the relevant rules have effect so as to create a crime of aggression in English law. That requires us to consider the extent to which the rule or rules in question can be said to have been recognised in such a way as to give rise to criminal liability in circumstances such as the present. In determining that question, it seems to us that we have to have regard to the way in which the international community has approached the issue in the context of an individual’s responsibility for breaches of such rules and his or her amenability to criminal sanctions. 43. In that context it is necessary to return to the discussion paper to which we have referred in paragraph 31 above. As we have already noted, this is the paper which identified some of the problems which prevent the International Criminal Court from having jurisdiction over the crime of aggression. One of the preconditions to the exercise of the Court’s jurisdiction in the definition is, by paragraph 4, that the prosecutor has to ascertain whether the Security Council has made a determination of an act of aggression committed by the state concerned. By paragraph 5, one option for discussion enquires whether or not the court can proceed with the case in the absence of any determination by the Security Council or whether it has to dismiss the case. It is difficult to see in these circumstances how it can be said that there is, accordingly, a firmly established rule of international law which establishes a crime of aggression which can be translated into domestic law as a crime in domestic law, where there is no consensus as to an essential element of the crime. It follows that, whatever other effects the international rules as to the crime of aggression may have, they cannot constitute a crime for the purposes of Section 3 of the Criminal Law Act, and the judge was right to rule accordingly. Section 5(2) (b) of the Criminal Damage Act 1971 44. The relevant provisions of this sub-section have been set out by us in paragraph 2 above. The effect of the provisions is that a person is treated as having a lawful excuse if: i) he acted to prevent damage to property, whether his own or another’s. This test requires an answer to the question: “Could the act done be said to be done in order to protect property?” see R –v- Hunt 66 Cr App R 105 , ii) at the time he acted, he believed that property was in immediate need of protection, and iii) he believed that the means adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances. iv) In determining the answers to ii) and iii), it is immaterial whether the belief was justified, provided that it was honestly held. 45. It is self evident that this provision, on its face, gives considerable latitude to those who are minded to take direct action in the honestly held belief that in so doing they are protecting the property of others. As we have indicated in i) above, the only objective element which the jury would have to consider is whether it could be said that on the facts, as believed by the defendant, the criminal damage alleged could amount to something done to protect another’s property: see the judgment of Lord Lane, approving this courts judgment in R –v- Hunt in R –v- Hill and Hall (1989) 89 Cr App R 74 at page 79. 46. Professor Shaw QC on behalf of the prosecution has sought to persuade us that there is a further objective requirement, namely that, on the facts as believed by the defendant, those facts would establish that the threat was of unlawful damage to his or another’s property. He submits that the defendant would not be entitled to take action to prevent damage which would be the inevitable consequences of warfare, provided always that that damage did not amount to a war crime. If it were otherwise, he submits the person could invoke the defence under Section 5 if he damaged or attempted to damage any equipment being used by, for example, a local authority in order to exercise its lawful powers to abate a public nuisance. 47. Whilst there are clearly strong policy arguments for imposing such a further restriction on the availability of the defence, the fact is that the statute does not so provide. Subject to the one objective element to which we have referred, the court and the jury are concerned simply with the question of a defendant’s honestly held beliefs. It follows that no issue can arise in relation to this defence which involves consideration of the legality of the war in Iraq. Necessity. 48. This defence has consistently given rise to difficulties in its application. As Professor Glanville W Williams said in Criminal Law , The General Part at page 570: “The peculiarity of necessity as a doctrine of law is the difficulty or impossibility of formulating it with any approach to precision.” 49. Despite that difficulty, it is a long established defence; and the court has to grapple with the problem of how its essential elements are to be applied in any given case. One of the difficulties for us is that Grigson J declined to give his rulings on the basis of any assumed facts; and neither the prosecution nor the defendants have sought to appeal against his decision on the basis that that approach was wrong. It follows that the argument must, of necessity, be at the level of generalities, which will need to be applied by the judge at the trial to the facts as they emerge. 50. The general principles were stated by Simon Brown J giving the judgment in the court of Appeal in R –v- Martin (Colin) [1989] 1 All ER 652 at 653 to 654: “First, English law does, in extreme circumstances, recognises a defence of necessity. Most commonly in this defence arises as duress, that is pressure on the accused’s will from the wrongful threats or violence of another. Equally, however it can arise from other objective dangers threatening the accused or another. Arising thus it is conveniently called “duress of circumstances”. Second, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury. Third, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions: first, was the accused, or may he have been, compelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result; second, if so, would a sober person of reasonable firmness showing the characteristics of the accused, have responded to that situation by acting as the accused acted? If the answer to both those questions was Yes, then the jury would acquit; the defence of necessity would have been established.” 51. This definition was adopted by Rose LJ in R –v- Abdul-Hussain [1999] Crim LR 570. In that case, the court identified eleven propositions. These were that: i) Unless Parliament provides otherwise, the defence of duress, whether by threats or from circumstances is generally available in relation to all substantive crimes except murder, attempted murder and some forms of treason. ii) The courts have developed the defence on a case-by-case basis and its scope remains imprecise. iii) Imminent peril of death or serious injury to the defendant, or those to whom he has responsibility, is an essential element of both types of duress. iv) The peril must operate on the mind of the defendant at the time when he commits the otherwise criminal act, so as to overbear his will, and this essentially is a question for the jury. v) But the execution of the threat need not be immediately in prospect. vi) The period of time which elapses between the inception of the peril and the defendant’s act, and between that act and execution of the threat, are relevant but not determinative factors. vii) All the circumstances of the peril including the number, identity and status of those creating it, and the opportunities (if any) which exist to avoid it are relevant, initially for the judge and, in appropriate cases, for the jury, when assessing whether the defendant’s mind was affected as in iv) above. viii) As to vi) and vii), if Anne Frank had stolen a car to escape from Amsterdam and had been charged with theft, the tenets of English law would not have denied her a defence of duress of circumstances, on the ground that she should have waited for the Gestapo’s knock on the door. ix) There is no reason of principle or authority for distinguishing the two forms of duress in relation to the elements of the defence which have been identified. x) The judgment in R –v- Martin (Colin) (supra) affords the clearest and most authoritative guide to the relevant principles and appropriate direction in relation to both forms of duress. xi) Clauses 25 and 26 of the Law Commission’s Draft Criminal Law Bill do not represent the present law (see Criminal Law: Legislating the Criminal Code: Offences against the Person and General Principles (1993) (Law Com No 218) (CM 2370) Appendix A). Accordingly reference to those provisions is potentially misleading. 52. In R –v- Shayler [2001] 1WLR 2206 , Lord Woolf CJ giving the judgment of the court, approved the statements of the law set out in both the judgments to which we have referred. In paragraph 49 the court held that from those two decisions: “We extract the following ingredients as being required for the defence of necessity to be relied on: i) the act must be done only to prevent an act of greater evil; ii) the evil must be directed towards the defendant or a person or persons for whom he has responsibility or we would add, persons for whom the situation makes him responsible; iii) the act must be reasonable and proportionate to the evil avoided. We make the addition to ii) to cover by way of example, the situation where the threat is made to set off a bomb unless the defendants performs the unlawful act. The defendant may have not have (sic) had any previous connection with those who would be injured by the bomb, but the threat itself creates the defendant’s responsibility for those who would be at risk if he does not give way to the threat.” 53. After discussing the question of whether or not there is any distinction between the concept of duress and necessity, which the court considered at paragraph 55 had “correctly, been by and large ignored or blurred by the courts”, the court said at paragraph 53: “So in our judgment the way to reconcile the authorities to which we have referred is to regard the defence as being available when a defendant commits an otherwise criminal act to avoid an imminent peril of danger to life or serious injury to himself or towards somebody whom he reasonably regards himself as being responsible. That person may not be ascertained and may not be identifiable. However, if it is not possible to name the individuals before hand, it has at least to be possible to describe the individuals by reference to the action which is threatened would be taken which would make them victims absent avoiding action being taken by the defendant. The defendant has responsibility for them because he is placed in a position where he is required to make choice whether to take or not to take the action which it is said will avoid them being injured. Thus if that is to explode a bomb in a building and the defendant does not accede to what is demanded the defendant owes a responsibility to those who would be in the building if the bomb exploded.” 54. The question that we have to determine is whether or not on the basis of these decisions, the court will have to grapple with the question of the legality of the government’s decision to declare war on Iraq. The defendants say that it is necessary because that is the “evil” which they felt impelled to do their best to obviate by their actions. Alternatively, using the terminology of Simon Brown J in R –v- Martin (Colin) , it is only available to them if from an objective standpoint, they could be said to be acting reasonably or proportionately; and a determination of the legality of the war would be necessary in order to answer that question. 55. It seems to us, however, that this approach fails to put the defence in its proper context. Necessity is potentially a domestic defence to a domestic offence. We have already held that no domestic crime is engaged. The executive’s action in declaring and waging war is, in itself, a lawful exercise of its powers under the prerogative. The court will accordingly have to consider the extent to which necessity might afford a defence to the defendants in the light of their beliefs on that basis. The extent to which their beliefs as to the facts will enable the defendants to establish any of the elements of the defence, in particular the requirement that they should be so acting in relation to people for whom they could reasonably regard themselves as being responsible is not a question we are called upon to answer. Conclusion. 56. For the reasons we have given and save to the limited extent to which we have referred in the last paragraph, the question of the legality of the war in Iraq is not therefore a matter which arises in these cases. It is not, therefore necessary in order to deal with the rulings, to consider whether or not that issue is non justiciable. We will hear counsel as to what the consequential orders, if any, should be.

```yaml citation: '[2004] EWCA Crim 1981' date: '2004-07-21' judges: - LORD JUSTICE LATHAM - HIS HONOUR JUDGE RICHARD BROWN DL ```

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WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. Neutral Citation Number: [2023] EWCA Crim 1411 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202300247/A2 Royal Courts of Justice Strand London WC2A 2LL Wednesday, 20 September 2023 Before: LORD JUSTICE SINGH MRS JUSTICE COCKERILL DBE MR JUSTICE HILLIARD REX V ABDUR SIDAT __________ 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 PRIOR appeared on behalf of the Applicant MR J BIDE-THOMAS appeared on behalf of the Crown _________ J U D G M E N T (Approved) LORD JUSTICE SINGH: Introduction 1. The appellant appeals against the imposition of a Serious Crime Prevention Order with the leave of the single judge. 2. The procedural background is as follows. On 24 September 2018 in the Crown Court at Leicester, the appellant pleaded guilty to conspiracy to supply class A drugs and possession of cannabis. On 14 May 2019 in the Crown Court at Leicester he changed his plea on another matter to guilty of possession of a firearm with intent to cause fear. He was sentenced on 18 February 2021 to nine years and nine months' imprisonment for the first offence with six months concurrent and 27 months consecutive for the other offences respectively. He was ordered to pay a victim surcharge order. 3. On 16 December 2022 we come to the specific matter which now concerns this court. In the same Crown Court in confiscation proceedings it was found that the appellant had benefited in the sum of £51,320 for an available amount of £1,195. The judge, His Honour Judge Spencer KC, made a confiscation order in that amount with a collection order attached. The judge further imposed the Serious Crime Prevention Order which alone is the subject of this appeal. The facts 4. The appellant was one of 15 people convicted following a police operation by the East Midlands Special Organisational Unit into the supply of class A drugs, known as Operation Trent. The drugs had been brought from the north of the country into Leicestershire and were then diluted from a high import purity level with cheap adulterants. The drugs were processed, stored and packaged in safe houses before being supplied to other dealers and to users. 5. Evidence from a drug expert was that the activities of the accused were highly professional, efficient and profitable. There was evidence that by the time the investigation started it was a well-established and active group. There was a hierarchy of sorts and some of the defendants were more active than others. Some were involved for longer periods than others. Most were clearly aware of the full nature of the conspiracy. Two men named Khan and Mayat were the heads of the organisation and had previous convictions for supply of class A drugs. They were active and displayed the lavish products of their conduct. The indictment covered a period of about a year. Khan and Mayat accepted that the group was responsible for selling 20 kilograms of class A drugs. 6. At a later stage, other defendants named Makodia and Hoger took on more responsibilities. This appellant was said to be "significantly involved" in the group, the storage, adulteration and onward distribution of the drugs. He was also responsible for holding a fully functioning weapon. He was involved in "many many" calls. He was found to be high in the operation. Material legislation 7. The material provisions of the Serious Crime Act 2007 are to be found principally in section 19. Subsection (1) provides that subsection (2) applies where the Crown Court is dealing with a person who (b) has been convicted by or before the Crown Court of having committed a serious offence in England and Wales. Subsection (2) provides that the Crown Court may, in addition to dealing with the person in relation to the offence, make an order if it has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales. Subsection (5) provides that an order may contain (a) such prohibitions, restrictions or requirements and (b) such other terms as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person concerned in serious crime in England and Wales. 8. We should also note that section 16(1) provides that a Serious Crime Prevention Order must specify when it is to come into force and when it is to cease to be in force. Subsection (2) provides that an order is not to be in force for more than five years, beginning with the coming into force of the order. The judge's ruling 9. In deciding to grant the prosecution's application for a Serious Crime Prevention Order in this case, the judge directed himself to the test set out in section 19(2) of the 2007 Act . He also directed himself to the test set out by this court that there must be a real or significant risk that the appellant would commit further serious offences. We will return to that in due course. 10. Counsel for the appellant had exhorted the judge to look at what the appellant's role had been in the offending but the judge said that he should instead focus on that statutory test. He said that the appellant had been involved in a serious drugs conspiracy which involved over £1 million-worth of class A drugs and he had possession of a shotgun. He also had a relevant previous conviction, albeit of some age. Addressing the test of whether he had reasonable grounds to believe that an order would protect the public, the judge said that he had ample grounds on the basis of the instant convictions, the nature of those convictions and the appellant's previous conviction. The judge made a Serious Crime Prevention Order for a period of five years in the terms of the draft which had been provided. It would be for a duration of five years rather than three because he had reflected during the proceedings, in that respect the appellant was "the author of his own downfall." The grounds of appeal 11. On behalf of the appellant, there are two grounds of appeal advanced by Mr Prior. First, that the order was too long in its duration, that is five years. It is observed that an order for three years was made in the case of two of the defendants in this case, although it is accepted that a period of five years was imposed in respect of six other defendants. 12. The second ground of appeal is that in any event the terms of the order were too broad. It is submitted that the broad restrictions which the Crown sought to place on the appellant are neither reasonable nor proportionate to address the specific risks which he poses. At the hearing before us Mr Prior has emphasised that in his submission the judge did not carry out the careful exercise of measuring the precise risk which the appellant posed and tailoring the measures imposed in the order to meet those specific risks. He has submitted that the appellant was not a sophisticated participant in this drugs conspiracy. The fact that he had previously been convicted of a drugs offence showed that he had not learnt his lesson and made himself a more sophisticated participant. For example, he used his own home for "warehousing" of the drugs. He used his personal phone in this conspiracy, rather than (as many do) use a "burner" phone. 13. The terms of the order covered a variety of matters which we will mention briefly in order to give a flavour of the appellant's submissions complaining about them. For example, there was a restriction on the use of a telephone handset and other communication devices. It is submitted that there is no evidence of the appellant using more than one mobile phone and there was no sophistication to his offending to justify restrictions on televisions, games consoles, computers, domestic appliances or fax machines. Then complaint is made about the cash restriction. He was confined to £300 in cash. There is no evidence, it is submitted, of the appellant enjoying a lavish lifestyle or making substantial cash sums from his involvement in these offences. Much of the benefit was given to him in drugs. Next, attention is drawn to the premises restriction. It is pointed out that the appellant had used his own address and there is no merit, it is submitted therefore, in imposing a restriction on other premises he might acquire in the future. Then there is complaint made about the business restriction. It is submitted that the appellant did not in fact use a business as a front during the course of his involvement in this offending. It is submitted that if the appellant did wish to use a legitimate business in the future then there would be restrictions placed upon his activities, for example he might not be able to have a business phone line, although it would appear that he would be able to apply to have the order varied if that indeed were a real concern in the future. Finally, complaint is made about the vehicle restriction. It is submitted the appellant did not, in this offending, use, hire or borrow any vehicles for himself or others. 14. We have had the advantage of written grounds of opposition filed in the Respondent's Notice for which we are grateful. Mr Bide-Thomas for the prosecution has appeared at the hearing before this court today but ultimately, although we are grateful to him, we did not feel the need to call upon him. 15. In his written submissions, Mr Bide-Thomas submits that the judge had well in mind the statutory test in section 19(2) of the 2007 Act and the guidance which has been provided by this court to which we shall return. He reminds this court that the sentencing court was concerned with future risk and submits that on the balance of probabilities there was such a risk. The complaint that the order was too long, whereas others were shorter, could be explained by the fact that the appellant had opposed its imposition and the judge therefore heard fuller facts and submissions. It is submitted that the terms of the order are proportionate and that it is too narrow to consider only the exact involvement this appellant had. It was intended to prevent, restrict or disrupt future involvement in class A drug supply. It is submitted that the specific restrictions to which we have made reference were all important and proportionate measures; they did not impose onerous conditions. The legal framework 16. Authoritative guidance about the making of Serious Crime Prevention Orders under the Serious Crime Act 2007 (" the 2007 Act ") was given by this court in R v Hancox and Duffy [2010] EWCA Crim 102 , [2010] 2 Cr.App.R (S) 74 by Hughes LJ, the then Vice President of the Court of Appeal Criminal Division. For present purposes it will suffice if we set out some of the salient points. First, like other forms of preventative order, a Serious Crime Prevention Order is not an additional or alternative form of sentence; it is not designed to punish. It may be imposed if, but only if, the test set out by section 19(2) is met: see paragraph 12. 17. Secondly, the vital provision is section 19(2) . The order may be made if, but only if, the court has reasonable grounds to believe that an order would protect the public by preventing, restricting or disrupting involvement by the defendant in serious crime as defined in section 2 and schedule 1 in England and Wales. It follows that the court when considering making such an order is concerned with future risk. There must be a real or significant risk, not a bare possibility, that the defendant will commit further serious offences: see paragraph 9. 18. Thirdly, proceedings relating to a Serious Crime Prevention Order are civil proceedings and the court is not limited to evidence which would have been admissible in the criminal prosecution. The question whether there are reasonable grounds for believing that an order would protect the public by preventing, restricting or disrupting involvement in serious crime is a matter not of disputed fact but of judgment and assessment of future risk: see paragraph 4. 19. Fourthly, while an order made by the Crown Court may be appealed to this court, the jurisdiction on appeal is limited to review. This court does not substitute its own view for that of the judge. It will quash or vary the order if satisfied that it is wrong or is unjust because it was made after serious procedural or other irregularity: see paragraph 8. 20. Fifthly, if an order is made it may contain such provisions as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the defendant in serious crime in England and Wales. Such orders can only be made for the purpose for which the power is given by statute and, most importantly, they must be proportionate: see paragraph 10. 21. In that paragraph, as Mr Prior reminded this court at the hearing, Hughes LJ cited the earlier decision of the House of Lords in a Human Rights Act case EB(Kosovo) v Secretary of State for the Home Department [2008] UKHL 41 , [2009] 1 AC 1159 in the opinion of Lord Bingham of Cornhill at paragraph 7. Hughes LJ noted that the necessity for orders to be proportionate follows from the fact that they will almost inevitably engage Article 8 of the European Convention on Human Rights, that is the right to respect for private life. 22. What this means is that it is not enough that the order may have some public benefit in preventing, restricting or disrupting involvement by the defendant in serious crime. The interference which it will create with his freedom of action must be justified by the benefit and the provisions of the order must be commensurate with the risk. None of that legal framework is in doubt, nor should its importance be undermined. Nevertheless, what is called for is the exercise of judgment. This is not a precise scientific or arithmetical calculation, measuring, for example, a specific risk and then with scientific precision assessing what particular measure may be required to meet that specific risk. There is a broader exercise of judgment which is called for by the statute. Application of the relevant principles to this case 23. We remind ourselves of the limited role played by this court in appeals against a Serious Crime Prevention Order. In our judgment the judge was well-placed to exercise and form the judgment which he did in this particular case. Turning to Mr Prior's main submission, the crucial point, as it seems to us, is that the court is not restricted or confined to seeking to prevent activities which the defendant has already been guilty of in the past. Since the focus of a prevention order is forward looking, to prevent future risks, it is entirely possible for there to be proportionate measures taken which are not precisely tailored to prevent exactly what the defendant has done in the past. There is also the obvious risk that if a Serious Crime Prevention Order is drawn too narrowly, by reference to exactly what the defendant has done in the past, the defendant will simply adjust his methods of working to avoid what he did in the past but carry on committing serious crimes. 24. Turning to the complaint made about the duration of the order in this case, as we have noted the maximum length of such an order is by statute five years. In the present case, as the Respondent's Notice reminds this court, six of the other defendants had orders of that length, although two had orders for three years in duration. Furthermore, this defendant, as Mr Prior acknowledges, had the distinguishing features of a prior relevant conviction and, in our view, it was also relevant that he was involved in the firearms offence. In our judgment this amply justified the judge in making the order for the duration of five years in this case. Conclusion 25. For the reasons we have given, 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 1411' date: '2023-09-20' judges: - LORD JUSTICE SINGH - MRS JUSTICE COCKERILL DBE - MR JUSTICE HILLIARD ```

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WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202400952/A5 [2024] EWCA Crim 378 Royal Courts of Justice Strand London WC2A 2LL Thursday, 11 April 2024 Before: LORD JUSTICE COULSON MR JUSTICE NICKLIN HIS HONOUR JUDGE MAYO THE RECORDER OF NORTHAMPTON (Sitting as a Judge of the CACD) REX V NICHOLAS WESTGUARD __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR E FOWLER appeared on behalf of the Appellant _________ J U D G M E N T LORD JUSTICE COULSON : Introduction 1. The appellant is now 44. On 8 March 2024, having pleaded guilty before the Magistrates' Court, he was sentenced at Maidstone Crown Court by Mr Recorder McDonagh to 18 months' imprisonment for three separate breaches of a restraining order and a related offence of stalking. He appeals against that sentence with leave of the single judge. We note at the outset that these offences were contrary to section 363(1) of the Sentencing Code, which replaced section 5 of the Protection from Harassment Act 1997, the statute incorrectly noted in the court documents. 2. In our view, it is impossible to address this sentence appeal without setting out, in full, the appellant's previous offending. In our view, the failure to do that by the prosecution in their opening of the facts to the learned Recorder may have meant that the seriousness and persistence of the appellant's conduct was not fully recognised. Previous Convictions 3. On 29 January 2010, the appellant was convicted of one offence of common assault. That led to the imposition of a restraining order. On 27 July 2011 the appellant was found to be in breach of that restraining order and a two year community order was imposed. On 13 January 2014 the appellant was convicted of burglary and theft from a dwelling. Another restraining order was imposed. It seems clear that those orders were designed to protect unknown third parties who were not involved in the current offences. 4. Sometime in 2015 the appellant began a relationship with RB. The relationship went sour and they separated. Sometime in 2019, a non-molestation order was made in favour of RB. On 19 February 2020, the appellant was found to be in breach of that non-molestation order and a restraining order was imposed. 5. On 28 October 2020 the appellant was found to be in breach of the restraining order on two separate occasions. He was also guilty of stalking RB. In consequence, a further restraining order was imposed. We shall call that “the relevant restraining order”. It is important therefore to note that, contrary to the Court of Appeal summary, the relevant restraining order was not, in some way, the first such order made in this case, but a revised and more stringent order, which had been imposed following three breaches of earlier orders designed to protect RB from the appellant. 6. On 27 February 2021 the appellant was found to be in breach of the relevant restraining order. On 3 May 2021 the appellant was again found to be in breach of the relevant restraining order. In relation to these breaches, the appellant was sent to prison for two years. He was released on licence, and almost immediately, on 18 August 2022, he was again found to be in breach of the relevant restraining order. A further sentence of nine months' imprisonment was imposed. The Further Breaches 7. The appellant was released on licence sometime in 2023. Again, it appears that, almost immediately, he breached the terms of the relevant restraining order. He did that three times in less than a month. 8. First, contrary to its terms, on 19 August 2023, he “liked” a number of RB's posts which she had made on Instagram. His licence was revoked in consequence and he was recalled to prison. 9. However that did not stop him. On 2 September 2023 when in prison, he sent a letter to RB's sister, addressed to her children, telling them that he would be moving to Tonbridge where they lived and that he had seen them. That was the second breach of the relevant restraining order. Five days later on 7 September 2023, again from prison, the appellant sent RB a parcel in the name of 'Nancy', a false name designed to bypass the prohibition on communication with RB while in custody. The parcel contained an acrylic memorial butterfly with pictures of RB's family and children. That was the third breach of the relevant restraining order. The Sentencing Exercise 10. By the time of the sentencing hearing before the Recorder, there was a victim impact statement from RB. In our view this provides a graphic illustration of the harm which the appellant's persistent breaches of the restraining order have caused her. Amongst other things, she said: "Over these last few years I have had to bend over backwards to protect my children from them seeing me endure domestic abuse and being stalked/harassed by the man they once called dad. My children were one step away from being removed by social services because I was so badly manipulated by [the appellant] that I was putting them in harms ways and not even realising it. I've attended the freedom project which massively opened my eyes and gave me the strength to finally break free from his clutches. However, at 40 years old I now feel like I live in a prison, we have had to have extra measures put in place in our home including window locks, door locks, chains, CCTV, Ring Doorbell and other measures the police put in place. We have had our letterbox sealed and extra fire alarms installed." 11. A bit later: "For now, we are safe as we know he cannot reach us but when [the appellant] is released this will be a completely different story." 12. A little later in the statement she said: "I feel when [the appellant] is out of prison I am constantly looking over my shoulder on high alert. I feel like I cannot be me. I'm not able to be free, I become anxious and friends say I become a completely different person ... I don't know why I as the victim am the one that has to upheave my children and start a new life elsewhere out of an area that I have lived and grown up in for 40 years when this man has no regard to the rules, no respect for women or even his own son." 13. The Recorder had regard to the definitive guideline in respect of the three breaches of the restraining order. He found culpability to be in Category A because the breach was persistent, and put harm in Category 2. That gave a recommended starting point of one year and a category range of up to two years' imprisonment. By reason of the appellant's previous offending, which was a statutory aggravating factor, the Recorder took the two years as his starting point and then reduced that by one-third to reflect the early guilty plea. That gave a sentence of 16 months. The Recorder then added a further two months consecutive in respect of the stalking offence, to give a total of 18 months' imprisonment. The Grounds of Appeal 14. There are three grounds of appeal. First, it is said that the Recorder was wrong to put this into Category A culpability. The argument was that the breaches were not persistent, although it was accepted that they were "repeated". The second ground of appeal was that the sentence in respect of the stalking offence, since it arose out of precisely the same facts and matters as the breaches of the restraining order, should not have been consecutive but should have been concurrent. The third ground is that the restraining order made by the Recorder was not limited in time and that this was, in the circumstances, excessive. 15. These three arguments were advanced in a fair and realistic way by Mr Fowler both in his written submissions and in his oral submissions this morning. We are very grateful to him for his assistance. 16. We make one overarching point and then address the three grounds of appeal. The Overarching Point 17. In our view, it is plain from the facts of this appeal that the appellant does not regard himself as bound by any of the orders previously made by the court. He demonstrated prior to his relationship with RB that he was someone who breached court orders with impunity. Since his relationship with RB ended, he has been in breach of the various orders designed to protect her on at least nine separate occasions: the six breaches covered by the previous offending, and the three breaches for which he was sentenced by the Recorder. 18. In such circumstances, it is plain to us that the appellant has subjected RB to a campaign of harassment designed to exert, whether directly or indirectly, control and power over her. In those circumstances, Mr Fowler's submission, to the effect that these recent offences represented a de-escalation of the appellant's overall pattern of offending, rather misses the point. It is not the facts of the individual offences that matter now: it is the fact that the appellant has repeatedly and persistently disregarded the relevant restraining order itself that is the critical element of his offending. 19. In those circumstances, by reference to s.59 of the Sentencing Act 2020, we consider that it was arguable that the sentencing guidelines no longer applied to the appellant. It might be said to be contrary to the interests of justice, in a case like this, to treat each breach of the order as a separate standalone offence, and then laboriously apply the definitive guideline to that offence. After so long, and with so much harm done, it seems to us probable that justice could only be served by the imposition of a term somewhat nearer the maximum for this offence (five years) less the one-third discount for his guilty plea. 20. Of course, we are not in a position to increase the sentence of 18 months imposed by the Recorder. But our conclusion that the appellant was at least arguably dealt with leniently by the Recorder is important for two reasons. First, it informs our approach to the three submissions advanced by Mr Fowler in support of the appeal. Secondly, it will be important for our conclusions, and a copy of this judgment, to be made available to any judge who may be obliged to sentence this appellant for breaches of these orders in the future. 21. We now turn to the three grounds of appeal. Ground 1: Categorisation 22. The Recorder put this offending in Category A2. To the extent that it was appropriate to deal with the offending in that way, that is to say by reference to the individual elements of the sentencing guideline, we agree with that categorisation. 23. No point can be taken that the harm was anything other than in Category 2. On one view of the victim impact statement that was again a generous view as far as the appellant was concerned. As to culpability, the Recorder put this in Category A because the breach was persistent. In our view that was plainly right. Whilst Mr Fowler sought to argue that there was a difference between ‘persistent’ and ‘repeated’, we do not consider that the protection of a vulnerable person should depend on such linguistic niceties. On any view, we consider that the appellant's conduct was persistent. 24. In addition, there were numerous aggravating factors. There were the previous convictions. There was the fact that these breaches were committed whilst he was on licence. There was the history of his disobedience of court orders. There was the fact that the breach involved the further offence of stalking. There was the impact upon RB's children. By contrast with those aggravating factors, there were no mitigating factors at all. 25. In those circumstances, we consider that the appropriate starting point before discount for plea was in excess of the upper limit of two years identified in the guidelines. We consider that even with a full credit for a guilty plea a term of at least 18 months' imprisonment was justified for the breaches of the restraining order. Ground 2: The Stalking Offence 26. The second complaint is that the Recorder erred in imposing a two-month consecutive sentence in relation to the stalking offence. That was because the stalking offence encompassed precisely the same facts as the breaches of the restraining order. 27. It seems clear that the Recorder considered that the term of 16 months that he had arrived at for breaches of the restraining order was insufficient to reflect the appellant's offending overall, and therefore imposed an additional two-month term for the stalking offence. In our view the Recorder was wrong to impose a consecutive term for the stalking offence. That was because it encompassed no elements of the offending that were not already covered by the breaches of the restraining order. 28. In those circumstances, we propose simply to restructure the sentence. The term of 18 months' imprisonment imposed on the appellant should be recorded as relating to the breaches of the restraining order, with the 2-month term in relation to the stalking offence to be made concurrent not consecutive. In that way the overall term of the sentence is not altered. But it is reordered so as to accord with general principle. Ground 3: The Terms of the Restraining Order 29. The third complaint is that the restraining order imposed by the Recorder was excessive because it was not limited in time. 30. We accept that it is relatively rare for a restraining order of this kind to be made unlimited in time. However, we consider that, on the facts of this case, it was an appropriate order. As we have said, the appellant appears to consider that he is not bound to comply with any orders of the court. He has been the subject of numerous restraining orders limited in time and he has ignored them. In the circumstances, an order that is not limited in time is appropriate. Conclusions 31. We are in no doubt that the term of 18 months imposed on the appellant was neither excessive nor wrong in principle. Indeed, for the reasons that we have explained, we consider that it was generous to the appellant. The sentence will be restructured, so that the 18-month term is made referable solely to the breaches of the restraining order, and the two month term imposed for the stalking offence is made concurrent, not consecutive. The overall term in this case remains unchanged. Save for that administrative restructuring, this appeal against sentence is dismissed. 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 378' date: '2024-04-11' judges: - LORD JUSTICE COULSON - MR JUSTICE NICKLIN - HIS HONOUR JUDGE MAYO ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical 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 3120 No: 2008/6027/A3 and 2008/6652/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Thursday, 18th December 2008 B E F O R E: MRS JUSTICE RAFFERTY DBE MR JUSTICE ANDREW SMITH - - - - - - - - - - - - - - - - - - - - - R E G I N A -v- MONTGOMERY STANLEY PANGETTI OCTAVIA PANGETTI - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Palantype Notes of Wordwave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr S Perkins appeared on behalf of the Applicant Montgomery Pangetti Mr S Alexander appeared on behalf of the Applicant Octavia Pangetti J U D G M E N T 1. MR JUSTICE ANDREW SMITH: On 10th November 2008 the applicants, man and wife, were sentenced to terms of imprisonment, in the case of Mr Pangetti a total term of 12 months and in the case of Mrs Pangetti a total term of 18 months. In each case there were concurrent sentences of this length on each of the counts against them. They had pleaded guilty the previous month to offences of using a false instrument, obtaining a pecuniary advantage by deception and fraud. In Mr Pangetti's case there were also counts of possession of false identity documents and failure to notify a change of circumstances to obtain a benefit. 2. The applicants are Zimbabweans. They arrived in the United Kingdom on 4th December 2003 on a 6-month visitor's visa. They brought their two daughters with them, the daughters now being aged about 11 and seven. The younger daughter is severely disabled, having severe congenital brain abnormalities. 3. The applicants, having entered the country on visitor's visas, had no right to work or to claim benefits. They applied for asylum 12 days after their arrival, but their applications were refused in February 2004. There were a number of appeals and rehearings. Eventually, their applications were rejected. 4. October 2007 the authorities made enquiries about their finances. It emerged that Mrs Pangetti had obtained a forged Zimbabwean passport and a forged Home Office letter that purported to give indefinite leave to remain in the country and to obtain employment. The applicants had used the false documents to obtain employment. Between them they earned something in the order of £60,000, and for practical purposes they can be said to have earned similar amounts. He worked as a food inspector and a packer. She worked mainly in a care home. 5. Over the period they also received certain benefits to which they were entitled because on their arrival they had been destitute. They were given accommodation, which we are told had a value of some £45,000. They also received cash support of some £32,000. 6. The applicants are aged 37 and 36. They are of good character. They left respectable jobs in Zimbabwe and sought asylum here. They admitted the offences promptly. There is no reason to doubt that their remorse is sincere and profound. Mr Pangetti explained that they wanted to provide for the family, to avoid the older daughter being stigmatised as coming from a family of asylum seekers and to support the desperately disabled younger daughter. They remitted money to Mr Pangetti's father in Zimbabwe, where he was terminally ill and where the health care system is failing. 7. The judge described this as a difficult case and rightly said there had to be a custodial sentence for both applicants. He said, again rightly, that there is a deterrent consideration in sentencing offending of this kind. He referred in passing to the "ingenuity" of the applicants' solicitors in the context of the extended asylum procedures, and referred to the applicants "freeloading on this country". But it must be recognised that there is no evidence of impropriety in the pursuit of the asylum applications and appeals, and they face no charge with regard to the benefits that they received. They were lawfully in the United Kingdom. They unlawfully worked to support themselves and their family, and used false documents to do so. 8. Ordinarily cases of this kind require an immediate custodial sentence, even though the only purpose of having and using documents is to work for a living. These cases are often sad and often invoke sympathy, but that in itself is not good reason to depart from the usual course. However, an immediate custodial sentence is not always required: see Attorney-General's Reference Nos 1 and 6 of 2008 [2008] EWCA Crim 677 , [2008] 2 Cr App R(S) 99, and R v Carneiro [2007] EWCA Crim 2170 , [2008] 1 Cr App R(S) 95 . If the sentence is appropriately short, a suspended sentence is sometimes justified. 9. We deal first with the length of the sentences. The judge considered that Mrs Pangetti's offending called for a more severe sentence than that of her husband because she had a forged passport and because her offences were more numerous. We cannot accept that there was any proper basis for distinguishing the position of the husband and wife, and would in any event reduce her sentence accordingly. 10. Are sentences of 12 months too long in this case? They would not have been open to criticism after a trial. The applicants are entitled to full credit for their pleas. We consider that sentences of eight months in each case would have been appropriate. 11. The next question is whether such sentences should be suspended. Although it is not necessary to identify exceptional circumstances to suspend a sentence, there must be good reason to do so in cases of this kind. The question is whether the position of the applicants' children, and in particular the younger child, is good reason to do so for one or both of these applicants. The position of the applicants' family cannot be ignored. The disability of the younger girl is truly severe. She was entirely dependent on her parents for the most basic functions of living and for any sort of movement. We understand that if immediate custodial sentences are upheld there is a danger of the children being evicted from where they live. 12. This particular case cries out for compassion, and we do not think that any general need for deterrence or consistency in sentencing drowns out that cry. There will be few cases, thankfully, in which offenders will have a plea for humanity as strong as that of these applicants. 13. We consider that these offences can properly be dealt with by suspended sentences of imprisonment with a requirement for unpaid work. We therefore allow in Mrs Pangetti's case the application to extend time to apply for leave to appeal. We give leave to appeal in both cases. We allow the appeals to the extent of reducing the sentences imposed to eight months, by suspending the sentences, now eight months in each case, for a period of 2 years, and by directing a requirement of unpaid work of 100 hours in each case. 14. MR PERKINS: Does my Lord direct that the 100 hours be completed within 12 months? 15. MRS JUSTICE RAFFERTY: It has to be. 16. MR PERKINS: Thank you. 17. MRS JUSTICE RAFFERTY: The learned associate very sensibly raises the automatic recommendation for deportation under the United Kingdom Borders Act. Speaking entirely for myself, this court, of course, is powerless to do anything about an automatic recommendation. Were it a recommendation that needed a judicial decision, for my part mine would be favourable. 18. MR JUSTICE ANDREW SMITH: I certainly would not recommend deportation were it ( inaudible ). 19. MR PERKINS: Thank you. ______________________________

```yaml citation: '[2008] EWCA Crim 3120' date: '2008-12-18' judges: - MRS JUSTICE RAFFERTY 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: 200700292/A4 Neutral Citation Number: [2007] EWCA Crim 766 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 23rd March 2007 B E F O R E: MR JUSTICE MACKAY MR JUSTICE ROYCE - - - - - - - R E G I N A -v- MARK GODDARD - - - - - - - - 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 L WHAWELL appeared on behalf of the APPLICANT - - - - - - - - J U D G M E N T 1. MR JUSTICE MACKAY: On 26th October 2006 at Chelmsford Crown Court, this applicant pleaded guilty to being concerned in the supply of Class A drug, cocaine, and was later sentenced to three-and-a-half years' imprisonment. The Registrar has referred his application for leave to appeal to this Court. 2. Accused with him were two other men Darren Jones pleaded guilty to being concerned in the supply of cocaine and to a second count of dangerous driving and was sentenced to 4 years' imprisonment in total, being three-and-a-half years for the supply of cocaine and 6 months consecutively for the dangerous driving. A third man, Paul Baker, pleaded guilty to possessing cannabis and possessing criminal property and received a sentence of 18 months. 3. This all arose out of the observation of a meeting at a petrol station near Colchester. The car driven by Jones met up with another car driven by Baker and a package changed hands, the vehicles separated and police stopped them. Baker was arrested and in addition to a small amount of cannabis on him, he had a bag with £14,835 in it. He gave a story about going to buy a car in London. Jones drove off at speed, hit a police vehicle and there was a pursuit and he was eventually forced to stop. As he came to an halt the applicant, who was sitting in the passenger seat, threw a bag from the window, and that was found to contain 498 grams of cocaine, which was the equivalent of 159 grams of 100 per cent purity and, depending on how it was sold or packaged for sale, was worth something between £17,500 and £29,000. So, the Crown's case was that Jones had taken the money from London and had handed it over to Baker in return for the drugs. 4. As is almost always the case in this class of case, a basis of plea was put in by both Jones and this applicant. Jones' basis was this. He was a cocaine addict. He was in significant debt to his dealer. He was not in a position to repay. He was told he could work off part of the debt and avoid a punishment beating if he delivered this quantity of money to pay for drugs. He feared for himself and his family, but he accepted that it all stopped short of a defence of duress. 5. This applicant put in a basis of which we should read: 1. He was picked up by Mr Jones from London in the Ford Focus as Mr Jones had agreed to take the defendant back to his house in Clacton. 2. Whilst in the Focus the defendant became aware that Mr Jones was going to exchange cash with a third party. The defendant was aware this cash was for drugs. 3. When chased by the police the defendant threw the drugs that were in the Focus out of the passenger window. 4. The defendant made no financial gain from this offence. 5. This was the sole occasion the defendant had been concerned in the supply of any drugs. It is borne in mind that what he admitted to was in the words of the count "being concerned in the supplying of a controlled drug". 6. In sentencing the two men, the learned judge said that effect that he saw no reason to differentiate between them. He expressed what he called the "great reservations" about the basis of plea. He was entitled to say that, and got remarkably little assistance from prosecuting counsel at the time as to what exactly that meant. That said, he did not call for a Newton hearing to determine any issue of fact because he thought it was not necessary. What could be said on any view of the matter was that at least from a time before the rendez vous between the two cars at the petrol station, the applicant was accepting that he knew he was in a car with a large sum of money which was to be exchanged for drugs and he went along with that. 7. Both these men, the applicant and Jones, were sentenced leniently for an offence of this nature. We need go no further than the familiar case of R v Djahit [1999] 2 Cr App R(S) 142, to see that even a low level addict retailing Class A drugs on the street, without previous convictions, in order to fund his own drug taking habit, can expect, after conviction at trial, to receive a 6-year sentence from which an appropriate discount will be made for a plea of guilty and any further personal mitigation. This particular operation was certainly one step up from the level of street dealing. Any involvement with wholesale level Class A drug dealing, as was this, would fully justify a sentence higher than that that was passed in this case. The only possible issue in this case therefore, and it is the one on which Miss Whawell rightly concentrates, is disparity. The test for that is familiar: would a right- minded member of the public, knowing the facts of the case, have thought something must have gone wrong with the administration of justice if he saw or she saw this applicant and Jones treated, in terms of sentence, in the same way as each other in respect of this count? 8. In our judgment, when that principle, so often in play in this Court, was explained to that same right-minded person, we are sure he or she would have understood why the judge acted as he did. Jones, for example, had particular mitigation of his own, to which we have referred in his basis of plea. There was also the principle of totality to be taken into account because he fell to be sentenced for a distinct offence which did not involve the applicant, namely dangerous driving. We are not satisfied that it was even arguably the case that this sentence was wrong in principle or manifestly excessive. Both men were actively involved in different ways in this supply operation, approaching it though they did from different directions. This application is without merit and must be dismissed.

```yaml citation: '[2007] EWCA Crim 766' date: '2007-03-23' judges: - MR JUSTICE MACKAY - MR JUSTICE ROYCE ```

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

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. 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 984 No.202101913 B4 Royal Courts of Justice Strand London, WC2A 2LL Thursday, 23 June 2022 Before: LORD JUSTICE WILLIAM DAVIS MR JUSTICE FRASER MRS JUSTICE MAY BETWEEN : REGINA v JOSE ERNESTO REAL REPORTING RESTRICTIONS APPLY: Section 1 of the Sexual Offences (Amendment) Act 1992 applies in this case. No matter relating to any complainants shall be included in any publication during their lifetimes if it is likely to lead members of the public to identify them as the persons against whom offences were committed. Reporting restrictions therefore apply in this case. __________ The Applicant and Respondent were not present and were not represented JUDGMENT MR JUSTICE FRASER: 1 This is a renewed application for permission to appeal against conviction, an application for an extension of time to appeal and an application for an extension of time to renew the application for permission. 2 The applicant applied earlier this week to have today’s hearing adjourned. That application was refused, but he was granted permission to attend to make oral submissions and for that reason an interpreter, Mis Kostaparkin, the language being Portuguese, was organised by the court. In the event, the applicant has not attended and the case has been called on twice, and delayed this morning during the list, just in case the applicant had, in fact, been delayed. It is, therefore, proceeding without the applicant present. 3 The period of extension required by the applicant in order to appeal is five years and one month. The applicant has already served his sentence and has now been released. 4 On 21 March 2016, after a trial in the Crown Court at Woolwich, the applicant, who was then aged 43, was convicted of one count of rape and one of assault by penetration. He was sentenced that day by the trial judge, HHJ Hehir, to a term of six years’ imprisonment on account of rape and two years’ imprisonment to run concurrently on account of assault by penetration. The relevant associated orders were made, including the notification provisions. 5 The facts related to an incident on 18 July 2014 when the applicant had met a woman for the first time in the morning, who was making her way back to her house from the shops having bought alcohol. He offered to carry her bags, and accompanied her to the house, where she invited him in in order to have a drink with her. He then made sexual moves towards her and she told him she was not interested in any sort of sexual contact. In fact, she told him to “fuck off” and said she had a boyfriend. He put his head on to her breast, pulled off her trousers, and at this point she was shouting and screaming for him to stop. He pulled her trousers down, penetrated her with his fingers and then raped her until he ejaculated. She told the applicant to leave, which he did, and she very rapidly reported the attack to the police. 6 The trial at which the applicant was convicted was, in fact, the third trial that he had faced. The first trial was ineffective and at the second trial the jury were unable to agree. At the second trial the applicant had been provided with the assistance of an intermediary, having been assessed in 2015, in relevant reports by both a psychologist and an intermediary, as requiring an intermediary. However, at the conclusion of the second trial, the judge, who had conducted that trial, and had, therefore, had the benefit of observing the applicant throughout the trial, concluded no intermediary was required. He stated that, if the applicant were to continue to seek one, a further application backed up with a further psychologist’s report was required. No such report was obtained and no such application was made. The third trial, therefore, took place without an intermediary acting to assist the applicant and it is that that forms the crux of the appeal against conviction in respect of which this application is renewed. 7 However, given this conviction was in March 2016, a very lengthy extension of time is required, as we have observed, being in excess of five years. The explanation by the applicant for the delay is that he did not know that he could appeal until the year of 2020 and that he was not advised of his right to do so by his trial counsel upon his conviction and sentence in 2016. 8 A waiver of rights has been signed by the applicant and we, therefore, have the benefit of the response of his trial counsel to these criticisms made of him of failure to advise, as well as regarding the situation concerning the intermediary and the third trial. His counsel has explained that the applicant was not only told of his right to appeal after he was convicted and was told that his trial counsel considered that he had no such grounds, but also that he was entitled to seek a second opinion and that there was a time limit upon the application to appeal being made to the court. We are satisfied that this advice was given to the applicant. We reject the explanation for the extraordinary delay in bringing this application. 9 In any event, given the fact that the applicant was sent straight to prison in March 2016, upon being sentenced, we find it a surprising suggestion that it was not until 2020 that the applicant would have realised that he had the right to appeal, in any event, given that as a prisoner he would be serving a term of imprisonment measured in years. 10 However, even if that were right, which we consider to be contrary to common sense and also in this case contrary to the specific advice which we have accepted was given in that respect from the applicant’s own trial counsel, the relevant forms to mount an appeal were not submitted by the applicant until September 2021, which is itself nearly nine months after the end of the year, which, on the applicant’s own explanation, was when he discovered he had the right to appeal. 11 This further and, in our judgment, lengthy delay is not explained adequately and the reason given for delay, namely difficulty in obtaining documents and the underlying merits of his appeal, are not sufficient. 12 Finally, after refusal of his application by the single judge, who carefully explained the written document, the renewal application itself was then also itself lodged late and a further extension of time of a month is also required in that respect. We do not consider the underlying appeal has any merit, in any event. However, the exceptional delay is sufficient to justify a refusal of the application. 13 We agree with the careful reasoning of the single judge and refuse the application for the reasons given. We, therefore, refuse the renewed application in all respects, including the two for extensions of time and this application is, therefore, dismissed. _______________

```yaml citation: '[2022] EWCA Crim 984' date: '2022-06-23' judges: - LORD JUSTICE WILLIAM DAVIS - MR JUSTICE FRASER - MRS JUSTICE MAY ```

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

Case Nos: 2002 05006 C2: 2002 05007 C2: 2002 05011 C2: 2002 05012 C2 Neutral Citation No: [2004] EWCA Crim 681 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT READING (Hon Mr Justice Jack) Royal Courts of Justice Strand, London, WC2A 2LL Tuesday 30th March 2004 Before : LORD JUSTICE LONGMORE MR JUSTICE SILBER and MR JUSTICE ANDREW SMITH - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - AKBAL ALIBHAI NABIL BAKIR ADAM COLLIER CHAIM NATHAN DIAS Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MICHAEL BIRNBAUM Esq QC and SAILESH MEHTA Esq for the Appellants Alibhai and Bakir MARK GADSDEN Esq for the Appellant Collier JAMES KIRBY Esq for the Appellant Dias SIMON MEHIGAN Esq QC who did not appear below MICHAEL HICK Esq and JAMES NORMAN Esq for the Crown - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Longmore: 1. Introduction This is an appeal arising from a 156-day trial in front of Mr Justice Jack and a jury in which the appellants were convicted of a criminal conspiracy to deal dishonestly in counterfeit Microsoft products. The appellants Alibhai and Bakir were alleged to be the principal parties from whom others took their instructions. As principals they were sentenced to four-and-a-half years’ imprisonment. The defendants Collier and Dias were alleged to have performed minor roles and were sentenced to terms of four months’ imprisonment and have since been released. 2. They have all been granted leave to appeal by the single judge on what we will call broadly grounds of inadequate disclosure, but he refused leave to appeal in relation to other grounds. We have ourselves given leave to argue three other grounds of appeal but the principal arguments on the appeal related to disclosure. It will be necessary to set out the background as shortly as we may. 3. Prosecution Case The prosecution case was that between 5th November 1997 and 20th July 2000, the appellants Alibhai and Bakir were at the heart of a conspiracy to deal in counterfeit Microsoft compact discs and licences within the United Kingdom. They were directors of PC Software Ltd (“PCS”) which was based at the Barn in Gerrards Cross. They acquired the counterfeit product either in the UK or through imports from the USA and elsewhere. The counterfeit product was sold using a number of companies run by Alibhai and Bakir and other defendants. The profits generated were laundered and returned in cash to the two main defendants. 4. The main categories of the evidence against the appellants were:- (1) theft of certificates of authenticity later used to authenticate counterfeit discs traded by the appellants (it was not suggested that any appellant was involved in the thefts themselves); (2) evidence of the seizure of large quantities of counterfeit Windows 97 discs from two storage facilities, The Nestings in Bracknell and Reading Self Storage, at the turn of the year 1998/1999; (3) money and product movement between companies controlled by or associated with the defendants, showing that money was laundered through the sham transactions between them; (4) evidence of a trader, Alex Bell, who ran a company called Power Peripheral and whose brother Jonathan ran a limited company called Peripheral Brokers. According to Alex Bell Alibhai offered to sell him and indeed sold him substantial quantities of counterfeit discs in late 1998; (5) evidence from traders down the supply chain to show that companies which were controlled by the defendants had supplied them with counterfeit product; (6) interceptions of product leaving the Barn en route from PCS to customers between October 1999 and April 2000; four out of 10 intercepted consignments were found to contain counterfeit products; (7) evidence of a co-defendant, Peter Eliot, who accepted that he set up bogus companies and laundered money for the defendants; he claimed that he was unaware of the wider nature of the conspiracy and that he had never himself supplied any product to Alibhai and Bakir; (8) evidence of Dan McGrath, an American customer of Alibhai and Bakir. He was called to give evidence as a co-conspirator. The prosecution relied upon his evidence of dealings with Alibhai and Bakir and on covert tape recordings of his conversations with them in June and July 2000, made after McGrath’s arrest in Dallas on 16th June 2000. 5. The first phase of the conspiracy started in about September 1998 and ended in about December 1998. In early 1998, using the false identify of “Peter Matthews”, Peter Eliot (who was, in the event, acquitted by the jury) set up a company called PM Metals at the behest of Alibhai and Bakir. PM Metals purported to sell PCS software to the value of over £356,000. PCS was the true source of this software, which was counterfeit. PCS used a company called Oracle Trading Worldwide, which the third appellant Adam Collier purported to run, as a front for supplying counterfeit software to other dealers. Steve Cooke (acquitted at the end of the prosecution case) was a broker for Oracle, who sold counterfeit goods to various customers. Money therefore flowed back from Oracle’s customers to Oracle to PCS and eventually to PM Metals. It was returned to Alibhai and Bakir in cash by Eliot. 6. The second phase started in about December 1998 and ended in late April 1999, when Eliot went to Canada. In this phase, a company called Essential Options (trading as Precision Multi Media or “PMM”) was the purported supplier. Peter Eliot ran PMM as well as PM Metals. He set it up using the false identity of “Clive Greager”. A company called Wayfarer Ltd, run by the fourth appellant Nathan Dias, purported to buy software from Essential Options and paid over £941,758 to Essential Options. Wayfarer then purported to sell this software to a company called Lothbury Ltd. This company, run by the appellant Collier, replaced Oracle. In this phase of the conspiracy, PCS had dropped out of the picture as a named supplier, although Alibhai and Bakir and PCS were in fact continuing to control the distribution of the counterfeit software. Lothbury purported to sell the counterfeit product to customers. The money therefore went from Lothbury’s customers to Lothbury, to Wayfarer to Essential Options/PMM. Eliot passed most of the money from the Essential Options account back to Alibhai and Bakir in cash. 7. The third phase began in about April or May 1999. Eliot had disappeared, possibly with some of Alibhai and Bakir’s money. For a short period, in May and June 1999, Nathan Dias did the money laundering which Eliot had been doing. He took cash directly out of Wayfarer. In June and July 1999, a company called Trice took over the role that Essential Options had played. Trice was replaced by a company called JC Ravandi between July and October 1999. 8. In April 1999 Dan McGrath, who traded from Austin, Texas, flew to the UK to meet Alibhai and Bakir. They decided to do business. PCS sold counterfeit product to McGrath, between April 1999 and June 2000. On 16th June 2000, McGrath was caught by the FBI with a large quantity of counterfeit Microsoft licences in Dallas. He quickly admitted his guilt and told the FBI the licences came from Alibhai and Bakir. He agreed with the FBI to act as an informant. Telephone conversations with Bakir were taped as were meetings with Alibhai and Bakir in July 2000. It was alleged that during recorded conversations in England Bakir offered large amounts of counterfeit product to McGrath. Alibhai and Bakir were arrested on 19th June 2000 in central London in the course of handing over counterfeit material to McGrath. 9. The counterfeit Microsoft products in which the appellants allegedly dealt were computer discs (“CDs”), key codes unique to CDs or sets of CDs, certificates of authenticity (“COAs”), Multiple Licence Packs (“MLPs”), End User Licence Agreements (“EULAs”), and “Original Equipment Manufacturer” CDs (“OEMs”) which are CDs bundled with their own PCs and sold by large companies with the authority of Microsoft. 10. The defence case It is convenient to deal first with the case of Eliot. His general defence was that he laundered money for Alibhai and Bakir and never supplied any goods (genuine or counterfeit) to anyone. He had acquired the two companies PM Metals and Essential Options and had set up their bank accounts on the instructions of Alibhai. Alibhai gave him identity documents which he had used to open the PM Metals account. A friend of Alibhai, called Fez, provided a Portuguese passport in the name of Greager. Alibhai had asked him to set up PM Metals in early 1998 so that he (Eliot) could research some software companies in the North. After a loss on currency transactions instigated by Alibhai, Alibhai told Eliot that the money lost was not his; his partners would “come after” him (Alibhai) and they were not nice people. Alibhai said that they (his partners) would also “come after” Eliot and his family. Thereafter Eliot was in fear of Alibhai and his partners. He said that Alibhai (who had the cheque books) gave him cheques, first from PM Metals and later from Essential Options. Alibhai would tell him the details of the relevant invoices to be made out. Eliot would have the invoices typed by a secretarial service. He returned the proceeds in cash to the defendants, usually to Bakir. Eliot said he was paid £80 per day for his services. He also retained (subject to expenses) a relatively small sum of money on each transaction, being the difference between the amount of the cheque and the amount returned. He had thought Alibhai and Bakir might have been involved in a VAT fraud, not a software fraud. Had he known the discs were counterfeit he would have refused to get involved. 11. When he started using the Essential Options account, Alibhai introduced him to Dias who instructed him how the new invoices were to be made out. In the Essential Options period he made all the cash payments to Bakir. The Greager account was set up so as to make the whole operation look more professional in the eyes of the bank. All of the money withdrawn from the Greager account went back to Alibhai. 12. During the spring of 1999 Eliot decided that he could not go on with the laundering scheme. He told Bakir that any sum he (Eliot) owed was repaid 100 times over. He told Bakir he was keeping £7,000. The last delivery was in April at Legoland when he gave Bakir about £137,000, the proceeds of two cheques which he had laundered. He made out a cheque to himself for £2,000 on 19th April. He took some further monies before going to Canada (on 24th April). 13. Although at the start of the trial there had been a suggestion of a defence of duress, this was eventually disclaimed by Mr Evans QC on Eliot’s behalf. But Eliot maintained in his evidence that his fear of Alibhai and his associates was a prime reason for his continuing involvement. 14. Defence of Alibhai and Bakir Alibhai and Bakir maintained that the main business of PCS had been dealings in hardware (this was ultimately accepted by the prosecution). Insofar as they dealt in software it was mainly computer games and family packs. They had bought and sold in good faith, attempting to test goods for their authenticity and returning them to their source where they were in doubt. From about 1999 onwards they had devoted much of their time to the development of a programme called V Mailer, which, by utilising compression technology, made it possible to transmit e-mails much more quickly than was possible using conventional programmes (such as those marketed by Microsoft itself). This would be especially useful where, for example, a voice message or picture was attached to the message. They did not control either Oracle or Lothbury or any of the companies which purported to have supplied goods. There was no money laundering and money did not come back to them in the way alleged by the prosecution. 15. In relation to Eliot, Alibhai and Bakir claimed that Eliot was a supplier of software to PCS which they believed to be genuine and that Eliot rendered genuine invoices and payments made for goods supplied. They were not involved with any supplies that Eliot made to others such as Oracle and Wayfarer. They said that Eliot delivered goods to the Barn and they called two witnesses who claimed to have seen such deliveries by Eliot to the Barn. 16. If Eliot was suggesting that he was pressured into setting up the companies and laundering money, that was denied. Moreover, since Eliot had worked as a police officer and had expertise in personal security, such suggestions were implausible. 17. The defence suggested that Eliot was running a VAT fraud importing goods from Europe, charging VAT on his invoices, not accounting for it and then “disappearing”. The cash payments that came out of the company accounts were used to buy goods “off record” either in the UK or abroad. 18. Dan McGrath On any view a most important witness for the Crown was Dan McGrath mentioned in paragraph 8 above. He was a witness who had told so many lies that the judge found it necessary to gave the jury a very strong warning; he said that they should be extremely cautious about relying on his evidence when it was unsupported by other evidence. This warning was necessary because some of his evidence was demonstrably untrue and because, although he was a participating informant, he acted contrary to the instructions of his controller in the FBI, contacted Bakir without telling the FBI that he was doing so and failed to record conversations over the telephone even after the FBI had issued him with recording equipment for that purpose. It became apparent that in his evidence he untruthfully understated the number and length of his telephone calls with Bakir after his arrest. 19. He was a dealer in counterfeit software who lived in Austin, Texas and ran a Dallas based company called SoftCenter. He visited England three times before he was arrested on 16th June 2000:- a short trip between about 18th April 1999 and 25th April 1999; a longer trip between 23rd February 2000 and late April 2000; and a one day round trip from and back to the USA on 1st June 2000. 20. The extent of McGrath’s dealing with Alibhai and Bakir was a matter of dispute. McGrath maintained that it was quite extensive. He said in his evidence that he had received between 5 – 10 consignments of counterfeit goods from PCS and he gave evidence of the following transactions:- (1) supply of KAO Windows 97 CDs on a number of occasions in spring 1999, variously said by McGrath to have begun after or before his visit in April 1999. KAO was an authorised Microsoft replicator but the discs supplied were counterfeit; (2) supplies of MLPs on more than one occasion. In June 1999 McGrath had paid $113,500 to a firm of solicitors, Boodle Hatfield, on the instructions of Bakir. He claimed that this transfer was in payment for counterfeit MLPs; (3) a transaction which came to be known as “the Bayrakter transaction”, pursuant to which in about January 2000 he had paid the appellants $120,000 for 10,000 Windows 98 discs which he never received. McGrath said his trip to Europe was made in February 2000 in order to receive some of these goods in Germany and arrange their shipment to the USA; (4) supply of about 2,000 Windows 98 CDs which he described as “Apples and Pears”; (5) supply of about 433 Office 2000 CDs with a greenish tinge in the spring of 2000; (6) a number of supplies of counterfeit EULAs during 2000. These were of two types – “black and white” and “multi-coloured”. Some of the black and white EULAs he had sold on to an English dealer called Mike Dudley but he still owed $38,000 to the appellants. He also owed the appellants $88,000 for multi-coloured EULAs. 21. Between about March and June 2000 McGrath was the subject of an undercover FBI operation in which one Jaworowski covertly recorded conversations with him. On 16th June 2000, in Dallas, he was arrested in possession of about 2,000 counterfeit “multicoloured” EULAs which he was about to sell to Jaworowski. As we have already said, he immediately agreed to co-operate with the FBI and claimed that he had acquired the EULAs from Alibhai and Bakir. He later co-operated with the National Crime Squad (“NCS”). He was issued with a tape recorder by Special Agent Charles Mallery of the FBI and made covert recordings of telephone calls to and from Bakir and of meetings with Alibhai and Bakir between 26th June 2000 and 19th July 2000 when Alibhai and Bakir were themselves arrested. 22. On 7th July 2000, whilst still in the USA, McGrath returned to PCS, under the supervision of the FBI and the NCS, some 1200 of the multi-coloured EULAs which he claimed to have received from them on 16th June 2000. The pretext for the return was that they were defective. The delivery of the package containing the EULAs was monitored by NCS officers. The arrival of the package at the Barn on 11th July 2000 and its onward journey were monitored by police. A man named Shamoon Alibhai took the package to the La Vina Wine Bar and left it there. Neither the package nor any of its contents were recovered by police. On or about 12th July 2000 McGrath came to England and thereafter recordings were made under the supervision of the NCS. The principal conversations recorded were:- (1) 7th July 2000: McGrath calling Bakir (from the Dallas hotel room of DI Klinkocz). McGrath said he would be coming to England the following week and would be arranging to return the 1200 EULAs; (2) 14th July 2000: McGrath (in England) calling Bakir. A meeting was arranged later that day in the Royal Gardens Hotel, room 515; (3) 14th July 2000: Long meeting in room 515. During the course of this meeting with Alibhai and Bakir, McGrath gave to Bakir some genuine keycodes which the police had obtained from Microsoft; (4) 17th July 2000: McGrath calls Bakir twice; (5) 18th July 2000: McGrath calls Bakir; (6) 19th July 2000: Meeting between McGrath and both Alibhai and Bakir near the Arts Club in the West End when Alibhai and Bakir were arrested. 23. The prosecution argued that on the tapes Bakir (and on occasion Alibhai) were admitting that some of the transactions described by McGrath had taken place; that there was discussion of the production and export of EULAs; that references to sums of $38,000 (or $38,500) and $88,000 were to the amounts McGrath owed the appellants for the black and white EULAs and the multi-coloured EULAs respectively. On a number of occasions Bakir (and to a lesser extent Alibhai) boasted of sources from which they could obtain counterfeit software, for example from California, the Far East and Ireland. Bakir claimed that he had access to equipment which could add a security identification number to an existing disc and even remove such number, in order to replace it with another. The prosecution argued that the tapes provided compelling evidence that Alibhai and Bakir were offering to provide counterfeit software to McGrath and that their subsequent evidence in court explaining why they had done so and why McGrath had paid $113,500 to Boodle Hatfield were obvious fabrications. 24. When arrested on 19th July 2000 Bakir was in the course of showing McGrath some counterfeit 2000 Professional discs. The police recovered 3 discs. They were counterfeits. Bakir had on him a genuine COA. This was a COA of the type affixed to a computer in order to certify that the OEM software supplied by the computer manufacturer is genuine. There was no evidence that this COA was stolen. Alibhai had on him a counterfeit multi-coloured EULA. 25. Although, as we have said, the defendants disputed much of McGrath’s evidence about his dealings, they acknowledged the payment of $113,500 to Boodle Hatfield, explaining it as the down payment by McGrath for two servers which he was going to buy from PCS. McGrath had failed to pay the balance. He attempted to satisfy this debt by providing, in lieu of cash, products (such as EULAs) which Alibhai and Bakir were unable to sell. After his arrest McGrath inveigled Bakir into agreeing to supply counterfeit products by suggesting that he (McGrath) would be able to sell the counterfeits and to pay Alibhai and Bakir the balance of the server debt out of the proceeds. An analysis of telephone records proved beyond any doubt that McGrath had neither recorded nor reported to the FBI a large number of the conversations that he had with Bakir after his (McGrath’s) arrest – the “off record calls”. Thus it was that McGrath had “set up” the appellants in order to curry favour with the authorities. This explained why Bakir could be heard on the tapes offering to supply counterfeit software, although neither he nor Alibhai had ever done so before, and were only pretending to be able to supply such counterfeit products in order to obtain the money which they were legitimately owed by McGrath. Furthermore, the defence submitted that many of the boasts that Bakir made in the taped conversations were obvious nonsense. 26. The prosecution attacked the story of the sale of the servers as a fabrication. They stressed that there was no reference to the servers on any of the tapes, nor was the sale of the servers to McGrath reflected anywhere in PCS’s VAT or accounting records. The only record of such a sale was a proforma invoice which was faxed to Alibhai and Bakir by the Sayas, family friends of Alibhai, after McGrath had given evidence at the trial. The prosecution case was that this story had been concocted in an attempt to explain away the recorded conversations, that the proforma invoice had been fabricated in an attempt to pervert the course of justice and that the offers to supply counterfeit product were genuine offers which were intended to be performed 27. The above summary of the evidence is only a condensed version of a highly complex factual case but we consider it sufficient for the purpose of determining the issues that arise in these appeals. It demonstrates the importance of McGrath’s evidence to the Crown’s case, and so the potential relevance of any evidence of any incentive or pressure that might lead him to give untruthful evidence against the appellants. It also shows the basis for the argument advanced on the appellants’ behalf about what material might assist the defence: that information about telephone conversations between Bakir and McGrath, which took place between McGrath’s arrest on 16th June 2000 and his trip to England, would set the context for, and inform the interpretation of, the recorded conversations upon which the Crown relied; that information about McGrath’s other dealings might indicate a source for the counterfeit products that he had other than the defendants; that McGrath’s banking records might undermine his evidence about the extent of his dealings with Bakir and Alibhai. 28. The appeals There were originally 10 defendants at trial, of whom 4 were discharged at the end of the prosecution case at the judge’s direction. The indictment against a fifth was stayed. The remaining five defendants were Alibhai, Bakir, Collier, Dias and Eliot. In due course Eliot was acquitted by the jury and the others convicted. All four have appealed on disclosure grounds. The single judge directed that Alibhai and Bakir be represented by one team of counsel and Mr Michael Birnbaum QC and Mr Mehta have appeared for them, having represented Bakir at trial. Mr Birnbaum had the major burden of orally presenting the appeal on the disclosure issues. We gave him leave to argue one only of the grounds of appeal refused by the single judge. This was a single complaint directed to the summing-up (Ground H). Nathan Dias the fourth appellant was represented by Mr Kirby who mounted a separate disclosure argument while also supporting Mr Birnbaum’s submissions. The third appellant Adam Collier was represented by Mr Gadsden who supported the arguments on disclosure without adding to them. We gave him leave to argue two grounds of appeal which had been refused by the single judge. These both related to the form of the indictment as it was eventually left to the jury and we shall deal with these at the end of this judgment. 29. In opening the appeal on behalf of Alibhai and Bakir, Mr Birnbaum QC acknowledged that the Crown had either disclosed or arranged the disclosure by others of an enormous quantity of documents but he maintained that disclosure of some vital documentation never took place or took place so late that the trial could be seen to have been unfair with the result that the convictions of both Alibhai and Bakir were unsafe. This was Ground B of the appeal. There were four particular areas where disclosure was criticised namely- (1) any inducement there may have been to McGrath to record conversations either on the telephone or in England at face to face meetings; and later to give statements to the Crown and give evidence in these proceedings (Ground C); (2) McGrath’s banking records, only a few documents from which were disclosed; this fell under Ground D of the appeal; (3) McGrath’s own telephone records which were never fully disclosed and which were disclosed in part only after McGrath had given evidence. They showed among other things that he had made a number of unrecorded telephone calls to Bakir. Together with allegations of McGrath’s dishonesty and the complaint about banking records this formed Ground D of the appeal; (4) records of the trading of a lady named Sheila Wu and of the investigation into her trading which was conducted by the FBI in California, again using McGrath as an informant engaged to conduct undercover operations to collect evidence against her (“the Wu investigation”). Records held by the Dallas FBI were disclosed subject to a claim by the Crown for public interest immunity in respect of McGrath’s role as an informant in the California investigation; no California records were disclosed. Wu was, however, arrested in April 2002 in the course of the English trial and the judge ordered disclosure of the Dallas records in respect of which he had granted immunity; the Crown also voluntarily disclosed all the FBI California records in relation to Ms Wu. The history of the disclosure together with other complaints in relation to public interest immunity which we shall notice in due course under the head of History of Disclosure of those documents formed Ground E of the appeal. 30. The final ground of appeal (Ground F) was that the judge should have excluded the evidence of McGrath in whole or in part or should have discharged the appellants at the time when he decided that there was no case to answer against the 5 defendants discharged at the end of the prosecution case. 31. Ground B: Disclosure in general There is no complaint in respect of disclosure of material which was actually in the hands of the prosecution. The disclosure complaint relates to material which at relevant times was in the possession of Microsoft (for the most part apparently Microsoft Inc in the United States rather than Microsoft Ltd in England), the FBI and McGrath himself. It is, therefore, necessary to say something first about the Crown’s disclosure obligation in relation to material in the possession of third parties. Some tentative submissions were made that the FBI and Microsoft were so associated with the Crown case that they became part of the Crown and assumed personal obligations in relation to disclosure. By the end of the oral hearing, these submissions were only pursued by Mr Kirby for the appellant Dias. Of course Microsoft co-operated with the Crown, as did the FBI, but neither of them could possibly be treated as though they were the prosecutor. Nevertheless the Crown does have obligations in respect of material in the hands of third parties and a conviction would, in any event, be unsafe if the absence of disclosure of material in the possession of a third party meant that an accused could not have a fair trial. 32. The position of the Crown and third parties in relation to disclosure Disclosure is dealt with in Part I of the Criminal Procedure and Investigations Act 1996 (the “1996 Act”). This Act says nothing about disclosure by third parties but it is important to be aware of its principal provisions. Section 2 provides that references to “the prosecutor” are references “to any person acting as a prosecutor, whether an individual or a body”. That therefore includes the CPS and prosecuting counsel; but not, as we have already said, Microsoft or the FBI, helpful to the prosecution as they, no doubt, were. Section 3(1) is concerned with primary disclosure and requires the prosecutor to disclose any prosecution material not previously disclosed to the accused which might, in the prosecutor’s opinion, undermine the case for the prosecution; section 3(2), as far as relevant, defines prosecution material as:- “material which is in the prosecutor’s possession, and came into his possession in connection with the case for the prosecution against the accused”. The Crown’s obligation to disclose material in the hands of third parties such as Microsoft, the FBI or McGrath thus only arises if and when that material has come into the possession of the prosecutor and, at this early stage, when, in the opinion of the prosecutor, it might undermine the prosecution’s case. Section 5 then provides that, in cases of the sort with which this appeal is concerned, the accused must give a defence statement to the court and the prosecutor. Once that is done, section 7 then provides that the prosecutor must make secondary disclose of any prosecution material (nor previously disclosed) which might be reasonably expected to assist the accused’s defence. Section 8 provides that the accused can apply to the court for an order that the prosecutor disclose any prosecution material which might reasonably be expected to assist the accused’s defence, if he has reasonable cause to believe that such prosecution material exists. Section 9 imposes a duty on the prosecutor to keep under review throughout the case the question whether at any given time there is undisclosed prosecution material which in his opinion might undermine the prosecution case or might be reasonably expected to assist the accused’s defence. 33. Sections 3(6) and 7(5) of the Act provides that material must not be disclosed, as part of primary or secondary disclosure respectively, to the extent that the court, on the prosecutor’s application, concludes that it is not in the public interest to disclose it. Section 15 requires the question of public interest immunity from disclosure to be kept under review by the court. Section 16 provides that where an application for public interest immunity is made and a person claiming to have an interest in that material applies to be heard and shows that he was involved in the prosecutor’s attention being brought to the material, the court should not make an order without giving him an opportunity to be heard. These provisions are of some importance on this appeal because public interest immunity was claimed by the Crown (inter alia) in respect of material in their possession, but originally held by the FBI in Dallas, relevant to the other FBI investigation in respect of which McGrath was also an informant (the Wu investigation). On more than one occasion, Microsoft attended in front of the judge by counsel and were heard when public interest immunity was being considered. This attendance was misleadingly described, by counsel then applying for immunity on behalf of the Crown, as occurring because Microsoft were concerned about commercial confidentiality. This was later corrected by Crown counsel and Jack J recognised, and emphasised, that commercial confidence could not be the basis for a claim of public interest immunity. It was also said by the defence that the judge had afforded access to the victim of the crime in the absence of the defence and that that was improper. In fact both Her Honour Judge Mowat (when she dealt with public interest immunity applications) and Jack J were permitting Microsoft to exercise their right under section 16 of the 1996 Act . 34. Section 16 of the Act is the only section that refers in terms to a third party rather than the prosecution and does not deal with material in the hands of that third party. Formally, material in the hands of a third party, if it is not volunteered, can only be brought to the attention of a criminal court pursuant to the Criminal Procedure (Attendance of Witnesses) Act 1965 section 2 of which provides that, if the Crown Court is satisfied that a person is likely to be able to give material evidence or produce any document or thing likely to be material evidence, the Crown Court should issue a witness summons directed to that person, requiring him to attend and give evidence or produce the document or thing. This procedure is not altogether satisfactory because:- (a) it is impossible to issue a witness summons to a person outside the jurisdiction; (b) a witness summons to produce a “document or thing” will not elicit information; (c) the “document or thing” must itself be likely to be material evidence; a witness summons will not be issued for documents which will not themselves constitute evidence in the case but merely give rise to a line of enquiry which might result in evidence being obtained, still less for documents merely capable of use in cross-examination as to credit; (d) there is no provision for either the Crown or the defence, in the absence of agreement, to examine the documents before they are produced to the court pursuant to the witness summons. 35. It is, however, important to be aware that the Attorney General’s Guidelines of 29th November 2000 (set out in the supplement to Archbold) do have relevant provisions in relation to disclosure of information in the hands of third parties under the heading “Involvement of other agencies”. Paragraph 29 applies to “Material held by Government Departments or other Crown bodies”. The following 4 paragraphs apply to “Material held by other agencies” and provide as follows:- “30. There may be cases where the investigator, disclosure officer or prosecutor suspects that a non-government agency or other third party (for example, a local authority, a social services department, a hospital, a doctor, a school, providers of forensic services) has material or information which might be disclosable if it were in the possession of the prosecution. In such cases consideration should be given as to whether it is appropriate to seek access to the material or information and if so, steps should be taken by the prosecution to obtain such material or information. It will be important to do so if the material or information is likely to undermine the prosecution case, or assist a known defence. 31. If the investigator, disclosure officer or prosecutor seeks access to the material or information but the third party declines or refuses to allow access to it, the matter should not be left. If despite any reasons offered by the third party it is still believed that it is reasonable to seek production of the material or information, and the requirements of section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 . . . are satisfied, then the prosecutor or investigator should apply for a witness summons causing a representative of the third party to produce the material to the Crown. 32. Information which might be disclosable if it were in the possession of the prosecution which comes to the knowledge of investigators or prosecutors as a result of liaison with third parties should be recorded by the investigator or prosecutor in a durable or retrievable form (for example potentially relevant information revealed in discussions at a child protection conference attended by police officers). 33. Where information comes into the possession of the prosecution in the circumstances set out in paragraphs 30 – 32 above, consultation with the other agency should take place before disclosure is made: there may be public interest reasons which justify withholding disclosure and which would require the issue of disclosure of the information to be placed before the court.” 36. The formal position at trial in relation to material or information in the possession of Microsoft, the FBI and McGrath personally was, therefore, governed by these paragraphs of the Guidelines. Since it was possible to discern that each of these parties might have relevant material, it is not surprising that both the Crown and the defence attempted to pursue consensual methods of obtaining relevant material. It is, of course, important that victims of fraud should be willing to make relevant disclosure and take efficient steps to arrange such disclosure. The defence now assert that the consensual arrangements proved inadequate and that the defendants should not, therefore, have been tried or, once the jury had been empanelled and it was clear that relevant material was not going to be disclosed, the jury should have been discharged since it was an abuse of process for the Crown to continue to seek verdicts against the defendants. Alternatively, they say that the court should have excluded evidence adduced by the Crown (specifically the evidence of McGrath) upon which the undisclosed material might have an impact and that the Crown should not have been permitted to rely on such evidence. In order to assess this submission it is necessary to set out the history of the relevant disclosure problems as they arose particularly in relation to (1) information about the reasons for McGrath being prepared to inform on Alibhai and Bakir, obtain evidence against them and, in due course, give evidence for the Crown, (2) McGrath’s own business, banking and telephone records and (3) the FBI’s investigation into alleged dealing with counterfeit Microsoft products in California and, in particular, the Wu investigation. 37. History of Disclosure Before the trial began the Crown had, either voluntarily or in response to requests from the defence, given a considerable amount of disclosure but very little in relation to the witness McGrath since very little was in their possession despite the fact that Mishcon de Reya, solicitors acting for Microsoft, had said on 5th October 2001 that they believed all relevant material had been handed to the FBI and that both Mr West of the CPS and Mr Hick, second junior counsel for the Crown, had already inspected material held by the FBI in Dallas. There had, however, been the usual disclosure of unused material including, for example, the defendant Bakir’s telephone records. These records revealed that there had been telephone conversations between Bakir and McGrath after McGrath’s arrest (but before the arrests of Alibhai and Bakir) which had never been recorded despite McGrath having been instructed by the FBI that McGrath should record all telephone conversations that took place between them, once he had been issued with recording equipment. All that the National Crime Squad and the prosecution had were the tapes of conversations which had actually been recorded, authorisations relating to the covert operations, McGrath’s statements, a few notes and a few exhibits. Both Microsoft and the FBI, however, had relevant or potentially relevant material including, in the case of Microsoft (1) internal e-mails and documentation relating to the arrest of McGrath and his agreeing to become an informant, (2) personal diaries of Mr Thomas, Microsoft’s Senior European Investigator in their Law and Corporate Affairs department and (3) information about a number of UK dealers whom the prosecution were to call to give evidence in relation to trading in counterfeit material. The FBI had (1) 15,000 pages of McGrath’s business records, (2) formal records (known as “302s”) of the information given to them by McGrath in the course of his covert operations and (3) tapes of telephone conversations between McGrath and other alleged miscreants such as Jaworowski and Ms Wu. 38. On 2nd November (the second day of the trial and before the jury was empanelled) Mr West of the CPS wrote to Mishcon de Reya in the following terms:- “Further to my previous letter, the defence have asked the following: i. Has Dan McGrath sought from Microsoft, or been given or promised by Microsoft, any immunity from civil or other proceedings, or any other benefit? ii. Has any representative of Microsoft had any contact with Dan McGrath or anyone representing him since his arrest? If so, please produce any and all documentation. iii. Has Microsoft sought to influence, or been consulted by, the prosecution as to the disposal of the case against Dan McGrath, for example, by suggesting that pleas to lesser charges be accepted? I do not know if you can answer these questions. If not, please let me know who I can contact when I phone on Monday. Thank you for your help so far.” Mishcon de Reya replied on 6th November as follows:- “We write further to your letter of 2 November and (adopting your numbering system) respond upon instruction from Microsoft as follows: (i) Dan McGrath sought from Microsoft immunity from civil proceedings as a condition of investigators representing Microsoft participating in his debriefing. Microsoft rejected Dan McGrath’s request and, therefore, did not participate in his debriefing. (ii) No. (iii) No. We would be grateful if you would pass this letter immediately to the defence.” In fact the answer to question (ii) was, on any view, incorrect in that there was documentation relating to contact between Microsoft and McGrath after his arrest. 39. The first five and a half days of the trial were taken up by legal arguments including arguments about abuse of process and public interest immunity. The main thrust of this first of many applications to stay the proceedings for abuse of process was that certain documents had been listed by the Crown in their disclosure of unused material but the Crown had subsequently learnt from Microsoft that Microsoft considered that the documents should not be disclosed to the defendants and so, before any inspection had taken place on behalf of the defendants, the documents were removed from the material available for inspection. Jack J refused the application for a stay for abuse of process observing in his written reasons delivered on 12th November 2001 that there was no evidence of prejudice to the defendants since he was able to decide whether disclosure of these “withdrawn” documents should be given. He did, in fact, order disclosure at a later date and the documents were with the defence by mid-December. Although much was made of this incident both before the judge and before us as showing that the prosecution had allowed itself to be improperly influenced by or indulgent towards Microsoft, no challenge has been advanced to the judge’s ruling, which was clearly correct. 40. As far as disclosure more generally was concerned, Mr Birnbaum was able to tell the judge on 7th November that he had reached agreement with Mr Hines, counsel whom Microsoft had instructed, through the solicitors Mishcon de Reya, that Microsoft would produce from their files, whether in England or the United States, all material in their possession relating to the defendants and their business entities as well as relating to other named businesses and their principals; they also agreed to produce notes and reports made by Mr Thomas in relation to his liaison with the FBI and the NCS, subject to any public immunity implications, and material relating to the activities of McGrath including “any deal or arrangement made with McGrath or anything provided or offered to him by Microsoft or anyone acting on its behalf”. Mr Hines confirmed that this would be done and that Mishcon de Reya would deal in writing with Mr Birnbaum’s written requests. Documents in the possession of the FBI were agreed to be dealt with in a similar way save that the FBI were to respond through the CPS rather than through their own solicitors or counsel. 41. Thereafter pursuant to the agreement which had been reached with Microsoft, correspondence took place with Mishcon de Reya but Mr Birnbaum complains that Microsoft never did what they had agreed to do. Nothing had emerged by way of written response by 23rd November (by which time the prosecution had begun to call evidence) when Mr West of the CPS reminded Mishcon de Reya that a definite response (whether “positive or negative”) was awaited from them on a number of matters including material relating to McGrath. Mishcon de Reya replied on 27th November confirming their letter of 6th November and saying that, so far as Microsoft was aware, the CPS was in possession of all relevant McGrath material. They confirmed that again in a letter of 12th December 2001 and, in answer to an express inquiry from the Crown in relation to rewards or expenses paid through Mr Thomas said that no such rewards or expenses had been paid by Microsoft in relation to the case. Between 17th and 20th December Mr Thomas gave evidence in front of the jury and was asked a considerable number of questions about disclosure. On 17th December itself he handed a diary to the CPS 60 pages of which were disclosed. (On the same day the Crown disclosed to the defence McGrath’s own business records consisting of 14,000 pages and 4 hard discs). At the conclusion of his evidence on 20th December the judge asked Mr Thomas to look for any other relevant material. The next day (21st December) was the last sitting day before the court rose for the Christmas recess and Mr Thomas produced 4 further diaries. On the same day solicitors for the defence themselves wrote to Mishcon de Reya expressing concern about the lack of disclosed material that Microsoft had in their possession relating to McGrath and asking them to procure a letter from Microsoft “to the effect that they have provided full and proper disclosure of this material, both to you and to the court”. 42. The case resumed on 2nd January 2002 after Mr Thomas had undertaken what the judge in due course found to be a properly conducted search for relevant material. Mr Thomas had indeed found relevant material which included what have become known as “the Dallas e-mails” containing documentation about requests from McGrath for civil immunity from Microsoft if he were to assist them and Microsoft’s response to that request. They included an important report of 8th July 2000 signed by Mr Mueller and Mr Thomas about the whole matter. These documents which were only handed over to the defence at this stage thus contradicted Mishcon de Reya’s assertion in their letter of 6th November and indeed their subsequent assertions that the CPS had all relevant McGrath material. The defence teams were naturally very concerned whether full disclosure had even now been made. 43. Mr Thomas returned to court with Microsoft’s counsel and gave further evidence explaining (inter alia) why the documents recently disclosed were overlooked (they had been in an e-mail box but not, 18 months later, in a readily recoverable form). On 10th January, in the course of Mr Thomas’s evidence, and thus without being able to consult with him, Mishcon de Reya explained that when conveying the information contained in their letter of 6th November they “took comfort from” the fact that any involvement of Microsoft with McGrath was likely to have been recorded by the FBI or the NCS and disclosed by them. They pointed out that on a proper reading of the report of 8th July 2000, there was no deal with McGrath:- “It was simply made clear to him that if there was to be a deal, it would be discussed in the future depending on his full and truthful co-operation with law enforcement.” They further said that the only record of a meeting between McGrath and Microsoft representatives was the meeting referred to in the 8th July report when Microsoft rejected McGrath’s terms for doing a deal. Remarkably, they asserted their belief that their letter of 6th November had not been materially inaccurate. It clearly was inaccurate in the answer to the second question, and no proper or adequate explanation for the mistake was ever forthcoming. 44. The next week or so of the trial was occupied by submissions that the trial should be stayed because it was an abuse to let the trial proceed in (inter alia) circumstances where the disclosure provided by the Crown was halting and inadequate, aggravated by what were said to have been untruthful representations of the position by Microsoft through Mishcon de Reya. In the course of these submissions, evidence on a voir dire was given not only by Mr Thomas but also by Mr Finn who, since December 1999 had been Microsoft’s corporate attorney in Paris managing the company’s anti-counterfeiting activities in Europe, the Middle East and Africa. This voir dire occurred because, at the request of the defence, McGrath’s evidence had not been opened to the jury by the Crown pending an application that it be excluded under section 78 of the Police and Criminal Evidence Act 1984 . In the course of his evidence Mr Finn gave what can, most generously, be characterised as evasive answers to the question whether there would be likely to have been a file in Microsoft which would include documents relevant to dealing with McGrath. The judge eventually got Mr Finn to admit that a letter from any lawyer of McGrath inquiring about civil immunity would be likely to be kept and Mr Finn identified 3 possible addressees of such a letter. On 24th January the judge orally rejected the defendants’ submissions and refused to stay the proceedings saying that he would give written reasons at a later date. He was, however, sufficiently concerned about the disclosure position to address an order to Mishcon de Reya in the following terms:- “Mishcon de Reya as solicitors acting for Microsoft in connection with disclosure in this trial and having in mind their duty as officers of the Supreme Court should forthwith put in train and supervise enquiries within Microsoft as to the existence of any of the following classes of documents: (1) any documents emanating from Daniel McGrath or his lawyers to Microsoft concerning his co-operation with the FBI and/or the NCS and/or his civil liability to Microsoft; any documents emanating from Microsoft to McGrath or his lawyers likewise concerned; any documents passing within Microsoft likewise so concerned. (2) any documents held by Microsoft concerning the civil liability to Microsoft of Alexander and/or Jonathan Bell and/or any of their companies . . . . . . . . . . . . . . . . . Mishcon de Reya should first identify with Microsoft the individuals who may have such documents under their control and then ensure that the individuals make an appropriate search. A full written report with copies of all resulting documents (save those for which legal privilege is claimed), should be sent first by fax and then in hard copy as soon as possible to the CPS (Andrew West). If this cannot be provided by 4 p.m. Friday 25 January, a brief interim report should then be provided. In the above “document” includes a document in electronic form.” 45. As requested Mishcon de Reya sent an interim report within the 24 hour deadline given by the judge, with substantive reports following on 6th, 7th and 11th February 2002, stating that the only possible documents found which could come within the relevant category were some e-mails found by a Mr Lamagna. Meanwhile on 4th February 2002 the judge delivered his written reasons for rejecting the defendants’ abuse submissions. 46. The judge set out the history of the case to date, included a reference to his ruling of 12th November 2001 in relation to the abstracted documents and recorded that a satisfactory way forward for disclosure appeared to have been found at the beginning of the trial. He recorded that the jury had heard evidence from Mr Thomas and that, as far as dealings between Microsoft and McGrath were concerned, he had himself heard evidence on voir dire from both Mr Thomas and Mr Finn. He then set out the relevant law on abuse of disclosure in a way that has not been challenged and he referred to the review of the current, not entirely satisfactory, position in relation to documents in the possession of third parties described in paragraphs 185-189 of Chapter 10 of Lord Justice Auld’s Review of the Criminal Courts. He aptly quoted Lord Hope of Craighead in R v Brown (Winston) [1998] AC 367 , 380 in relation to any practical difficulties stemming from the duty of disclosure:- “If fairness demands disclosure, then a way of ensuring that disclosure will be made must be found.” He then proceeded to deal with disclosure as it arose at the stage of the trial with which he was concerned. He correctly held that Microsoft was not part of the prosecution but acknowledged that disclosure by Microsoft was important if the defendants were to have a fair trial. He recorded that Microsoft had always accepted that they should make appropriate disclosure. He then rehearsed the history of the disclosure of the Microsoft/McGrath material which we have set out above and said that it constituted the high point of the abuse application. He categorised it as “an unhappy story” but said it was not a case in which Mr Thomas deliberately set out to conceal documents which he knew ought to be produced. Nevertheless he stated Mr Thomas’s attitude was “to disclose as little as he might”, that the attitude of Microsoft as a whole had been to do “not very much” while appearing co-operative and that Mr Finn had taken a restrictive approach. 47. Having made these findings the judge then said this:- “The question which this application requires me to answer is whether the defendants can have a fair trial. I am satisfied that the documents which have now been disclosed concerning events in Dallas in July 2000 give the defence what they require. They show in very plain terms what happened as regards Mr McGrath and Microsoft. I have no reason to think that there are more documents relating to this, but if there are, I do not think that they will put the defendants in any better position than they now are to say that pressure was put on Mr McGrath. The documents have come at a very late stage, but not so late that they cannot be used as the defence may wish to use them. That deals with the Microsoft/McGrath documents.” After dealing with a somewhat similar point about any motivation behind the evidence of other witnesses, viz Alexander and Jonathan Bell, and coming to a similar conclusion in relation to them, he continued:- “I conclude with regard to disclosure by Microsoft that a serious situation arose, but that it has been cured. The fair trial of the defendants has not in the end been put at risk. I think also that Microsoft now have a clearer understanding of what must be done with regard to disclosure. They know that their failings have given rise to a serious application to stop the trial. I think that this was brought home to Mr Finn when he had to come from Paris at short notice and personal inconvenience to give evidence on the evening of 22 January. So in so far as the task of disclosure still remains incomplete, I have greater confidence that it will be properly performed despite the past history.” 48. Before us Mr Birnbaum was critical of this ruling of the judge on the basis that having made the adverse findings he did in relation to Mr Thomas, Mr Finn and Microsoft in general, he could not have been satisfied that there had been full disclosure from Microsoft and that this court should be satisfied either that in fact there was an express “deal” by which McGrath was promised immunity so that his evidence became impermissibly tainted or that there had been inadequate disclosure such that it was impossible for the judge and jury below (or, indeed, this court) to assess the pressure operating on McGrath to give evidence for the Crown and, for that reason, the trial should have been stayed as an abuse of process. He said that it was not enough that the defendants could show that pressure was put on McGrath, because disclosure had not revealed the nature and extent of the pressure. 49. There is no evidence to suggest that there was any formal “deal” to the extent alleged by Mr Birnbaum (for the first time in this court) or at all. The judge summed up to the jury on the basis of the documents that had been disclosed to the effect that the extent to which Microsoft would be prepared to forgo civil proceedings remained to be seen. Of course, that itself constituted pressure but that the jury knew and were able to take into account. 50. As far as the argument that disclosure had been inadequate is concerned, both the argument and the underlying facts in support of that argument were before the judge. He was critical of Microsoft in the ways which we have indicated. That criticism was merited and we agree with it. The judge nevertheless said that he had no reason to think that there were more documents but that, even if there were, they would not be likely to show any pressure on McGrath of which the defence were unaware. The judge was entitled, in our view, to conclude that the defendants could have a fair trial and we do not see any good argument for overturning that decision. 51. We have said Mr Birnbaum was critical of the judge’s ruling in the above respects but, in response to our specific questions whether he was submitting that Jack J was wrong to have made the ruling which he did on 4th February, he gave the answer “No”. The submission was rather that it can now be seen, in the light of subsequent events, that it was an abuse to have continued with the trial. Although Mr Birnbaum did not specify quite when the trial ceased to be fair or become an abuse of process, he relied on the following matters:- (1) continued failure by Microsoft to disclose information or documents relating to McGrath that must exist or have existed; (2) the failure by Mr Finn to return to give evidence to the jury in spite of being requested by the defence to do so; (3) the fact that there were not produced (a) McGrath’s telephone records in proper time or in their entirety; and (b) McGrath’s banking records; (4) untimely disclosure of information and documents in relation to the investigation in California into counterfeit Microsoft products. 52. Continuing Failure after 4th February ruling We have said that Mishcon de Reya gave a final report on questions raised with them by the judge on 11th February. They were asked further questions on 13th February; those were answered on 18th February on which date they were specifically asked by defence solicitors to confirm whether all contacts between McGrath and Microsoft had been disclosed. In a reply dated 25th February Mishcon de Reya referred to all their previous letters both before and after the judge’s ruling and then said this:- “We believe that those relevant contacts represent the totality of contact between Dan MacGrath, either directly or through his legal representatives, and Microsoft in the UK and/or the USA. While there is no standard of proof in criminal or civil law that requires absolute certainty, of course, we do ask you to bear in mind that there are approximately 50,000 Microsoft employees worldwide and approximately 600 employees in the Law and Corporate Affairs Department.” Mr Birnbaum suggested that Mishcon de Reya should have offered to e-mail all 600 employees in the Law and Corporate Affairs Department. That is not a submission that we can accept. Microsoft and Mishcon de Reya had done all that the judge had required of them. There is simply no basis on which it can be said that their failure to e-mail all 600 employees in the Department rendered the trial of these defendants in any way unfair. A matter that came to light on the 8th day of this appeal was that in December 2002 (viz after the conviction but before Microsoft or the Crown knew of any appeal) Microsoft served notice that they would be asking the prosecution in the case of State v McGrath in Dallas to seek restitution from McGrath in the sum of about $1 million. Both Mr Birnbaum and Mr Kirby asserted that this was fresh evidence of indulgence to and thus a deal with McGrath on the part of Microsoft because, on McGrath’s own evidence, Microsoft would be entitled to claim for more. But it did not seem to us that it changed the picture in any material way. Moreover, even if it were right to regard this as evidence of indulgence (we are far from convinced that it is) it does not mean that Microsoft agreed to grant such indulgence before McGrath gave evidence. 53. The absence of Mr Finn Once McGrath had given evidence, Mr Finn was asked to return to give evidence before the jury. Mishcon de Reya’s response to the request that he should give evidence was in the following terms:- “We write further to the fax received on Friday 12th April from Mr West enclosing the transcript of the hearing on the above matter on Thursday 11th April. Mr Finn’s decision not to travel outside France and appear as a voluntary witness in this case a second time has nothing to do with a possible unpleasant or lengthy cross examination, and everything to do with the fact that (1) he can give no relevant or admissible evidence on the relevant issues already presented to the Jury during the previous six months of the trial, and (2) the Defence has already had ample opportunity to question him and other witnesses on these matters over the preceding six months. Our review of the transcript of the hearing that took place on Thursday 11th April only reaffirms that position.” Again we consider that to be an understandable response and that no prejudice was in the event caused to the defendants, especially since those parts of his evidence on the voir dire, which the defence considered would assist the case, were incorporated into admissions which were placed before the jury in written form in due course. 54. The third and fourth matters on which Mr Birnbaum relied constitute Grounds D and E of his appeal and we shall deal with them after considering the law and stating our conclusions on Ground C. 55. The Law Mr Birnbaum presented the appeal of Alibhai and Bakir on the basis of a proposition that the convictions were unsafe because he could demonstrate an arguable case that (i) material which might have undermined the prosecution case or assisted the defence was not disclosed at the trial, and (ii) the disclosure of that material might have led to the disposal of the case in the appellants’ favour. It is to be noted that Mr Birnbaum refers to “the disposal of the case in the appellants’ favour” to include not only a verdict of not guilty but other favourable disposals such as a decision of the judge to stay the proceedings. 56. Before going further, it is right to acknowledge, as Mr Birnbaum does, that the prosecution and indeed Microsoft did disclose an enormous amount of documentation before and during the trial. We also record Mr Birnbaum’s proper acknowledgement that counsel and CPS lawyers acting for the prosecution went to great lengths to meet the defendants’ requests of them with regard to disclosure. This is no answer to the appeal if nevertheless there were failings that resulted in an unfair trial and unfair convictions, but it does put the criticisms that were made into their proper context 57. We agree with Mr Birnbaum’s proposition to this extent: in a case where a complaint is made of non-disclosure of documents, it is not always necessary for an appellant to demonstrate that the disclosure of the material would have affected the outcome of the proceedings. As was observed in R v Ward , (1993) 96 Cr App Rep 1 at page 22:- “Non-disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance or opened up a new line of defence.” We accept that in many cases it would suffice for an appellant to show a failure on the part of the prosecutor to meet disclosure obligations so that it is reasonable to suppose such failure might have affected the outcome of the trial. It is a matter of semantics whether this means that it is necessary upon an argument of this kind for a defendant to demonstrate “prejudice”. That said, even where there has been a failure on the part of the prosecution to make disclosure, this court will not regard a conviction as unsafe if the non-disclosure can properly be said to be of “insignificance in regard to any real issue”: see R v Maguire , (1992) 94 Cr App Rep 133 at page 148. 58. However, Mr Kirby, while asserting that in fact the defendants had been prejudiced by failings in the disclosure process and that it could be demonstrated that the outcome of the proceedings might have been affected by them, advanced a bolder submission than Mr Birnbaum: that the history of disclosure in this case had so tainted the trial process that the proceedings were an abuse and they should have been stayed. He cited in support of this argument such authorities as R v Horseferry Road MC ex p. Bennett , [1994] 1 AC 24 (in which Lord Griffiths said at page 62C, “…if it comes to the attention of the court that there has been a serious abuse of power it should, in my view, express its disapproval by refusing to act on it”) and Early , [2003] 1 Crim App Rep 288, 295, [2002] EWCA Crim 1904 (in which the Court referred to the possibility of the prosecution case being regarded as “tainted beyond redemption, however strong the evidence against the defendant may otherwise be”). 59. We recognise that there may be cases in which the conduct of the prosecution or the exercise of power in order to advance the prosecution might be so disgraceful as to require the court to exercise its discretion to stay the proceedings. However, in our judgment an order on this basis would not have been remotely justified here. This is not a case in which it could fairly be said that the prosecution themselves behaved dishonourably or abused their power. The real problem was that potentially relevant documents and information were not in the possession of the prosecution but in the hands of third parties, namely the FBI, Microsoft and McGrath or his lawyers, and the judge was concerned to ensure that nevertheless the defendants were tried fairly and their defence was not wrongly obstructed by want of disclosure by third parties. 60. Mr Kirby’s response to this was a rather sweeping attack upon the way that the case proceeded. He asserted that McGrath deliberately misled the judge, counsel and his FBI handlers, and that Microsoft and the FBI had engaged in unworthy conduct by withholding evidence and “arguably consciously” misleading the court. We have not found it easy to discern the structure Mr Kirby’s argument, but identify two points, only to reject them: 1. that the FBI and Microsoft became so intimately involved with the NCS that they are to be regarded as “prosecutors” with obligations of disclosure as imposed by the 1996 Act , and their failure to make disclosure is to be regarded as, or as tantamount to, a failure on the part of the prosecution to make disclosure; 2. that the Crown failed to comply with the Attorney General Guidelines, and specifically with paragraphs 30-33. 61. We do not consider that there is a proper basis for the first point. Undoubtedly Microsoft and the FBI co-operated closely with the NCS. This was inevitable, and desirable, in a case of this kind. Some criticisms made by Mr Kirby (such as his criticism of Microsoft’s attendance upon PII hearing) were misconceived. Some (such as the fact that Microsoft provided storage facilities for goods that had been sized) were trivial. Some (such as his claim that Microsoft had paid for flights made by NCS officers) were unsupported by evidence. Assertions such as that Microsoft were allowed to “help determine the strategy of the investigation” were too vague to be meaningful. A few matters identified by Mr Kirby, for example the fact that apparently Microsoft officials had access to covert recordings made by McGrath, were more worthy of comment, but could not support the suggestion that they resulted in the FBI or Microsoft assuming extensive disclosure obligations to which they would not otherwise have been subject. 62. The trigger for the provisions of paragraphs 30-33 of the Attorney General’s Guidelines is suspicion on the part of the investigator, disclosure officer or prosecutor that a third party has material or information that might be disclosable if in the possession of the prosecution. Material in the possession of a prosecutor is not disclosable simply because it is or might be relevant to an issue in the case. As Lord Bingham said in R v H , [2004] UKHL 3 at para. 35:- “If material does not weaken the prosecution case or strengthen that of the defendant, there is no requirement to disclose it. For this purpose the parties’ respective cases should not be restrictively analysed. But they must be carefully analysed, to ascertain the specific facts the prosecution seek to establish and the specific grounds on which the charges are resisted…. Neutral material or material damaging to the defendant need not be disclosed.” Thus before it can be said that there has been a breach of an obligation under these provisions of the Guidelines, it must be shown that there was suspicion that the FBI, Microsoft or McGrath, as the case might be, not only had potentially relevant material but that the material was not neutral or damaging to the defendants but damaging to the prosecution or of assistance to the defendants. 63. Secondly, even if there is the suspicion that triggers these provisions, the prosecutor is not under an absolute obligation to secure the disclosure of the material or information. He enjoys what might be described as a “margin of consideration” as to what steps he regards as appropriate in the particular case. If criticism is to be made of a failure to secure third party disclosure, it would have to be shown that the prosecutor did not act within the permissible limits afforded by the Guidelines. 64. In saying this, we are not ruling out the possibility that in an extreme case it might be so unfair for a prosecution to proceed in the absence of material which a third party declines to produce that it would be proper to stay it, regardless of whether the prosecutor is in breach of the Guidelines. Nor do we lose sight of the fact that in this case Microsoft did not stand upon what might be their legal rights but agreed to make disclosure and indeed, through Mishcon de Reya, were required by the Judge to do so. We have already referred to the Judge’s observation in his reasons of 4th February 2002 that “Microsoft has always accepted that it should give appropriate disclosure”. Nor can the defendants (or the Crown) be criticised in a case like this for proceeding on the basis that Microsoft would give the disclosure that they had indicated that they would provide and that the Judge directed. However, in so far as Dias, though Mr Kirby, suggests that the trial was unfair because of breach of the Guidelines, it is important to bear in mind the limits upon what was required of the prosecutor under the Guidelines. 65. We shall consider later in this judgment the submission, which Mr Birnbaum also made, that there was not proper compliance with the Attorney General’s Guidelines in relation to the Wu investigation. It suffices to say here that when the extent of the prosecutor’s obligations under the Guidelines are examined, on no view was there so comprehensive a breach of them as to justify a stay of these proceedings unless the trial process was therefore too unfair for the verdict to be safe. 66. We turn now to the specific complaints. 67. Conclusions on Inducements (Ground C) There was, in the end, a considerable amount of disclosure relating to this topic. The essence of the matter, as disclosed, was contained in this extract from Mr Thomas and Mr Mueller’s internal report entitled “Dan McGrath de-brief and strategy report” of 8th July 2000:- “On Thursday morning we met with McGrath’s criminal attorney . . . We discussed the extent of McGrath’s co-operation and agreements that he wanted from the various parties. The NCS agreed that all of McGrath’s activities in the UK had resulted in his arrest in Dallas and therefore they would not necessarily pursue charges if he fully cooperated. Gibson indicated that he had been in contact with AUSA [Assistant United States Attorney] Reed Wyclif and they had come to an agreement that while McGrath would be formally charged for the 2000 EULAs his cooperation would be taken into account. As for MS, McGrath would be asking for the clearance of any civil liabilities. On behalf of MS we indicated that our actions as to the pursuit of a civil suit and the request for restitution would be directly linked to the extent and success of McGrath’s co-operation with NCS and the FBI.” There were therefore three linked strands. First there was the possibility of an English prosecution. The position at 8th July was that charges would not necessarily be pursued if McGrath co-operated. There was some conflict at the trial on the up to date position on that (which was never thought to require resolution). In fact no formal immunity has been given, but since McGrath is not readily available to the jurisdiction of the English courts, it was no doubt the least of his pressures. Secondly, there was the possibility of a United States prosecution in the Federal Courts. At the time of the appellants’ trial, negotiations for a plea bargain were well advanced but not complete. Agreement has now been reached that McGrath will enter a plea of guilty which will render him liable to sentence and to make restitution but, if he is given a sentence other than probation, he is entitled to vacate his plea. The possibility of criminal charges being preferred and restitution being requested would then have been one of the pressures operating on McGrath at the time he gave his evidence. This was known to the jury and they were reminded of it in the summing-up. 68. Thirdly Microsoft had the right to bring civil proceedings against McGrath. Microsoft was only prepared to say that their pursuit of civil proceedings (and indeed the exercise of the right to ask the prosecutors in the Federal criminal proceedings to seek restitution) would be directly linked to the extent and success of his cooperation with the prosecuting authorities. That again was before the jury and the judge reminded them of the position in his summing-up. 69. There are therefore two questions and, in our judgment, only two questions. First, is it likely that there was inadequate disclosure that makes it arguable that the position in relation to the pressures on or the inducements given to McGrath, as put before the jury, was a misleading one so that it was an abuse of process to try the appellants? Secondly, if the true position was as it emerged in evidence, should McGrath’s evidence have been excluded from the jury’s consideration? 70. The judge considered the first question on the information he had available in his ruling of 4th February. We have already said that we do not criticise his ruling that at that time there was no abuse. Nothing happened later with regard to disclosure that would make it an abuse. 71. With regard to the second question there was an application made to exclude McGrath’s evidence on the basis of what had been disclosed in relation to the pressures on him or the inducements given to him. Since this was based on the same material the judge had had to consider on the abuse application, but framed as an application made pursuant to section 78 of the 1984 Act , the judge dealt with it briefly rejecting it on 14th February 2002. That was an exercise of discretion on his part and we consider that his decision cannot be criticised. Ground C of the individual grounds is therefore rejected. 72. McGrath’s own dishonesty and concealment of material (Ground D) This ground of appeal related mainly to the non-disclosure of McGrath’s telephone records, trading records and banking records. In fact, however, his trading records were disclosed by the FBI to the NCS and came forward as part of the substantial disclosure that occurred on 17th December. The main reason why they were legitimately requested by the defence arose from the denial by Alibhai and Bakir that they had (as McGrath asserted) provided him with the EULAs he had with him when he was arrested. The defence were concerned to show that these EULAs could have come from some other source with which McGrath had been trading at the time. The relevant documents had, therefore, come forward by the time the judge made his ruling on 4th February and no further reference need be made to the trading records. 73. McGrath’s banking records had been asked for by the defence as early as April 2001; a few extracts were eventually provided, but for the most part, they never materialised. The judge was never asked to make a specific order: the defence understood that they would be forthcoming, and in any case it is difficult to see quite what application might have been made. The potential relevance of the records is said to be twofold: first they might throw light upon the extent of dealings between McGrath and the defendants (or their companies) before McGrath’s arrest: if his records did not show relevant payments, it would cast doubt upon his account of how many consignments he had received. Secondly, Mr Birnbaum submitted that the documents might have shed a flood of light in respect of McGrath’s business dealings. In particular he mentioned that according to McGrath he made payment for some supplies from PCS to a dealer based in California called Bronco Kuo, from whom he obtained supplies, some of which were counterfeit, from late 1998 or early 1999; and he then submitted that the banking records might have thrown light upon this (prima facie remarkable) evidence. In a ruling on 16th May 2002 Jack J said this:- “The balance had not been obtained by the FBI because their investigations did not require it: they considered that for their purposes they had enough on McGrath, a cooperating witness. The records are now being sought through McGrath. I was told that the delay is due to a combination of factors. They should have been produced some time ago. On the other hand the bank records the defence do have, have not been referred to, nor does it seem to me that they have been analysed. It may or may not be that the bank records would have added to the picture. In all the circumstances which I have set out in relation to McGrath and his evidence, I do not think that their absence has been the cause of any real prejudice to the defendants.” 74. We do not accept the submission that the banking records would have thrown significant new light upon McGrath’s dealings, either generally or in relation to Kuo Bronco. Typically banking records record the financial implementation of trading transactions rather than describe the nature of the transactions. It is McGrath’s trading records rather than his banking records that would be expected to indicate the nature of his dealings. The force of the complaint about the banking records really rests upon the first point of potential relevance. 75. As far as that is concerned, Mr Mehigan acknowledged that he could not seek to uphold the judge’s observation about the records that had been produced not having been referred to or analysed. The fragments that were produced were insufficient to demonstrate a significant absence of payments by McGrath. It is impossible to say that if fuller records had been disclosed the defence would not have been able to point to the absence of payments to Alibhai or Bakir or their companies. However, that would more obviously have gone to discredit McGrath’s honesty in his evidence, to which the jury cannot really have given credence even before the summing up, than to any real issue in the case. More importantly, these were not documents in the possession of the prosecutor or even in the possession of the FBI or Microsoft. The highest that any criticism of the prosecution can be put is that they did not take any formal steps to obtain the full bank records. Like the defence, they seem to have regarded it as wiser to rely upon the indications given by McGrath that the records would be provided. In these circumstances, it does not seem to us that there is any basis to conclude that the prosecution, even assuming that they suspected that the bank records might be disclosable if in their possession, did not give the question the consideration required by paragraph 30 of the Attorney General’s guidelines. Nor can we accept that non-disclosure of these records could reasonably be supposed to have affected the overall fairness of the trial or the safety of the verdicts. 76. McGrath’s telephone records might have had greater significance. Before the trial the telephone records of Bakir had been disclosed and they showed calls made by him to McGrath between 16th June 2000 and his arrest. There was also disclosure of some of McGrath’s records but not for the period when calls were to be covertly recorded and, importantly, not McGrath’s telephone records for the period between his arrest on 16th June 2000 and his arrival in England. On 23rd June McGrath was issued with recording apparatus to record telephone conversations made with Bakir and not only authorised to use that apparatus but required to record all calls made to Bakir. We were informed that there was a difference of practice between the FBI in this case and the NCS in the handling of participating informants who record conversations with suspected criminals. In England the NCS only issue recording equipment when a telephone call is about to be made by the participating informant; NCS officers will themselves monitor and then take the recording equipment away until it is next needed, instructing the informant to make no calls without their knowledge and to respond to incoming calls by saying that the call will be returned as soon as possible. Thus any contact other than a brief acknowledgment of an incoming call should be recorded. The FBI, however, are prepared to leave the recording equipment with the informant merely instructing him to make no outgoing call without recording it and giving instructions as to incoming calls in similar terms to the NCS instructions. 77. Be all that as it may the defence were aware from Bakir’s telephone records (which had been disclosed before the beginning of the trial) that McGrath and Bakir had spoken on the telephone on three occasions (all on 21st June) before the recording equipment had been issued and on three occasions after the equipment had been issued and thus in breach of the FBI requirement that all telephone calls with Bakir should be recorded. When McGrath was being cross-examined defence counsel thought (because this was the information which had originally been provided to them in error by Mr Mallery the FBI Special Agent responsible for dealing with McGrath on a day to day basis after his arrest) that the recording equipment had been issued on 19th June and thus all six calls were in breach of the FBI instructions. It was, unfortunately, only later that it emerged that McGrath was in fact given the recording equipment on 23rd June. The three calls on 21st June 2000 lasted some 30 minutes in total. The later three calls were only some ten minutes in total. Upon the information that the defence had when they were cross-examining McGrath, it appeared that his response that he might have failed to record the odd call was obviously inadequate. When Mr Mallery’s error came to light, this point lost much of its sting. There is no suggestion that Mr Mallery did more than make an honest mistake, but we accept that this, together with the fact the none of McGrath’s telephone records were produced until after the conclusion of his cross-examination, did affect the course of Mr Birnbaum’s cross-examination of McGrath, who was, as the judge said, the most important prosecution witness. 78. A second unfortunate aspect of these matters is that it was left to McGrath to disclose his own telephone records and when he came to give his evidence he asserted that he had given them to his attorney, Mr Gibson. They only emerged after he had given his evidence and the following could be seen:- (i) that on 20th June 2000, McGrath made a call to the telephone of Bakir. It lasted about ten minutes. This appears to be the first contact between McGrath and Bakir after McGrath’s arrest. It is the more significant because it indicates that McGrath was initiating contract with Bakir and he had, according to Mr Mallery, been instructed not to do so. Thus it indicated that McGrath’s disobedience to FBI instructions was not merely a matter of failing to record calls; (ii) that McGrath had made calls on 30th June, 6th July and 7th July to the telephone of Mike Dudley, to whom we have referred. They lasted two, five and nine minutes respectively. No recording of these calls was disclosed. The terms of the consent for McGrath to use recording equipment contemplated that these calls were to be recorded by him, assuming McGrath was actually speaking to Dudley; (iii) that McGrath made 10 calls to Sheila Wu between 15th June and 29th June 2000, eight of them after his arrest on 16th June and at least two of them after he had been provided with recording equipment on 23rd June. Again the expectation was that these calls were to be recorded by McGrath, at least once he had been provided with equipment. The first recording of a call with Wu that was disclosed was of a call after the arrest of Alibhai and Bakir on 4th August 2000; (iv) that on 23rd June 2000 McGrath called, or attempted to call, on three occasions the telephone of Tariq Alibhai (no relation of the appellant Alibhai) who ran the Reading Computer Exchange and was a defendant at trial against whom the charge was dismissed on the judge’s direction at the end of the prosecution case; (v) that McGrath had made unrecorded calls to the FBI. These were referred to as “follow-up” calls, which we understand to be a reference to McGrath reporting conversations he had had with others. This was all apparent from the records that McGrath did eventually disclose. Moreover, it is also apparent, and not disputed, that McGrath communicated with Bakir on at least one other telephone in respect of which no telephone records and no recorded conversations have been disclosed. 79. After McGrath and Special Agent Mallery had given evidence, Mr Birnbaum mounted another application to discharge the jury on the basis:- (1) that McGrath had told so many obvious lies in his evidence that no jury could rely upon it; (2) that the Bakir telephone record showed unrecorded calls. At that stage McGrath’s own telephone records were still in transit. Mr Birnbaum (then acting for Bakir only) argued that the significance of the unrecorded calls was that they were used by McGrath to set up a situation with Bakir (and Alibhai) whereby he could trap them into a situation in which they would appear to make incriminating statements. The case put in cross-examination was that McGrath admitted in those unrecorded calls that he owed money to Bakir and said that he would pay it off if Bakir would supply counterfeit Microsoft software which McGrath could then use with his EULAs. The judge acknowledged the importance of having an unassailable record of covert operations, as set out in Smurthwaite v Gill [1994] 98 CAR 437 but decided that fairness did not require the discharge of the jury since the fact of the unrecorded calls and the defence case with regard to them would be before the jury together with appropriate directions as to how they should consider McGrath’s evidence. 80. Mr Benson QC for Alibhai at trial supported Mr Birnbaum’s submissions but relied also on the absence of McGrath’s telephone records and banking records for which an oral request had been made on 18th February but had been overlooked. The judge commented on the need for requests to be made in writing but said that the records were being obtained and that it remained to be seen what the records would show when they were produced. 81. When the telephone records did come forward, Mr Birnbaum and Mr Benson made yet another application to discharge the jury. The judge refused that application on 25th April on the basis that the earlier situation “still pertained”. In his oral reasons he referred to the bills showing calls to Bakir, Dudley and Wu (but did not mention Tariq Alibhai). In dismissing the application he referred to the bills underlining Mallery’s failings (1) failing to record his instructions to McGrath about telephone calls and (2) failing to record calls that he received from McGrath. The judge gave written reasons on 7th May pointing out that the effect of the new material was to enlarge the case of McGrath’s dishonesty, a case which the defence said was already well-established. We agree. The picture does not seem to us materially different in any way from the position as it was at the time when McGrath was cross-examined. It is not easy to see what further mileage could have been made with a witness (whom the defence were saying was palpably dishonest in any event) by virtue of the calls to Dudley, Wu and Tariq Alibhai. None of the new material was so unpredictable that the judge’s decision (1) to refuse the further application to discharge the jury and (2) to continue the trial could be said to be wrong. 82. It is also important to put this point in perspective. Mr Birnbaum submitted that the absence of telephone records deprived the defence of the opportunity of deciding on a fully informed basis whether to seek a voir dire but the defence made no application that their cross-examination of McGrath should not begin or should not conclude before the telephone records were produced. In the absence of special circumstances, a defendant who proceeds on this basis cannot wait and see what the records reveal when they are produced and then apply for the jury to be discharged (or complain that he would have applied for such discharge at an earlier stage) any more than he can submit to this court that the jury should have been discharged when he made no application to that effect to the trial judge, see R v Mullen [1999] 2 CAR 143, 158B. The most he is entitled to do is to apply for the witness to be recalled. Mr Birnbaum says that he did make such an application, albeit without enthusiasm since McGrath had already given evidence for 14 days, of which 9 days had been taken up by cross-examination. In his written ruling the judge said:- “In the end, neither defence nor prosecution submitted that Mr McGrath should be recalled to be asked about them [viz. the unrecorded calls]. Given his answers in cross-examination over nine days, it was not felt that his recall would assist either side or the jury. I agreed. . . In short the defence did not want McGrath recalled; what was wanted was the discharge of the jury.” The judge then went on to give his reasons for not ordering such discharge. As we have said, we do not think the judge can be criticised as to that and we reject Ground D of the grounds of appeal. 83. Untimely disclosure of the California investigation together with Public Interest Immunity previously claimed (Ground E) When McGrath was arrested in Dallas and agreed to become an informant in relation to Alibhai and Bakir, it became apparent to the FBI that he could give some information about others with whom he did business. One such trader was Sheila Wu in California. The prosecution team in the English case obtained possession of the material which the FBI had in Dallas and considered it all for the purpose of Crown disclosure pursuant to the 1996 Act . Some of this material disclosed that McGrath had become an informant in relation to Sheila Wu and was taking part in an investigation into her activities in California. The Crown decided to make a number of PII applications in relation to this material and it was reviewed first by HH Judge Mowat and then by Jack J. He took a decision in principle that documentation showing merely that McGrath had traded or was trading with Wu should be disclosed to the defence because it might assist them in contradicting McGrath’s evidence in relation to the extent he had been trading with Alibhai and Bakir. But he granted immunity to documentation showing that McGrath was acting as an informer in relation to the Wu investigation. 84. It was, of course, the case that the FBI in California were gathering a considerable amount of material in relation to the Wu investigation. Eventually an indictment was prepared for a California prosecution which charged no less than 17 defendants. The prosecution did not consider that the California material would be likely to have any relevance to the issues that were likely to arise in the English prosecution against Alibhai and Bakir and took no steps to obtain possession of the California material. Accordingly, no application was made for public interest immunity in relation to any California material. 85. On 27th April 2003 Ms Wu (and about 30 other people) were arrested in California. On 29th April the judge lifted his PII order and ordered disclosure of all the FBI Dallas material relating to Ms Wu in the possession of the prosecution. Thereafter the prosecution disclosed a large amount of California material relating to the Wu investigation including, in particular, about 30 tapes of conversations between McGrath and Ms Wu. This led to yet another application to discharge the jury on the basis:- (1) that PII should never have been granted to any of the FBI Dallas material in the first place; (2) that, if either the material freshly released from PII or the new California material had been disclosed at an earlier stage, it could have been purposefully deployed in the cross-examination of McGrath. 86. The judge rejected these submissions. He set out the principles on which he had acted in offering immunity to that part of the Dallas material which revealed that McGrath was an informer in the Wu investigation. Those principles were, in our judgment, correct and in accordance with the authorities mentioned in para. 12-36 of Archbold (2004) about protecting the identity of informers. The fact that an informer is acting at the behest of a foreign investigatory body rather than the English police force is something to be taken into account but where that investigatory body is acting in a case such as this, the reasons of public policy in protecting informers must be as compelling as with informers within the jurisdiction. That is all the more so in the case of trans-national crimes such as dealing in counterfeit software. 87. The judge then examined 8 particular documents of which Mr Birnbaum submitted he could have made use in cross-examination and concluded that none of them could have improved the defence position. 88. Mr Birnbaum then criticised the prosecution for not having obtained possession of all the California material and considered whether it should be disclosed to the defence, for not having obtained sufficiently detailed information to enable such consideration to be given. Here paragraph 30 of the Attorney-General’s Guidelines in relation to material held by third parties becomes potentially relevant. We will not set it out again. But it only operates where the investigator, disclosure officer or prosecutor suspects that a third party has material or information which might be disclosable if it were in the possession of the prosecution. In the present case there was no such suspicion; there was, therefore, no reason to consider whether it was appropriate to seek access to the material. The judge’s decision on this was as follows:- “The prosecution was told by the FBI (by Special Agents Mallery and Musgrove, Dallas and San Francisco respectively) that as far as the FBI were aware there were no links between the Wu investigation and the case against the defendants . . . . It was an exercise of judgment whether in the circumstances to send a police officer to San Francisco to work through all the material held there. I do not know if it was in fact considered, given what has been said by Mallery and Musgrove. But I do not think that a negative decision could be criticised.” 89. We agree. It is, moreover, not irrelevant to observe that, once the material was fully disclosed and examined by the defence, it turned out that there was in fact nothing relevant in any event. In those circumstances, even if Mr Birnbaum’s criticism had any substance, no prejudice has been suffered in fact. 90. It was Mr Birnbaum’s submission to us that it was not appropriate to afford PII to a separate ongoing investigation in which a witness in pending English proceedings was an informer, because the inducements in relation to such investigation would be part of the overall inducement or a pressure operating on the witness. That cannot be accepted on the facts of this case. The inducement or pressure operative on McGrath relating to his evidence against Alibhai and Bakir is, of course, relevant, but cannot be said to have been affected substantially or indeed, in our judgment, at all by his participation in the Wu investigation. Ground E of the appeal is therefore rejected. 91. It will be apparent from what we have already said that Ground F is rejected also. 92. Direction to the jury in relation to McGrath (Ground H) This is the only respect in which the summing-up is criticised. The judge gave a strong direction to the jury about McGrath’s evidence to the effect that they should be very cautious about relying on it unless it was supported by other evidence. After that direction had been given Mr Benson QC supported by other counsel submitted that the judge should assist the jury by informing what evidence in the case could constitute such supporting evidence. This the judge declined to do. In the course of the appeal we gave Mr Birnbaum leave to renew a ground of appeal submitting that the judge should have acceded to Mr Benson’s submission. At that early stage of the appeal we thought that there might be force in the suggestion that the jury should have had more assistance on the point than was given to them by the judge. 93. Now that we can see the case as a whole, we think that the judge cannot be criticised for declining to accede to Mr Benson’s submissions. There is no suggestion that the jury were having any difficulty following the evidence. It is very much for the judge in charge of the trial to tailor his directions to the jury he has come to know over the trial. He was clearly right to have given the strong warning he did about McGrath’s evidence. We can well understand him thinking that singling out parts of the evidence which could support the evidence of McGrath would not be likely to have assisted the defendants, in any event. Such a direction could have been very damning and wisely the judge did not give it. Ground H is rejected. 94. The appeal of Collier On 24th April 2002 at what was, for practical purposes, the close of the prosecution case, the judge made an order upon the application of the Crown under section 5 of the Indictments Act 1915 that the indictment be amended. He gave his reasons for his decision on 30th April 2002, having in the meantime received further representations about the proposed amendment. During the course of the hearing before us we granted leave to Adam Collier to appeal against that order and also to argue that the indictment so amended was defective. 95. When the case was opened to the Jury, the indictment, which contained just one charge and which had previously been amended, was as follows: “Statement of offence: Conspiracy to defraud contrary to common law. Particulars of offence: [The defendants] on divers days between the 5th day of November 1997 and the 20th day of July 2000 conspired together and with persons unknown to defraud Microsoft Corporation, Microsoft Limited, distributors of Microsoft products and their customers, by dishonestly: (i) Importing, distributing and selling in the course of business counterfeit Microsoft computer software and other Microsoft products which were infringing copies of copyright works; (ii) Importing and distributing and selling in the course of a business counterfeit Microsoft computer software the labelling and packaging of which was an infringing copy of copyright works; and (iii) Importing, distributing and selling in the course of business counterfeit Microsoft computer software, the labelling and packaging of which bore unauthorised and infringing copies of registered trademarks.” Following the order of 24th April and in light of the further representations to which we have referred, the indictment was amended as follows: “Statement of offence: Conspiracy to defraud contrary to common law. Particulars of offence: [The defendants] on divers days between 15th November 1977 and the 20th July 2000 conspired together and with Daniel McGrath and with persons unknown to defraud Microsoft Corporation, Microsoft Limited and their customers by dishonestly dealing in counterfeit Microsoft products.” Thus the amendment was confined to the particulars to the offence, and it simplified the indictment by referring only to Microsoft products and by removing the references to copyright and trademarks. No complaint arises in respect of those changes. The reference to Daniel McGrath was introduced in light of representations made on behalf of Mr Birnbaum for Bakir to which the prosecution acceded. The complaint that gives rise to this appeal turns upon the removal of the reference to “importing”. 96. Section 5 .1 of the Indictments Act 1915 provides that “Where, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment that the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice.” The first argument advanced by Mr Gadsden on behalf of Collier is that the indictment opened to the Jury was not defective, and therefore the Court had no power to amend it. 97. It is established by authority that the power to amend indictments is not confined to cases in which there are formal defects in the wording of a count. It was said by the Court of Appeal in R v Pople [1951] 1 KB 53 , 54 (reported sub nom. R v Smith (1950) 34 Cr. App. R. 168 , 176) that “… any alteration [of an indictment] in matters of description, and probably in many other respects, may be made in order to meet the evidence in the case as long as the amendment causes no injustice to the accused person”. This passage was cited with approval in R v Radley (1973) 58 Cr. App. R. 396 in which Lord Widgery CJ said (at page 402) that, “one ought to give a fairly liberal meaning to the language of section 5 ”. In R v Stanley The Times, 9 December 1998, it was said “the Court of Appeal had given a wide meaning to the word “defective” in section 5(1) so as to render indictments capable of deciding the issue that properly should be determined between the Crown, on the one hand, and the defendant on the other”. 98. In this case the judge accepted the submission on behalf of Collier that the particulars in the indictment set out what was agreed between the defendants, rather than overt acts which were done in furtherance of their agreement. He also accepted that there was no case that would stand analysis that Collier had knowledge of agreement to import goods. Accordingly, if it was an essential part of the conspiracy alleged against him that goods should be imported, the prosecution’s evidence did not support the charge. The judge therefore considered, in light of such cases as R v Patel 7 August 1991, 89/4351/SI, unreported, cited Archbold (2004) para 34-16, whether an agreement for importation was an essential part of the conspiracy in the sense that without it the agreement would have been for a different scheme, and concluded that the element of importation was not essential in that sense. However, he also thought that “the position was not clear on the face of the indictment”. 99. We consider that the judge rightly concluded that the indictment was defective within the wide meaning given to that expression in section 5 of the Indictments Act 1915 . First, as indeed Mr Gadsden had argued before the judge, the prosecution evidence did not support that allegation made in the indictment against him, and specifically did not support an allegation of knowledge on his part of an agreement to import. This seems to us to mean that the indictment was defective, as that term is interpreted in the authorities to which we have referred, whether or not the judge was right to conclude that the allegation of an agreement to import was not an essential part of the conspiracy. Secondly, we are inclined to the view that the indictment could properly be said to be defective because it was not clear and did not properly place before the jury the issue between the Crown and the defendants. However, it is not necessary for us to decide whether this latter criticism of the indictment does truly identify a “defect” in it, and since we have not been referred to any authority that distinctly deals with this, we prefer to rest our decision on the first point. 100. This amendment to the indictment was made some 6 months after the trial had started. However the Act allows amendment “at any stage of a trial”. Moreover the judge concluded that it could be made “without injustice”. He was entitled to do so. Before us, it was suggested that there was injustice in two respects. First, it is said that the amendment was unjust because it deprived Collier of a cast-iron answer to the charge as put against him when the prosecution case was opened and presented. Given that it was open to the jury to conclude (as the judge had concluded) that an agreement to import was not an essential ingredient of the conspiracy charged, Collier did not have a cast-iron answer to the charge. But in any case it is not an injustice that a defendant is deprived of an answer to a charge which but for the defect in the indictment he would not have had. 101. Secondly, it is said that because the indictment before amendment alleged an agreement to import, the prosecution adduced evidence relevant to that part of the allegation which the defendants might otherwise have been able to have ruled inadmissible. However, as the judge observed in his reasons delivered on 30th April 2002 the complaint about the allegation of importation was one which had not occurred to those representing Collier (or to those representing other defendants) until they were preparing their submissions at the end of the prosecution case. The judge cannot be criticised for concluding, “I do not think that any question of injustice can arise where the amendment is to clarify the indictment and none of the parties involved realised the ambiguity until very shortly prior to the application to amend to bring it into line with what had previously been thought”. 102. We reject that argument that the judge should not have ordered the amendment to the indictment. 103. Mr. Gadsden also argued on behalf of Collier that the indictment as amended was defective. His submission was that at the end of the prosecution case the Crown’s evidence demonstrated separate and distinct conspiracies: first a conspiracy, which did not involve McGrath and which came to an end in the autumn of 1999, directed to the distribution in the United Kingdom of counterfeit software by way of compact discs; and secondly a conspiracy which did involve McGrath and did not begin until the Spring of 2000, directed to procuring the manufacture of counterfeit licences and exporting them to the United States. The complaint is that the indictment alleges one conspiracy whereas the evidence demonstrates two (or possibly more than two) conspiracies. 104. The Crown’s case was indeed that there was only one conspiracy. It was recognised that the overall conspiracy involved arrangements, to which some of the conspirators might not have been party, to advance some particular part of the scheme. The judge when considering this point and deciding that the Crown were entitled so to present their case, drew an analogy with a conspiracy to commit robberies in which, “There may be lesser or ancillary conspiracies to obtain the guns, or the get-away vehicles. There may be conspiracies to launder the proceeds. Others may be involved”. The judge’s approach is consistent with authority. In R v Coughlan (1976) 63 Cr. App. R. 33 , a case concerning defendants who conspired to cause explosions, the Court said this (at page 35):- “There is no difficulty in law about alleging a separate conspiracy to cause explosions in Manchester and another to cause explosions in Birmingham, even though some, or it may be all of the conspirators, may have been parties to a wider agreement to cause explosions throughout the United Kingdom, including Birmingham and Manchester. The wider agreement or conspiracy would not preclude the existence of sub-agreements or sub-conspiracies to cause explosions in particular places, and as a matter of law these sub-conspiracies or agreements could properly be charged as separate offences.” In Coughlan’s case charges had been brought in respect of the “sub-agreements” or “sub-conspiracies”. In this case, on the other hand, the Crown elected to charge the defendants with “the wider agreement or conspiracy” rather than a sub-agreement or sub-conspiracy, and therefore alleged a single conspiracy which began between Alibhai and Bakir, and which was then joined by Collier, then by Eliot, then by Dias and finally by McGrath. The indictment was not duplicitous or in any way defective, but accurately encapsulated that allegation. The Crown were entitled so to present their case, and their case was accurately explained to the Jury in the summing up, which has not been and could not be criticised in any material respect. 105. Collier’s appeal is therefore dismissed. 106. Conclusion Of course at the end of an appeal, this court must stand back and look at the overall state of the case. That is something much easier for this court to do than for the participants in a lengthy and complex trial. Having done so, we conclude that these convictions are safe. This is, moreover, not a case where it could be said that there is any lurking doubt in our minds which makes us wonder whether an injustice has been done. This judgment has inevitably focussed on the witness McGrath. There was, as we indicated in the earlier part of our judgment, a wealth of other evidence in the case which the jury will have taken into account. The appeals will be dismissed. 107. 10 The appeals have, nevertheless, shown the difficulties that can arise when material relevant to the case for the defence, is in the hands of third parties, particularly if those third parties are the victims of a fraud allegedly perpetrated by the defendants. If such frauds are to be effectively prosecuted, it is important that the victims (as indicated in the body of our judgment in paragraphs 33 – 36) should not only be willing to disclose relevant material comprehensively and promptly but also take all proper and efficient steps to bring about that disclosure. Mere commercial confidentiality does not give rise to the right to withhold information or documents. If Microsoft had appreciated this at an early stage of the prosecution (which was to a large extent for their benefit) we are confident that the trial would not have been so prolonged and that much public money would have been saved. 108. 10 We cannot part from the case without paying tribute to the judge for the incisive, yet courteous, way he managed what on any view must have been a most difficult trial and to the jury for their apparently continuing enthusiasm to resolve the issues with which they were confronted. It is a serious question whether any members of the public should be subjected to the pressure of a trial lasting 156 days and we are not surprised that the judge excused them from service for the rest of their lives.

```yaml citation: '[2004] EWCA Crim 681' date: '2004-03-30' judges: - LORD JUSTICE LONGMORE - MR JUSTICE SILBER - 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} ======

Neutral Citation Number: [2011] EWCA Crim 1885 Case Nos: 2011/2880/D5, 2011/2985/D5, 2011/2984/D5, 2011/2983/D5, 2011/2982/D5, 2011/2981/D5, 2011/2980/D5, 2011/2979/D5, 2011/2978/D5, 2011/2976/D5, 2011/2977/D5, 2011/2975/D5, 2011/2974/D5, 2011/2973/D5, 2011/2972/D5, 2011/2971/D5, 2011/2970/D5, 2011/2969/D5, 2011/2968/D5, 2011/2967/D5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 20 July 2011 B e f o r e : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE TREACY MR JUSTICE CALVERT-SMITH - - - - - - - - - - - - - - - - - - - - - R E G I N A v DAVID ROBERT BARKSHIRE JONATHAN LEIGHTON CHRIS KITCHEN LISA KAMPHAUSEN CLARE WHITNEY PAUL KAHAWATTE ADAM KEITH WEYMOUTH BEN JULIAN BEN JOHN STEWART JESSE HARRIS SARAH SHORAKA EMMA SHEPPARD JACQUELINE SHEDDY MARTIN SHAW DANIEL GLASS ANNA RUDD BRADLEY DAY SPENCER COOKE PHILLIP ASHLEY MURRAY OLAF BAYER - - - - - - - - - - - - - - - - - - - - - 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 Ryder QC and Miss B Newton appeared on behalf of the Appellants Mr N Gibbs appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD CHIEF JUSTICE: These 20 appellants were convicted by a jury a Nottingham Crown Court on 14th December 2010 of conspiracy to commit aggravated trespass. It is a case which has given rise to a great deal of justifiable public disquiet, which we share. Something went seriously wrong with the trial. The prosecution's duties in relation to disclosure were not fulfilled. The result was that the appellants were convicted following a trial in which elementary principles which underpin the fairness of our trial processes were ignored. The jury were ignorant of evidence helpful to the defence which was in the possession of the prosecution but which was never revealed. As a result justice miscarried. Accordingly, at the end of the hearing yesterday the convictions were quashed. These are our detailed reasons. 2. The convictions arose out of a political protest. The appellants intended to invade a power station at Ratcliffe-on-Soar to protest against claimant change. This power station discharges about 150,000 tonnes of carbon into the atmosphere each week. That is why it was chosen, and protesters came from all over the country, either in furtherance of or to consider participation in a sophisticated plan to enter and occupy the power station for a week. During the occupation the discharge of carbon would be significantly diminished and the power station possibly shut down. Transport, rations and equipment were organised. Ten vehicles were hired for transportation purposes. Sophisticated climbing equipment, safety helmets, maps, mobile phones and walkie-talkies were arranged. Once entry to the power station was effected, one team was to close down the coal conveyor and immobilise them by securing themselves to the machinery, another team was to climb the chimney and occupy the flue, yet another team was to fence themselves to the base of the chimney to protect the team which was occupying the flue, and yet another team was to occupy the gates and prevent entry to the police and indeed to those with responsibility for the power station. 3. The prosecution evidence against the appellants was unchallenged. The essential facts were not in dispute. In reality, subject to the specific defences advanced at trial, the ingredients of the conspiracy, and the individual involvement of each of the appellants was not in question. 4. When the judge came to sum the case up to the jury in a written "route to verdict", repeated orally, it was recorded that: "Each of these defendants admit that they have committed all of the acts which are necessary for the prosecution to prove the case against each of them. In other words, in the absence of a defence they admit they have committed the offence but say they were justified in doing what they did." 5. The defence was described as "the justification of necessity" and the jury was directed: "Each defendant is innocent of this offence if they reasonably believed (even if mistakenly): 1. That it was necessary to do what they were doing in order to avoid the imminent threat of serious injury to himself/herself or others, and 2. That in the circumstances that they believed them to be, it was reasonable and proportionate to do what they were going to do. So the prosecution have to make you sure that: Either : doing what they planned to do was not necessary for the above purpose Or: that it was unreasonable and disproportionate for them to do what they were going to do. If the prosecution have not made you sure, then the defendant is not guilty." 6. During the course of the summing-up, the judge directed the jury that it was enough for the purposes of the defence if the defendant in question reasonably, even if mistakenly, "believed that the commission of the crime was necessary for the purpose of avoiding the imminent threat of serious injury to himself or herself or to somebody else ... to anyone anywhere in the world." 7. The way in which the judge directed the jury was consistent with the decision of Flaux J in the course of a preparatory hearing under section 29 and 31 of the Criminal Procedure and Investigations Act 1996 . In his ruling he rejected a contention by the prosecution that in law no defence was available to the appellants, first, on the basis that their intended conduct was justified or excusable on the basis of necessity or duress of circumstances under common law, arising because they were impelled to act as they did in order to prevent imminent death and serious injury to others as a result of the burning of coal and the emission of carbon into the atmosphere at the power station, and second, that they intended to use reasonable force to prevent crime under section 3 of the Criminal Law Act 1967 , the crimes intended to be prevented being criminal damage, public nuisance and offences under various sections of the Wildlife and Countryside Act 1981 . In reaching this conclusion, Flaux J found himself unable to follow observations by Lord Hoffman (with whom Lord Rodger of Earlsferry, Lord Carlswell and Lord Mance agreed) in R v Jones (Margaret) [2007] 1 AC 136 , in which he suggested that the defence of justification required that the acts of the defendant: "must be considered in the context of a functioning state in which legal disputes can be peacefully submitted to the courts and dispute over what should be law or government policy can be submitted to the arbitrament of the democratic process. In such circumstances, the apprehension, however honest or reasonable, of acts which are thought to be unlawful or contrary to the public interest, cannot justify the commission of criminal acts and the issue of justification should be withdrawn from the jury." 8. The Crown did not appeal Flaux J's ruling. The trial proceeded on the basis that it was correct, and the judge (His Honour Judge Teare) rightly directed the jury accordingly. Given the particular and unusual circumstances in which these appeals are brought, it would not be appropriate for this court to start an examination into the safety of the convictions by going behind Flaux J's ruling. Nevertheless, we entertain reservations about it. The circumstances in which what would otherwise amount to criminal conduct may be justified on the basis of honestly held, political beliefs of the perpetrators, will need reconsideration in this court on another occasion. 9. We are here concerned with critical aspects of the trial process and in particular the obligations of the prosecution to ensure the disclosure of material which in the words of section 3 of the Criminal Procedure and Investigations Act 1996 might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused. The principle is reflected in the observations of the House of Lords in H and C [2004] AC 134 that: "Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant ... should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made." That material includes anything available to the prosecution which may undermine confidence in the accuracy of evidence called by the prosecution or which may provide a measure of support for the defence at trial. 10. At the heart of the prosecution's failure to comply with its disclosure obligations was a police officer, PC Kennedy. Under the assumed name, Mark Stone, he was authorised to act undercover and to infiltrate extreme left wing groups in the United Kingdom. Common sense suggests that the object was to enable him to acquire and pass on information about the criminal activities or proposed criminal activities which any of the groups he had infiltrated might intend, with a view, if possible, to prevent the commission of crime. To fulfil this role he made contemporaneous notes and recordings of various meetings which he attended. 11. Kennedy was not authorised to take part in any occupation of the power station until 9th April 2009 and the authorisation included the requirement of his handler, DI Hutcheson, to liaise with the Crown Prosecution Service: "UCO133 (that is Kennedy) will decline the offer for a solicitor. UCO133 will be engaged in driving and dropping off of activists prior to them committing offences. UCO133 will withdraw from the vicinity of the power station to avoid arrest and avoid becoming a witness to offences. SIO Inspector David Hutcheson will be regularly informed of the situation of UCO133 and in the event of ... arrest will be immediately informed in order to liaise with the Nottinghamshire Senior Management and the Criminal Prosecution Service." 12. By 2009 Kennedy, apparently convincingly, purported to be a supporter of the beliefs of those who later became involved in the plot with which we are now concerned. In this capacity he personally participated in the first reconnaissance carried out at the Ratcliffe-on-Soar power station in January 2009 and in subsequent reconnaissances. He gave every impression of enthusiastic participation in the objectives of, among others, the appellants. 13. When the protesters started to congregate together just before the proposed occupation, it appears that Kennedy went much further than his authorisation. For example, he participated in briefings with those who were to take part: he was one of two people who were responsible for checking in the surrounding area for possible police activity: he agreed to act as a member of the team of climbers on the basis that he had already attracted attention as one of those with particular skill in this role. In this context, it is conceded by the prosecution that it is "at least arguable ... that he was regarded as something of an eminence grise by some of the younger activists upon whom they relied for advice and support". In short, it appears that he played what can fairly be described, in the submission of Mr Matthew Ryder QC on behalf of the appellants, as "a significant role in assisting, advising and supporting ... the very activity for which these appellants were prosecuted." 14. On 12th April itself, after many of the protesters had congregated together, and shortly before the proposed occupation was about to begin, Kennedy recorded some of the briefings which then took place. The transcript of the recordings, unknown to either the judge or the jury at trial, reveal that the course of the briefings tended to undermine at least part of the prosecution case. 15. One of the contentions advanced by the Crown at trial was that the protester's main objective was "publicity" for their cause, rather than a genuine, if mistaken, attempt to address any imminent problem arising from carbon emissions. However, the transcripts of the recordings made by Kennedy show that during the course of briefings on 12th April, one of the appellants, Spencer Cook, and indeed another person who was never prosecuted, show they placed great emphasis on the objective of the intended actions. This was to bring about an enormous reduction in carbon emissions by keeping the power station closed for seven days. In other words, this material tended to show that this was not a mere publicity stunt. It is also clear that during the course of the briefings those who were present were advised that they did not need to get involved if they did not wish to do so. The importance of safety and non-violence and the avoidance of criminal damage to property were underlined. 16. Kennedy was one of 114 people arrested at the school just after midnight on 13th April. He was held in police custody and then bailed. He continued to be part of the group of campaigners and continued to provide information to his police handler about how the suspects who had been bailed were responding to their arrests. He was required to "take all steps necessary to avoid being in receipt of (legally privileged) information". It appears that the 114 campaigners shared information about the case through an email address. Some of that information appears to have been privileged, although we have not seen it, and there may be some question whether sharing information on an email address would constitute a waiver of any such privilege. More important, it is not presently known whether Kennedy passed on information from the email address to the prosecuting authorities or his handler. 17. On 23rd September 2009, Kennedy signed a police statement which, consistently with the recordings, appeared to provide a measure of support for the defence. Again, however, this document was not disclosed until after the trial. 18. From this material two features are apparent. First, Kennedy was involved in activities which went much further than the authorisation he was given and appeared to show him as an enthusiastic supporter of the proposed occupation of the power station and, arguably, an agent provocateur. Secondly, the recordings made of the meetings on 12th April supported the contentions of the appellants that their intended activities were directed to the saving of life and avoidance of injury, and that they proposed to conduct the occupation in a careful and proportionate manner. None of this information emerged at trial. 19. The trial therefore proceeded with the defence in ignorance of important material which served to undermine the prosecution case that the defence they intended to and were permitted to advance at trial was ill-founded, and which, whatever its merits in law, they were entitled to advance with the benefit of material in the possession of the Crown which assisted them. For the same reason they were not in any position to advance submissions based on potential entrapment by a participating informer, or to address these issues. 20. On 19th December, a few days after the conclusion of the trial, the Sunday Times published an article about the role of Mark Kennedy in this protest movement. By early January 2011 there were widespread reports in the national press about Kennedy's role as an undercover officer generally, and in particular about his involvement at the proposed occupation of the power station at Ratcliffe-on-Soar. 21. In the meantime, the trial of six further defendants who, although present at the meetings on 12th April, denied involvement in the conspiracy, on the basis that they had still not made up their minds and agreed with the occupation, was due to take place on 10th January. On 7th January the present appellants' solicitors, who were also acting for the defendants in the second trial, were informed: "Previously unavailable material that significantly undermines the prosecution case came to light on Wednesday 5th January. In the light of this information, the Crown will not proceed with the trial and are discontinuing the case. We shall be offering no evidence on Monday 10th January." 22. Gradually the facts as we have outlined them emerged. Mr Ryder invited us to adjourn the hearing of the appeal so that the full process of disclosure which should have taken place before the trial should take place now. He submitted that the process would enable the appellants and the public to be better informed about the facts. In other words, although we were, for the reasons given, satisfied that the conviction was unsafe, we should continue the appeal against conviction by conducting what would amount to an inquiry into what went wrong with the disclosure process and why, and who should bear what responsibilities for what had happened. This would be the only forum in which the appellants would be fully engaged as parties to the proceedings. 23. There are cases where the course proposed by Mr Ryder would be appropriate. This emphatically is not one of them. 24. Shortly after some of the troublesome factual background became public, the Nottinghamshire Police conducted their own review of the disclosure and compliance with the provisions of the 1996 Act between the police, the CPS and the defence and to look at the conduct of the inquiry and its management. This review is completed. 25. On 11th January the Nottinghamshire Police commissioned an investigation by the IPCC. The terms of reference were simple. The investigation was to examine whether: (a) There was a failure to disclose relevant material to the CPS by the Nottinghamshire Police prior to the trial of the six defendants whose trial was due to start on 10th January, which collapsed on 7th January. (b) If there was a failure to disclose, whether this had a bearing on the collapse of the criminal proceedings. (c) If there was a failure to disclose resulting in the collapse of the proceedings, whether this was as a result of misconduct by any police officer or any police staff member employed by the Nottinghamshire Police. (d) If there was misconduct, the nature of that misconduct, those involved in it and the gravity of the matter. 26. Just a few days later, on 18th January 2011, a review by Her Majesty's Inspectorate of Constabulary under the leadership of Bernard Hogan-Howe QPM was announced. The review related to the operational accountability of undercover police work and how the gathering of intelligence activity was authorised in accordance with law. This review is ongoing. Following this announcement, on 21st March 2011, it was announced that an external reference group has been established. Its role was to challenge the HMIC review terms of reference, as well as the final report and the conclusions it reached. 27. On the same date as the HMIC review was announced, the Serious and Organised Crime Agency announced a review which will look into the deployment of an undercover police officer for six to seven years during the time when he was undercover. The terms of reference were: (a) To identify whether the actions of Kennedy were consistent with those authorised for his deployment and, if found to be inconsistent, to report upon the nature and seriousness of any breach. (b) To establish if the management and records relating to his overall deployment against environmental extremism and in particular this investigation were in accordance with the relevant codes and legislation and that appropriate records were made by the appropriate authorising authorities. This review will run parallel to the HMIC review and there is every likelihood that a joint report will be available for publication in September. 28. The CPS has conducted its own independent internal review of the way in which this particular police investigation was handled, "with particular reference to the handling of unused material relating to the undercover officer and to the event which led to the collapse of the trial on 7th January". This inquiry was conducted by a distinguished Queen's Counsel, Miss Clare Montgomery, and she reported in March. The result was that the Director of Public Prosecutions wrote to those acting for the appellants that he considered that: "The safety of the convictions should be considered by the Court of Appeal as soon as possible. As you know, the prosecution cannot lodge an appeal to the Court of Appeal save in very limited circumstances and I therefore invite you to lodge an appeal and to include the issue of non-disclosure of material relating to the activities of an undercover police officer in any grounds of appeal ... the CPS will assist in any steps you may wish to take in expediting the appeal." 29. Effectively, the material on which the present successful appeal has been based was provided in Miss Montgomery's review. 30. We can pass briefly to an informal internal disciplinary inquiry and come to an announcement by the Director of Public Prosecutions himself on 9th June 2011 that "in light of growing concerns about the non-disclosure of material relating to the activities of an undercover police officer in the Ratcliffe-on-Soar power station cases, I have decided that I will set up an independent inquiry ... to work in tandem with the IPCC inquiry into the matter which began in January 2011. These two inquiries will have full access to all the available evidence, whether held by the police or the CPS, and will share information. They will also share their provisional findings before final reports are drawn up. This arrangement will provide independent scrutiny of the actions of both the police and the CPS in relation to disclosure issues. It is an arrangement supported by the IPCC and the Chief Constable of Nottinghamshire". The chairman of this inquiry, recently announced, will be Sir Christopher Rose, a retired Lord Justice of Appeal, and former Vice President of the Court of Appeal Criminal Division. The terms of reference require an examination whether: (a) the CPS approach to charging in this case was right, bearing in mind the known existence of an undercover police officer in the operation. (b) the CPS and prosecution counsel complied with their disclosure duties properly in relation to the known existence of an undercover police officer in this case. (c) the CPS arrangements in place for handling the known existence of an undercover police officer, including arrangements between the police and the CPS, the CPS and counsel and the local prosecuting team and the national co-ordinator, were adequate and properly followed in this case. (d) the CPS followed all relevant guidance and policy in relation to the known existence of an undercover police officer in this case. The independent inquiry will also make such recommendation it feels appropriate in light of the examination and findings set out above, including, if appropriate, recommendations about CPS policy and/or guidance and CPS arrangements for handling cases involving undercover police officers. 31. This long list demonstrates that there has been no lack of enthusiasm either in the Inspectorate of Constabulary, or the Police Complaints Commission, or the Director of Public Prosecutions and the Crown Prosecution Service, or the Nottinghamshire Police, for a detailed examination of the facts which have culminated in the quashing of these convictions and the decision by the prosecution not to proceed with the trial which collapsed on 7th January before it even started. Each of the investigations which has not yet been completed will represent a continuing drain on the resources of the authority which commissioned it. Much of the ground to be covered will be common to each inquiry. Given the parlous state of the national economy, we cannot avoid reflecting whether the numerous reviews and investigations into this case and what went wrong with it may amount to overkill. Whether they do or not, the kind of inquiry which we were invited to undertake by Mr Ryder simply cannot be justified. It would be wasteful of this court's limited resources. Other cases, awaiting hearing, would be delayed. The ongoing inquiries would be disrupted by the demands this court would have to make to procure the further disclosure which would be a necessary concomitant of its own inquiry. The end result would add nothing of importance to what will undoubtedly become known when the remaining inquiries are completed. Although this court cannot dictate the processes to be adopted by each review, we anticipate that those conducting them would consider any relevant contributions from the appellants. In any event, we have no doubt that the interests of justice in this case will be well served without further inquiry by this court. 32. In summary, these convictions were quashed because of the failure of the Crown to make proper disclosure of material relating to the role and activities of the undercover police officer, Mark Kennedy, as well as of materials which had the potential to provide support for the defence case or to undermine the case for the prosecution. These materials were pertinent to a potential submission of abuse of process by way of entrapment and in any event they had the capacity to support the defence of necessity and justification. The trial was rendered unfair and the convictions unsafe. Accordingly, they were quashed. We decline to order further inquiries by this court. Ancillary costs orders in favour of the defence were made at the conclusion of the hearing.

```yaml citation: '[2011] EWCA Crim 1885' date: '2011-07-20' judges: - MR JUSTICE TREACY - MR JUSTICE CALVERT-SMITH ```

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Neutral Citation Number: [2009] EWCA Crim 398 Case No. 2008/02715/D1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 20 February 2009 B e f o r e: THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION ( Lord Justice Hughes ) MR JUSTICE WYN WILLIAMS and MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - KEVIN ANDREW SQUIRES - - - - - - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - - - - - - Non-Counsel Application - - - - - - - - - - - - - - - - - - - - - J U D G M E N T LORD JUSTICE HUGHES: I shall ask Mr Justice Holroyde to give the judgment of the court. MR JUSTICE HOLROYDE: 1. On 3 April 2008, in the Crown Court at Exeter, the applicant, Kevin Squires, was convicted of possession with intent to supply of a Class A controlled drug (diamorphine) and a Class B controlled drug (amphetamine). On that same date he was sentenced to concurrent terms of seven years and four years' imprisonment. His applications for leave to appeal against conviction and sentence and for a representation order were refused by the single judge. The applicant now renews his applications to the full court. 2. The applicant was arrested shortly before midnight in a car park in Barnstaple to which he had gone to meet a man called Noon. He was in possession of a package containing smaller packets of diamorphine and amphetamine -- a fact which he first tried to conceal and then tried to deny. He was also in possession of a list of names and figures, a quantity of cash and two mobile phones, from one of which he had sent a text message arranging to meet Noon. The prosecution relied on this and other text messages as evidence of the buying and selling of drugs. They pointed to the applicant's initial lies on arrest and to his failure when interviewed to mention any of the key features of the account which he gave to the jury in his evidence. The prosecution also relied, as evidence of a relevant propensity, on the applicant's previous convictions for possession of controlled drugs with intent to supply. 3. The applicant has drafted his own grounds of appeal. They were considered by the single judge, who rejected them for reasons which he explained in writing. We have considered them again and we, too, reject them for the same reasons. 4. The applicant's principal complaint is that the prosecution were late in complying with an order that they serve a schedule setting out the text messages which they wished to place before the jury. However, the content of the relevant text messages had already been exhibited. The purpose of the schedule was simply to present them in a more convenient fashion. Accordingly, however much the short delay of three days in producing that document is to be deprecated, it can have caused no prejudice to the defence. 5. The second ground of appeal against conviction is based on the assertion that there were two important defence witnesses who were not called by defence counsel. One of these men has since died. The applicant does not indicate what it is he believes the deceased would have been able to say in support of the defence case and gives no explanation for the failure to take a statement from the deceased prior to his death. The other potential witness has provided a short statement which does no more than corroborate some minor details of the applicant's evidence. We are satisfied that even if this man had given evidence and had been believed by the jury, his evidence could have made no difference to the verdicts. 6. The applicant has advanced other points which raise no arguable ground of appeal. In fairness to him, we have also considered whether the summing-up by the trial judge contained any error of law or might otherwise be said to give rise to a ground of appeal. It does not. 7. In those circumstances we are satisfied that the grounds of appeal against conviction have no prospect of success and that leave to appeal must be refused. These convictions are not unsafe. The reality is that the applicant was fairly tried on admissible evidence, and that the strength of that evidence was amply sufficient for the jury to reach the verdicts they did. The applicant gave evidence in which he sought to explain away the evidence against him. The jury did not believe him. 8. As to sentence, the applicant's ground of appeal is that the sentence was excessive having regard to the modest quantity of the drugs concerned. That ground overlooks the fact that, as the judge made plain in his sentencing remarks, the applicant has previous convictions, in particular possession of Class A drugs with intent to supply in December 1997 and June 2001 which, by virtue of section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 , made a sentence of at least seven years' imprisonment mandatory unless the court was of opinion that there were particular circumstances which related to any of the offences or to the applicant that would made it unjust in all the circumstances to pass such a sentence. The trial judge could find no such circumstances in the matters of mitigation put before him. Nor is there anything in the material before us which could cause us to take a different view. 9. It remains finally to consider whether this court should exercise its power under section 29 of the Criminal Appeal Act 1968 to direct that part of the period which the applicant has served since he was convicted should not count towards his sentence (a loss of time order of the kind considered in Monnell and Morris v United Kingdom (1988) 10 EHRR 205 ). 10. The applicant was represented at trial by lawyers who were under a duty to advise him about any arguable grounds of appeal. The applicant must either have been advised that there were none, or have chosen not to seek their advice. 11. When leave was initially refused, the single judge not only told the applicant that there was no merit in his grounds of appeal and explained why, but also gave him a specific warning that a loss of time order could be made. He has chosen to ignore that warning. 12. The time of the court, and the time of the court staff engaged in the necessary preparatory work, has been taken up unnecessarily, thereby delaying more deserving appeals. This court has often indicated that the power to make a loss of time order will be exercised in appropriate cases so as to ensure that the court is able to deal promptly with those applications for leave which do have merit. In an application heard by this court earlier today in R v Fortean (2008/01796/B2) the Vice-President of the Court of Appeal, Criminal Division, drew attention to the clarity of the warnings given in the relevant court documents which are seen by an applicant, and again made clear that the power to make a loss of time order may be exercised in any case in which the grounds of appeal are without merit and should not have been pursued without due warning. 13. This is just such a case. We direct that six weeks (that is 42 days) of the time which the applicant has thus far served shall not count towards his sentence. ______________________________

```yaml citation: '[2009] EWCA Crim 398' date: '2009-02-20' judges: - MR JUSTICE WYN WILLIAMS - MR JUSTICE HOLROYDE ```

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Neutral Citation Number: [2015] EWCA Crim 349 Case No: 201206585 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Kingston-Upon-Thames Crown Court HHJ Dodgson T20127043 Royal Courts of Justice Strand, London, WC2A 2LL Date: 10/03/2015 Before : THE RIGHT HONOURABLE LORD JUSTICE FULFORD THE HONOURABLE MR JUSTICE HAMBLEN and HIS HONOUR JUDGE WAIT - - - - - - - - - - - - - - - - - - - - - Between : The Crown - and - Edward Henry Austin Applicant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Joel Bennathan QC (instructed by Imran Khan and Partners ) for the Applicant Ms Deanna Heer (instructed by CPS Appeals Unit ) for the Respondent Hearing date : 28th November 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Fulford Introduction 1. On 23 October 2012 in the Crown Court at Kingston-Upon-Thames before H.H. Judge Dodgson and a jury the applicant was convicted by a majority (11-1) of conspiracy fraudulently to evade the prohibition on the importation of a controlled drug of Class A. On the same day he was sentenced to 28 years’ imprisonment. 2. He had various co-accused who had been convicted at an earlier trial (2 June 2011) of the same offence (the applicant’s trial was delayed because he had left the country and it was necessary to extradite him from Spain; this occurred on 31 January 2012). Jamie Green, Zoran Dresic and Jonathan Breere were each sentenced to 24 years’ imprisonment. Daniel Payne was sentenced to 18 years’ imprisonment and Scott Birtwistle was sentenced to 14 years’ detention in a Young Offender Institution. 3. Applications for leave to appeal against sentence for Green and Breere were refused, and Payne’s appeal against sentence was dismissed, by the Full Court on 7 March 2012 ( [2012] EWCA Crim. 656 ). Green’s application for leave to appeal against conviction was refused by the full court on 3 October 2012 ( [2012] EWCA Crim 2177 ). 4. Dresic lodged an application to appeal against conviction and sentence. No grounds were submitted and it was treated as ineffective. Birtwistle lodged an application for leave to appeal against conviction. It was refused by the single judge and has not been renewed. 5. Before this court the applicant has renewed his application for leave to appeal against conviction and sentence. The Facts 6. Between March and July 2010, officers from the Brazilian police conducted a successful investigation into a group of Eastern European men who were believed to be smuggling cocaine from Brazil into Europe by ship. In the early hours of 30 May 2010 a Brazilian commercial container ship called the MSC Oriane was observed travelling east through the English Channel. Between 01.12 and 01.38 it passed close to another vessel, the “ Galwad-Y-Mor ” (Galwad), which had ventured out in a force 8 gale. The Galwad was owned and operated by Jamie Green, who was on board together with Daniel Payne (an occasional crew member), Scott Birtwistle (a regular crew member) and Zoran Dresic (who had no seafaring experience). At one point the Galwad made a number of erratic manoeuvres in the vicinity of the route taken by the Oriane, which was consistent, the prosecution said, with the retrieval of holdalls containing drugs that had been jettisoned from the Oriane. During the journey calls were made via the Galwad’s satellite to the alleged leader of the conspiracy, Daniel Dugic (unapprehended), who had arrived in the United Kingdom on a false passport on 1 May 2010 with another man called Dominik Danilovic, a convicted drug trafficker. The Galwad also received calls from a telephone number ending 5034 (referred to at trial as the “ Mustard ” telephone), the apparent main use of which was to send and receive text messages from a Dutch telephone. It was linked, according to the prosecution, with the present applicant who had been observed on 18 and 28 May 2010 in the company of Dugic. On 18 May 2010 a man called George Copley was also present. He was convicted in 2011 of possession of cocaine with intent to supply and possession of a shotgun without a certificate. The applicant met with Copley again on 20 May 2010 but this time they were alone. 7. On 27 May 2010, Dresic and Dugic (whose exit from the country had not been noted) arrived in the United Kingdom and on 28 May 2010, the applicant, Dugic and Dresic travelled to Portsmouth where they met with Jonathan Breere, the man who the prosecution said linked Green with the organisers of the importation. At 14.16 the applicant, Dresic, Dugic and Breere boarded a hovercraft bound for the Isle of Wight. Between 16.37 and 16.50 two mobile telephones were purchased using false details from Phones 4U in Newport, Isle of Wight. One, registered in the name of Tony Perelli, was recovered from Dresic on his arrest. It contained one contact number under the name “ Dexsa ” (which the prosecution suggested referred to Dugic). The other, registered in the name “ John Wilson ” (6752) and used almost exclusively to keep in contact with Breere on the Isle of Wight, was attributed to the applicant. Evidence showed that top up vouchers for the Dexsa and Mustard phones were purchased at the same time and place on 27 May 2010. 8. At 18.53 on 30 May 2010 police officers observed the Galwad from the cliff edge overlooking Freshwater Bay. They said they saw 10 to 12 packages being deposited into the sea. The Galwad then sailed off and berthed at Yarmouth Harbour. Green, Payne, Dresic and Birtwistle disembarked. Over the next few hours there was telephone contact between the accused. On 31st May 2010 a number of holdalls, that were watertight and manufactured by a Brazilian company, were recovered a few hundred yards from the south coast of the Isle of Wight. Each had been tied to short lengths of rope which, in turn, had been tied to a longer length of rope, one end of which was tethered to a large buoy. A total of 11 holdalls were recovered. An examination revealed that they contained a total of 255 packages each containing approximately 1kg of cocaine of between 74% and 92% purity with an estimated street value of £53,857,788. The Prosecution Case 9. The prosecution case was that the applicant was party to a conspiracy to import cocaine, based on evidence of meetings with his co-conspirators and cell site evidence. It was the prosecution case that the applicant’s association with Dugic and Copley solely concerned the importation of cocaine. 10. Given the issues raised on this appeal, the prosecution highlight the following particular matters. It is noted that in his defence statement dated 14 August 2012 the applicant did not suggest that there was an innocent explanation for his meetings with Dugic and Copley, and instead he simply denied that he had any knowledge of, or involvement with, drugs. 11. It was only when the applicant’s trial was due to commence on 8 October 2012 that an amended defence statement was served. In this document it was averred for the first time that Dugic had a business in Sierra Leone called “ D and D ” which worked for both the government and private sector clients. It was claimed that at least some of the applicant’s meetings with Dugic related to the latter’s attempts to locate JCBs for export (although this was not said to apply to the visit to the Isle of Wight). It was suggested that the reason the applicant met with Copley was to discuss diggers. 12. We note in this context that the prosecution did not resist the suggestion that Dugic had business interests in Sierra Leone. Instead, once this issue had been raised, the Crown contended that the applicant’s links with Copley and Dugic were unconnected with locating and exporting earth moving equipment. The Defence Case 13. At trial, the applicant denied in evidence that he had been a party to a conspiracy to import cocaine, and he denied having used the “ John Wilson ” phone. He said he lived in Spain but came back to the Kent area from time to time to see his family. He knew Dugic as an acquaintance from a local pub in the Malaga area. Dugic’s main activity, at least when they were together, was seeking to buy earth moving equipment to ship to Sierra Leone where he had a business that undertook contract work for both the Government and private companies. The two realised they would be visiting England at the same time and made a loose arrangement to see each other. When they met up, Dugic asked the applicant to drive him around. Most of the driving, including the meeting with Copley, was in order to attend meetings to discuss possible purchases. 14. They went to the Isle of Wight because Dugic said he had a friend who was travelling there in order to start a job. The applicant drove them to the port; they took the hovercraft to the island; and the applicant spent the day the area of Ryde, in a pub and walking around the shops. Dugic met up with him later in the day. They dined together and took a late boat back to the mainland. By the time they reached the southeast of England it was late and Dugic accepted an invitation to spend the night in the applicant’s spare room. 15. The applicant called two witnesses. Their evidence was unchallenged by the prosecution. Nicholas Coombs, who ran a bar in Spain, said that the applicant worked as a builder, he did not have an extravagant lifestyle, he lived in rented accommodation and drove an elderly car. He said that Dugic (whose photograph he was shown) had been a customer at the bar in the past. The applicant’s sister, Lois Austin, said that when she met him once or twice during the May/June 2010 visit he was the same as normal and showed no signs of having come into wealth. The Grounds of Appeal against Conviction 16. The two grounds of appeal against conviction argued before this court have been advanced in two stages. Ground 1 i) The sole ground of appeal before the single judge was that the judge, during the summing up and in an answer to a question from the jury, erred in his directions as to the offence conspiracy in that they encompassed the possibility of a conviction even if the jury was not sure the applicant had joined the conspiracy. Ground 2 ii) Following the decision of the single judge, the applicant applied to introduce an additional ground of appeal based on fresh evidence. He seeks to rely on evidence from Dermot Ryan, a close friend of his father, who suggests he was told by his ex-partner that a) Dominic Danilovic lived in Sierra Leone and was involved in mining, and b) Dugic is an associate of Danilovic in Sierra Leone. It is argued that this evidence is important because a central feature of the applicant’s defence was that Dugic was trying to buy diggers to ship to Sierra Leone. Ground 1: submissions 17. The judge discussed the directions in law with counsel prior to the commencement of the summing up in a manner now long approved by this court. Following those discussions, and with the consent of counsel, the written directions provided to the jury were as follows: Conspiracy Just as it is a criminal offence to import cocaine into this country, so is it a criminal offence for two or more persons to agree with one another to commit that offence. An agreement to commit an offence is called a conspiracy; and that is the offence which is charged here. Before you could convict Mr. Austin of this offence, you must be sure: 1. That there was an agreement, on or before 1/6/10, between two or more of the persons named in this count to contravene the prohibition on the importation of a controlled drug namely cocaine into this county. 2. That Mr. Austin on or before 1/6/10 and while that agreement was in existence (i) agreed with one or more of the other persons referred to in the count that the crime should be committed and (ii) at the time of joining the agreement he intended that he or some other party to it should carry the agreement out. 3. If you are sure only that he was aware of Dugic’s activities but took no part in them then he must be found Not Guilty 18. Thereafter, on 18 October 2012 the judge directed the jury in the following terms: What is it that he is charged with? Well, he is charged - if you have got the indictment, a document that I think we looked at on the first day and have not really looked at since - with conspiracy. ( Pause ) And it is conspiracy to contravene section 170 subsection 2 of The Customs & Excise Management Act contrary to section 1(1) of The Criminal Law Act 1977. You need not worry about any of that. That is just stating the offence that Parliament created. The particulars: that he on or before 1 st June -- why 1 st June? Well, that is the date by which the conspiracy had finished. So the prosecution are saying that on a day before that end date he conspired with those named men (all of whom have been convicted save for Dugic) and with other persons unknown fraudulently - and that means “dishonestly” - to evade the prohibition on the importation of a controlled drug of Class A namely approximately 250 kg of a powder containing cocaine hydrochloride, and then setting out the section that prohibits the importation of that drug. That is legalese, and legalese is there for a reason. Lawyers do not just invent it for the sake of it. It is there because it sets out precisely what it is that he is charged with. In every day language, what the Crown say is “Well, he entered into an agreement to import cocaine into this country.” I have prepared a written sheet -- a typed sheet, I am sorry. Of course it was written, otherwise it could not be printed. And you will get a copy each now which just sets out in terms what a conspiracy is. (Pause while same distributed.) But before we look at that, let us just stand back and think about what a conspiracy entails. If I mention “conspiracy” to most members of the public, they probably think about Guy Fawkes or something of that sort. A “conspiracy”: it always conjures up, does it not, visions of people in black hats and cloaks and candles and candlelit passageways, that sort of thing. Well, I suppose on one level that is true. But conspiracy is actually a crime in itself. Why is it a crime in itself? Well, because sometimes one attracts criminal liability before you actually complete what it is you set out to do. So let us just stand back from this case and think about a robbery, for example. You have got absolutely no problem, I am sure, with the idea that if four men go into a bank, one of them is on the pavement outside keeping watch, two have gone in with stocking masks over their face, and another one has got a stocking mask and a gun in his hand, they go into the bank and they say “Hand over the money!”, the money is handed over and they all leave. Are they all guilty of robbery? Well, you may think undoubtedly they are. However, what if on their way to the bank, just as they get out of the car and as the three of them are about to go into the door of the bank dressed in the stocking masks carrying a gun, etc, etc, what if at that point the police - who have been topped off - say “No, you don’t. You’re under arrest”? Well, would it be open in law for them to say “Sorry, haven’t done it yet. We haven’t done anything wrong”? Well, you may think it would be an affront to common sense if in those circumstances they would be entitled to say that. And indeed it is not our law. The law is that they have conspired to commit a robbery. They have agreed to commit a robbery. And therefore they attract criminal liability even though they have been prevented from carrying out the agreement. Here you might have thought to yourselves “Well, hang on! They tried to import the cocaine and they did actually import it into our national waters. But what they wanted to do with it they did not achieve because the Customs took it.” Well, it does not matter. It is the agreement. If we look at the sheet I have given you, this really sets it out, going now to our particulars. Just as it is a criminal offence to import cocaine into this country, so it is a criminal offence for two or more persons to agree with one another to commit that offence. An agreement to commit an offence is called a “conspiracy”, and that is the offence which is charged here. Before you could convict Mr. Austin of this offence - the offence on the indictment - you must be sure first of all that there was an agreement on or before 1 st June 2010 between two or more of the persons named in this count to contravene the prohibition on the importation of a controlled drug, namely cocaine, into this country. Now as I have already told you and I will repeat to you: you decide the facts, I do not. But I would venture to suggest that as regards paragraph 1 you might have no difficulty ticking that off. It is a matter for you. But you have heard that the men named on the indictment have been convicted of that conspiracy. You may think that the defence in this case have not sought to challenge that there was such a conspiracy. The defence here is “There may well have been a conspiracy. I was not a part of it.” So the first question: “Was there that agreement?” The next question - and this is where we become really focused on your task - the Crown have to prove that Mr. Austin on or before 1 st June 2010 and while that agreement was still in existence -- in other words, take as the cut-off point the point when the men were arrested which is on I think 31 st May or 30 th May. Whilst that agreement was still in existence, he agreed with one or more of the other persons referred to in the count that the crime should be committed. Well, there is no evidence that the Crown have called to show that he ever knew of the existence of Scott Birtwistle or of Mark Payne. He says, of course, that he never met Jamie Green. Well, that does not matter because the Crown say that he certainly met Jonathan Beere who they say has been convicted of this conspiracy - and indeed he has been - and they say that he certainly was in the company of Daniel Dugic. The Crown say that those two men at least were party to this conspiracy and that Mr. Austin knew full well what the conspiracy was and that he agreed with at least one or more of those other persons - indeed the Crown point particularly to Dugic - and they say that Mr. Austin agreed at least with Dugic that the crime of importing cocaine should be committed. And the Crown have to prove that at the time of joining that agreement - whenever it was - he (Mr. Austin) intended that he or some other party to it should carry the agreement out. In other words, he was a knowing party to the agreement and was intending that the agreement should be carried out. That is what the Crown have to prove. I have put paragraph 3 there. It is in fact not the prosecution’s case and it is not the defence case, but it is a question that might occur to you. If you were to take the view that he knew what Dugic was up to but he actually took no part in it, well then he would be not guilty, because the Crown would have failed to prove that he agreed to the crime being committed and he intended that he or some other party should carry it out. If he were just aware of what was going on, well then he would not have joined in. But of course, as I say, it is not the defence case. The defence case is that he knew nothing about it at all. The Crown’s case is this: that he was aware of Dugic’s activities. And the Crown say “If you are sure that he was aware of Dugic’s activities, there is no room for thinking or for doubting that he took any part in it”, because they say that clearly if he was aware of Dugic’s activities then he would have been perfectly aware that his actions in taking Dugic to the Isle of Wight, bringing him back, etc, etc would all have been actions indicating or evidencing that Mr. Austin intended that the agreement should be carried out. So paragraph 3 is there because it is a theoretical possibility. It is for you to consider it. But you may -- it is a matter for you, not me. You may take the view that in fact in the circumstances of this case it is only a theoretical possibility which in fact can be disregarded. Well, that is the basis of conspiracy. It is not rocket science by any means. And the only reason I have given you the written direction is because some people sometimes get concerned as to what a conspiracy entails. It is not a word we encounter in everyday. It is only right that I give you that help, if indeed you needed it. It makes me remind you of one other matter which is this. If at any time during your deliberations you want help as to the law, if at any time - as I made it clear - you want to be reminded of any of the evidence, you have only to send a note. 19. The judge returned to the issue of conspiracy, and the role of the applicant, a little later: So in deciding whether there was a criminal conspiracy and - most important in this case - whether Mr. Austin was a party to it, look at all the evidence as to what occurred during the relevant period, including of course the behaviour and the actions of each of the alleged conspirators. Now as I have said, it would be rare to have a formal agreement. There does not have to be any formality about an agreement to commit an offence. Indeed, an agreement may arise on the spur of the moment. If you take a street fight, for example: ten seconds before, everybody was walking along the street quite happily. Ten seconds later, there is a brawl going on. One or two bystanders look for a few seconds and run. Another couple of bystanders look for a few seconds and join in. They have joined in that agreement to commit the offence. Nothing need be said at all. That agreement may arise on the spur of the moment. An agreement can be made with a nod or a look. And indeed an agreement can be inferred from the behaviour of the parties. However, the essence of a conspiracy is that Mr. Austin in this case -- what the Crown have to prove is that he shared that intention to commit the offence and he intended that it should be carried out, as I have set out in paragraph 2. Now, the level of involvement is another matter. The Crown do not have to prove that Mr. Austin was at the top, the bottom or the middle. If they prove to your satisfaction that Dugic was the main man and Mr. Austin was to be his assistant, then providing the constitute parts of the offence as I have directed you are made out, well then he is guilty, even if it is in a fairly subsidiary way. It may well happen that one or more of the conspirators is more deeply involved and has a greater knowledge of the overall plan than the others. It may also be the case that people join in at different times. Some may join right at the beginning. They may form the conspiracy. Others may join in after it has been formed. Others can perhaps drop out before it has been finally completed. Provided you are sure that Mr. Austin at some stage agreed with a co-conspirator that the crime in question should be committed and at that time he intended that it should be carried out, it does not matter precisely where he is on the scale of involvement and neither does it matter when he precisely became involved. He would be guilty. It really comes to this. If after having considered all my directions you are sure there was a conspiracy and he was a party to it, you will convict. If you are not sure, you will acquit. 20. When the jury retired at 1.10 pm, no request was made to the judge to amend or correct any part of these directions 21. The jury’s retirement spanned a number of days. On 22 October 2012 the jury sent the judge a note: Can we please ask: if Austin is aware of importation of drugs and continues to drive, is this partaking in Dugic’s activities? 22. There was discussion in open court with counsel as to the guidance the judge proposed to provide to the jury in response. In due course these were as follows: Members of the jury, you have sent me a note that reads as follows. “Can we please ask: if Austin is aware of the importation of the drugs and continues to drive, is this partaking in Dugic’s activities?” You will remember I gave you a written direction as to the meaning of “conspiracy”, and I am just going to go over that again because I think that will deal with the question. As I explained to you, a conspiracy is a criminal offence in itself. The agreement to commit a crime is itself a crime. So it is a criminal offence for two or more persons to agree with one another to commit that offence. Therefore before you could convict Mr. Austin, you would have to be sure first of all that there was an agreement on or before 1 st June between two or more of the persons named in this count to import cocaine into this country. So the first question: was there a conspiracy? You may think - but it is for you and not for me - that it has really been the background to this case that, yes, there was a conspiracy. The next question: did he (Mr. Austin) on or before 1 st June and while that agreement was still in existence -- did he agree with one or more of the other persons referred to in the count that the crime should be committed, and that at the time of joining the agreement he intended that he or some other party to it should carry that agreement out? And as I said to you, if you were sure only that he was aware of Dugic’s activities but took no part of them, then he would be entitled to be found not guilty. Now your question is clearly relating to that. As I said to you, there does not have to be any formality about entering into a conspiracy. Entering into an agreement may occur by your actions, by what you do. It may occur by a nod or a knowing look. An agreement can be inferred from behaviour of the parties. And the essence of joint responsibility is that each defendant shared the intention to commit the offence and took some part in it - however great or small - so as to achieve that aim. As I said to you, it may well be the case in a conspiracy that one or more of the conspirators may be more deeply involved. You may have the people at the top, you may have the people at the bottom, you may have people who play a very small role. But everybody who joins in that agreement intending that it should be carried out - no matter what the role they play - if they have joined in that agreement then they are guilty of conspiracy. It does not matter either at what time they join in. So you do not achieve criminal liability only by being there at the beginning. If there is an agreement that is ongoing and you become aware of that agreement and by your words or actions indicate that you are joining that agreement intending that it be carried out in no matter what role, why then you would be guilty of the offence. So that is the question. Go back to the basic written direction that I gave you. Examine that carefully. Was he a party to the agreement? Did he intend that it should be carried out? Did he join in the agreement whilst it was still in existence? If he did, it does not matter what his role was. Now those are the directions that I repeat to you. Because it is obviously a very important question that you have asked, I am just going to ask you to go outside while I just discuss with counsel whether there are any other matters that they believe I should add to that direction. Okay? So if you would not mind just going outside for a second or two, please. 23. At this point Mr Bennathan QC expressed, for the first, time a reservation as to the circumstances in which the applicant could be convicted: My concern focused on the word “continues” which maybe one reads too much into a jury note as if it is the words of a statute. But “continues” does suggest “realised at some stage”. Well, given the uncertainty as to when he was and was not driving Dugic about, my concern would be he has been driving him around and after he has played a useful role he realised that something was afoot. 24. The judge declined to vary his direction and the jury then retired once again to consider their verdicts. 25. Thereafter, Mr Bennathan elaborated in oral submissions the substantive issue that now constitutes his criticism of the judge’s directions in law. The judge declined to give the jury any further directions and in due course the applicant was convicted. 26. Mr Bennathan submits that the judge erred in the final part of the written directions – “ if you are only sure that he was aware of Dugic’s activities but took no part in them then he must be found not guilty ” – for two principal reasons. First, it is suggested it provided the jury with a possible factual scenario which, on the rival cases of the prosecution and the defence, was never going to arise for their consideration. It is submitted the last occasion when there was clear evidence of the applicant having contact with Dugic was during the drive back from the Isle of Wight, and if at that stage the applicant had knowledge of this criminality, it was because he was involved in the importation. Thus, it is suggested that on the prosecution case at no relevant stage could the applicant have known of the plot whilst not being a party to it. 27. Second, Mr Bennathan critically contends that in light of this final part of the written directions, it was possible the jury may have convicted the applicant on the basis that he agreed with Dugic’s activities, in the sense that he assisted him once he realised what was happening, but that he did so without having joined a conspiracy as defined by section 1 Criminal Law Act 1977. Section 1 is in the following terms: The offence of conspiracy 1 (1) Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either – (a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or (b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible, he is guilty of conspiracy to commit the offence or offences in question. 28. Mr Bennathan submits it was critical that the jury were not permitted to convict in the absence of an agreement to commit the offence. Furthermore, he argues that not only was it necessary for the jury to conclude there was a relevant “agreement” but that since conspiracy is an inchoate offence, it is also necessary that there was an explicit, as opposed to an implicit, agreement. 29. In the alternative, Mr Bennathan argues that, at the very least, there should have been a proven “ meeting of minds ” which resulted in the applicant agreeing with at least one other individual to import class A drugs. 30. Finally, it is contended that although the judge unexceptionally informed the jury that there did not need to be any formality about the agreement that underpinned the conspiracy, the example he provided of the street fight was a direction that was more apposite to a direction on joint enterprise rather than on a charge of conspiracy. Ground 1: discussion 31. In our judgment the law in this area is clear. An “ agreement ” self-evidently lies at the heart of conspiracy, given the statutory provision. It need not have the trappings of a conventional contract, and the courts have counselled against introducing into the straightforward concept of an agreement to pursue a course of conduct ideas that are derived from the civil law of contract (see R v Anderson [1986] AC 27 at 37). There is no requirement of formality, and it is possible to have conspiracies in which some participants never meet others, for instance in “ chain ” and “ wheel ” conspiracies (see Ardalan [1972] 2 AER 257). As Toulson LJ observed in R v Shillam [2013] EWCA Crim 160 “ Conspiracy requires a single joint design between the conspirators within the terms of the indictment. […] but it is always necessary that for two or more persons to be convicted of a single conspiracy each of them must be proved to have shared a common purpose or design [19]”. 32. Mr Bennathan is correct in his observation that the judge’s example of a street fight and an agreement in those circumstances being formed on the spur of the moment was perhaps somewhat inapposite as regards a conspiracy to import drugs which is unlikely to occur as a result of a nod or a look. However, he misunderstands the reason for the illustration: the judge was doing no more than indicating to the jury that there is no requirement for agreements of this kind to have any formality. These observations were immediately preceded with the direction “ Now as I have said, it would be rare to have a formal agreement” and followed by the direction “ However, the essence of a conspiracy is that Mr. Austin in this case -- what the Crown have to prove is that he shared that intention to commit the offence and he intended that it should be carried out […] ”. And a little later the judge directed the jury that they needed to be “sure that Mr. Austin at some stage agreed with a co-conspirator that the crime in question should be committed and at that time he intended that it should be carried out”. There could have been no doubt in the minds of the jury that they had to be sure that the applicant had agreed to join this conspiracy, howsoever that agreement was reached. 33. Turning to Mr Bennathan’s central submission that the judge’s directions created the possibility of a conviction even if the jury was not sure the applicant had joined the conspiracy, it is critical in our judgment to look at the judge’s directions overall. At the centre of the judge’s directions, he indicated: Before you could convict Mr. Austin of this offence - the offence on the indictment - you must be sure first of all that there was an agreement on or before 1 st June 2010 between two or more of the persons named in this count to contravene the prohibition on the importation of a controlled drug, namely cocaine, into this country. Now as I have already told you and I will repeat to you: you decide the facts, I do not. But I would venture to suggest that as regards paragraph 1 you might have no difficulty ticking that off. It is a matter for you. But you have heard that the men named on the indictment have been convicted of that conspiracy. You may think that the defence in this case have not sought to challenge that there was such a conspiracy. The defence here is “There may well have been a conspiracy. I was not a part of it.” So the first question: “Was there that agreement?” The next question - and this is where we become really focused on your task - the Crown have to prove that Mr. Austin on or before 1 st June 2010 and while that agreement was still in existence -- in other words, take as the cut-off point the point when the men were arrested which is on I think 31 st May or 30 th May. Whilst that agreement was still in existence, he agreed with one or more of the other persons referred to in the count that the crime should be committed. 34. That was entirely in accordance with the definition of conspiracy as it applied in this case, namely that the prosecution needed to prove there was an agreement that a course of conduct was to be pursued that, if carried out in accordance with their intentions, would necessarily involve the commission of an offence by one or more of the parties to the agreement. The final part of the direction relating to Dugic, and the applicant’s awareness of his activities, was wholly in the applicant’s favour, in the sense that it ensured that the jury understood that if the applicant was simply aware of “ Dugic’s activities ” ( viz. the scheme to import a class A drug) but took no part in those activities he should not be convicted (“ if you are sure only that he was aware of Dugic’s activities but took no part in them then he must be found Not Guilty” ). 35. We are wholly confident that this passage concerning Dugic’s activities would not have caused the jury to ignore everything that had preceded that direction, and have led them to convict solely on the basis that he undertook some activity that assisted the drug enterprise without joining the conspiracy. Instead, the elements that needed to be proved as regards participation in a conspiracy were emphasised throughout, and they were repeated in clear terms when the judge answered the jury’s question whilst they were in retirement, as set out above. This single short passage should not be viewed in isolation, outside its true context. As a part of the wider summing up it was wholly unobjectionable; indeed, it was necessary in order to ensure that the applicant was not convicted on a false basis. 36. Mr Bennathan has rehearsed a number of the arguments, based on the facts that he deployed at trial, in support of the contention that the applicant may not have been involved in the conspiracy. Those matters do not assist on this issue as to the adequacy and correctness of the judge’s direction on the charge the applicant faced. There is no suggestion that there was no case for the applicant to answer. 37. The judge was not under a duty to direct the jury that the agreement must be explicit. There is no rule of law, founded on statute or the common law, to the effect that because this is an inchoate offence, the agreement needs to be explicit rather implicit. Instead, the requirement is that the jury is sure from all the evidence that the defendant they are considering agreed with others that the offence of importing cocaine was to be committed. We consider that it is entirely plausible that agreements of this kind could be implicit rather than explicit in nature – it all depends on the circumstances and the relationship between those involved. 38. When the directions are considered overall, they were clear, balanced and correct in law, and they ensured that the applicant would only be convicted if he had joined the agreement, and that he was to be acquitted if he was simply aware of Dugic’s activities but took no part in what was occurring. Ground 2: submissions 39. Turning to the suggested fresh evidence from Dermot Ryan, the applicant’s case at trial was that his dealings with Dugic, as set out above, solely concerned buying earth moving equipment to ship to Sierra Leone. There was an obvious Sierra Leonne connection through Danilovic who had a driving licence issued in Freetown. The prosecution at trial probed the applicant’s account as to Dugic’s business involvement in Sierra Leone in some detail, but it was not suggested that his account on this issue was untrue. 40. After the applicant’s conviction it is said his lawyers tried and failed to make enquiries in Sierra Leonne. Thereafter, the applicant’s father revealed that a friend of his travelled to Sierra Leonne and, following further enquiries, the statement from Mr Ryan was obtained. After a preamble, that statement contains the following: Ted (the applicant’s father) had never discussed his son’s court case with me until about six months ago. I can only assume that he was embarrassed to do so. Ted told me about his son’s conviction and the circumstances surrounding his case. He told me that his lawyers were preparing an appeal and that is when the subject of Sierra Leone came up. Ted knew that I had connections with Sierra Leone but was reluctant to ask me favours as he knows of the political situation there. However, he did ask me whether I was able to make enquiries about certain individuals who had featured in his son’s case. He told me that his lawyers had made enquiries in Sierra Leone but they had gone cold. It was at this point that Ted mentioned the two names stated above (Dominic Danilovic and Daniel Dugic). I telephoned my ex-partner who surprisingly told me that our daughter was good friends with Dominic Danilovic’s daughter, that she had met him and knows him and are on first name terms. I have not asked her whether they socialise together. My ex-partner is able to obtain the address of Dominic Danilovic if necessary as he lives in Sierra Leone. My concern is for the safety of my ex-partner, my daughter and myself if it comes to light that his details were passed on by me to the authorities in the UK. My ex-partner also told me that Danilovic is involved in mining. I asked her whether she knew a man by the name of Daniel Dugic. She told me that she had met him in Sierra Leone in the company of Dominic Danilovic. I have not asked anything else as I have plans to go to Sierra Leone in October and can make further enquiries if required. 41. It is suggested this material is admissible given the link to earth moving equipment was an issue in the case; it is capable of belief (Mr Ryan is a man of good character); there is a reasonable explanation for failing to adduce it earlier (the applicant’s father only revealed this connection after the trial); and it may afford a ground for allowing the an appeal, given it is suggested the nature of the relationship with Dugic was at the heart of the case. 42. Finally, it is argued that the prosecution have failed to use the resources at its disposal to investigate whether there was information in this context that might have been of assistance to the applicant in establishing this aspect of his defence at trial or his appeal before this court. Ground 2: discussion 43. Applications to introduce fresh evidence are governed by section 23 of the Criminal Appeal Act 1968. The court has a discretion to receive any evidence which was not adduced in the proceedings from which the appeal lies if it is necessary or expedient in the interests of justice to do so. We have noted that Mr Bennathan in oral argument advanced this ground of appeal as not being higher than “ a slight but important basis for arguing there should be a retrial ”. The court, when considering whether to receive any evidence, must have regard in particular to whether the evidence appears capable of belief; whether the evidence may afford any ground for allowing the appeal; whether it would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and whether there is a reasonable explanation for the failure to adduce the evidence. 44. Given the importance to the applicant at trial of the nature of his relationship with Dugic and the suggested exports of earth moving equipment to Sierra Leone, we observe that efforts to make enquiries in that country seemingly only began after the applicant had been convicted, and that the applicant’s father failed to reveal this connection until after the trial had ended: Ted Austin and Mr Ryan apparently see each other on a weekly basis. 45. Additionally, the suggestion that Dugic had business interests in Sierra Leone was not challenged by the prosecution and at its highest this material from Mr Ryan simply tends to confirm that Dugic has been seen in Sierra Leone in the company of Danilovic and that Mr Ryan’s ex-partner told him that Danilovic is involved in mining. The focus of the Crown’s submissions was that the trip to the Isle of Wight had nothing to do with Sierra Leone or earth moving equipment. 46. The statement now relied on does not reveal whether Mr Ryan’s ex-partner has direct knowledge of this suggested state of affairs or whether this in turn is dependent on evidence from at least one other person. There is a real possibility, therefore, that this is based on multiple hearsay. Furthermore, given what is said about the dangers in Sierra Leone, it is unlikely that further evidence from the applicant on this issue will be forthcoming. 47. We do not consider that it is necessary or expedient in the interests of justice to receive this evidence. Given Mr Ryan’s account does no more than provide slender support – based potentially on multiple hearsay – as regards an issue that was not in dispute at trial (albeit the Crown properly probed the applicant’s evidence on the subject), this evidence would not have had a material impact on the decision of the jury. Moreover, we do not consider that there is a reasonable explanation for the failure to adduce this material at trial: enquiries of this kind could realistically have been pursued in advance of the proceedings at Kingston Crown Court. It would have been possible to make discreet enquiries in Sierra Leone without endangering the person carrying out the investigations. Furthermore, on the evidence before this court the applicant and his advisers have failed to take any further steps since his conviction to explore this aspect of the applicant’s case, which in our view could have been done without exposing Mr Ryan and his ex-partner to risk. 48. It has been suggested that the prosecution should have investigated whether there was a relevant connection with Sierra Leone. Particularly given the late delivery of the defence statement, this is a wholly unrealistic submission as regards the period covering the trial. Furthermore, following the applicant’s conviction there is no obligation on the prosecuting authorities to carry out further enquiries about an issue which, as we have observed, was not in dispute during the original proceedings. 49. We stress that the position before and after trial are significantly different. The Supreme Court in R (Nunn) v Chief Constable of Suffolk Constabulary [2014] UKSC 37 ; [2014] 2 Cr. App. R. 22 has addressed the contention whether the disclosure obligations of the prosecution remain the same pre-appeal as they were pre-trial. In dismissing the submission that the common law disclosure obligation remains constant throughout, Lord Hughes (with whom the rest of the Supreme Court agreed) observed: 31. The fallacy in this argument lies in the implicit assumption that the common law duty, as it evolved, was identical before and after conviction. […] it does not at all follow from the fact that the common law developed the Crown's duty of disclosure with the object of minimising the risk of miscarriages of justice that a convicted defendant such as the claimant, who asserts that his conviction was wrong, is or ever was entitled to the same duty continuing indefinitely after that conviction. The common law developed the duty as an incident of the trial process, to ensure that that process was fair to defendants. It was designed to avoid trials creating miscarriages of justice, not as a means of investigating alleged miscarriages after a proper trial process has been completed. It was not devised in order to equip convicted persons such as the claimant with a continuing right to indefinite re-investigation of their cases, and the fact that some such persons assert that their convictions were miscarriages of justice does not mean that it was. 50. In any event, the prosecution has reviewed the unused material in its possession in light of the submissions of the applicant on this issue. There is nothing to be disclosed. We reject the suggestion that at this appellate stage of the proceedings the Crown had an obligation to investigate this hearsay statement, particularly given it is based on such insubstantial foundations. We similarly do not accede to Mr Bennathan’s application that this appeal should be adjourned to allow further enquiries, directed by this court, to take place in order to discover whether Dugic and others had connections in mining. It is for the applicant to introduce any fresh evidence on which he seeks to rely. As Lord Hughes observed, although “ there can be no doubt that if the police or prosecution come into possession […] of something new which might afford arguable grounds for contending that the conviction was unsafe, it is their duty to disclose it to the convicted defendant. […] This is, however, plainly different from an obligation […] to afford renewed access to something disclosed at time of trial, or to undertake further enquiries at the request of the convicted defendant ” [35]. On these facts it is not necessary to analyse when, if at all, the court should order investigations: this material on any view would not justify such a step. 51. In the event, there is no sustainable material to found an argument either that the prosecution failed in its disclosure obligations to the applicant or that the suggested fresh evidence reveals that his conviction is unsafe. 52. The renewed application to appeal against conviction is dismissed. Sentence 53. The applicant was sentenced on the basis that he played a managerial role above that of Green. The judge unsurprisingly observed that the drug trafficking trade carries huge rewards and brings misery to thousands of people. Society is severely damaged by crimes of this kind, and in consequence long sentences were considered necessary. 54. The applicant is 49 years of age and he has previous convictions including for possessing a controlled drug of Class A in 1996. 55. It is suggested the term of 28 years was manifestly excessive for the role the applicant could be shown on the evidence to have played. Furthermore, it is argued that the judge failed to distinguish between the roles of the applicant and Dugic, the absent leader of the conspiracy. 56. In refusing leave, the single judge observed: The huge quantity of cocaine involved in this conspiracy justified the approach taken in the case of Clough. The judge heard the evidence and was uniquely qualified to assess, as well as fully entitled to make findings about, the part played by the applicant in the conspiracy. There was ample evidence on which he could form the view he did. The sentence passed was consistent with those passed at the conclusion of the previous trial and in line with Clough. There are no grounds for believing that the sentence was manifestly excessive or wrong in principle 57. In our view the judge in the court below was entitled to conclude that the applicant played a role “ over and above that of the skipper of the boat ” and that by his actions, movements and the telephone calls he was revealed as someone who played an integral role in the conspiracy. The judge considered that the applicant was present in this country solely in order to facilitate the importation of ¼ ton of cocaine of high purity. He clearly reflected on where the applicant fell within the structure of this conspiracy, and it was open to the court to determine that his role was greater than that of Green, Beere and Dresic (who were all sentenced to 24 years’ imprisonment). Judge Dodgson presided over these trials and as Hallett LJ observed when refusing Green and Breere’s applications for leave to appeal against sentence and dismissing Payne’s appeal against sentence “ In our judgment this court should bear very much in mind that the sentencing judge was the trial judge. He was far better placed than the members of this court to place the accused in the appropriate place in the hierarchy. He drew clear distinctions between the offenders and he gave sound reasons for so doing. He had had the advantage of seeing and hearing all the accused give evidence […] [35]” . 58. We next consider whether it was necessary for the judge to retire before passing sentence, having given counsel an indication as to his non-final view as to where in the scheme of the offending the particular defendant falls to be sentenced. Mr Bennathan has suggested a complicated exercise that involves, whenever there are two or more trials of co-conspirators, a requirement on the judge to provide counsel with an explanation in advance of passing sentence as to why he has provisionally placed a particular defendant at an identified point in the hierarchy. This is unrealistic: it is clearly open to a judge to adopt this course but it is not in any sense compulsory. The applicant and his counsel would have known that the judge necessarily needed to assess the ambit of the accused’s offending and the part he played in the conspiracy, in light of the roles of his co-accused. Mr Bennathan had a clear opportunity to advance submissions on that basis. Ultimately, it was a matter for the judge to resolve. The applicant suggests the evidence revealed that he was no more than Dugic’s assistant. The judge was entitled to reject that contention: his duty was to determine on the evidence he had heard the right basis for the applicant’s sentence and he was not bound to proceed on the most favourable interpretation of the jury’s verdict for the accused (see Solomon [1984] 6 Cr App R (S) 120). The sentence must be consistent with the jury’s verdict and it must be sustainable, given the evidence. Such was the case here. 59. This was a long, but wholly justified, sentence. This renewed application is also dismissed.

```yaml citation: '[2015] EWCA Crim 349' date: '2015-03-10' judges: - THE RIGHT HONOURABLE LORD JUSTICE FULFORD - HIS HONOUR JUDGE WAIT ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical 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 183 Case No: 2010/01/380/C1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BRADFORD His Honour Judge McCallum Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/02/2011 Before : LORD JUSTICE LEVESON MR JUSTICE LLOYD-JONES and MR JUSTICE KING - - - - - - - - - - - - - - - - - - - - - Between : DAVID ROMANI Applicant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss Rebecca Nieto appeared on behalf of the Applicant Hearing dates : 13 December 2010 - - - - - - - - - - - - - - - - - - - - - Judgment MR JUSTICE KING : 1. On the 9 of February 2010 in the Crown Court at Bradford before HHJ McCallum this Applicant was convicted after trial on four counts. On the first count he stood his trial with two co-accused, Joseph Housen and Andrew Bullocks, each of whom was also convicted. 2. Counts 1 and 2 each alleged a conspiracy to possess a Class A controlled drug with intent to supply. Two of the conspirators, two brothers from Bradford, referred to as the Islam brothers, had pleaded guilty to these conspiracies (one brother to both; one brother to one) on an earlier occasion. The Applicant was an associate of the brothers and also from Bradford. The prosecution’s overall case was that the Applicant conspired with the brothers to purchase wholesale cocaine and heroin sourced from London. Count 1 concerned an exchange or attempted exchange of drugs in early July 2008 in which vehicles containing some of the Applicant’s alleged co–conspirators, including the two co-accused, met up in Bradford. Count 2 concerned an exchange of drugs at a meeting later in July between the Applicant’s alleged co-conspirators again in Bradford. The Crown relied upon evidence of telephone traffic between the Applicant and his co–conspirators and evidence of the Applicant’s presence at the meeting places to establish his involvement on each count. 3. Counts 3 and 4 each alleged possession of criminal property. They related to bundles of cash found in the Applicant’s house in Bradford in September 2008 during a search following his arrest. Count 3 concerned the cash found in the bedroom and under a sink basin. There was expert evidence that this cash was abnormally contaminated with cannabis. Count 4 concerned cash from within a cushion in the living room. The expert evidence was that this was abnormally contaminated with heroin. In total the cash found amounted to approximately £18,000. The Crown relied upon the circumstances in which the cash was found and the expert evidence to show that the cash was the proceeds of drug dealing. 4. This now comes before us as a renewed application for leave to appeal against conviction following refusal by the single judge. The Applicant was represented at his trial by two junior counsel. The application before us was pursued by Miss Nieto, acting pro bono . Miss Nieto was the junior of the two counsel at the trial, she being led by Mr Lally. It was Mr Lally who drafted the application for leave and the eight grounds of appeal attached to the application. The transcript concerning the alleged behaviour of the jury 5. Following the hearing on the 13 th of December 2010 we reserved judgment in order that a transcript be obtained of the proceedings in the Crown Court when the court dealt with a matter concerning the jury in respect of which it appeared from Mr Lally’s lengthy skeleton argument that a ground of appeal was now being sought to be raised. The allegation was there being made that a member of the jury had during the currency of the trial been following or “stalking” the Applicant and his legal team and that he had followed them to a fish and chip restaurant where he had sat behind their table listening into their discussions. This was said to be possible misconduct. Objection was taken in Mr Lally’s argument (although not incorporated into any ground of appeal) to the manner in which the Judge had dealt with this matter by, we were told, simply asking the jury in open court whether “anyone heard anything of concern at a particular fish and chip restaurant”, and upon receiving a negative response, taking the matter no further. 6. The order we made was that before Judgment was given, counsel should have seven days from receipt of the transcript in which to lodge any further submissions. 7. In the event the transcript was obtained and sent to Counsel on the 10 th of January 2011 but no further submissions have been lodged notwithstanding that, we understand, a further reminder was sent to Counsel on the 24 th of January. 8. We have ourselves now read the material transcript from which it is clear that there is nothing in the point now being sought to be raised. 9. The question put to the jury was in these terms: “The second matter is this, is that you all, kindly, well six of you sent me notes about concerns about coming and going from the building. It is rather unfortunate that everybody comes in and out of the same door, unfortunately that is the geography of the system. But, most importantly is this, and I just want you to reflect upon this, I do not actually want you to blurt out anything, I just want an answer yes or no to this. Did any of you yesterday hear anything said by anyone outside this Court, or more particularly in a fish and chip restaurant which caused you concern? Nobody? None at all. Well we have spent quite a long time this morning...– nobody has overheard any of the Defendants saying anything outside which they regarded in any way offensive? Good.” 10. It is clear from the transcript of the proceedings in chambers when this matter was discussed at some length between counsel and judge, that the issue being dealt with by the Judge in the question he put to the jury was not whether a juror had been stalking the Applicant at all but rather whether a member of the jury might, while in a particular public restaurant, have inadvertently overheard an offensive remark being made by the Applicant about a member of the jury. Far from being raised by counsel on behalf of the Applicant, the matter was in fact raised by counsel on behalf of one of the co-accused who drew the court’s attention to that which he understood counsel for the Applicant had passed on to him about events in the restaurant. 11. We can see nothing wrong with the way in which the Judge dealt with this particular matter. At the end of this part of the proceedings the Judge is recorded as saying that this “was all a storm in a teacup” and Mr Lally is recorded as saying “well, it is the way when things are taken out of context.” We say no more about this issue. The remaining grounds of appeal 12. We turn to the eight grounds of appeal which did appear within the Notice of Application. Of those eight, those appearing as grounds 3 to 8, were abandoned by Miss Nieto at the outset of the hearing before us. It is to be deprecated that this was the first notice the court had received of their abandonment. The valuable time wasted by the members of this court in coming to terms with the grounds now abandoned, has been considerable. It is further to be deprecated that within those grounds now abandoned were grounds wholly lacking in particularity, such as the one asserting that the summing up had not been impartial and was unfair. 13. Only two grounds were pursued before us. Like the single judge we can discern no arguable substance in either of them. Severance 14. The first concerns severance. It is said the Judge was wrong not to have severed the indictment so as to sever Counts 3 and 4, the counts alleging possession of criminal property, from the two conspiracy counts. It is said that the two sets of counts could not fairly be said to be connected, yet the evidence on the second set was highly prejudicial to the defendant’s case on the first. We see nothing in this argument which at times appeared to be raising arguments more properly going to the question of joinder as to which no ground of appeal has been formulated. We agree entirely with the observations of the single judge that the Judge properly exercised his discretion not to order severance. There can be no question here of any misjoinder and we can discern no arguable error in the Judge’s conclusion that with appropriate directions to the jury, the Applicant would have the benefit of a fair trial on the indictment as it stood. The argument that the evidence on Counts 3 and 4 ought to have been excluded under section 78 of the Police and Criminal Evidence Act 1984 makes no sense once the position is reached that the Judge properly exercised his discretion on severance. The jury notes 15. The other ground relates to notes sent by six members of the jury to the Judge during the second week of the three week trial, referred to by the judge in the passage which we have already set out. The Judge interpreted these notes as meaning no more than that the jury were concerned that they had to enter and leave the court building by the same route as the defendants, that they felt uncomfortable on the occasions when they had in fact seen the defendants, and that they were merely exhibiting an obvious desire to be kept separate from the defendants at all times. He refused to discharge the jury and dealt with the problem by requiring the defendants to remain in court for a period after the jury had left. His only words to the jury on this matter were the words we have already set out. 16. Again we agree entirely with the single judge that the Judge was right to approach these notes in this way. We have studied the contents of these notes which are fully set out in the Judge’s ruling refusing to discharge the jury. It is unnecessary to set them out in their entirety. One for example said “ At the end of the day as I was leaving court I had Mr Romani outside the building and Mr Housen was behind me. Nothing has been said by either men, but I felt slightly worried. Perhaps the Defendants or the Jurors could be held back for 20 minutes ”. Another said: “ When the verdict is reached and if there is a guilty verdict for any of the defendants, is it possible for the jury to leave the building by a separate entrance” . The Judge in his ruling indicated that the word “if” in this latter note had been added later. We for ourselves see nothing in the suggestion which was also rejected by the Judge, that these notes meant that the jurors were likely to reach decisions based upon matters not aired in court by way of evidence or that they were exhibiting a bias or hostile animus against the defendants. 17. We agree with the single judge that the Judge’s decision to require the defendants to remain in court for a period when the jury left, was in the circumstances entirely sensible but that there was no need to discharge the jury. 18. For all these reasons this application is dismissed.

```yaml citation: '[2011] EWCA Crim 183' date: '2011-02-14' judges: - LORD JUSTICE LEVESON - 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: [2012] EWCA Crim 901 Case No: 2011/2730 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE COMMON SERJEANT (HHJ BARKER QC) U2009/1027 AND U2011/0173 Royal Courts of Justice Strand, London, WC2A 2LL Date: 02/05/2012 Before : LORD JUSTICE GROSS MR JUSTICE OPENSHAW and HHJ MILFORD QC - - - - - - - - - - - - - - - - - - - - - Between : OB Appellant - and - The Director of the Serious Fraud Office Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Alun Jones QC and Mr Colin Wells (instructed by Morgan Rose ) for the Appellant Mr Edward Jenkins QC and Mr Benjamin Douglas-Jones (instructed by the SFO ) for the Respondent Mr Andrew O’Connor as the Advocate to the Court Hearing dates : 2 nd November 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Gross: INTRODUCTION 1. By our judgment dated 1 st February, 2012 (“the judgment”), this Court dismissed the Appellant’s appeal and upheld his committal to prison for contempt of court. 2. The Appellant sought permission to appeal to the Supreme Court and asked this Court to certify that the decision involved a point or points of law of general public importance. 3. As indicated to the parties, we were minded to refuse permission to appeal but to certify that two points of law of general public importance were involved in our decision. 4. At this stage, the Registrar raised a concern that s.13 of the Administration of Justice Act 1960, as amended (“the AJA 1960”) does not provide a right of appeal to the Supreme Court from a decision of the Court of Appeal Criminal Division (“CACD”) in cases of contempt of court. We pay tribute to the diligence of the Registrar and his office for bringing this concern to our attention. 5. Both the Appellant and the Respondent (“the SFO”) contended that there was a right of appeal to the Supreme Court. If and insofar as Parliament had inadvertently removed the right of appeal hitherto provided, then this Court could and should rectify the error, whether as a matter of common law principles of statutory construction or by way of s.3 of the Human Rights Act 1998 (“the HRA 1998”). 6. Against this background and in order to ensure that a full range of views was before the Court, the Attorney General, at the Court’s request, instructed counsel to act as amicus. We are most grateful to the Attorney General for his assistance and to counsel, Mr. O’Connor, for his extremely clear and helpful submissions. THE NATURE OF THE PROBLEM 7. Putting the matter as shortly as possible, the problem may be traced through the legislative history as set out in the paragraphs which follow. 8. S.13 of the AJA 1960 provides for appeals in cases of contempt of court. 9. In its original form, s.13(2)(c) of the AJA 1960 plainly provided a right of appeal from the Court of Criminal Appeal and, thereafter, the CACD, to the House of Lords (more recently, the Supreme Court). Prior to its amendment, s.13(2)(c) provided that an appeal would lie: “ from an order or decision of a Divisional Court or the Court of Appeal (including a decision of either of those courts on an appeal under this section), and from an order or decision of the Court of Criminal Appeal or the Courts-Martial Appeal Court, to the House of Lords. ” 10. The Criminal Appeal Act 1966 (“the CAA 1966”) abolished the Court of Criminal Appeal and created a single Court of Appeal with two divisions – the civil division and the criminal division (i.e., the CACD). The CAA 1966 did not amend previous legislation in which the Court of Criminal Appeal featured; instead, it broadly provided that any reference in prior enactments or instruments to the Court of Criminal Appeal were to be construed as a reference to the CACD. 11. The Senior Courts Act 1981 (“the SCA 1981”, originally the Supreme Court Act 1981) repeated the approach of the CAA 1966 as to the Court of Criminal Appeal and the subsequent division of the Court of Appeal into two divisions. S.53 dealt with the distribution of business between the civil and criminal divisions of the Court of Appeal. Para. 3 of Schedule 4 to the SCA 1981, provides as follows: “ In any enactment or document passed or made before 1 st October 1966 – (a) any reference to the Court of Criminal Appeal….shall, subject to rules of court made in pursuance of section 53(1), be read as a reference to the criminal division of the Court of Appeal; …. (c) any reference to the Court of Appeal shall, subject to rules of court made in pursuance of section 53(1), be read as a reference to the civil division of the Court of Appeal. ” 12. Undoubtedly, therefore, the legislation thus far provided for an appeal from the CACD to the House of Lords in cases of contempt of court. There matters stood until, if we may say so, intervention through the unlikely vehicle of s.378 and para. 45(2) of Schedule 16 to the Armed Forces Act 2006 (“the AFA 2006”), which came into force on the 31 st October, 2009. S.378 said this: “ Minor and consequential amendments and repeals (1) Schedule 16 (minor and consequential amendments) has effect. ……” In turn, para. 45 of Sched. 16, was in these terms: “ Administration of Justice Act 1960 (c.65) (1) Section 13 of the Administration of Justice Act 1960 (appeal in cases of contempt of court) is amended as follows. (2) In subsection (2)(c) for ‘and from an order or decision of the Court of Criminal Appeal or the Courts-Martial Appeal Court’ substitute ‘and from an order or decision (except one made in Scotland or Northern Ireland) of the Court Martial Appeal Court. ” 13. The upshot of the amendments introduced by the AFA 2006, together with other amendments immaterial to the present debate, is that s.13(2)(c) of the AJA 1960 now reads as follows: “ from a decision of a single judge of the High Court on an appeal under this section, from an order or decision of a Divisional Court or the Court of Appeal (including a decision of either of those courts on an appeal under this section) , and from an order or decision (except one made in Scotland or Northern Ireland) of the Court Martial Appeal Court, to the Supreme Court.” It can at once be seen that the reference to the “Court of Criminal Appeal” has been deleted and no reference to the CACD has been inserted. If an appeal from the CACD to the Supreme Court in cases of contempt of court does not lie under s.13(2)(c) as amended, there is no suggestion that an appeal may be brought pursuant to any other statutory provision. THE PRINCIPAL ISSUES 14. Mr. O’Connor has helpfully crystallised the three principal issues which arise: i) Is it possible to read the amended wording of s.13(2)(c), AJA 1960 as providing a right of appeal from the CACD to the Supreme Court in cases of contempt of court? (“Issue (I): Construction”) ii) If not, should the Court, applying common law principles of statutory construction, rectify the statute by re-inserting words that provide a right of appeal from the CACD to the Supreme Court? (“Issue (II): Rectification”) iii) If not, should words providing a right of appeal from the CACD to the Supreme Court be read into the sub-section under s.3 of the HRA 1998? (“Issue (III): The HRA 1998”) ISSUE (I): CONSTRUCTION 15. Mr. Jenkins QC, for the SFO, which has taken the lead for the parties in respect of the present debate, contends that the reference to “Court of Appeal”, in s.13(2)(c) of the AJA as amended, is a reference to the one Court of Appeal which now exists and not simply to the Court of Appeal, Civil Division. The effect of para. 45 of Schedule 16 to the AFA 2006 was to delete the reference to the Court of Criminal Appeal, a court which had not existed for some 40 years. Express words were required to abolish an existing right of appeal, when that was clearly not Parliament’s intention. Moreover, if the reference to “Court of Appeal” in s.13(2)(c), as now amended, is only a reference to the Civil Division, then “Court of Appeal” in s.13(2) has two different meanings. This is so, because s.13(2)(bb), introduced by para. 40(1) of Schedule 8 to the Courts Act 1971 (“the 1971 Act”), provides as follows: “ (2) An appeal under this section shall lie…. (bb) From an order or decision of the Crown Court to the Court of Appeal; ” Plainly, “Court of Appeal” in s.13(2)(bb) must, at the least, include the CACD; it would therefore be inconsistent if “Court of Appeal” in s.13(2)(c) meant only the Civil Division. 16. Mr. O’ Connor submits that the parties’ preferred construction of s.13(2)(c) cannot be right, by reason of the clear terms of para. 3 of Schedule 4 to the SCA 1981 (set out above). S.13 of the AJA 1960 was an enactment passed before the 1 st October 1966; the reference to “Court of Appeal” was therefore to be read as meaning the Civil Division. Mr. O’Connor accepts that this reading of s.13(2)(c) does involve an inconsistency with s.13(2)(bb). That inconsistency is, however, explicable in this way: s.13(2)(bb) was inserted into the AJA 1960 by the 1971 Act – which was not an “enactment …passed…before 1 st October 1966”. Accordingly, para. 3 of Schedule 4 to the SCA 1981 did not “bite”, so that s.13(2)(bb) could be given its natural meaning: namely, it refers to both divisions of the Court of Appeal. 17. Mr. Jenkins’ response was succinct. No distinction was to be drawn between s.13(2)(bb) and s.13(2)(c). The AFA 2006 post-dated the 1 st October, 2006; s.13(2)(c) in its current form was the result of the AFA 2006; it was not therefore caught by para. 3 of Schedule 4 to the SCA 1981. The position was indistinguishable from that which Mr. O’Connor accepted applied in respect of s.13(2)(bb). It could not matter that instead of deleting s.13(2)(c) as a whole and replacing it with its present wording, the legislature had opted for partial deletion and the insertion of new wording. 18. We are attracted to Mr. Jenkins’ proposed construction but are reluctantly unable to accede to it; as a matter of construction, we think it goes too far. That said, the submission as to construction serves to expose the unhappy consequences which flow from the AFA 2006 in this regard – matters to which we revert under Issue (II) below. Our reasons for declining to accept Mr. Jenkins’ argument as to construction can be briefly stated as follows: i) The words upon which attention must be focussed are “Court of Appeal”. These words have been present in s.13(2)(c) from 1960 and have not themselves been the subject of amendment. ii) It is accordingly difficult to see that these words do not come squarely within para. 3(c) of Schedule 4 to the SCA 1981 as a “reference to the Court of Appeal” contained in an “enactment passed….before 1 st October 1966”. It must follow that these words are to be read as a “reference to the civil division of the Court of Appeal”. iii) We add only this. It would require a leap of construction for the same words “Court of Appeal” to have been confined to the civil division of the Court of Appeal from 1960 until the coming into force of the AFA 2006 and, thereafter, to have acquired a different and wider meaning merely as a result of the deletion of other words in the sub-section. We express no final view on this additional consideration but, at all events, in the light of para. 3(c) of Schedule 4 to the SCA 1981, we are not persuaded that the construction route entitles Mr. Jenkins to succeed. 19. It follows that we feel driven to answer Issue (I), “no”. It follows further that, if matters were left there, s.13(2), in its present form, would be deeply unsatisfactory. A long-standing right of appeal would have been removed, as it were, by a sidewind. Moreover, “Court of Appeal” would have a different meaning in sub-sections 13(2)(bb) and (c). We turn to Issue (II). ISSUE (II): RECTIFICATION 20. Inco Europe v First Choice Distribution [2000] 1 WLR 586 (HL) concerned a dispute as to whether a right of appeal had been unintentionally excluded in the very different context of s.9 of the Arbitration Act 1996. The House of Lords held that an appeal continued to lie from a decision made at first instance to the Court of Appeal. It did so by reading words into the relevant statutory provision to give effect to the intention of the legislature; the language used by the draftsman had not been apt to do so. In the now well-known passage, Lord Nicholls dealt with the question of principle as follows (at p.592): “ I freely acknowledge that this interpretation of section 18(1)(g) [of the SCA 1981] involves reading words into the paragraph. It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words….. This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation….. Sometimes, even when these conditions are met, the court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far-reaching. …… Or the subject matter may call fro a strict interpretation of the statutory language, as in penal legislation… ” 21. Further citation of authority is unnecessary in this regard. The principles set out by Lord Nicholls have been considered in a number of subsequent decisions; unsurprisingly, rectification was possible in some cases but not in others, depending on the individual facts. It may be noted that the question of the standard of proof (i.e., that the court should be “abundantly sure” that the threshold conditions were met) was real, important and, in some cases, decisive. 22. Mr. Jenkins submitted that there was no rational explanation for the removal of the right of appeal from the CACD alone in contempt cases – when such a right of appeal remained in respect of decisions of the civil division of the Court of Appeal, the Divisional Court and the Court Martial Appeal Court. Such a result was not intended by the legislature when enacting the AFA 2006. If, as a matter of construction, “Court of Appeal” in s.13(2)(c) meant “Court of Appeal (Civil Division)”, then the sub-section should be rectified so as to preserve the right of appeal from the CACD to the Supreme Court. In the present case, rectification would come within the principles enunciated by Lord Nicholls in Inco . 23. Mr. O’Connor’s carefully nuanced submissions proceeded as follows. The matter fell to be considered in accordance with the Inco criteria. The “keystone” to those criteria was the issue of Parliamentary intention and the threshold for judicial rectification was set very high. The removal of the right of appeal from the CACD to the Supreme Court was “entirely unheralded” in the AFA 2006. While the Court might well be satisfied, on the balance of probabilities, that the removal of this right of appeal had occurred mistakenly, it was a more difficult question as to whether the Court could be “abundantly sure” of it. Accordingly, the crucial issue for this Court was whether it could be satisfied: “ … to the required degree of certainty , that the removal of the words ‘ and from an order or decision of the Court of Criminal Appeal ’ from subsection 13(2)(c) of the 1960 Act (and, with them, the right of appeal in section 13 cases from the CACD to the Supreme Court) did not reflect Parliamentary intention.” Even if the Court was satisfied that the “threshold conditions” in Inco were surmounted, there remained the further question as to whether judicial intervention would be “too far-reaching”. It was, Mr. O’Connor submitted, certainly arguable that a rectification of the type required here did fall foul of this further pre-condition. 24. We proceed with caution, mindful of the need to avoid impermissible judicial legislation. Furthermore, we start from the assumption that the statutory language did reflect Parliamentary intention. Nonetheless, after careful reflection, we are “abundantly sure” that the Inco threshold conditions are met in this case and that the required rectification would not be too far-reaching. Our reasons follow. 25. First, we are wholly unable to accept that the legislature had any intention, when enacting the AFA 2006, of removing the right of appeal from the CACD to the Supreme Court in cases of contempt of court; as Mr. O’Connor put it, any such intention was “entirely unheralded” in the AFA 2006. It would indeed have been a most unlikely means of seeking to do so, had that been Parliament’s intention. It is noteworthy that the long title of the AFA 2006 said only this: “ An Act to make provision with respect to the armed forces; and for connected purposes. ” If regard is had ( de bene esse ) to the Explanatory Notes, it can be seen that they too make no mention at all of the removal of the right of appeal in question. 26. Secondly, we conclude instead that the intention of para. 45 of Schedule 16 to the AFA 2006 was, primarily, to deal with the name change of the “Courts-Martial Appeal Court” and various devolution issues. That would be in keeping with the purpose and scheme of the AFA 2006. 27. Thirdly, we must confront the fact that para. 45 of Schedule 16 did provide for the deletion of the words “and from an order or decision of the Court of Criminal Appeal”. We are satisfied that in deleting those words the legislature intended no more than a tidying up exercise, removing a reference to the Court of Criminal Appeal – a court which had not existed for forty years. We are unable to accept that by this obscure sidewind the legislature intended to remove a long-standing right of appeal. 28. Fourthly, on the construction of s.13(2)(c) to which we feel driven (see above), it follows that Parliament and the draftsman have, by inadvertence, failed to give effect to the legislative intention in question. Doubtless, because of a mistaken – but wholly understandable - assumption that the words “Court of Appeal” in s.13(2)(c) encompassed the CACD as well as the civil division of the Court of Appeal, the effect of the amendment was altogether more far –reaching than intended: removing the right of appeal from the CACD to the Supreme Court rather than simply removing an obsolete reference to the Court of Criminal Appeal. The draftsman can be forgiven, we think, for not having para. 3(c) of Schedule 4 to the SCA 1981 uppermost in his mind when producing para. 45 of Schedule 16 to the AFA 2006. 29. Fifthly and turning to the third of the Inco threshold conditions, the substance of the provision Parliament would have made, had the drafting error been noticed, occasions no difficulty. All that would have been required is the insertion of express wording following “Court of Appeal” in s.13(2)(c), making it plain that, here, “Court of Appeal” encompassed both divisions of the Court of Appeal. For example and if necessary to go that far, the insertion (as proposed by Mr. Jenkins) of the wording “( both divisions)” would have sufficed. 30. Sixthly, in the circumstances, we cannot think that the proposed rectification is too far-reaching or contravenes any constitutional proprieties. To the contrary, it preserves an important right of appeal and avoids an outcome which has no rational justification – crucially, an outcome which was not intended by the legislature. 31. Accordingly, we would answer Issue (II), “yes”. That conclusion is sufficient to decide the present matter before the Court. ISSUE (III): THE HRA 1998 32. In the light of our conclusion on Issue (II), this Issue is academic. We therefore address it summarily. The SFO submission was that s. 13(2)(c) of the AJA 1960 was to be “read down” to comply with the European Convention on Human Rights (“the ECHR”), pursuant to s.3 of the HRA 1998 because, otherwise, the sub-section would give rise to “unlawful discrimination” contrary to Art. 14, ECHR. It is unnecessary to express a concluded view and we are not minded to do so. A necessary condition for the SFO to succeed under this heading was that the difference in treatment in respect of rights to appeal to the Supreme Court constituted a “personal characteristic” of the contemnor in question and hence came within the only relevant candidate amongst the Art. 14 grounds, namely, “other status”. If that argument failed, the remaining contentions under this heading fell away. Suffice to say that, provisionally, we would not have been minded to accede to the SFO’s argument as to “personal characteristics” and “other status” and we would therefore have inclined to answer Issue (III), “no”. OVERALL CONCLUSION 33. We conclude that, by the route of rectification and for the reasons given earlier, there is a right of appeal to the Supreme Court from the CACD in cases of contempt of court. 34. We accordingly reconfirm our prior indication to the parties following our (earlier) judgment. First, we refuse the Appellant permission to appeal to the Supreme Court. Secondly, we certify that the following points of law of general public importance are involved in the decision: i) Whether a contempt of court constituted by breach of a restraint order made under s.41 of the Proceeds of Crime Act 2002 constitutes a civil or criminal contempt? ii) If the answer to (i) is a civil contempt, whether s.151A of the Extradition Act 2003 and/or Art. 18 of the United Kingdom – United States Extradition Treaty 2003 preclude/s a court from dealing with a person for such a contempt when that person has been extradited to the United Kingdom in respect of criminal offences but not the contempt in question?

```yaml citation: '[2012] EWCA Crim 901' date: '2012-05-02' judges: - LORD JUSTICE GROSS ```

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

No. 2002/00540/Y4 Neutral Citation Number: [2003] EWCA Crim 319 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 11 February 2003 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( The Lord Woolf of Barnes ) MR JUSTICE JACKSON and MR JUSTICE ELIAS - - - - - - - - - - - - - R E G I N A - v - BRIAN SELWYN B - - - - - - - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - MR J JENKINS appeared on behalf of THE APPELLANT MR R A JONES appeared on behalf of THE CROWN - - - - - - - - - - - - - J U D G M E N T Tuesday 11 February 2003 THE LORD CHIEF JUSTICE: 1. This appeal raises a worrying point of general interest, difficulty and sensitivity in relation to complaints arising out of sexual offences alleged to have been committed many years prior to the trial. The problem arises because in criminal law, unlike civil law, there is no statute of limitation. Furthermore, in relation to sexual offences Parliament has removed the common law protection which was provided by the requirement of corroboration in the case of allegations of sexual offences. 2. The facts of this case are, however, far from unique. The appellant, who is now 60 years of age, was convicted in the Crown Court at Merthyr Tydfil, before His Honour Judge Gareth Davies and a jury, of ten counts of indecent assault on the same complainant who was under 16 years of age and was his stepdaughter. On counts 1-3 he was sentenced to 12 months' imprisonment on each count; on counts 4-6 he was sentenced to 15 months' imprisonment concurrent on each count, but consecutive to counts 1-3; and on counts 7-10 he was sentenced to 21 months' imprisonment on each, but consecutive to the earlier counts. This made a total sentence of four years' imprisonment. The appellant now appeals against conviction by leave of the single judge. 3. The counts in the indictment alleged indecent assault between 7 September 1969 and 9 September 1972. At that time the complainant was between the ages of 7 and 11. She alleged that the assaults took place about three or four times a month on a regular basis throughout the period. They involved the appellant making her climb into bed with him undressed, forcing her to masturbate him, the appellant climbing on to her, putting his penis on her vagina and simulating intercourse until ejaculation. Occasionally he would put his finger onto or into her vagina and masturbate her. 4. The appellant's defence throughout was a complete denial that any of the alleged acts had taken place. The only explanation that he could give for the invention was that the complainant blamed him for the death of her mother, his former wife. 5. The stepdaughter attended psychiatrists between 1983 and 1989 for depression resulting from her fears of losing her job and of losing her boyfriend. Mention of abuse arose in those consultations. Because of the passage of time, limited evidence was available as to what had happened during the period that the complainant received treatment from the psychiatrists. There was reference to her taking overdoses and that she was emotionally disturbed. In addition, dates were given by her for a complaint of abuse which, while wider than the allegations made in the proceedings, covered the period which was the subject of her complaint. A note which was preserved read: “Abused by step-father from age of 5 to 12, mostly touching.” 6. There was also a suggestion by the complainant that on one occasion she and the appellant were disturbed by her brother. In addition she said that the window cleaner had made a remark to which she attached significance to the effect, “I know what is going on. I know what you do.” 7. The window cleaner gave evidence for the prosecution that he remembered an occasion when the complainant came out of the lounge very quickly. He thought that she was going to fall, so he grabbed her by the arm and asked her if she was all right. She replied that she was and went to do something in the kitchen. She was 11 or 12 at the time. She was wearing a nightgown or T-shirt. The appellant was in the lounge wearing a towelling robe. The window cleaner denied that there were any sexual undertones to what had occurred. He did not think that he had said anything like, “I know what you do”, in a way which conferred significance. 8. An application was made prior to the commencement of the trial that the proceedings should be stayed as amounting to an abuse of process. The submission was based on the delay that occurred since the incidents which had taken place almost 30 years before a complaint was made to the police in August 2001. Apparently, in addition, some informal complaints were made. We do not know their detail and we understand that they were ruled inadmissible by the judge. 9. On the application for the stay the judge gave a short ruling. The length of the ruling is criticised, but we do not accept that it can properly be criticised. It was possible for the judge to set out his reasons succinctly for reaching his conclusions. His ruling is none the worse for the fact that he expressed himself concisely. 10. The judge recognised that the delay inevitably led to difficulties for the defence. It led to difficulties in obtaining possible witnesses. The complainant's mother was now deceased. She might have been able to give useful evidence in one direction or another. The public house in which she worked no longer existed. 11. The appellant worked for days on end during the week away from home and outside Wales. If records had been available, they could have confirmed that he was not present at a particular time. If the complainant had been able to identify the dates on which she said an incident occurred, it might have been possible for the appellant to point to a particular date and say: “At least in relation to that date the complainant cannot be right. Look at my work records. I was not there”. 12. The judge asked himself what he regarded as being the standard question on an application for a stay for abuse of process, namely whether the defendant had satisfied him on the balance of probabilities that a fair trial would be impossible. He came to the conclusion that the defendant had not so satisfied him, although he recognised that a delay inevitably resulted in difficulty, in particular in relation to obtaining witnesses. The judge pointed out that he had to consider the extent to which possible unfairnesses to the defendant could be dealt with during the trial process by him, for example, ruling evidence inadmissible. 13. On the appeal Mr Jenkins did not challenge the test which the judge applied. Indeed, on behalf of the appellant he accepted that it was the appropriate test. He referred to three authorities, however, which he considered this court should take into account. The first is Attorney General's Reference No 1 of 1990 (1992) 95 Cr App R 296 . That is probably the most important authority, although it is possible to deal with that case in conjunction with the next which is R v Dutton [1994] Crim LR 910. Finally, he referred to R v Jenkins [1998] Crim LR 411. Dutton was a decision of this court presided over by Kennedy LJ. It involved indecency on a male. An indictment was stayed in relation to Dutton's co-accused. Dutton's counsel also applied for a stay. The Crown's case was that over a period of three or four years, when the complainant was aged 10 or 11, Dutton had sexually abused him. Dutton maintained that nothing sexual had occurred; they simply had a friendship based on mutual interests. It was common ground that he was a practising homosexual and he found boys attractive, but he contended that it was only older boys, and that he was not at any time attracted by boys of the complainant's age. He had been friends with the stepfather, and it was alleged that he had taken the complainant to various places where indecent acts occurred, including a caravan and to his hone where he lived with his mother and sister. Counsel submitted in that case that the delay was inexcusable. It was pointed out that the complainant had not merely waited until he became an adult, but had waited a long time after that. He made no complaint until he was aged 29. No real explanation was forthcoming and it was approximately 20 years from the time the first act was alleged to have taken place and, more importantly, fourteen years since the last act of indecency that the complaint was made. It was said that during that period a great deal had happened which caused the defence considerable difficulties if the trial proceeded. In particular, a number of witnesses had died, the caravan site owners were both dead, as were Dutton's mother and aunt. At the material time, he was working at the university and there was a caretaker who might have been of assistance to him in relation to what was alleged to have taken place there. He was no longer available and neither was the complainant's stepfather. The caravan had been significantly altered so that it was impossible for the defence effectively to investigate how it had appeared at the time when it was being misused. There was no apparent corroboration of the allegations. The defence was bound to be prejudiced by the fact that when eventually the complainant said something and went with his sister to the home of a police officer, the notes which were made in the course of a five-hour conversation had been lost. The complainant had not been medically examined when the incidents were fresh. There was no supporting medical evidence, and no scientific evidence of any kind. The judge rejected the submission, simply saying, “I am against you....”, and indicated that he was in favour of the submission made on behalf of the co-accused. 14. We have set out those facts in some detail since there are significant differences between that case and this. In this case the complainant gave an explanation. She explained how she felt unable to tell her mother. She was worried what her mother's reaction would be. The man about whom she was making complaint was somebody of whom her mother was genuinely fond. The complainant was in a very difficult position. Once she did not make the complaints, it became more and more difficult for her to do so later. They only surfaced a great many years later. We do not know why she eventually made the complaint, but we do know that this is not uncommon, because of what has taken place in relation to other cases. Today it is not unusual for people to come forward whereas before they felt it was not possible. We consider that there can be a distinction drawn between Dutton and this case on that ground alone. In addition, in that case the judge gave no reasons for his decision. He dealt with two different cases which were before him in different ways without giving any explanation why he was doing so. However, in their judgment this court said, allowing the appeal, that the court was at a disadvantage, that it was in no position to know how the judge's mind was working when he made the ruling; it would have been helpful if he had said a little more than he did. (That perhaps is an understatement.) That said, it had to be borne in mind that in cases of this sort it almost inevitably followed that there would be a substantial delay in making the complaint. 15. In Attorney General's Reference No 1 of 1990 (1992) 95 Cr App R 296 , Lord Lane CJ said that a stay should only be employed in exceptional circumstances. In assessing whether there was likely to be serious prejudice, the power of the judge to regulate the admissibility of evidence, and the trial process, which should ensure that all relevant factual issues arising from delay would be placed before the jury together with the power of the judge to give appropriate directions should be borne in mind. Judges should be assiduous to ensure that there really was evidence of serious prejudice to the extent that a fair trial could not be held before they found that the defendant had discharged, on a balance of probabilities, the burden of proof that lay on him before any power of the sort sought to be invoked could be used. The judge was entitled to decide as he did. 16. Lord Lane referred to the power to give (warning) directions to the jury. Such would surely be called for in a case in which not only had there been substantial delay, but it could be seen that witnesses who might have been able to give relevant evidence had disappeared. This was a case in which it really was incumbent on the judge, having taken the decision he did, to point out to the jury that what was said by the defence about the possible prejudice as a result of the delay was a matter to which they could and should properly have regard. If a judge was silent in relation to a topic, such as that when it had been advanced and canvased extensively by the defence, the very silence of the judge might tend to devalue what was perhaps the most important point which could be advanced from an adversarial point of view on behalf of the defendant. He was wrong not to assist the jury as to the possible adverse effects that delay could have occasioned the defence and not to refer in the summing-up to the age of the complaint and the difficulties that could well have posed. It was a difficult case and that misdirection, for such it was, was one which called for the appeal to be allowed in that case. 17. With respect to that report, it is not entirely clear whether the appeal was being allowed because a stay should have been granted, or because of a misdirection, or a combination of both. However, perhaps that is not important because the criticisms of the judge's decision which could be made in that case cannot be made here. Furthermore, as we will show later, we have come to the conclusion that it is not possible to criticise this judge's summing-up, although we recognise that a very heavy burden was upon the judge to make sure that the appellant would not be prejudiced because of circumstances over which he had no control. 18. Pausing at this point, it might be thought that some other test might be applied other than the one which was applied in this case which is accepted to be appropriate. However, the passage of time in this jurisdiction has never been a ground in itself for the staying of a prosecution. Just as the courts do not close the door to allowing appeals out of time if new evidence is forthcoming to show that someone who is innocent has been convicted, so if the prosecution decides that there is a case to go before the jury, the courts do not in the ordinary way consider it right to interfere with the prosecution process as long as (and this is an important qualification) a fair trial is possible. The question of who is to be believed in a case of this nature is very much an issue for the jury and not for the judge. The judge has the responsibility for giving the jury appropriate warnings demanded by the circumstances. 19. On the whole, the best time to asses whether a case is fit to be left to the jury is not before the trial has started but at the end of the trial when a judge is in a position to take into account the actual evidence presented to the jury by the prosecution and by the defence. As far as we are aware no application was made to this judge to rule again at the end of the trial. We certainly do not criticise those who were involved in the case for that. If the judge had been minded to take a different view to that he had indicated on the application for a stay, we are confident that he would have made that clear to counsel, and counsel, no doubt appreciating that, were not going to make an unnecessary application. Accordingly, we are satisfied that no complaint can be made about the judge's decision to allow the case to go to the jury for a verdict. 20. It is not suggested that anything of significance occurred during the trial which pointed in one direction or the other. At the end of the day the issue boiled down to who the jury believed. They could only convict the defendant if they were sure that he was guilty. If they came to the conclusion that they were not sure, this was no reflection on the complainant. It was unfortunate from her point of view that she had no independent evidence of any sort because of the delay to support what she said. 21. The judge gave a fair, careful and accurate summing-up. It is always possible to identify some passage in a summing-up which counsel suggests should have been expressed differently. However, Mr Jenkins commendably exercised self-restraint and did not make any allegations about the summing-up which could not be supported. The summing-up contained ample warning and left the issue correctly to the jury. 22. One matter with which the judge did not deal was the need for corroboration. It was not necessary for him to do so. Prior to the Criminal Justice and Public Order Act 1994 , the Sexual Offences Act 1956 had provided that persons should not be convicted of sexual offences on the evidence of one witness alone unless the witness was corroborated. Prior to the 1956 Act , juries were instructed that they could convict without corroboration but that they should know that it was very dangerous for them to do so. It was a requirement of the common law that juries should have the corroboration warning. However, the 1994 Act changed the position. Section 33 provides: “(1) The following provisions of the Sexual Offences Act 1956 (which provide that a person shall not be convicted of the offence concerned on the evidence of one witness only unless the witness is corroboration) are hereby repealed ....” There is then reference to various statutory provisions and subsection (2) provides: “Nothing in this section applies in relation to -- (a) any trial, or (b) any proceedings before a magistrates' court as examining justices, which began before the commencement of this section.” 23. This trial was not held prior to the commencement of section 33 of the 1994 Act , but it is right to point out that if the complaints had been made earlier and the appellant had been prosecuted earlier, he would have been able to rely on the previous law and in particular on the need for corroboration. 24. Before the change in the law, judges often explained why corroboration was looked for: namely that allegations of sexual abuse are easily made but difficult to refute. However, this was, understandably, thought to be unnecessarily offensive to women who are normally the victims of such an offence. It was considered that that was no justification for singling out sexual offences for a special warning as to the need for corroboration. However, the fact remains that it is more difficult for a defendant to defend himself against a mistaken allegation when that allegation is old than when it is more recent. The judge here clearly warned the jury about having to take into account the difficulties caused to the appellant because of delay. 25. Not only does a defendant have difficulty in a trial, but if he is convicted an appellate court has difficulty. The reason the jury convicted was almost inevitably because they felt the complainant was speaking the truth and the defendant was not. No doubt they took into account that generally people do not make allegations of this sort years after the event unless they believe them to be true. However, those who try cases know that sometimes -- and this is in the experience of each member of this court -- honest witnesses can convince themselves that something happened in their youth when it is subsequently shown that what they remember cannot be true. However, having said that, it is difficult to see how this complainant could have made up the details she described unless she was either lying (and that is difficulty to conceive having regard to what we know of her), or at one stage in her life she was fantasizing about what had happened. She went into detail in giving her evidence, such as having to remove the semen from her body when her stepfather ejaculated. Nonetheless, there are difficulties in ascertaining where the truth lies in a case of this sort. 26. One thing is clear: the jury saw the witnesses and we have not. Therefore they were in a better position to judge where the truth lay than this court. Furthermore, the trial process depends upon our confidence in the jury system. We have to have confidence that they made the appropriate allowance here for delay, and we also have to have in mind the intervention of Parliament. Parliament made the decision as to where they considered the right balance between the prosecution and the defence should lie in regard to the question of corroboration. We must not seek to go behind the decision of Parliament. Therefore juries in cases of this sort must be left with the difficult task of determining where the truth lies. 27. However, there remains in this court a residual discretion to set aside a conviction if we feel it is unsafe or unfair to allow it to stand. This is so even where the trial process itself cannot be faulted. It is a discretion which must be exercised in limited circumstances and with caution. When we exercise that discretion we must be conscious that we are not only involved in deciding where justice lies for the appellant. We must do justice to the prosecution, whose task it is to see that the guilty are brought to justice. We must also do justice to the victim. In this case we are particularly conscious of the position of the victim. If she is right, she was treated in a most disgraceful way by someone whom she should have been entitled to trust: her stepfather. For years, for understandable reasons, as we have already indicated, she felt unable to make public what had happened. She is entitled to justice as well. But we also have to do justice to the appellant. At the heart of our criminal justice system is the principle that while it is important that justice is done to the prosecution and justice is done to the victim, in the final analysis the fact remains that it is even more important that an injustice is not done to a defendant. It is central to the way we administer justice in this country that although it may mean that some guilty people go unpunished, it is more important that the innocent are not wrongly convicted. 28. In this case it has to be recognised that because of the delay that occurred, in our judgment the appellant was put in an impossible position to defend himself. He was not, as Mr Jenkins says with force, able to conduct any proper cross-examination of the complainant. There was no material he could put to the complainant to suggest that she had said that something had happened on one occasion which could be established to be incorrect. There was no material in the form of notes that were given to the doctors which showed that she had changed her account. All that the appellant could do was to say that he had not committed the acts alleged against him. Mr Jenkins says that to say to a jury, when faced with allegations of the sort that were made here, “I have not done it” is virtually no defence at all. 29. We have looked at all the circumstances of this case. We have sought to act in accordance with the principles we have set out earlier. In the end we have come to the conclusion that this is one of those residual cases where in the interests of justice we must set aside this conviction. That may be an injustice to the victim. It may be an injustice to the public in the sense that a guilty person is not going to suffer any further punishment than he has. But, nonetheless, having regard to the lapse of time, the very limited evidence that was available in this case, we have come to the conclusion that it is our duty to allow this appeal. Accordingly, we quash the conviction.

```yaml citation: '[2003] EWCA Crim 319' date: '2003-02-11' judges: - MR JUSTICE JACKSON - MR JUSTICE ELIAS ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical 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 681 Case No: 2015/1717/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 20 May 2016 B e f o r e LORD JUSTICE BURNETT MR JUSTICE HICKINBOTTOM MR JUSTICE SOOLE - - - - - - - - - - - - - - - - - - - - - R E G I N A V EDWARD METCALFE - - - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr D Crigman QC appeared on behalf of the Applicant The Crown did not appear and was not represented - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (As Approved by the Court) 1. MR JUSTICE SOOLE : This is a renewed application for leave to appeal against the applicant's conviction for manslaughter in the alternative to murder of his partner Tracy Topliss by a unanimous verdict on 18th March 2015 at the Crown Court at Birmingham. The applicant was sentenced to five years' imprisonment. The sole ground of appeal is that the judge should not have admitted an animation produced by a prosecution expert, Dr Bowley which illustrated her opinion as to how the death had occurred. 2. In the early hours of 15th November 2013 the applicant made a 999 call to the ambulance service. He reported that his partner was lying at the foot of the stairs at their home. He thought she had fallen down the stairs in the night. Paramedics attended and found her in the hallway. She was pronounced dead. Initially the death was treated a accidental. A Coroner's post mortem concluded that a significant head injury directly contributed to the cause of death. A second more rigorous examination by a forensic pathologist, Dr Hunt revealed a displaced tripod fracture to the right cheekbone which he attributed to a hard punch, a fracture to the skull with subdural and sub-arachnoid bleeding and bruising to the shoulders. The pathologist's opinion was that the overall pattern of injuries was not what he would have expected from a fall down a flight of stairs. There were no abrasions on the stairs. 3. Following arrest, the applicant gave a no comment interview on legal advice. 4. The central issue was whether the injuries were caused by a punch on the face followed by a catastrophic backwards fall leading to a fractured skull and rapid death or by an accidental fall linked to the evidence of heavy drinking. There was extensive expert evidence addressing this issue. 5. Two items of furniture featured prominently in the evidence - a small coffee table and a crate. On the table were found airborne spots of blood matching Miss Topliss's DNA. As to the crate, police photographs taken about three hours after the applicant's 999 call showed an undamaged crate at the bottom of the stairs between the body and the staircase. There was substantial disputed evidence as to whether the crate had been moved before the police arrived. 6. The defence case was supported by evidence from a consultant maxilla-facial surgeon, Dr Rivington. He said that the tripod fracture was equally consistent with a fall and a hard punch. In addition Mr Michael Brown, a mechanical engineer and expert in accident reconstruction gave his opinion that a fall from the stairs could result in the head and shoulder hitting the table and with no or little contact with the stairs or carpet. After falling and sustaining the skull fracture and some shoulder injuries on the table, the deceased could have staggered on and collapsed further than the stairs and struck her cheek on the laminated floor. He accepted that if the crate had been at the bottom of the stairs when she fell she would have hit it causing damage. 7. The prosecution case was supported by the evidence of Dr Susan Bowley, an expert in bio-medical engineering and kinematics. She was called to give her opinion on the way in which Miss Topliss came to suffer injuries and to be where she was found. She illustrated her opinion and her view of Mr Brown's rival opinion by means of animations prepared for her. These depicted the male as significantly large than the female. The applicant is six foot four inches tall and Miss Topliss was five foot two inches or five foot three inches. 8. No objection was taken to the general admissibility of Dr Bowley's evidence which satisfied the requirements of Criminal Practice Direction 19A.1. However, objection was taken to the animations. In his ruling the judge recorded the objection as: "... that it consists of animations as opposed to simulations. The difference is that simulation is a scientific model produced by a computer in accordance with set parameters entered into its program. It follows that if the parameters are reasonable and the programme is an appropriate tool then a simulation has scientific value over and above the expert's opinion, but animation is different in that it is no more than a depiction of an expert's views and therefore is no more valid than the view itself. Mr Crigman's main objection is that these animations represent high impact material which have the potential to mislead the jury. He also argues that Dr Bowley will only place two alternatives before the jury whereas the reality is that there are many possible scenarios in what is a complex case." 9. The judge then concluded: i. "The first question for me is whether these animations are relevant and will assist the jury. In my judgment they will. Dr Bowley's opinions involve the body of the deceased moving in a complex manner, and it will help the jury to understand her views to see them illustrated. ii. The next question for me is whether the production of these animations is unfair within the terms of section 78 of the Police and Criminal Evidence Act. In my judgment they are not. The jury can and will be directed as to what an animation is and what its limitations are. The difference between animation and a simulation is not difficult to understand and with that understanding the jury will not be tempted to place undue reliance upon this material. iii. The fact that Dr Bowley only places two alternative animations before the jury is a matter for evidence and cross-examination. If the jury accept the proposition that there are many possible scenarios then they will inevitably view Dr Bowley's animations in that light. In my judgment there is no risk of them being misled by this material into accepting that there are only two possibilities in circumstances where in the absence of this material they would have taken a different view." 10. When Dr Bowley gave evidence in chief the judge intervened before the animations were shown to ask prosecution counsel first to establish what an animation is: "... so that we do not embark upon this process with the jury thinking they may be about to see something which, in fact, it is not?" Counsel then asked Dr Bowley to explain the difference between an animation and a simulation. She replied: "An animation is a cartoon. I can make anything I want appear in the animations ... A simulation uses physics to model movement, okay? There may be limitations to that. We can get into that later." 11. The judge then intervened again: "So, the important thing for the jury to bear in mind here is that what they are seeing is just a visual depiction of your opinion. Your opinion may be right or wrong -- that is for them to decide -- but what they are seeing does not add anything to your opinion; it is just to help them understand it." 12. She replied that it was a "visual illustration" of her opinions. 13. In the course of a necessarily lengthy cross-examination, Dr Bowley was challenged on the basis that her opinion and therefore her animation depicting that opinion defied the law of physics. She disputed this. She rejected an alternative explanation put to her by Mr Crigman, stating that it did not make sense from a biomechanics viewpoint. 14. Under a range of heads Mr Crigman says, as he did to the jury, that her evidence was discredited. Amongst other things that she had changed the position of the table and the crate in re-examination from the position she had placed these items when creating the animation and had misunderstood the direction of force upon the deceased and the table. 15. There is no criticism of the judge's summing-up. He gave the usual general directions on expert evidence and summarised the cross-examination of Dr Bowley and the many criticisms of her evidence. As to animations the judge said this: "Now, you will remember that in explaining her opinion to you Dr Bowley showed you an animation and you should bear in mind that, to use her description, the animation is no more than a cartoon. She, in effect, has simply created a depiction, a moving depiction of her opinion and as she accepted she could have made the computer do anything that she had wanted to. It follows that in so far as the animation helps you understand her opinion it is relevant, but that is the limit of its relevance and, in particular, the animation cannot in any way add further support to Dr Bowley's opinion." 16. The judge then reminded the jury of what he described as "the two main scenarios which have been explored with the various experts". Quoting him: i. "Scenario one, in effect the prosecution case, a punch to the cheek leading to the head and perhaps head and shoulders striking the side of the table. ii. Scenario two, a fall down stairs from a low step leading to an impact with the table which is then followed by movement and a subsequent fall to the floor." 17. When dealing with the second scenario the judge emphasised that: "... the defence do not have to prove that this is what happened and nor do they necessarily say that it was. As you know, the defence submit that this is a complex situation with many variables and at its highest they regard this situation as being one of a number of possibilities." 18. Mr Crigman submits that if and to the extent that Dr Bowley's evidence was discredited, it must follow that the animations were equally discredited. However, their very existence would give the animations a continuing high impact shock and subliminal prejudicial effect, magnified by having them with them in retirement. The animation showed, it is submitted: "... a faceless, menacing, grey hulk (the applicant) confronted a graphic and humanised woman with clothing and facial features (the deceased) in the hallway of the home..." 19. and so added further prejudice. Furthermore, it focused attention on two scenarios thus excluding other possibilities. Accordingly, and as he had submitted at the outset, the animation should have been excluded under section 78 of the Police and Criminal Evidence Act. 20. In oral submissions today, Mr Crigman further submitted that the animation is to be distinguished from her opinion in that it independently defied the law of physics and so was in that way additionally misleading and prejudicial. 21. We do not, having considered the cross-examination and the essential point being made about the illustration, accept this distinction can be drawn. The challenge was to her opinion as defying the laws of physics and in other respects. If and to the extent that the opinion did so defy or was otherwise erroneous, then so was the illustrative animation. 22. In our judgment, for the reasons essentially given by the single judge, there is no arguable basis of appeal. By the terms of his ruling, his intervention during evidence and his clear directions to the jury, the judge understood and made clear that the animations were no more than an illustration of Dr Bowley's opinion and did not constitute any form of independent scientific evidence. The jury, properly directed as it was, would be quite able to understand the distinction between animations and simulations and to take account of alternative scenarios. The judge's decision to admit the animations was well within the ambit of his discretion under section 78. The challenge to Dr Bowley's evidence on the various matters identified in the grounds of appeal were all squarely put before the jury, as was the possibility of other scenarios. We do not accept that there is any arguable basis for submitting that the animation was capable of having a subliminal effect which could undermine their focus on the evidence, the defence's extensive criticisms of Dr Bowley, the other scenarios, or the clear directions from the judge. The application for leave is therefore refused.

```yaml citation: '[2016] EWCA Crim 681' date: '2016-05-20' judges: - LORD JUSTICE BURNETT - MR JUSTICE HICKINBOTTOM - MR JUSTICE SOOLE ```

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Neutral Citation Number: [2011] EWCA Crim 1176 Case No: 2009/5238/C2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LIVERPOOL Indictment No:T20060110/1 and T20067067/68 Royal Courts of Justice Strand, London, WC2A 2LL Date: 12/05/2011 Before: LORD JUSTICE RIX MR JUSTICE RODERICK EVANS and HIS HONOUR JUDGE RADFORD THE RECORDER OF REDBRIDGE (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between: Regina Appellant - and - Noel Young Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr C Marsh-Finch for the Appellant Mr T Evans for the Respondent Hearing date: 15 March 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Roderick Evans: 1. On 15 th March 2011 we heard the appeal of Noel Young against a confiscation order made against him on 18 th April 2008 at the Crown Court at Liverpool. The confiscation order, made under the Proceeds of Crime Act 2002 ( the 2002 Act ), was in the sum of £6,946,747.62. The appellant was given 6 months to pay this sum with 10 years imprisonment to be served in default of payment, that period to run consecutively to a substantive term which the appellant was already serving. 2. At the end of the hearing we dismissed the appeal. We now give our reasons for doing so. 3. The confiscation came to be made in the following circumstances. 4. The appellant and five others, who included the appellant’s wife, Nazim, and his sister, Marina, faced an indictment which alleged a conspiracy to defraud and money laundering offences arising out of the importation into the United Kingdom of high value motor vehicles. On the first day of the trial, 20 th April 2006, the appellant pleaded guilty to Count 1, a conspiracy to defraud Her Majesty’s Customs and Excise by evading the liability to pay VAT on imported vehicles between 1 st April 2003 and 2 nd February 2005 and to Count 2, concealing criminal property during the same period. The following day, two associates of the appellant, Colin MacKinlay and Kevin Simpson, pleaded guilty to the conspiracy alleged in Count 1 and MacKinlay, Nazim Young and Marina Young pleaded guilty to money laundering offences. 5. On 9 th June 2006 the appellant was sentenced to 28 months imprisonment on each count, concurrent with each other but consecutive to a sentence of 7 ½ years imprisonment imposed on 22 nd July 2005 for an offence of causing death by dangerous driving. 6. It is not necessary for the purposes of this judgment to recite the sentences imposed on the other defendants whom we have mentioned. The Facts 7. For present purposes, the essence of the appellant’s offending can be shortly stated. The appellant was the organiser of, and driving force behind, a scheme to import from EU countries high value motor vehicles. It was the prosecution’s case that the others involved in this offending were directed and/or used by the appellant for his own purposes. On first registration in the United Kingdom, those vehicles became subject to VAT which was paid by the purchasers of the vehicles to the appellant but the vehicles were registered using false or fraudulently obtained documentation and these means were used to achieve registration. By this means the payment of VAT to HMCE was evaded and bank accounts were opened through which the proceeds of the conspiracy were channelled. The appellant, when seeking to register vehicles, would himself use false names. The vehicles, once registered, would be sold on and the conspirators would profit from the sale and the uncollected VAT. 8. An enquiry was commenced into the registration of these vehicles and the appellant was identified, not only from his fingerprints which were found on numerous documents relating to the vehicles, but also identified by officers who recognised him as one of the people who regularly attended DVLA offices to make the registration applications. 9. The appellant was arrested on 1 st February 2005 at his home at Eskdale Cottage, Metal Bridge, Carlisle, which had been purchased in the name of Neil Moore. The property was searched. In addition to paperwork relating to the various motor vehicles involved in this case, there were also found numerous items which demonstrated that the appellant lived an opulent lifestyle. 10. It was the prosecution’s case that the conspiracy covered a large number of motor vehicles but for the purposes of the Crown Court prosecution they limited the number of vehicles upon which they would rely to prove their case. When the appellant entered his guilty pleas he did so on the basis that he was party to a conspiracy to evade the liability for the payment of VAT on the importation and registration of 15 motor vehicles which were particularised in the basis of plea. It was his case as set out in the written basis of plea that in pursuit of the conspiracy he passed money through his own and other people’s bank accounts and that he had taken advantage of his wife and sister by using their bank accounts to pass monies related to the sale and purchase of specific vehicles. That basis of plea was accepted by the court and the prosecution for the purposes of sentencing but was not accepted by the prosecution for the purpose of the intended confiscation proceedings. 11. At the end of the sentencing hearing a timetable was set for the confiscation proceedings and for the service of statements. The appellant was ordered to serve, by 3 rd August 2006, a statement pursuant to Section 18 of the 2002 Act detailing all assets held by him; the prosecutor’s statement under Section 16 of the Act was to be served by 28 th September 2006 and the appellant’s Section 17 statement in reply by 22 nd October 2006. The appellant’s then solicitors filed an affidavit on 23 rd October 2006 and on the same day the prosecution served their Section 16 statement. The appellant did not file a Section 17 statement despite the granting of extensions of time within which to do so. The Confiscation Proceedings 12. The confiscation proceedings commenced on 4 th March 2008 and the judge heard evidence over a period of some eight days. The prosecution relied on a schedule which set out the value of and VAT payable on motor vehicles dealt with by the appellant in pursuance of the conspiracy, details of which had been obtained from documentation recovered from various locations connected with the appellant. In addition, some vehicles were still in the appellant’s possession. A further schedule set out details of lodgements into six bank accounts which were either in the name of the appellant or were known to have been used by him in furtherance of the conspiracy. 13. The appellant gave evidence at the confiscation hearing over a period of two days. The judge was, therefore, well placed to be able to form a view of the appellant’s truthfulness and the extent to which he had been frank with the court. The judge did form a view of the appellant and expressed that view in trenchant terms in his ruling which he gave on 18 th April 2008. He noted that the appellant admitted that all the vehicles referred to by the prosecution had “passed through his hands” when he was engaged in the buying and selling of them but that the appellant maintained that he received only a commission of between £500 and £100 per vehicle from others on whose behalf he acted as a commission agent. The appellant said that he had not acted dishonestly in relation to the motor vehicles despite his guilty pleas and the fact that prior to sentence he had written a letter to the judge stating that he had taken a leading role in the conspiracy and expressing his regret for committing the offences. 14. The judge rejected the appellant’s account and concluded that “he was the driving force, organiser, architect and brain behind this conspiracy … that he run it for the purposes of making vast profit”. He also found that the appellant was “a manipulative, deceitful person who cannot distinguish fact from fiction and will lie to anyone at any time if he perceives that it is to his advantage and that it will suit his own ends”. The judge rejected the appellant’s evidence which amounted “to a bare denial that he has any realisable assets” and found that he had not produced any credible evidence to show that he no longer retained any proceeds of his criminal activities and that the appellant refused “to disclose the extent of his assets or their whereabouts and that his possession of designer labelled items and his ownership of high value fast motor cars … simply serves to illustrate his opulent lifestyle and the wealth that he exudes but failed to disclose”. 15. In his ruling the judge set out a number of examples of the appellant’s dishonesty. It is not necessary to refer to them at length in this judgment; examples will suffice. In May 2004 and June 2005 the appellant had lied to probation officers tasked with preparing pre-sentence reports upon him when he told them that he was the father of a young child. On 9 th June 2006 when the appellant was sentenced for the instant offences he sought to deceive the judge when he caused his counsel to tell the court that he was the father of a child. In truth, the appellant had no children and the purpose of the lie was to mislead the court into taking the appellant’s separation from the child into account in mitigation. Moreover, the appellant had acquired assets in false names. This was true of the appellant’s home, Eskdale Cottage, and the judge also found that the false name used on that occasion was one of a number of aliases used by the appellant. He rejected the appellant’s evidence that he was a mere tenant of that property and that he paid rent for his occupation of it to Neil Moore. 16. The judge summarised his assessment of the appellant’s truthfulness as follows: “Further, I regret to say that in my judgment the defendant is the sort of man who cannot lie straight in bed at night. Indeed, in my judgment, he would not recognise the truth if it stood up and bit him.” 17. The judge found, in accordance with Section 75(2) of the Act, that the appellant had a criminal lifestyle and accordingly the assumptions in Section 10 of the Act applied subject to the proviso in Section 10(6) that the court should not make a required assumption in relation to particular property or expenditure if either the assumption is shown to be incorrect or there would be a serious risk of injustice if the assumption were made. The judge went on accurately to set out the law which he had to apply when determining the appellant’s benefit from his general criminal conduct and the recoverable amount. 18. The main elements of benefit identified by the judge were as follows: • Value of motor vehicles subject of the indictment and the VAT evaded - £2,873,658.61p • Value of other motor vehicles transferred to the appellant and the VAT evaded - £5,186,396.21p • Credits into known bank accounts - £1,968,845 • Other vehicles seized - £299,147.78p • Eskdale Cottage - £175,000 • Jewellery seized - £12,700 • Watch seized - £36,000 • Three further vehicles seized - £150,000 19. In deciding upon the recoverable amount the judge firstly identified realisable assets in the appellant’s possession worth £446,747.62p. Those assets included motor vehicles, his half share in Eskdale Cottage, jewellery, a watch and other items recovered from Eskdale Cottage. The judge, having found that the appellant had not provided any credible evidence as to what his realisable assets were, stated that it was for the appellant to show why the confiscation order should not be made in the sum of the determined benefit. The judge declared himself satisfied that the appellant had appreciable and significant hidden assets and that he had provided the court no assistance whatsoever in identifying them. However, the judge said that he would stand back and take a broad view to try to assess justly the value of the property which the appellant had failed to disclose. He put that value at £6.5 mil and made the confiscation order to which we have already referred. The Grant of Leave to Appeal 20. Following refusal by the single judge, the appellant successfully renewed his application for leave to appeal against the confiscation order to the full court. On 29 th November 2010, Kenneth Parker J giving the judgment of the court said: “4. On this application a number of grounds are put forward. The principle ground, however, is that the judge adopted the wrong approach in principle by evaluating the benefit from the criminal conduct on the basis of the gross value of the vehicles imported instead of the VAT that was lost. Counsel for the applicant has referred to authorities where it is plain that the benefit has, contrary to this case, been calculated on the amount of tax, whether that is direct or indirect tax, that has been lost to the Revenue rather than the value upon which the tax has been calculated or in respect of direct taxation the amount, say, of the trade as turnover. 5. It seems to us that in the light of those authorities the point is at least arguable. We do draw, however, specific attention to the language of the Proceeds of Crime Act which is broad in that it refers to property obtained by a relevant person in connection with the commission of the offence. Plainly on a broad view it could certainly be argued that the property obtained is indeed the property in the vehicles and therefore the correct valuation would be the value of the vehicle rather than the tax loss. However, it does seem to us particularly in the light of other cases and the policy adopted by prosecuting authorities in other cases, that the point that has been identified as the principle point is an arguable one.” The Competing Submissions 21. Mr Marsh-Finch who appeared on behalf of the appellant before us as he did before the full court on the renewed application for leave (but not at the Crown Court hearing) conceded that the applicant has a criminal lifestyle and that the court must make the assumptions set out in Section 10 of the 2002 Act subject to the proviso contained in Section 10(6) . Further, he does not take issue with the prosecution’s assertion that the relevant period for the purposes of the court’s inquiry commenced on 29 th January 1999. 22. In a document entitled “Revised Skeleton Argument” dated 13 th January 2011 (i.e. revised following the granting of leave to appeal by the full court) Mr Marsh-Finch sought to argue that the judge’s assessment of benefit in this case was flawed and unfair; flawed because the judge, prosecuting counsel and defence counsel gave the phrase “any property transferred to the defendant” in Section 10(2) of the Act, too wide a meaning and included in the calculation of benefit property which “passed through the defendant’s hands or his business in any capacity whatsoever”; and unfair because some of the judge’s comments during the hearing would “indicate to a reasonable onlooker that the appellant was not receiving a fair hearing because of the court’s annoyance at having been misled in relation to the appellant’s personal circumstances at the time of sentencing. It is not suggested that the judge was actually intentionally biased but subconsciously he may not have given the appellant a sufficiently fair hearing to accord with the standards applicable in English criminal law…” At one point in the written submissions it appeared that the appellant wished this court to reconsider the basis of the appellant’s involvement in this offending as determined by the judge and upon which the judge made clear findings of fact. 23. In support of the submission that the approach to the determination of benefit taken by all involved in the Crown Court confiscation hearing was flawed, the transcript of that hearing has been trawled and a number of comments made by counsel and the judge highlighted. We are far from satisfied that the full court gave leave to argue this proposed ground of appeal and although Mr Marsh-Finch referred to these matters in his oral submissions before us, he did so only in general terms. In any event, having read the judge’s long and careful ruling we are satisfied that there was no error of law in the approach taken by the judge and counsel to the identification of property transferred to the appellant, that there is no evidence of unfairness in the way the judge dealt with these matters or in his assessment of the appellant’s truthfulness and that the judge’s conclusion as to the role played by the appellant in this offending was entirely justified on the evidence before him and is unassailable in this court. 24. Mr Marsh-Finch’s main submission in argument before us was put somewhat differently from the ground upon which leave was granted. In essence, it is a double accounting argument. The argument runs, by way of example, that if a car is purchased for £40,000, an application of the Section 10 assumptions would result in the £40,000 payment and the car itself, where it is transferred to the appellant, being treated as benefit and when the car is sold on, the sale price of the car (£40,000 plus any profit achieved on sale) together with the VAT payable on registration of that vehicle would also form part of the benefit. This approach would unjustly inflate the benefit obtained from each transaction. Moreover, it is argued that the figure of £1.9 million benefit identified as payments into the bank accounts in the name of or used by the appellant does not support the level of activity or number of transactions relied upon by the Crown. Furthermore, it is submitted that the £1.9 million should not be considered to be an additional element of benefit as money has been counted in and out of the accounts and the sums are already part of the purchase and sale of the vehicles referred to above. 25. Mr Marsh-Finch’s final submission relates to what were referred to during submissions as “hidden assets”. It is not a submission previously made in the documents submitted to the court and is, therefore, not a ground on which leave was sought or given. In short, it is argued that the judge arrived at a recoverable amount which is wrong and unfair. The investigation of the appellant’s affairs, it is said, was very thorough. Assets to the value of only a little under £½ million were identified and to make a finding that “hidden assets” exist based on a comparison between benefit and identified assets is unjust. 26. Mr Evans, for the respondents, submits that those responsible for the prosecution of this appellant and the investigation into his affairs were very aware of the dangers of double accounting when assessing benefit arising from transactions relating to the motor vehicles. Initially the benefit figure arrived at by a strict application of the Section 10 assumptions was in the region of £64 million. This was recognised as unjust and the figures ultimately relied upon by the prosecution and accepted by the judge included only the value of the vehicle transferred to the appellant and the VAT relating to it. As to the bank accounts, in order to avoid complexity and to adopt a pragmatic approach given the potential scale of the benefit figure in this case, the prosecution ignored all transactions under £5,000. Moreover, the prosecution relied only upon lodgements into known bank accounts of the appellant. There was evidence of false names being used by the appellant to acquire assets and of bank accounts held abroad. For example, there was evidence of a bank account held in the Isle of Man out of which £¼ million had been transferred. As to the recoverable amount Mr Evans reminded the court that the judge had heard evidence on these matters, rejected the evidence given by the appellant and found that there was significant evidence of the appellant dealing with assets in different names. At the Crown Court the prosecution had invited the judge not to treat the final benefit figure as the recoverable amount but to take a pragmatic approach based on an assessment of the evidence and the justice of the case. In the event, the judge took a figure for the recoverable amount of approximately two thirds of the benefit figure. The judge’s approach, he submitted, was not unjust. Conclusion 27. Having considered the submissions of Mr Marsh-Finch, we were satisfied that neither the approach of the judge nor the conclusion he reached was susceptible to proper criticism and we dismissed this appeal.

```yaml citation: '[2011] EWCA Crim 1176' date: '2011-05-12' judges: - LORD JUSTICE RIX - HIS HONOUR JUDGE RADFORD THE RECORDER OF REDBRIDGE ```

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Neutral Citation Number: [2012] EWCA Crim 2565 No: 2012/4216/C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 22 November 2012 B e f o r e : THE VICE PRESIDENT (LORD JUSTICE HUGHES) MR JUSTICE RAMSEY MR JUSTICE IRWIN - - - - - - - - - - - - - - - R E G I N A v SINA JADDI - - - - - - - - - - - - - - - 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 Halim appeared on behalf of the Appellant Mr M Robinson (Solicitor Advocate) appeared on behalf of the Crown - - - - - - - - - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: This defendant pleaded guilty at the Crown Court to offences of possession of identity documents with improper intention. He appeals against his conviction on the grounds that he had available a sound legal defence under section 31 of the Immigration and Asylum Act 1999. He contends that the advice given to him by his trial advocate was, although otherwise careful, in this respect in error. 2. The defendant arrived at Gatwick Airport on 31st May 2012. As we shall explain in a moment, the precise sequence of events at passport control is surrounded by some limited penumbra of doubt. But what is clear is that he had in his possession a French passport in the name of Marcelle Girette and a French identity card in the same name. Both were in fact forgeries. The passport had a bogus bio data page inserted into what had once been a genuine passport and the identity card was wholly counterfeit. 3. The falsity of the documents was spotted and so he was detained. It turned out that his fingerprints were on record in this country because he had made an asylum claim here in the past which had been refused. 4. From a stage before he was interviewed by the police he was advised by a very experienced local solicitor who was well familiar with immigration cases and in due course that gentleman represented the appellant at the Crown Court. Since it is contended that the advice which the appellant was given was in some respects erroneous, the defendant has chosen to waive privilege. That has been very helpful because the result of it is that we have a very full and careful statement from the solicitor in question, which both sides to this appeal accept as factually accurate and complete. This is known: that the defendant's case, as advanced through his solicitor by way of mitigation after his plea of guilty, was as follows. He is an Iranian citizen. In the early 2000s he was in this country as a student and had a student visa permitting him to be here. In 2006 he made an asylum claim, claiming that he was fleeing from persecution in his home country. That was rejected after investigation by the Secretary of State. The appellant appealed that, no doubt to the adjudicator as it would then have been, and it may be further, but certainly by 2008 all his legal routes of appeal were exhausted. 5. In that year, 2008, he returned to Iran. He had not been deported, although no doubt that would have happened had he not returned. He said that the reason that he returned was that his father had died and he went back to be with the family. Thereafter, according to the account which he advanced, he had been suspected in Iran of being a British spy, detained for about ten weeks and subjected to physical ill-treatment. He had then been released but he was politically active, taking part in anti-government demonstrations, and he also incurred disapproval because he pursued an affair with a girlfriend who was now a married woman, he says because she had been pressured by her father into marrying someone else. 6. With that background he asserted that he had left Iran a second time because he had a genuine fear of persecution there and he asserted that it was his intention to travel by one way or another to the United Kingdom and to make a fresh new claim for asylum here. He went initially to Turkey where he stayed for about a month and while he was there, he says, he sought out an agent, a fixer, who he says agreed for a fee of €12,000 to get him to the United Kingdom. Through the assistance of either that agent or a further agent, he journeyed from Turkey to Greece on a different false passport and after two to three days in Greece he moved on to Rome, again travelling on some form of false documentation. He spent three or four days in Rome and then, as arranged he says by the person helping him, he went first by train to Bologna and then there boarded the flight which brought him to Gatwick and to the beginning of the story that we have told. He has said throughout that his object was to claim asylum here. Whether he is indeed a refugee or not remains undetermined. We are told that he has now undertaken the first screening interview by the immigration authorities, but his claim to be in fear of persecution has yet to be decided upon by the Secretary of State, still less has it been tested in the tribunal. 7. Subject to the possibility of the statutory defence under section 31 of the Immigration and Asylum Act 1999, there can be no doubt that the defendant was guilty of the offences of possession of the two false identity documents with the necessary improper intention. On any view he knew that they were false and on any view he had them with him with the intention of using them to establish personal information about himself - in other words with a view to passing under the false identity that they provided. 8. So the question revolves around section 31. Section 31 is a statutory defence which was introduced into English law, as the solicitor originally acting for the defendant rightly says rather belatedly, in order to give effect to article 31(1) of the Refugee Convention. Article 31 provides: "1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence." When that provision of the Convention to which this country has been a signatory for a great many years was given effect, it was given effect via section 31 of the Immigration and Asylum Act 1999 inserted by the Identity Documents Act 2010. Section 31 provides as follows, under the side heading: "Defences based on article 31(1) of the Refugee Convention: "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." The solicitor who acted for Mr Jaddi in the Crown Court was very familiar with this section. He considered it and he advised Mr Jaddi that he had no defence and that he ought to plead guilty. The submission which is now made is that that advice was erroneous because the defendant did have a defence which could have been advanced before the jury; indeed Mr Halim submits that it would have been bound to succeed. 9. This court does have power to entertain an appeal against conviction even though the defendant pleaded guilty in the trial court. It is very rarely appropriate to do so because in the ordinary course of events a plea of guilty amounts to an admission of the facts which amount to the offence. There is a very limited exception where the plea of guilty is a nullity, but that is clearly not an arguable possibility here and nor is it contended. 10. Another situation in which the court can hear an appeal against conviction despite a plea of guilty is if this court is persuaded of two things. First, that the plea was tendered on advice which was wrong and also, secondly, that there was a defence which would quite probably have succeeded so that a clear injustice can be shown to have occurred. For those propositions see R v Boal (1992) 95 Cr.App.R 272 . It is that jurisdiction described in Boal which Mr Halim contends we should exercise in this case. He reminds us, correctly, that this court has done so in the context of the section 31 defence in at least two cases, one of which is reported as R v Mohammed (Abdalla) [2011] 1 Cr.App.R 35 . There the court considered four cases in all. It considered whether the defendant had received advice as to the section 31 defence or not and it considered whether the defence would have been available or not. In those cases this court found that in one of them, the first, there had been advice about section 31 and the defendant had been left to make an informed decision of his own as to whether to advance the defence or not. Accordingly, his appeal failed. In the other cases the court was satisfied that no advice at all had been given and went on to consider whether the defence under section 31 had good prospects of succeeding. It concluded that it had, but in two of those cases there was an express concession of the point by the Crown at the appeal and in the third, counsel who had appeared at trial expressly conceded that she ought to have advised that the defence could succeed. So the cases which succeeded in Mohammed (Abdalla) were cases where the point was substantially conceded. 11. In the present case, it is perfectly clear to us that the defendant, unlike the three successful applicants in Mohammed (Abdalla) did receive advice and indeed thorough and careful advice from the solicitor who acted for him in relation to section 31. The plea that he entered as a result was plainly unequivocal, but we agree with Mr Halim that unlike the case of the first defendant in Mohammed (Abdalla) the advice that this defendant received was not an explanation of how the defence could be run, with an invitation to him to make up his own mind whether to advance it or not; this was a case in which the advice received was that the defence was simply not available. The solicitor says with complete transparency, such as one would expect from an officer of the court, this: "I did not discuss the statutory defence in any detail with Mr Jaddi as it seemed clear to me that whilst a court might well accept that his 2006 claim for asylum could be disregarded as he had fresh reasons to seek asylum, his time spent in Italy where he was supplied with the false French documents meant that he could not succeed under section 31." 12. It follows that we are persuaded that what we will call the Boal exception is available to the defendant and there is jurisdiction to entertain the appeal. The question then becomes: 'Did the section 31 defence have good prospects of succeeding?' 13. There are in section 31 two potential obstacles to this defendant successfully relying on the statutory defence. The first is the one that principally concerned the solicitor who advised him. It arises from a combination of the words in section 31(1): "Having come to the United Kingdom directly from a country ..." (our emphasis), together with the provisions of section 31(2) which effectively say that the defence is not available if the refugee stopped in another country where he could reasonably have been expected to make his asylum claim. 14. The second potential obstacle to the defence in this case arises from the terms of section 31(1)(c). Those require for the defence to succeed that the claim for asylum be made as soon as was reasonably practicable after arrival in the United Kingdom. We take those two potential hurdles in turn. 15. Although Mr Robinson for the Crown has drawn our attention to the fact that the defendant stayed for something like a month in Turkey and for some days in Greece, he does not in the end contend that in either of those countries the defendant could reasonably have been expected to have made his asylum claim. Turkey is a place where, for him at least, appropriate refugee protection could not be relied upon. Greece is a friendly country, a member of the European Union and a signatory to the Refugee Convention, but it is right to say that there are currently some reservations in this country about its methods of dealing with refugees. As we understand it, currently it is unusual for a person to be returned to Greece under the terms of the Dublin Convention 1990 for asylum claim to be made there. That being so, that would bear on the question of whether a person could reasonably be expected to make a claim there in the first place. Accordingly, it is necessary to concentrate, as the trial solicitor did and indeed as Mr Robinson in the end does here, on the stay in Italy. 16. On the defendant's behalf Mr Halim's careful submission is that the solicitor's advice that this stay in Italy was fatal to the statutory defence is erroneous. It overlooked, says Mr Halim, the availability to the defendant of the contention that he had merely been in transit in Italy and that therefore he was not to be treated in law as having "stopped" there for the purposes of section 31(2). Says Mr Halim, that follows from the decision of the House of Lords in R v Asfaw [2008] UKHL 31 , [2008] 1 AC 1061 . That was an in-transit case of a slightly different kind. The defendant travelled through Heathrow and was stopped when presenting a false passport outward bound for Washington at the boarding gate. She had arrived at Heathrow not many hours beforehand, but because of the flights that she was taking and the manner of her travel she had crossed from air side to land side and was presenting herself at the boarding gate to board a flight to Washington. The actual issue in Asfaw was quite different. It was whether the section 31 defence applies not only to the offence to which it is made explicitly referable, namely the identity documents offence, but also to the additional offence with which Mrs Asfaw was charged of attempting dishonestly to obtain services, that is to say the proposed flight to Washington, by deception. The decision of the House of Lords was that in order to give effect to this country's obligations under the Convention not to punish refugees who are present without authorisation, provided they fulfil the necessary conditions, the defence had to be extended beyond its explicit terms to apply also to the offence of obtaining services by deception. However, it is right to say that in thus concluding the House of Lords accepted a proposition which derives from the judgment of Simon Brown LJ in R v Uxbridge Magistrates' Court ex parte Adimi [2001] QB 667 at 687. That was an observation to the effect that in order to give effect to the Convention it is necessary not to punish those who are merely in transit in a third country or, in Mrs Asfaw's case, in this country. A person who is genuinely in transit does not, on the authority of Asfaw , lose the protection of the Convention and thus of section 31. 17. Adimi , it is necessary to remind ourselves, was a decision made before section 31 and its statutory defence came into existence. Indeed the statutory defence came into existence very largely because of the decision in Adimi . It follows that Adimi could not provide any decision on the construction of section 31 as eventually enacted, but Asfaw could and did. 18. The defendant's instructions appear to have been, in this respect consistently, that he had not claimed asylum in either of the other two countries and particularly in Italy because he was bent on claiming asylum here. He said that he was bent on claiming asylum here because his agent had advised him that since he had been here before and had made a claim here before that is what he ought to do. We are unable to see that the fact that he had that advice in his agent is determinative, but that certainly was his case. We observe also that the Secretary of State appears to be processing the claim which the defendant has made to asylum in this country and does not appear to be asserting that he ought to be returned to Italy under the terms of the Dublin Convention. 19. It may at first sight appear a little surprising that the explicit terms of section 31(2) may not catch defendants such as this one, if they have passed for some days through another country in which they could reasonably have expected the same approach to be given to an asylum claim as would be given to it here. But we are, we think, compelled by Asfaw to conclude that it is possible that the defendant could have advanced the section 31 defence despite the few days stopover in Italy. We do not say whether it would have succeeded or not, but we think it had sufficient prospects of success for it to be right for us to have regard to it and to provide him with a reason for quashing his conviction. 20. The second hurdle is different. As we have said, section 31(1(c) requires for the statutory defence that a defendant made his claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom. Mr Robinson for the Crown contends that the defendant transparently failed to do so. Finding himself successfully at Gatwick Airport in the presence of the uniformed officials of Her Majesty's Customs and the immigration officers, the defendant did not announce his claim to asylum. Instead, says Mr Robinson, he produced first one and then a second false document and, says Mr Robinson, the clear inference is that what he was trying to do was to get into the country and disappear. 21. There appears to be, to us, the limited penumbra of uncertainty to which we referred earlier about precisely what happened at the immigration control and because of the defendant's plea of guilty it was never investigated. The statement of the immigration officer contains two propositions. One a global one and one on the face of it a particularisation of it. The global one is that the defendant approached her desk and handed her the French passport and the French identity card. However, she goes on to say that she examined the passport, that she suspected that it was false because it did not scan on her machine and that she told the defendant that, whereupon he produced the identity card. Thereafter she says that she asked him where he had come from and he replied, truthfully, Bologna. At that stage she said because she was not satisfied that he should be admitted formally, she issued him with the necessary Home Office form advising him that he was being detained. If that is right he had omitted any claim to asylum not only on first arrival at passport control but also when his passport failed and instead chose to provide a second forged document. 22. He, however, in a statement which it has to be said has only been made since the proceedings in the Crown Court, gives a slightly different account. He says that the officer tried to scan his passport and that it would not scan. He says that he remembers her then going off to check with a colleague, but more importantly he says that when she came back with her colleague, the colleague asked him his nationality and he said both that he was Iranian and that he was here to claim asylum. On the face of it, that does not explain the tendering of the identity card, because in the ordinary way one would only tender the passport and one would only get to tendering the identity card if there was something wrong with the passport. 23. There is further doubt about it because according to the solicitor who represented him at the Crown Court, he had enquired of the defendant whether he had identified himself as an asylum seeker to the officers at Gatwick. He had done that not so much because he was investigating the application of section 31(1(c), as because he wondered whether if the defendant had made it clear from the outset that he was an asylum seeker he had ever had the necessary dishonest intention in respect of the use of the false documents. But whatever the reason for the enquiry, the answer that he had had from the defendant, he says, was that the defendant had handed the passport and identity card to the immigration officer, who had asked "What is your nationality?", and then he had said who he was and that he was here to claim asylum. So he told the solicitor that he handed both the passport and the card and on the face of it one would have thought they must have been handed in sequentially rather than together, as the officer says. But there is doubt about all of that and it has never been investigated. 24. The defendant also says through Mr Halim that he always intended to go to Croydon where he knew the immigration authorities had their offices which deal with asylum and that is where he was going. Further, says Mr Halim, there was no sign up at Gatwick to say that asylum seekers must identify themselves immediately. Accordingly the defendant was, says Mr Halim, bound to succeed in the statutory defence because he had not failed to make his claim for asylum as soon as was reasonably practicable. It is apparent that by the time this defendant got to Gatwick there was not, on his own account, any question of him going to any other country. This was the place he says where he wished to claim asylum. 25. The plain purpose of article 31 of the Convention and of section 31 which derives from it is to avoid criminalising genuine asylum seekers simply because they use false documents to get themselves to the place where they can make their asylum claim. Everybody understands that if you are fleeing from persecution you may very well be unable to travel on your own passport. However, the purpose of article 31 and section 31 is not to enable such a person to gain entry to the safe country of his choice unrestricted and there to live illegally and make his asylum claim when he feels like it. Still less is it to enable him to live illegally until he is caught and then make his asylum claim. 26. The destination country is, as it seems to us, plainly entitled to take the stance which the judge in this case echoed when he was sentencing the defendant. That is that it is necessary to protect its borders and to know who is passing through them. In very general terms, it seems to us that in the great majority of cases there will simply be no excuse for a genuine refugee not to make himself known immediately he arrives in the safe place - that is to say the arrivals immigration hall at a United Kingdom airport. Moreover, from the point of view of sensible immigration control, that makes sense. It is a great deal more difficult to discern whether a claim to be a refugee is genuine if it is not made until some time later and especially if it is only made when it is forced on the claimant by discovery that he is living illegally. 27. Mr Halim's submission however is that the combination of Asfaw with Adimi is to preclude that approach to section 31. We respectfully disagree. It is correct to say that in Adimi Simon Brown LJ expressly rejected the submission made in that case that Mr Adimi failed to come within article 31 of the Convention because he had not made his claim at arrivals but only some time a little later. Adimi however is a decision on the Convention and not on the terms of section 31 which are and were presented to Parliament as intentionally a little narrower. Moreover, Adimi is a decision of the Divisional Court and not binding on this court. It is also true that the passage in Simon Brown LJ's judgment to which we have just referred was quoted without qualification by Lord Bingham in his speech in Asfaw at paragraph 16. But of course the point did not arise in Asfaw for decision and there is no such reference in the other speeches. Moreover, Lord Bingham makes clear in paragraph 24 that when section 31 was introduced into Parliament it was a deliberately narrower definition in some respects than the terms of article 31 and one of the respects in which it is narrower is the specific requirement of section 31(1)(c) which we are now addressing. Is there nevertheless plain principle to be derived from the proposition as enunciated by Simon Brown LJ in Adimi ? It seems to us that the principle is limited. In reaching the conclusion that he did there, Simon Brown LJ referred to the practical necessities encountered by refugees and particularly to the work of Mr Grahl-Madsen, the Status of Refugees in International Law [1972] 2 page 219. He observed, citing that work, that a person crossing a frontier illegally may have good reason for not giving himself up at the nearest frontier control point. He may be perfectly reasonable in finding his way to the capital or another major city. 28. We entirely agree that there may be situations in which it is perfectly reasonable to act in that way. That may especially be so if the traveller genuinely believes that he would be simply sent back immediately or if he arrives on a remote beach and simply has to find his way somewhere. He is not, one would anticipate, normally to be criticised for not having found the police station that is nearest. But the situation described by Grahl-Madsen and endorsed by Simon Brown LJ and by Lord Bingham is quite a long way away from the situation of a traveller who is arriving at an English major airport and is in the hands of officials. 29. As it seems to us, the question of whether section 31(1)(c) is satisfied or not must be a question of fact in every case. Accordingly, in the Crown court it is a question for the jury. The question of whether it was reasonably practicable to make a claim for asylum sooner than was done is an objective one for the jury to decide but, in deciding it, the jury will certainly have to take account of the defendant's state of knowledge, intention and mind. It will also need to establish precisely what happened. For the reasons which we have explained, we do not think the facts in this case are sufficiently clear and no jury has ever applied its mind to the question of whether this defendant made his claim for asylum as soon as was reasonably practicable or not. 30. Beyond attempting to express the general considerations which we have, it is not for us to decide that question. We confine ourselves to saying that, as it seems to us, for the reasons which we have endeavoured to give, it is certainly open to a tribunal of fact to conclude and in many cases it may be the right conclusion, that there is simply no reason for such a traveller not to identify himself the moment he is in friendly official hands. Whether that applies to this defendant or not remains to be decided. The point has never been investigated and nor has the transit question where his case is rather stronger. We are satisfied that there was a defence under section 31(2) which was available to him to advance and which was not advanced because of the conscientious but in the end over summary advice which he received. For those reasons, the conviction must be quashed. 31. We have asked Mr Halim what should happen in the event that he succeeds to that extent. His submission is that the defence was bound to succeed. If that was so there would be no occasion for a retrial, but we do not agree that it is so, for the reasons which we have endeavoured to give. Accordingly, the right order is to quash the conviction but direct a retrial. 32. Where was he tried Mr Halim? Can you remind us. 33. MR ROBINSON: Lewes Crown Court, my Lord. 34. THE VICE PRESIDENT: There is no reason why it should not go back to Lewes. Is Lewes the ordinary place for these cases? 35. MR ROBINSON: Yes. 36. THE VICE PRESIDENT: Mr Halim, there is no reason why it should not go back to that court, is there? 37. MR HALIM: Canterbury is the better Crown Court. 38. THE VICE PRESIDENT: Why? 39. MR HALIM: Only because he is in Canterbury Prison at the moment. 40. THE VICE PRESIDENT: He can be tried at either of those Crown Courts or any other convenient Crown Court according to the direction of the Presiding Judges of the South Eastern Circuit. He must be arraigned on a fresh indictment containing the two counts to which he previously pleaded guilty and that must happen within two months, unless there is further order by this court. In the meantime I suppose he is in custody, Mr Halim? 41. MR HALIM: Yes, he is approaching the end of that sentence. 42. THE VICE PRESIDENT: Quite. Do you have any application that you ought to make, or not? Sentence has gone, you see. 43. MR HALIM: My Lord, my concern is not to place this appellant in any further position -- I have not taken instructions. I did not expect -- 44. THE VICE PRESIDENT: The best thing is for us simply to say that any application for bail, if he is advised to make one, should be made to the Crown Court. 45. MR HALIM: Yes. 46. THE VICE PRESIDENT: He must not languish for long in prison if he has already spent a long time there. 47. MR HALIM: My Lord, perhaps the onus does fall upon me to make an application for bail given the quashing of the conviction. 48. THE VICE PRESIDENT: I suspect that you will not have at the moment any alternative address or conditions to suggest. He would be much better off making it to the Crown Court when you have. 49. MR HALIM: I only thought it might be prudent on the basis that if any decision is to be reached in principle then it might be made -- 50. THE VICE PRESIDENT: I think the most we can say is that the application should be made to the Crown Court. We have no doubt that the Crown Court will be very much alive to the time that he has spent in custody. It will also need to investigate what the alternative is and what practical arrangements can be made to ensure that he remains on hand. 51. MR HALIM: Very well, my Lord. 52. THE VICE PRESIDENT: Mr Halim, thank you very much for extremely helpful submissions.

```yaml citation: '[2012] EWCA Crim 2565' date: '2012-11-22' judges: - (LORD JUSTICE HUGHES) - MR JUSTICE RAMSEY - MR JUSTICE IRWIN ```

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

Neutral Citation Number: [2013] EWCA Crim 1592 No: 2012/6532/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 10 September 2013 B e f o r e : LORD JUSTICE TREACY MR JUSTICE HICKINBOTTOM MR JUSTICE NICOL - - - - - - - - - - R E G I N A v R.D. - - - - - - - - - - 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 Kimsey appeared on behalf of the Appellant Miss A Llewellyn-Waters appeared on behalf of the Crown - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE TREACY: On 24th October 2012 in the Crown Court at Kingston upon Thames, this appellant was convicted of a number of sexual offences relating to historical allegations made by four complainants. Three of the complainants were his nieces, one complainant was his biological daughter who had been adopted by another member of his family. Looked at comprehensively the allegations covered the period between 1949 at the outset and 1973 at the conclusion of the events described by the different complainants. That means that there has been a period of delay in bringing these matters to trial, ranging between 39 and 63 years. That sort of level of delay is extreme even by the standards of courts in this jurisdiction which are used to trying allegations of historic sexual abuse. 2. It is necessary to give a brief history of the allegations so that the matters to be considered by this court fall into context. The first complainant was J. Her allegations, counts 1 and 3, spanned the years from 1949 to 1956, covering a period when she was aged 8 or 9 to a time when she was aged about 14. At that stage the appellant was aged between 15 and 22. The counts were specimen counts, with count 1 being the more serious, an allegation of attempted rape. The offences were alleged to have occurred during school holidays at J's maternal grandparents' home in South Wales, which was also the home address of the appellant. 3. During that period the appellant worked in a local colliery after leaving school. There are no shift records showing his working pattern. In late 1953 he joined the army and performed military service until January 1957. Part of his service was performed as part of the British Army on the Rhine. The remainder of his service was performed within the United Kingdom. The appellant was a bandsman, performing in a military band, and at times he went on tour with that military band. However, during his period of military service he had leave and the evidence showed that he would return to his parents' home. Complaint is made of the sparsity of military records for the time of his service and also in relation to the absence of witness evidence from military colleagues who might have provided assistance as to the nature of his military service and in particular at what times he was available to go on leave and thus visit the place where the offences were alleged to have been committed. 4. The second complainant was G. She alleged that the abuse of her took place between 1953 and 1957 when she would have been aged between 10 and 14. She was close to the first complainant J. They lived in the same part of England and attended the same school. She too would spend school holidays, particularly summer holidays, in the home of the applicant's parents. She made complaint of matters of sexual abuse over a period of time, again reflected in specimen counts, counts 4 to 10 on the indictment. 5. In the case of these two complainants, their own parents are no longer in a position to give evidence. A surviving aunt is unwilling to support either side's case but says that she was unaware of anything untoward ever occurring. The complainants' grandparents are dead and complaint is made that the absence of those and other relatives means that the issues surrounding what took place in the grandparents' home, including the timing of visits by the complainants, the timing of leave visits by the appellant when he was serving in the army and the layout of the premises themselves, are matters of which he has been deprived of useful evidence. Moreover, school records relating to those girls are not available, nor are medical records in relation to them. 6. The third complainant was S, the biological daughter of the appellant. Her complaints related to a period between 1965 and 1971 by which time the appellant had married and was living in his own home with his present wife. The allegations relating to S are the most serious in this case involving repeated rapes which had been preceded by indecency. Again, specimen counts were preferred in Counts 11 to 15. The process of searching for documents as the trial was being prepared enabled an electoral roll to be found which cut down the period during which the Crown alleged that rapes had been perpetrated upon this complainant at a particular address at which she had been in the habit of going to stay with the appellant and his wife. Thus it was that he was acquitted on two of the counts, counts 12 and 13, of specimen rapes because the information from the electoral roll demonstrated that he would not have been resident at the property in question during the dates covering those two counts. The applicant's mother was said to have been present on the occasion of the visits by S when she had been abused. She unfortunately has died and evidence which she might have provided is therefore unavailable to the appellant. 7. The final complainant was a niece, Y, whose complaints were confined to a single incident occurring in late 1973 (Count 16), shortly before the appellant emigrated to Australia. At the time she was 12 years of age. She claimed that on the occasion of the appellant's mother's funeral he had fondled her breast in the street. That episode was, as we say, a single incident in contradistinction to the allegations made by the other complainants. It has not been possible for the appellant to trace others who attended the funeral to see if they had any useful evidence to give. 8. In addition to the military records which are criticised as inadequate, the appellant on completing his military service in 1957 resumed employment at the local colliery. Again there is an absence of any record showing his shift and holiday patterns. 9. The appellant was first confronted with any allegation in 2008 when G and Y confronted him in Australia. He was subsequently extradited to this country to stand trial. His defence was one of fabrication, an allegation of collusion by the complainants and a denial of any improper conduct by him towards any girl at any time. 10. The appellant was a man of good character, apart from these matters alleged against him and there is no suggestion of any improper activity of any sort carried out by him after the end of 1973. 11. It is helpful at this stage to tabulate the counts on the indictment and on which guilty verdicts were returned and the sentences imposed on the individual counts. Count on indictment Offence Pleaded guilty or convicted Sentence Consecutive or Concurrent Maximum Count 1 Attempted rape of J Convicted 2 years Concurrent 7 years Count 3 Indecent assault upon J Convicted 18 months Concurrent 2 years Count 4 Attempted rape of G Convicted 4 years Concurrent 7 years Counts 5-10 Indecent assault upon G Convicted 2 years Concurrent 2 years Count 11 Indecency with a Child (S) Convicted 2 years Concurrent 2 years Counts 14 -15 Rape of S Convicted 11 years Concurrent Life Count 16 Indecent Assault upon Y Convicted 18 months Concurrent 5 years Total Sentence: 11 YEARS IMPRISONMENT All offences, of course, precede the Sexual Offences Act 2003 . 12. Prior to the trial the defence sought a stay on the grounds of abuse of process due to delay. The judge, having heard detailed submissions made by counsel, made a ruling in May 2012 having reserved judgment to consider the matter over a period of about six weeks. The judge rejected the application. There was a further application made once the four complainants had given evidence at the trial and again the judge rejected the application and held that the trial process was capable of dealing with the problems raised by the passage of time and the potential effect it had upon the ability of the appellant to mount a proper defence and to have a fair trial. The judge gave full and detailed reasons for her decisions and she considered the relevant authorities including the decision of a five judge Court of Appeal in R v F (S) [2011] 2 Cr.App.R 28. 13. Earlier authorities and the decision in F (S) show that a stay on the grounds of delay should only be employed in exceptional circumstances and only if a fair trial is no longer possible owing to prejudice caused by the delay which cannot fairly be addressed in the trial process. Normally the trial process can ensure that all relevant factual issues arising from delay will be placed before the jury, together with appropriate directions from the judge in summing-up. These are essential considerations in the assessment of whether or not a defendant will suffer serious prejudice. 14. The delay in this case is exceptionally long, between 39 and 63 years. The length of the period of itself proves nothing beyond that historical fact. What is of crucial importance is the effect of such delay on the fairness of the trial and the safety of any resultant convictions. In this case the appellant's submissions have not proceeded by reference to generalities based on the substantial lapse of time. Mr Kimsey has rightly concentrated on the question of prejudice to the defence caused by the absence of witnesses and documents arising from the delay. Quite apart from the question of missing materials, there were raised by the appellant in his trial issues of alleged collusion between the complainants and assertions of vagueness and inconsistency within their evidence. Those matters are of course not relevant to considerations of whether the trial should have been stayed on grounds of prejudice arising from extreme delay. They, along with the reasons for delay in reporting, form part of the relevant material for the jury to consider in deciding if the Crown has proved its case. 15. In considering the question of prejudice to the defence, it seems to us that it is necessary to distinguish between mere speculation about what missing documents or witnesses might show, and missing evidence which represents a significant and demonstrable chance of amounting to decisive or strongly supportive evidence emerging on a specific issue in the case. The court will need to consider what evidence directly relevant to the appellant's case has been lost by reason of the passage of time. The court will then need to go on to consider the importance of the missing evidence in the context of the case as a whole and the issues before the jury. Having considered those matters, the court will have to identify what prejudice, if any, has been caused to the appellant by the delay and whether judicial directions would be sufficient to compensate for such prejudice as may have been caused or whether in truth a fair trial could not properly be afforded to a defendant. 16. The appellant's case is that the delay in this matter has led to serious prejudice being caused to him with the result that a fair trial could not and did not take place. 17. First of all, it is submitted that important documents were missing or have been destroyed. They can be divided into a number of categories. Army records although recovered are said in part to be indecipherable or to have failed to provide information as to where the appellant was based at any given time and as to when he would have had the opportunity to visit his parents' home which is where the offences against J and G took place. Secondly, there is an absence of school holiday records for J and G. Their absence has deprived the appellant, it is said, of a chance to compare those dates with his leave dates so as to see what window of opportunity was available for the abuse alleged to have taken place at his parents' home. Next, there are no colliery work records showing what shifts the appellant worked and what holiday periods were afforded to him. Again, those are said to be relevant to the opportunity to have been at home at a time when visits were taking place by the complainants J, G and S. Further, the medical records of the complainants, and G in particular, are pinpointed as significant by their absence. G had suffered from rheumatic fever for which she received substantial inpatient treatment and which is said to be relevant to her evidence as to the timing of the start of the abuse against her. Those records are unavailable. Moreover, she had in the early part of this century consulted a psychotherapist and no records are available of those consultations, and there is a record of a consultation with the psychiatrist whereby he has recorded that she alleged that she had been abused by her father's brother, whereas in truth, if her allegations are correct, the abuse was by her mother's brother. Again, other records of those consultations are unavailable. Finally, as far as documents are concerned, care records pertaining to the appellant's mother are absent. If available it is contended they would have shown precisely when the appellant's mother was living at his home during the period when S was claiming to have been abused there. 18. In addition to absent documentary material, there are said to be a number of potential witnesses who are either dead or unavailable through infirmity. First, other family members who could have described the length and circumstances of the visits by J and G to the appellant's parents' home and given evidence about the layout of the house in the 1950s. Secondly, the appellant's mother concerning S's visit to the appellant's marital home. Thirdly, evidence from army colleagues about band tours and the timing of those. Fourthly, funeral attenders in relation to the allegation made by Y. 19. Mr Kimsey submitted to us that the cumulative effect of all this missing evidence has been to lead to an unfair trial. He argues that the judge wrongly rejected his submissions and wrongly concluded that the trial process could fairly address the issues arising from the delay and the deficits in potential evidence. The judge had wrongly focused on the credibility of the witnesses as a central issue and had failed properly to assess the impact of the missing evidence upon the appellant's ability to mount a defence. It was asserted that the appellant's defence was not merely one of denial, his case in effect raised an alibi which he could not make good and he was prevented from positively attacking the Crown's case which he might well have been able to do had the missing evidence been available. 20. It seems to us that some of those submissions were overstated. This case, although unusual in relation to the length of time which has elapsed, presents difficulties of a sort which frequently occur in cases involving lesser delay. There also underlay the submissions made on behalf of the appellant the assumption that the missing evidence would necessarily have supported the appellant's case, which we are unable to accept. Moreover, the complaints of J, G and S were not date specific but were couched in general terms of sexual abuse occurring on very many occasions during visits during school holidays within wide periods identified in the indictment. Accordingly, an alibi in its true sense was not the issue before the jury. The issue was in reality whether or not the jury could be sure that the abuse had taken place. It was not disputed that the first two complainants, J and G, had visited their grandparents' home, nor in relation to S was it disputed that she had visited the appellant's home during school holidays. It was not in dispute in relation to each of the premises at which those offences were alleged to have taken place, that the appellant was present on occasions so that the opportunity to do what was alleged undoubtedly existed. The question for the jury was to consider whether they were sure whether the appellant availed himself of the acknowledged opportunities which existed to commit the offences. It is clear to us nonetheless that there was detriment to the appellant's case by reason of the delay, but the question for us is its extent and effect. 21. In ruling that the trial process could fairly deal with the problems raised, the judge gave two very careful rulings which considered the submissions made and the missing evidence. The latter of her rulings reviewed and reconsidered the matter after evidence had been heard. She considered and applied the relevant authorities including F(S) and we can detect no error of law in her rulings. 22. In summing up the judge gave appropriate directions about delay and its potential impact upon the ability of the appellant to raise a defence, and left those issues clearly and fairly to the jury. However, we consider it right to go on to analyse whether notwithstanding our conclusion about the judge's handling of the matter, both in her rulings and in the summing-up, we are sure that her assessment of the impact of the absent evidence was one that can be sustained bearing in mind the matters raised by Mr Kimsey. We have had the benefit of careful analysis of the position, not only by Mr Kimsey for the appellant but also by counsel for the Crown. The Crown's submission is that the cumulative effect of the missing evidence did not justify a stay and does not make the guilty verdicts unsafe. This was a case where the jury was properly able to assess the position and to take account of missing evidence in deciding if it was sure on any particular count. 23. Assisted by the careful analyses of counsel, we have looked at the individual cases and come to the following conclusions. As far as J and G are concerned, we do not consider that the layout of the grandparents' house was a major issue. The appellant was able to describe the layout of the premises himself and the jury were able to set that against such descriptions as the two complainants gave in their evidence. The allegations in respect of this part of the case is that the offences took place upstairs in that house at night when there were adults downstairs. There was evidence from the complainants that there had been occasions when both had stayed at the premises together during the school holidays, although neither claimed to have seen the other being abused. The appellant did not positively dispute that the pair had on occasions stayed at that house together, his case was that he could not remember them having done so. He did not, however, dispute his daily presence at his parents' house during the periods of time when he was working in the pit, that is before and after his military service. As far as his military service was concerned, there was evidence before the jury in schedule form of the periods during which he had leave from that service and it was not in dispute that the appellant had used his leave to return to stay at the family home. The complainants said that offending took place less frequently when he was in the army. The records of military leave would not have included other leave such as periods of weekend leave. The appellant was able to give an undisputed account of his working life and daily lifestyle. On any view, however, there was at least the opportunity for him to have acted in the way alleged by the complainants when they and he were at his parents' home. 24. Having considered the matter in detail we are not persuaded that fuller evidence about shift patterns at work, or about dates of leave from the army, or evidence from other family witnesses or military friends, would have taken the matter much further. This is particularly so when it is borne in mind that all of the offences alleged were alleged to have occurred in that house in rooms where the victim or victims were alone with the appellant. On any view there were significant opportunities for this abuse to have occurred. The school holiday records would not have advanced matters materially and in our judgment that sort of missing evidence, whether it be from work, army or school records, is not of a degree or cogency to amount to a finding of serious prejudice in its absence. 25. As far as medical records are concerned, there has been reference in the case of G to her rheumatic fever. As we have stated, such records were missing. The issue however of the time at which the abuse of her began was explored in some detail before the jury, not least because she had given inconsistent accounts as to when the abuse had started. That issue was fully considered by the jury and we do not think that the absence of records showing the date of treatment for rheumatic fever materially affects that particular issue. 26. In relation to G there are other matters which relate to missing records. The issue of the reference to the offence being committed by her father's brother in a history recorded by a psychiatrist was again a matter which was before the jury and was the subject of submission by defence counsel. As far as psychotherapy records which relate to treatment consequent on a family bereavement in the early part of this century are concerned, the absence of those records takes the matter no further forward. The contents of such confidences as G made to the psychotherapist are entirely speculative. 27. We turn then to the case of S, the appellant's natural daughter, who alleged abuse when she was visiting the home which he shared with his wife in the 1960s. Both the appellant and his wife gave evidence. The fact of the visits was not disputed. The evidence of the electoral roll substantially narrowed the period over which S could have been abused at the particular address relied on by the Crown. The finding of the electoral roll enabled the defence to use it as an example to the jury of the problems caused by missing material and as an example of vindication of the defence's position when material had been unearthed. The evidence given by S was in fact not confined to abuse at the particular address identified in the electoral roll. She had given evidence of abuse having commenced at a different address on some earlier occasions, but on account of the vagueness of her account in relation to that earlier address the Crown had confined its allegations to the address to which the electoral roll related. 28. Still considering the case of S, we move to the absence of evidence either in documentary form or from the appellant's mother directly. We regard such evidence as might have emanated from those sources as being of limited value. This is not a case where the abuse is alleged to have taken place during her physical presence. On occasions when she was at the appellant's home and when S visited she was undoubtedly at a stage in her life when she was suffering from a degree of infirmity which raises the question in any event of her ability to have made any meaningful contribution had these allegations been raised prior to her death. The fact is that this appellant was able to call his wife as a witness as to the activities in the matrimonial home at the time of the offences alleged by S. She was much more likely to be a cogent witness for the defence than his late mother. We do not consider that there is any significant prejudice shown in the case of S. 29. Finally, we turn to Y, that is the niece, alleging an offence taking place at the funeral. Her evidence was of a brief assault which did not take place in circumstances where others were likely to have seen it. She did not complain to anybody at the time. In our judgment, the absence of evidence from others who attended the funeral is not of any significance. 30. At the outset of his submissions to us, Mr Kimsey referred to the concept of a lurking doubt. He did so taking care to draw the court's attention to the recent decision of this court in R v Pope [2013] 1 Cr.App.R 14, and in particular the observations of Lord Judge, CJ, at paragraph 14. The use of the expression "lurking doubt" is one which is to be deprecated or used very sparingly in modern times. It certainly should not reflect the subjective feeling of members of this court and should only come into play in conjunction with a properly reasoned analysis of the evidence. 31. We do not need to resort to such concepts in our consideration of this case. Although this matter required careful scrutiny because of the very substantial delay in this case, we are entirely satisfied that the judge was correct in her assessment that the trial process could properly cope with the difficulties faced by this appellant and that there would be and indeed was no prejudice to him of a type which would mean that he could not and did not get a fair trial. On an analysis of the missing material and on an analysis of the evidence given at the trial and the issues before the jury, we are satisfied that this appellant received a fair trial, and was not disadvantaged in a way that could properly be described as amounting to serious prejudice to his ability to mount a proper defence to the allegations brought against him. Accordingly, our conclusion is that the convictions are safe and that the appeal against conviction must be dismissed. 32. There remains before the court an application in relation to sentence. A number of grounds have been put forward by Mr Kimsey in relation to the earlier counts on the indictment, that is counts preceding counts 14 and 15 in relation to which the overall sentence was passed. The judge imposed a term of 11 years in relation to counts 14 and 15 and passed lesser concurrent sentences on the other counts on the indictment. It follows therefore that points which are raised by Mr Kimsey in his written grounds on those earlier counts are moot, given that the sentences were ordered to run concurrently with the 11 year term. We deal with those earlier matters briefly by saying that we do not consider that there was any cogency in any of those earlier matters. But we focus on what is at the heart of the application relating to sentence, namely the submission that a term of 11 years was too long. 33. Mr Kimsey says in particular that the judge failed properly to have regard to such mitigation as was available to this appellant. Clearly there was no mitigation available for a guilty plea. However, the appellant could point to the following matters: his age, he was 78 at sentence, he is now 79 years of age; he suffers from a number of health problems; the consequence of his domestic arrangements mean that his wife is not entitled to remain in this country and has had to return to Australia, so that he will be serving his sentence in a prison in a country remote from that in which he has made his life for a number of decades and separated from his wife of many years. He is further entitled to point to the fact that he has not offended in any way since 1973, the date of the last of these allegations. 34. Those are all matters of mitigation. The judge took them into account. She had fixed a starting point in this case of some 16 years and then reduced it by a period of five years to reflect those matters we have just summarised. The main question for us is whether that was a sufficient deduction. We have come to the conclusion that the judge's starting point cannot be impugned. It is a starting point which is in line with the sentence which is appropriate not only for the totality of this offending but also for the specific offences which were repeatedly committed against the victim S, who is the particular subject of counts 14 and 15. A starting point of 16 years in our judgment was perfectly appropriate. The reduction of five years in our judgment appropriately reflects the available mitigation. 35. The sentence passed is of course a firm one for a man of the age and in the circumstances of this appellant, but we do not regard it as appropriately the subject of criticism. There is therefore no tenable argument against that term of 11 years and the application in relation to sentence is dismissed. 36. Accordingly, the appeal against conviction and the application in relation to sentence both fail.

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

Case No: 2002/01514/X1 Neutral Citation No: [2003] EWCA Crim 1499 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MAIDSTONE CROWN COURT (HHJ BALSTON) Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday 23 May 2003 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES LORD JUSTICE KENNEDY MR JUSTICE MITCHELL MRS JUSTICE HALLETT and MR JUSTICE PITCHERS - - - - - - - - - - - - - - - - - - - - - Between : Simpson Appellant - and - R 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) - - - - - - - - - - - - - - - - - - - - - Raymond Walker QC and Simon Taylor (instructed by Byrne and Partners) for the Appellant Jonathan Fisher QC & John Law (instructed by The Solicitor for HM Customs and Excise) for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice: Introduction 1. This is yet a further appeal involving a confiscation order. The confiscation order was made under the provisions of the Criminal Justice Act 1988 (“ CJA 1988 ”) by His Honour Judge Balston at the Maidstone Crown Court on 1 February 2002. 2. On 8 January 2001 the appellant, Ian McDonald Simpson, had pleaded guilty on re-arraignment to two counts involving value added tax offences (counts 4 and 6), two counts of producing a false document for the purposes of VAT (counts 5 and 14), one count of cheating the public revenue (count 16) and one count of being knowingly concerned in the fraudulent evasion of VAT (count 18). Following a Newton hearing before the same court, on 1 May 2001 the appellant was sentenced to 30 months imprisonment on count 6 and to concurrent sentences of 12 months imprisonment on each of the other counts. 3. The confiscation order which is the subject of the appeal was made under section 71 of the CJA 1988 . The sum of £209,351.34 was ordered to be confiscated with a sentence of 18 months imprisonment in default of payment. The appellant was also ordered to pay £15,000 towards the costs of the prosecution. There were two other alleged offenders, one was acquitted and the other, Kenneth Anthony Young was prosecuted in Scotland and sentenced to 5 years imprisonment on each count concurrent. In addition, a confiscation order was made in the sum of £26,000. 4. The frauds involved taking advantage of the special cash accounting scheme which can be used for making VAT returns. The scheme was introduced to give relief to small businesses which would otherwise have to pay VAT charged on a transaction before the business had received payment from its customer. The scheme also took advantage of the fact that a business may legitimately purchase goods and services from a subsidiary, this involving what is known for VAT purposes as “outsourcing”. A number of bogus outsourcing agreements were deployed in carrying out the frauds. 5. The grounds of appeal fall into two categories. First, there are those in relation to the judge’s jurisdiction to make the confiscation order and secondly, there are those which relate to the amount of the confiscation order. It is the grounds of appeal which relate to jurisdiction which explain the constitution of this court. The Crown’s contention is that the jurisdictional points are of no substance because of the decision of this Court (the Lord Chief Justice, Mr Justice Holland and Mr Justice Keith) in the case of Sekhon and Others [2002] EWCA Crim 2954 which clearly establishes that the points are without substance. However, Mr Raymond Walker QC, who together with Mr Simon Taylor, appears on behalf of the appellant contends that the Sekhon decision wrongly indicates that the decision of this Court in R v Palmer [2002] EWCA Crim 2202 was wrongly decided and that earlier cases applied in Palmer “should be examined with care” (see para 56 of Sekhon ). It was the decision in Palmer that caused the appellant to amend his notice of appeal to raise the jurisdiction points. No leave to appeal has yet been granted to the appellant in respect of the jurisdiction points. However, this Court can and does give leave for them to be argued. It should not be thought that we are giving leave because we consider that there is any substance in the jurisdiction points. We only give leave so as to enable the appellant to have a possibility of appealing further by applying to this Court to certify a point of law and then applying to this Court or the House of Lords for leave to appeal to the House of Lords. If there is no further appeal, it is our hope that this decision will put an end to the string of appeals which are continuing to come before this Court. There have already been at least ten decisions in which the Sekhon case has been applied. The Jurisdictional Issue 6. The fact that the relevant provisions of the CJA 1988 have been the subject of a number of amendments has contributed to the problem. Powers of confiscation appear in similar terms in the Drug Trafficking Act 1994 and they have also been the subject of amendment and give rise to the same problems. The legislative history is set out in Sekhon (paragraphs 6-18) and it is not necessary to repeat that history. It is sufficient for the purposes of the present appeal to set out the relevant terms of section 71 and 72 of the CJA 1988 as it was originally enacted. 7. The provisions of section 71 so far as relevant were as follows: “(1) The Crown Court and a magistrates’ court shall each have power, in addition to dealing with an offender in any other way, to make an order under this section requiring him to pay such sum as the court thinks fit. (2) The Crown Court may make such an order against an offender where: (a) he is found guilty of any offence to which this Part of this Act applies; and (b) it is satisfied: (i) that he has benefited from that offence or from that offence taken together with some other offence of which he is convicted in the same proceedings, or which the court takes into consideration in determining his sentence, and which is not a drug trafficking offence; and (ii) that his benefit is at least the minimum amount. (3) (4) For the purposes of this Part of this Act a person benefits from an offence if he obtains property as a result of or in connection with its commission and his benefit is the value of the property so obtained. (5) Where a person derives a pecuniary advantage as a result of or in connection with the commission of an offence, he is to be treated for the purposes of this Part of this Act as if he had obtained as a result of or in connection with the commission of the offence a sum of money equal to the value of the pecuniary advantage. (6) The sum which an order made by a court under this section requires an offender to pay must be at least the minimum amount, but must not exceed: (a) the benefit in respect of which it is made; or (b) the amount appearing to the court to be the amount that might be realised at the time the order is made, whichever is the less. (7) For the purposes of this Part of this Act the minimum amount is £10,000 … ” 8. Section 72, so far as material, provided: “(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. (3) (4) If the court determines that it ought to make such an order, the court shall, before sentencing or otherwise dealing with the offender in respect of the offence or, as the case may be, any of the offences concerned, determine the amount to be recovered in his case by virtue of this section and make a confiscation order for that amount specifying the offence or offences.” 9. Under section 72(1) and (2) the procedure for making an order was dependent on the prosecution giving a notice that there were likely to be sufficient assets to meet it. Where such a notice was given, the Court was bound to consider the making of an order. By section 71(4) the Court was required to determine the amount to be recovered and make a confiscation order before sentencing or otherwise dealing with the offender. 10. Sections 71 and 72 were amended by the Criminal Justice Act 1993 , the Criminal Justice and Public Order Act 1994 and the Proceeds of Crime Act 1995 (the “1995 Act”). It is the amendments which were made by the 1995 Act which are relevant to the argument which is advanced on behalf of the appellant. Section 1 of the 1995 Act amended section 71(1) to (3). It did so in terms described in the Sekhon decision 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. Thus, section 71(1) of the 1988 Act now provides: (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.” 11. The 1995 Act also repeated section 72 (1) to (4). The other amendments made were briefly summarised in the Sekhon case as follows: “14. Section 2 of the 1995 Act inserted section 72 AA into the 1988 Act to provide for confiscation in relation to a course of criminal conduct. 15. Section 3 of the 1995 Act amended section 73 of the 1988 Act (effect of provision of statement by prosecutor) and provided for the service on the Court and defendant of statements from the prosecutor. 16. Section 4 of the 1995 Act inserted section 73 A into the 1988 Act so as to empower the Court to order the defendant to provide information to assist it in carrying out its functions under Part VI of the 1988 Act . 17. Sections 5 to 10 of the 1995 Act amended the 1988 Act in relation to such matters as the review and revision of confiscation orders, the enforcement of confiscation orders and the variation of confiscation orders.” 12. The commencement of section 1 of the 1995 Act , which amended section 71 of CJA 1988 , was provided for in section 16 of that Act . Sub section (5 ) and (6) of section 16 provide: “(5) Section 1 above shall not apply in the case of any proceedings against any person where that person is convicted in those proceedings of an offence which was committed before the commencement of that section. (6) Sections 8(1) and 9 above shall not apply where the offence, or any of the offences, in respect of which the confiscation order was made was committed before the commencement of section 1 above.” 13. Section 72 , prior to being amended by the 1995 Act , required in mandatory terms, if a literal construction of the section is adopted, the service of a notice on the court setting out the information stated in section 72(1) . However, after the 1995 Act came into force that notice was no longer necessary because the court could act on its own motion. (See section 71(1) (b) as amended.) 14. Mr Walker argues that in view of the language of section 72 prior to the amendments of the 1995 Act the court did not have jurisdiction to make a confiscation order unless: i) a notice which complies with section 72(1) was served and ii) none of the offences on which the appellant is indicted and convicted were committed before 1 November 1995. 15. On the facts of this case Mr Walker has to advance this submission because he can only rely on count 6 of the indictment for arguing that the 1995 Act was not in force at the relevant time and count 6 was not a count on which the confiscation order was based. While Mr Walker accepts that this is the position, he points to the language of section 16(5) which he contends does not limit the restriction of the application of section 16(5) to offences on which a confiscation order is based. 16. In support of the appellant’s argument reliance was placed upon the decision of this Court in the case of Ahmed (Lord Justice Kennedy, Mr Justice Goldring and Sir Charles McCullough; unreported 8 February 2000 no. 9905818X4). Sir Charles McCullough in giving judgment in that case said: “22. In these proceedings there were three offences in the three counts. Count 3 within a period wholly after 1 st November 1995. The other two, Counts 1 and 2, were in relation to periods partly before and partly after that date. In each of those instances there were overt acts committed in pursuance of the existence of the relevant conspiracy both before and after that date, 1 st November 1995. 23. Counsel’s submission is that as the conspiracies in Counts 1 and 2 ran from 1 st January 1995, the offences in Counts 1 and 2 were being committed both before and after 1 st November 1995. That being so in these proceedings the appellant was “convicted … of an offence which was committed before [1 st November 1995]”. We agree. It follows that the judge had the discretion to make an order in the full agreed sum of £40,000 or a lesser sum or none at all.” (emphasis added) 17. However, when those paragraphs are read as a whole, it is clear that Sir Charles was not seeking to say anything different from what we have indicated is the position. Sir Charles made it plain that the court was not “persuaded that these arguments would or might persuade the judge to do other than he did”. 18. Reliance was also placed upon the case of R v Brown [2001] EWCA Crim 2761 . It is said that the approach of Sir Charles was approved in that later case. However, that does not provide any further assistance to the appellant. The only other point, that it is important not to ignore in relation to the Ahmed case, is that unlike here, there was no issue in that case that the conspiracies were ones to which the 1995 Act could not apply. The dates in the counts of the indictment reflected the actual dates. 19. Mr Walker’s submission, if correct, means that in this case if the appellant had been acquitted on count 6 the confiscation order would be subject to the 1995 Act but because he was convicted of count 6 the confiscation order cannot be made. This is obviously an absurd result and we have no doubt that Mr Jonathan Fisher QC, who appeared on behalf of the Crown, is right in his contention that section 16(5) is not intended to produce this very strange consequence. In our judgment section 16(5) has to be applied so that after the word ‘offence’ there appears, the words “in respect of which a confiscation order is or could be sought” as proposed in the admirable skeleton argument prepared by Mr David Barnard who appeared on behalf of the Crown before Mr Fisher was instructed. 20. Before coming to Mr Walker’s principal point on behalf of the appellant there is the further problem that he faces. This is that while count 6, in the Particulars of the Offence, refers to 16 October 1995, because that is the date on the invoice which is relied upon by the Crown as the initial act constituting the offence, it is clear from the evidence that the invoice was created on 19 November 1995. So in fact, the offence was committed after 1 November 1995. In any event the argument of the appellant, that the 1995 Act cannot be relied upon fails on the facts. The Irregularity (per incuriam) Issue 21. This is the issue which is of considerable significance and explains why it was thought appropriate to have a decision by a court constituted by the five judges who are hearing this appeal. We will deal with the issue as succinctly as we can but we recognise the broad importance of the issue in relation to both statutory construction and the doctrine of precedent. 22. Initially, it is necessary to identify the limited nature of the dispute between the parties. The issue in dispute is, (on the assumption that section 1 of the 1995 Act was not in force) does the fact that the notice that was served on the court by the prosecution which was not in the form required by section 72 , CJA 1988 mean that the court had no jurisdiction to make a confiscation order? This the appellant contends is the position. This is the argument 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 issue as to jurisdiction was not raised by the appellant prior to the confiscation order being made. 23. Mr Walker contends that this Court should not follow the decision in Sekhon in so far as it casts doubt upon the Palmer decision. In support of this submission he advances three separate arguments. First, he submits that the issue as to the correctness of the decision in Palmer was not canvassed during the Sekhon hearing. This submission is the result of his being misinformed as to what happened at the hearing of Sekhon . Mr Walker’s junior, Mr Simon Taylor, was also junior counsel for Mr Satnam Singh in the Sekhon case. Mr Walker, no doubt as a result of what he had been told by Mr Taylor, was under the impression that there had been no argument as to the correctness of the Palmer decision on the appeal in Sekhon . This impression was wrong. It is perhaps to be explained by the fact that at the beginning of the hearing in Sekhon the Court indicated that it was proposing to allow the appeals in the case of Mr Taylor’s client and his co-defendants who were involved in his appeal. Accordingly, the court indicated it was not necessary for the legal advisors of those appellants to attend during the argument relating to the other appellants who were also involved in the appeal. The appeals of the other three appellants then proceeded and it was in relation to those appeals that the effect of the Palmer decision was contested. However, unusually since unless Mr Perry was able to persuade us otherwise, those appeals would have to be allowed as well, by agreement Mr Perry advanced his arguments on behalf of the Crown prior to the appellants advancing their argument. The right approach to the law was, however, fully canvassed. There is therefore no substance in this point. 24. After the course of events in Sekhon had been discussed, Mr Walker turned to his argument that it had not been open to the Court in Sekhon to conclude that Palmer had been decided irregularly and for that reason should not be followed. As to this, there was a striking division between the views of the parties since Mr Barnard in his skeleton argument on behalf of the Crown contended that Sekhon itself was a binding precedent as to the status of Palmer and this Court should refuse to go behind the Sekhon decision. 25. Mr Walker, when developing his submissions, relies on Halsbury’s Laws (4 th Ed Vol. 37 para 1242) as to the situations in which it is appropriate for the Court of Appeal to depart from a decision otherwise binding on the Court. The situations are stated to be: i) where the Court has acted in ignorance of a previous decision of its own court or a court of coordinate jurisdiction which covered the case before it. If this is the case the Court must decide which case to follow, ii) where the Court has acted in ignorance of a decision of the House of Lords, iii) where the Court has given its decision in ignorance of the terms of a statute or a rule having statutory force, or iv) where in exceptional and rare cases, the Court is satisfied that there has been a manifest slip or error and there is no prospect of an appeal to the House of Lords. 26. He also refers to two further passages in the same paragraph of Halsbury as to the Court of Appeal, Criminal Division. The first stating that a full Court of Appeal has no greater powers than the usual constitution of the Court of three judges and, except in the cases mentioned above has no power to overrule a previous decision of the Court. The other citation is that: “In its criminal jurisdiction the Court of Appeal applies the same principles as on the civil side, but recognises that there are exceptions; (a) where the applicant is in prison and in the full court’s opinion wrongly so, (b) where the court thinks the law was misunderstood or misapplied; and (c) where the full court is carrying out its duty to lay down principles and guidelines in relation to sentencing.” 27. These statements from Halsbury are unexceptional and are soundly based upon the authorities to which they refer. Prominent among them is the decision in Young v The Bristol Aeroplane Company Limited [1944] 1KB 718 . However, the paragraphs in Halsbury should not be read as if they are contained in a statute. The rules as to precedent reflect the practice of the courts and have to be applied bearing in mind that their objective is to assist in the administration of justice. They are of considerable importance because of their role in achieving the appropriate degree of certainty as to the law. This is an important requirement of any system of justice. The principles should not, however, be regarded as so rigid that they cannot develop in order to meet contemporary needs. 28. One of the earliest statements on the rationale underpinning this doctrine was made by Parke J ( Mirehouse v Rennell (1833) 1 Cl. & F 527 at 546) when he stated: “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 precedent; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable and 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 been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised.” (emphasis added) 29. In Lord Greene MR’s judgment in Young v Bristol Aeroplane Company Limited , Lord Greene (at p729) was careful to provide for a degree of flexibility. He stated: “We do not think that it would be right to say that there may not be other cases of decisions per incuriam in which this court might properly consider itself entitled not to follow an earlier decision of its own.” 30. The House of Lords is in a special position because it is, so far as this jurisdiction is concerned, the final court of appeal in both criminal and civil matters, but the reasons for it departing from its previous practice are worth repeating. They appear in the practice note (judicial precedent) [1966] 1WLR 1234 and [1966] 3All E.R. 77. “ Their lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. In this connexion they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law. This announcement is not intended to affect the use of precedent elsewhere than in this House.” 31. The passage from Halsbury makes a distinction between the position of the Criminal and Civil Divisions of the Court of Appeal but there is no general power in the Court of Appeal Criminal Division equivalent to that contained in the practice direction. 32. That the position in the criminal jurisdiction of the Court of Appeal should be different from that in the civil is derived from the judgment of Diplock LJ in R v Gould [1968] 2 QB 65 . The relevant passage reads as follows: “ In its criminal jurisdiction, which it has inherited from the Court of Criminal Appeal, the Court of Appeal does not apply the doctrine of stare decisis with the same rigidity as in its civil jurisdiction. If upon due consideration we were to be of opinion that the law had been either misapplied or misunderstood in an earlier decision of this court or its predecessor, the Court of Criminal Appeal, we should be entitled to depart from the view as to the law expressed in the earlier decision notwithstanding that the case could not be brought within any of the exceptions laid down in Young v Bristol Aeroplane Co Ltd as justifying the Court of Appeal in refusing to follow one of its own decisions in a civil case ( Rex v Taylor ). A fortiori, we are bound to give effect to the law as we think it is if the previous decision to the contrary effect is one of which the ratio decidendi conflicts with that of other decisions of this court or its predecessors of co-ordinate jurisdiction.” 33. What Lord Diplock said in Gould has to be read in the light of his later comment in R v Merriman [1973] A.C. 584 at p605 f-g. There he stated: “These decisions it rightly treated as binding, for although the criminal division of the Court of Appeal is not so strictly bound by its own previous decisions as is the civil division, its liberty to depart from precedent which it is convinced was erroneous is restricted to cases where the departure is in favour of the accused. This would not be the case in the instant appeal.” 34. There is nothing to suggest in Merriman that Lord Diplock was reminded of what he said in Gould . We appreciate that there may be a case for not interpreting the law contrary to a previous authority in a manner that would mean that an offender who otherwise would not have committed an offence would be held to have committed an offence. However, we do not understand why that should apply to a situation where a defendant, as here, wishes to rely upon a wrongly decided case to provide a technical defence. While justice for a defendant is extremely important, justice for the public at large is also important. So is the maintenance of confidence in the criminal justice system. If the result in the Palmer case had to be applied to other cases even though the Court of Appeal had acted in ignorance of the appropriate approach this would indeed, reveal a most unattractive picture of our criminal justice system’s ability to protect the public. 35. Here we prefer the approach indicated in Bennion on Statutory Interpretation (4 th edition) at p134 which states: “The basis of the per incuriam doctrine is that a decision given in the absence of relevant information cannot be safely relied on. This applies whenever it is at least probable that if information had been known the decision would have been affected by it.” 36. It is now convenient to refer to another argument advanced by Mr Walker. He submits that the issue raised in Sekhon was not the same issue as that in Palmer and therefore that the views in Sekhon about Palmer should not be regarded as necessary for the decision in Sekhon . This argument of Mr Walker misses the point. Although Sekhon was dealing with another procedural failure, namely the need to postpone the confiscation proceedings to a specific date, the approach to interpretation required in both cases was the same. If the Palmer case was correctly decided, then the same approach would have also applied to the contested issue in Sekhon . As Lord Evershed MR said in Critchell v Lambeth Borough Council [1957] 2QB 535 at p545: “I think it would be wrong for this court to introduce into a matter already in all conscience complicated enough, and made complicated by what I cannot help feeling to be the imperfections of the drafting of these acts, refinements and narrow distinctions between cases which might fall under one section rather than another of the same legislation.” 37. This Court considers that the law was misunderstood and misapplied in Palmer . In Palmer the court did not have the opportunity to consider all the authorities which were considered in Sekhon . There was also before Palmer conflicting decisions, including, another decision of this Court with Rix LJ presiding in R v Copeland [2002] EWCA 736. The combination of these features provided in our judgment ample grounds for this Court to regard the decision in Palmer as being irregular and therefore not binding upon this Court. We do not, however, accept the contention of Mr Barnard that this Court was not entitled to look behind the decision in Sekhon . The normal position is that courts will not do so but they undoubtedly have a residual discretion to do so. 38. In addition, it is not wholly without significance that the present court is constituted by five members of the Court of Appeal Criminal Division. We consider a degree of discretion remains in this Court to decide whether a previous decision should be treated as a binding precedent in future or not when there are grounds for saying that the decision is wrong. In exercising that residual discretion, the constitution of the court is of relevance. We would here refer to the judgment of Widgery LJ in the five judge court in R v Newsome [1970] 2 QB 711 . There the court was dealing with the question of a guideline judgment on sentence. In that case, as in Sekhon there was good reason to adopt a flexible approach. In Sekhon the Court made it clear that the discretion to depart from a previous precedent was not to be exercised lightly and we endorse that restrictive and cautious approach. 39. It is, however, relevant to note in relation to the Court of Appeal Criminal Division that there can be situations when a wrong decision of the Criminal Division can create a greater problem than decisions of the Civil Division with regard to appealing to the House of Lords. There are many situations where in practice there is little prospect of an appeal to the House of Lords because of the requirements, prior to an appeal, of a certificate that there is a point of law of general public importance involved ( Criminal Appeal Act 1968 s33 ) and the absence of a right to appeal after an acquittal. For example, if a judge of first instance is bound by a decision of the Criminal Division and as a result a defendant is acquitted there will be no right to appeal from that acquittal so there can be no confiscation proceedings that will be subject to appeal, as an order can only be made after the defendant has been convicted. In addition, there will be little if any prospect of the Attorney General being entitled to refer the case to the Court of Appeal never mind the House of Lords if a judge refuses to make a confiscation order. So here, if the Palmer case had been allowed to stand notwithstanding that it was indeed wrongly decided, the consequences are that in a future case there could be considerable difficulty in obtaining a decision from the Lords. The only conceivable route would appear to be a reference to the Court of Appeal in the later case by the Attorney General under his powers to refer an unduly lenient sentence. However, it is doubtful that the refusal to make a confiscation order on the grounds of lack of jurisdiction is in fact an unduly lenient sentence. However, we do not finally decide this point. 40. There is no doubt that if the decision of this Court in Palmer represents the law then it provides very considerable assistance to the appellant, subject to the points made earlier. However, in Sekhon in relation to the case of Palmer it was stated as follows: “51. The second is R v Palmer [2002] EWCA Crim 2202 . In Palmer a confiscation order in the total sum of £33,243,812.46 had been made on 23 April 2002. In this court Rix LJ presided. The court quashed the confiscation order. Two notices under S.72 had been served by the prosecution. As to the first, Rix LJ indicated that the court had “anxiously considered” the submissions that despite inaccuracies it was valid. He observed that he saw the strength in the Crown’s case “that in substance everyone knew where they were going” and that it was clear to all that the appellant was a wealthy man who had profited enormously from his fraud but he concluded “albeit with reluctance”, that the judge was right to find that the first notice was invalid and that the second notice could not make up for its deficiencies. He was of the opinion that the first notice, not having been valid, a second notice served after the confiscation proceedings had commenced could not cure the absence of an effective notice at the outset. The consequence was that it was not possible for the trial court to postpone the confiscation proceedings and proceed to sentence. 52. The first notice in Palmer referred to the wrong section. The explanation as the court pointed out was that it was drafted with the 1995 provisions in mind when that Act was not in force at the relevant time. So the notice referred to the amended S.71 (1) (a) when it should have referred to S.72 (1) ( the 1995 Act did not apply to the proceedings). In addition, it did not refer to the fact that if an order was made it would at least be for £10,000, which in Palmer’s case was hardly likely to be in issue. The errors were due to the notice being on a standard form developed for use when the 1995 provisions applied. Neither the court nor the defendant, if they had seen the notice, would have been under any doubt that the prosecution thought this was a case where confiscation proceedings should continue. It is difficult to conceive that Parliament intended that technical failures of this sort should affect the jurisdiction of the court to make a confiscation order. 53. The Court of Appeal was, however, without the benefit of the argument advanced before us by Mr Perry. Furthermore, they were influenced by two decisions given by this court which shared the same disadvantage. Those decisions being R v Martin [2002] 2 Cr App R (S) 34 and R v Miranda [2000] 2 Cr App R (S) 347 . . . . 55. The question that remains is what is the status of the Palmer case and the other authorities on which it was based. What has happened is that as part of the normal common law process, decision has followed decision extending the principle that there is no jurisdiction if there is a procedural failure from one aspect to another of the confiscation process. Palmer is only significant because it dealt with the use of a notice designed for use under a later Act being used as a notice under an earlier Act. Even though the wrong notice was used it could still achieve and did achieve its primary objective of initiating confiscation proceedings. Yet a defendant who had been otherwise properly subjected to a confiscation order in excess of £30m had that order quashed. This is a result that Parliament could not have intended. 56. For one constitution of this court to hold that a series of cases have been decided per incuriam, is not a course to be lightly taken. There is now new legislation which contains the section to which we have referred above which is designed to prevent repetition of the problem. There are, however, no doubt other cases in the pipeline which could be affected by the earlier authorities which did not consider Mr Perry’s argument. In these circumstances we feel it right to indicate that in our view the Palmer case is wrongly decided and should not be followed and each of the earlier cases to which we have referred should be examined with care to see whether in fact it can be said they should be regarded as doing any more than deciding that there should be a decision to postpone confiscation proceedings, however generally expressed, prior to the completion of sentencing an offender, if confiscation proceedings are to take place after sentencing.” 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. The Amount of the Confiscation Order 42. Next and finally we turn to the complaints concerning the judge’s approach to two aspects of the merits of making a confiscation order. First, it is said that he erred in including the sum of £115,000 in the benefit figure and second, it is said that the judge erred in his approach to the assessment of the appellant’s realisable assets. The judge made a confiscation order for the full amount of the benefit – namely, £209,351.34. 43. The benefit of £115,000 is said to have arisen in this way. In the autumn of 1996 the appellant and Young embarked upon a joint enterprise to cheat the public revenue by means of the ‘outsourcing companies’ fraud. Arising out of his fraudulent transactions Young paid the appellant a total of £38,779.70 by way of commissions. That is not disputed nor is it disputed that that money fell to be included as a ‘benefit’ to the appellants. 44. After HMCE had searched Young’s premises in March 1997 and effectively brought an end to the fraud, Young transferred £115,000 to the appellant who in turn transferred it to a Swiss account. It is not disputed that the money represented the profit from the fraud. It is said on behalf of the appellant that the purpose of the transfer was to enable the appellant to invest the money on behalf of Young. The appellant subsequently in June and August 1997 repaid a total of £35,000 to Young but retained the balance of £80,000. When the appellant applied for an individual voluntary arrangement, Young was shown as a creditor. Did the transfer of £115,000 constitute a benefit for the appellant arising from the offence alleged in count 16? The answer to that question depends upon whether, under section 71(4) of the CJA 1988 (as amended), that money was a benefit obtained by the appellant “as a result of or in connection with” the commission of an offence. On behalf of the appellant it is said first that the £115,000 was outside the scope of the joint fraudulent enterprise involving the appellant and Young and second that the circumstances in which the appellant had obtained control of this money were such that it cannot be described as a benefit obtained “as a result of or in connection with” the offence. 45. We have unhesitatingly concluded that the appellant did ‘obtain’ this money “as a result of or in connection with” the offence charged in count 16 and that accordingly to that extent he had benefited from the offence. There was the clearest evidence before the judge that this money was obtained as a result of or in connection with the offence of cheating the public revenue because it represented a part of the proceeds of the fraud upon which together the appellant and Young had embarked. The fact that by virtue of some private arrangement part of the proceeds passed from Young’s hands into the appellant’s is neither here nor there. When that occurred he ‘obtained’ the property and the value of the property determined the extent of his benefit. 46. As to the judge’s assessment of the appellant’s realisable assets, it is settled law (see Barwick [2001] 1 Cr App R (S) 445 ) that the onus of proving the ‘benefit’ obtained is upon the prosecution. If a defendant wishes to contend that the amount which can be realised falls short of the benefit figure the burden is upon him to establish that to the civil standard. At p453 the court said: “………the scheme of the Act requires the court to perform two distinct and discrete tasks. First, to determine the benefit. Secondly, to determine the amount that might be realised at the time the order is made, which may be very different. Further, the amount that may be realised may be quite unrelated to the identifiable proceeds of the offence, eg a lottery win, inheritance, or other lawfully acquired property. In the end, the task of the court at the second stage is to determine the amount “appearing to the court” to be the amount that might be realised. But once the benefit has been proved, it is permissible and ought normally to be the approach of the court, to conclude that the benefit remains available until the defendant proves otherwise; subject to the issue of changes in the value of the money……..” 47. That approach was clearly adopted by Judge Balston: “Turning to the question of what assets are realisable for the purpose of making a confiscation order, the accepted approach of the court is to conclude that the benefit remains available until the defendant proves otherwise. This places on him the burden of proving that the realisable assets available to him are less than the benefit he has been found to have received. He must prove it on the civil standard of proof.” 48. Over the following 15 pages of transcript the judge proceeded to give clear and unassailable reasons for concluding that the appellant had failed to make a full disclosure of his assets. Furthermore the judge was “satisfied that he has other assets which may well exceed the deductions he is claiming” by way of living and business expenses. 49. In the result it is not surprising that the judge was unable to conclude that the appellant had satisfied him on a balance of probability that the value of his benefit exceeded the value of his realisable assets. In this case, unlike in many, the judge was not confronted with an acceptance on the part of the prosecution that the value of the realisable assets (whatever it might be) fell far short of the benefit figure. It was the prosecution’s case here that the assets did exceed the benefit figure and that one significant component of his realisable assets was his equitable interest in the matrimonial home at 80 London Road, Hailsham. The appellant claimed that his wife arranged the mortgage and purchased the property herself in the late 1980s. He maintained he had no interest in it. It is true that the property was registered in the name of his wife. The learned judge, however, investigated the background to this transaction in some detail. He concluded that some years earlier (in the early 1980s): “There was an agreement between the defendant and his wife that for the future they would so arrange their affairs that their assets would be unassailable by the defendant’s creditors.” 50. Although not accepted by the defence the prosecution’s valuation of the property was £402,500. There were two endowment policies charged to the Building Society with a surrender value of about £61,799. It was calculated that following repayment of the mortgages and the costs of the sale there should be an equity of £205,746. Contrary to the appellant’s contention the prosecution claimed he had a 50% interest in the equity. The assets thus available from this source alone amounted to £102,873. 51. Quite apart from not accepting either the figures or the fact of his interest in the property the appellant further claimed that Barclays Bank had a charge on the property. As to that the learned judge while accepting that a caution was registered against the title, declined to allow any reduction, attributable to the charge, from the value of this realisable asset. He said: “There is no evidence that has been placed before me that confirms that the debt to the bank has not been paid. There is no evidence to tell me how the debt was originally incurred. It could, for example, have arisen from a guarantee by Mrs Simpson of a debt owed by the defendant to the bank. There is no evidence as to the amount now due under the charging order, if indeed the money has not been paid. The onus is upon the defendant to satisfy me about these matters. He has not done so.” 52. Further, as to the policies the judge said: “It is further contended by the defence that the surrender value of the life policies is not an asset available to the defendant. I disagree. He has supplied no details of these policies other than the surrender values. The inference that I draw from their existence is that they are additional security for the payment of the mortgages and that when the mortgages are redeemed or the policies mature, the proceeds will go towards extinguishing the mortgage debt.” 53. Finally as to whether or not the appellant did have an equitable interest in the property the judge said: “I have also concluded that he has an equitable interest in the house and land at Hamelsham Manor, not only because of his interest in the proceeds of sale of 13 Howlett Drive but also because he has failed to satisfy me as to the origin of the monies he says were found by Mrs Simpson. Additionally, his statement that he was paying rent for the use of the property by his business is again unsupported by any evidence and if it is true, is a contribution to the mortgage repayments in disguise.” 54. The appellant’s wife did not give evidence. Of her absence from the witness box the judge said this: “One witness who might greatly have helped the court is Mrs Simpson. I am told there are matrimonial problems between her and the defendant, but one might have expected her to have been called to give evidence as, if what the defendant tells me about her part in this affair is true, her evidence could have been expected to be of assistance to the defendant.” 55. We find it is impossible to fault the judge’s approach to this particular issue. His reasons for rejecting the appellant’s claim as to the extent of his assets seem to us to be unanswerable and in our judgment the conclusion that the appellant had failed to satisfy the judge that the confiscation order should be other than in the sum of the benefit figure was inevitable. 56. Accordingly, the appeal is dismissed. - - - - - - - - - - - - - THE LORD CHIEF JUSTICE: For the reasons given in the judgment handed down, this appeal is dismissed. Mr Walker, you want to certify some points? MR WALKER: My Lord, that is right. THE LORD CHIEF JUSTICE: We regard point 6 as being a question of fact as to whether something is per incuriam or not. We do not say that it is a practice of law, it is a procedure. It involves issues of a legal nature. What we would be prepared to do, subject to hearing Mr Fisher, is to certify in relation to question 4, but to add "or was correctly decided". We are not sure about question 5, but we are minded to say that that could be a question of law. But whether it is one that meets the requirements of importance, bearing in mind the changes in the law which have a taken place, we are not sure. MR WALKER: My Lord, I appreciate that. Might I address the court in relation to that point and in relation to our suggested question 6? We respectfully suggest that in fact both of them are questions of law. We accept that in relation to count 6 there is undoubtedly a factual element in it. But, my Lord, the factual element is dependent upon whether as a matter of law sections 72(1) and 72(3), when considered in combination, which is the way that that count was charged in the indictment, it is right as a matter of statutory construction that these offences only commence on the date upon which a document which is false in a material particular is created, because, apart from anything, my Lords, one of the potential difficulties that we would face recognises that by themselves question 5 and question 6 would certainly not -- well I say certainly not, would almost certainly not -- rate as sufficient importance for the House of Lords. My Lords, in a way we respectfully suggest that they should be taken in combination with question 4, which your Lordships felt might be questions that could be certified for the House of Lords, with tagging on the addition. The point is, my Lords, that effectively to give us status to argue the Palmer point, we really should be in a position to say: we are on all fours with Palmer and so it is necessary for us to see that the House of Lords comes to the conclusion that in fact Palmer was correctly decided. That is the reason why my Lords, we would respectfully ask the court to accede to questions 5 and 6, recognising in themselves that they are certainly not matters of sufficient importance that will ordinarily attract the House of Lords, but in a way for our purposes in order to be able to strengthen our case before their Lordships in relation to Palmer that we should at any rate have the opportunity of arguing those two points which we suggest do have elements of law in both of them. THE LORD CHIEF JUSTICE: Thank you very much. MR WALKER: My Lords, my learned junior reminds me that the new Proceeds of Crime Act comes into force on 24 February and 28 March -- I knew it was something like that. But, my Lords, the point is that it only comes into effect in respect of offences committed after those dates. THE LORD CHIEF JUSTICE: Yes, it is the same point. MR WALKER: That is right. It may be that that point is in the pipeline in relation to a number of other cases. THE LORD CHIEF JUSTICE: Mr Fisher, how do you see this? MR FISHER: May it please my Lords, perhaps I may begin by making the clear distinction between an application for leave and an application to certify points. THE LORD CHIEF JUSTICE: I think we will get the certification out of the way first. MR FISHER: Exactly. Much of what my learned friend has just advanced on questions 5 and 6 we would say go to the question of leave rather than certification. My Lords, dealing with this in order, we can say nothing about the merits of the Palmer/Sekhon issue. It is right to say, as we understand it, that that issue has already been certified in the case of Clayton . I am not quite sure of the position -- the court may know -- but we believe that in Sekhon itself there was -- THE LORD CHIEF JUSTICE: Sekhon could not go to their Lordships' House because, I believe, the Commissioners of Customs and Excise had blown hot and cold. MR FISHER: My Lord, yes. THE LORD CHIEF JUSTICE: So I think that it was thought -- I think the Commissioners need an extension of time and they did not get it. MR FISHER: My Lord, it matters not. My learned friend in fact tells me that Predie , who was a co-defendant, has got a point certified. But it matters not because a point was certified in Clayton and I can say nothing on behalf of the Crown about that. My Lords, the only observations we would make on this side of the court are as follows. If the court is going to certify, might the court consider following the language of the question in Clayton and actually confronting the issue of the merits advanced -- THE LORD CHIEF JUSTICE: What was the point in Clayton ? Have you got it in writing? MR FISHER: Yes. My Lord, I can read it to my Lords and see if it attracts. It is as follows: "Whether for the purposes of the Criminal Justice Act 1988 , as amended by the Criminal Justice Act 1993 , the Crown Court is deprived of jurisdiction to make a confiscation order in circumstances where a notice served on the Crown Court misdescribes the statutory provisions applicable or is otherwise deficient." My Lords, the advantage, we would say, of that formulation, as well as consistency, is that it takes out of the arena any issue in this case relating to the practice of the court in terms of precedent because to a large extent my learned friend has elided the two issues in his formulation. THE LORD CHIEF JUSTICE: If you deal with it in that way, the question of postponement is not actually covered, is it? MR FISHER: My Lord, yes. THE LORD CHIEF JUSTICE: I am sympathetic to the approach that you are adopting, but I would rather see going to their Lordships' House: "Whether for the purposes of the Criminal Justice Act 1998, as amended by the 1993 Act , the Crown Court is deprived of making a confiscation order if the requirements of section 72 of the Criminal Justice Act 1988 --" Do we want to have the words "as amended by the 1993 Act " in? It is better without them, is it not? MR FISHER: It Is better without. THE LORD CHIEF JUSTICE: Without the words "as amended by the 1993 Act are not complied with". That enables the House of Lords so far as they think is appropriate to deal with all the variations of non- compliance, which have been considered in the various cases. MR FISHER: Can I read that back to make sure I have got it down correctly: "Whether for the purposes of the Criminal Justice Act 1988 the Crown Court is deprived of jurisdiction to make a confiscation order if the requirements of section 72 of that Act are not complied with." THE LORD CHIEF JUSTICE: I am sorry, it was in Sekhon that the postponement point arose. MR FISHER: Yes. THE LORD CHIEF JUSTICE: There is certain sympathy for that approach among my brothers and sister. What do you say? MR FISHER: My Lord, we certainly could not stand in the way of the court and seek to advance a contrary position. THE LORD CHIEF JUSTICE: Yes. We do not need any further help, Mr Fisher. MR FISHER: My Lord, I am obliged. THE LORD CHIEF JUSTICE: Mr Walker, I would have thought that that does help. What do you think? MR WALKER: Yes, my Lord. We envisaged that that was what your Lordships had in mind when the suggestion was made adding the words "or was Sekhon correctly decided" to question 4, as we have it. THE LORD CHIEF JUSTICE: Yes. MR WALKER: We are concerned slightly, my Lord, on the basis that, whilst we accept my learned friend's suggestion that our questions 5 and 6 go to the question of leave, we could envisage that if this court was not to consider that those are points which are taken in conjunction with as it were the revised -- what was our question 4 -- the revised certified question for the House of Lords, that we would find it extremely difficult to justify taking the matter further because we would be met with: "Well, look at the judgment; it is a question of pure fact. So if you cannot bring yourself four square within Palmer , why are you applying to us (the House of Lords) for leave" -- that is on the assumption of course that your Lordships are not going to give leave. So we are slightly concerned about that position because we do believe that we have a justifiable argument, as I have said before, that whilst by themselves these two extra matters certainly do not justify going to the House of Lords, they are pertinent to our particular case and we would simply seek to have them, if anything, tagged on. THE LORD CHIEF JUSTICE: Thank you very much. ( The court conferred ) THE LORD CHIEF JUSTICE: I am afraid we will only give you the certificate in respect of the one question. We do not think it would be right to give certificates in order to help you in order to get leave. MR WALKER: My Lords, we formally ask for leave. We anticipate what your Lordships' answer will be. I am not sure, but there may even be a Practice Direction. THE LORD CHIEF JUSTICE: It would be very exceptional for us to give leave. MR WALKER: We recognise that. THE LORD CHIEF JUSTICE: I think you have read our minds correctly. So be it, leave refused, but a question certified in those terms. There is nothing else required? MR WALKER: My Lord, no.

```yaml citation: '[2003] EWCA Crim 1499' date: '2003-05-23' judges: - LORD JUSTICE KENNEDY - MR JUSTICE MITCHELL - MRS JUSTICE HALLETT - 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} ======

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IN THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2021/01750/B5 NCN: [2022] EWCA Crim 151 Royal Courts of Justice The Strand London WC2A 2LL Thursday 13 th January 2022 LORD JUSTICE HOLROYDE MR JUSTICE LAVENDER HER HONOUR JUDGE WENDY JOSEPH QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) ____________________ R E G I N A - v – MATEUSZ MACIEJEWSKI ___________________ 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 Joyce QC and Miss A Joyce appeared on behalf of the Applicant ____________________ J U D G M E N T ( Approved ) ___________________ Thursday 13 th January 2022 LORD JUSTICE HOLROYDE: 1. On 17 th May 2021, at the conclusion of a trial in the Crown Court at Derby before Her Honour Judge Shant QC and a jury, this applicant was convicted of murder. He was subsequently sentenced to custody for life, with a minimum term of 22 years. 2. The applicant now renews his application for leave to appeal against conviction following refusal by the single judge. 3. For present purpose, the relevant facts can be summarised very briefly. On the afternoon of 8 th December 2019 the applicant (then aged 19) went with three other men - Sahib Mann, Callum McConnell and Gursimran Mann - to the home of Karl Taylor. There was a confrontation, in the course of which the applicant inflicted severe stab wounds to Mr Taylor's abdomen and leg. Mr Taylor died some days later of sepsis and multiple organ failure consequent on the abdominal wound. 4. At trial, the applicant denied that he had been armed with a knife when he went to Mr Taylor's home. His case was that it was Mr Taylor who was the aggressor and was armed with the knife. He gave evidence that he had acted in self-defence, that the knife wounds were inflicted during a struggle, and that he did not intend to kill or to cause really serious injury. 5. The prosecution case against the applicant relied, amongst other things, on evidence of the following: that the applicant had been heard to say "Don't worry, I've shanked him" as he stepped back from Mr Taylor with the knife in his hand; that he and his three co-accused had disposed of their clothing and taken other steps to cover their tracks; that he had disposed of the knife and changed his mobile phone; that he had sent text messages to his girlfriend in which he effectively admitted the stabbing, but made no mention of self-defence or accident; and that, posing as someone else, he had made phone calls to the hospital and to Mr Taylor's partner, enquiring about Mr Taylor's condition and asking that life support should not be turned off. The prosecution also relied on evidence of the applicant's relevant previous convictions, his failure to mention when interviewed that he had acted in self-defence and that the wounds were inflicted accidentally, and lies told by him in interview. 6. The applicant was convicted, as we have said. His three co-accused were acquitted. 7. No criticism is made of the judge's legal directions to the jury. The sole ground of appeal relates to the judge's rejection of a submission during the trial that he should discharge the jury or order a separate trial of the applicant. We summarise the circumstances in which the judge made that ruling. 8. The trial took place during the Covid-19 pandemic. The courtroom had been configured to comply with social distancing requirements. Some jurors sat in the jury box, but others sat elsewhere in the courtroom. 9. The dock contained eight seats, in two rows. At the start of the trial, the applicant and Gursimran Mann were seated in the back row. The other two defendants were in the front row, and dock officers occupied the remaining seats. However, when evidence began on 20 th April 2021 the defendants in the back row found it difficult to see the screens on which the CCTV footage was being shown. At their request, they were moved, so that all four defendants were sitting in the front row, with dock officers in the back row. The result of that move was that the applicant was sitting in very close proximity to jurors 11 and 12. 10. The prosecution evidence was concluded on 28 th April 2021. The first defendant, Sahib Mann, then gave evidence and was cross-examined. At the conclusion of his evidence on 29 th April, it was anticipated that neither Gursimran Mann nor McConnell would give evidence, but that the applicant, who was last on the indictment, would. 11. At 13.50 that day, however, jurors 11 and 12 sent the following note to the judge: "Please can the defendant Mataus be moved away from jury number 11 and 12 as it's intimidating us and causing us concern." 12. The judge rightly took prompt steps to have the two jurors separated from the other members of the jury. She discussed the note with counsel at length. Mr Joyce QC, then as now representing the applicant, submitted that a fair trial was no longer possible. The judge arranged for each of jurors 11 and 12 separately to be asked to expand upon their note, to say what had caused them to feel intimidated and be concerned, and to say whether they had discussed this with any other juror. 13. To the first question, juror 11 replied in writing as follows: "I wanted the defendant Mateaus moved a seat or two away from me as for the past few days in court he has been staring at myself and juror 12, during time in the court room. If he could swap seats with Simi or Saby that would make me more comfortable." To the second question, she replied: "It made me feel intimidated as he stared at me quite a bit, and when looking at my screen at the CCTV footage, I could see him in front of me. It just makes me feel rather uncomfortable to see him looking at me for significant amounts of time." To the third question, she replied: "The other jurors know I was concerned as I told them after the first day I noticed him staring at me." 14. To the first of the same three questions, juror 12 replied in writing as follows: "When I first sat down in seat 12, I felt someone staring, looked up and I saw the defendant I believe called Mathius staring. He did not look away but would keep staring across in my direction. It made me feel uncomfortable. I noticed that this was not just a one-off occasion. As time has gone on, I stated to one of the clerks about how this defendant was making me feel uncomfortable about looking over in my direction. The clerk shrugged it off. As I said to Juror 11, 'I don't know if I am being over-sensitive, but I keep seeing Mathius looking in our direction' and she confirmed the same. I have taken to moving my chair to the left as my gaze is not fixed frontways. However, during evidence I can see him still looking, staring." To the second question she said: "The constant staring, if eyes meet staring you out and not diverting his gaze. It does come across as intimidation and not in a normal manner. I have noticed him staring even when I try to avert my eyes, I still see him glancing over." To the third question she said: "The only juror I have explained my concerns was juror 11 and it was because at first I thought I might have been over sensitive and to ensure it was not just me reading into the situation. However, after keeping an eye on the situation I noticed he was even trying to see what I was writing as I am so close and if I look directly ahead due to the position of my seating I can see all the defendants but it's only the defendant closest to me that is constantly looking over in my direction which is uncomfortable and I want to be focused on listening to everything without feeling distracted by this situation." We should say that it is common ground that the reference in juror 12's note to a "court clerk" is almost certainly a reference to a court usher. 15. After further discussions with counsel, the judge directed that the seating arrangements in the dock should revert to those which had been in place at the start of the trial. The result was that the person sitting closest to jurors 11 and 12 would be a dock officer. In addition, the judge arranged for juror 12 to be moved to a different part of the courtroom and for juror 11's seat to be repositioned so that she would face the witness box. 16. Jurors 11 and 12 were then called into court separately. The judge explained to them that the defendants had been sitting in the front row so that they could all see the screens, that it was not the applicant's fault that he was sitting close to the jurors, and that it was not his fault that if he looked to his side it would give the impression that he was staring at a juror. She further explained the revised seating arrangements and asked each of the two jurors: "Do you feel able to continue as a juror and remain faithful to your oath or affirmation to try the defendant in accordance with the evidence and without concern?" 17. Both jurors answered that question in the affirmative. Juror 12, however, paused before answering. She was asked to write out any further concerns, and responded by writing: "Can I not be facing the same way?" 18. Mr Joyce asked the judge to investigate the reference by juror 12 to having spoken to an usher. The judge asked juror 12 to provide a further note in this regard. In her reply, the juror indicated that she could not remember which usher it was. She said that it had been a passing comment when leaving court, and that she was not sure if it had been heard. 19. All twelve jurors were then brought into court, with jurors 11 and 12 occupying their new positions. The judge told them that the issue which had arisen because of the close proximity of two jurors to the dock, and which had now been resolved, should play no part in their deliberations and should not be held against any of the defendants. She reminded them of their duty to try the case according to the evidence. Each juror was then asked if he or she felt able to continue as a juror and remain faithful to their oath or affirmation to try the case in accordance with the evidence without concern. All twelve replied in the affirmative. 20. Mr Joyce thereafter made his submission that the judge should either discharge the whole jury, or discharge jurors 11 and 12, or order that the applicant be tried separately from the other defendants. Those applications were not supported by the other defendants and were opposed by the Crown. Having heard submissions, the judge refused the applications. She indicated that she would give her reasons in writing at a later date. 21. There was then an adjournment over a bank holiday weekend, after which the trial proceeded with the applicant giving his evidence. 22. In the written reasons which she subsequently provided to counsel, the judge said that her explanation to the jury may perhaps have been a generous interpretation of the applicant's behaviour, but it was utterly fair to him. She said that the concerns of jurors 11 and 12 had been focused on their proximity to the applicant, which had now been addressed. Both jurors had stated clearly that they could deliver a fair verdict in accordance with their oaths. The judge did not accept the submission that there was a conflict between juror 12's initial reference to speaking to an usher and her later indication that the comment may not have been heard. There was no basis for regarding that juror as dishonest. Nor did the judge accept that the fact that the matter had not been raised earlier was a cause for concern. She said that it had been a developing situation, as was indicated by juror 12 asking juror 11 whether she was being over-sensitive. All jurors had confirmed that they were able to try the case on the evidence, and they would be given further directions in due course. 23. In his written and oral submissions on behalf of the applicant, Mr Joyce argues that the circumstances which arose made it impossible for the applicant to have a fair trial. He submits that jurors 11 and 12, and any juror to whom either of them said anything about their concern that the applicant was staring at them, had failed to comply with the judge's instruction at the start of the trial that they should immediately raise any matter of concern with her by sending a note. He submits that if the jurors had complied with their duty, it would have been possible for the judge to take appropriate action promptly. As it was, the trial had continued to the point at which it is submitted that it was impossible to correct the situation. Jurors 11 and 12 had felt uncomfortable and intimidated throughout and had been distracted from listening to the evidence. Mr Joyce further submits that the applicant could not give his best evidence when he was fearful of making eye contact with any of the jury as he stood in the witness box. Mr Joyce further questions the honesty of juror 12's assertion that her comment to the court usher may not have been heard. He suggests that she had changed her story in that regard. He submits that if the juror did speak to a court usher, then that usher also failed in her duty to report the matter to the judge. When the matter was belatedly raised, Mr Joyce accepts that the judge asked appropriate questions, but he submits that her enquiries could not, and did not, address the harm that had already occurred. He submitted that a juror asked whether she could continue to try the case fairly was, in practical terms, bound to answer in the affirmative. He seeks leave to appeal on the basis that the conviction should be quashed and a retrial ordered. 24. This being a renewed application for leave, we have not heard oral submissions on behalf of the Crown, but we have read a Respondent's Notice in which it is submitted that the judge dealt with the matter properly and in accordance with Criminal Practice Direction VI (Trial) 26M.1 to 26M.26. Nothing emerged which gave any real grounds for believing that the applicant could not receive a fair trial, and it is submitted that the judge was entitled to conclude that it was not necessary to discharge all or any of the jury or to sever the applicant's case from the trial of his co-accused. 25. We are grateful to Mr Joyce for his submissions, and all the more so because he and his junior have been good enough to act pro bono. 26. When jurors 11 and 12 sent their first note to the judge, she and counsel were confronted with an unexpected and difficult situation. We understand, of course, why Mr Joyce was and is concerned on behalf of the applicant. The judge in our view dealt with the matter entirely correctly. The Practice Direction makes clear that when a possible jury irregularity comes to light, the primary concern of a judge should be the impact on the trial. Having isolated the two jurors, discussed the matter with counsel and ascertained further information from the jurors, she rightly focused on whether they and their colleagues would be able to reach their verdicts on the basis of the evidence alone. The judge was, in our view, entitled to conclude that they would. We regard the following considerations as important. 27. First, the judge was in the best position to assess events during the trial, and was entitled to conclude that the concerns of jurors 11 and 12 arose because of the proximity of the applicant to them. None of the other jurors, sitting a little further away, complained that he had been looking or staring at them. The judge was able to explain the reasons why the seating arrangements had been changed, and to emphasise that it was not the applicant's fault that his seat was so close to the jurors that it could easily appear that he was staring at them. She was also able to ensure that the layout of the courtroom was adjusted so as to end the problem. 28. Secondly, the reference by jurors 11 and 12 to the applicant's conduct "intimidating" them has to be seen in the context of their fuller explanation that his frequent looking in their direction was making them feel uncomfortable. Neither juror said that she had in fact been unable to concentrate on the evidence. Neither said that she was in fear of any adverse consequence or that she felt under any pressure to reach a particular verdict. All twelve jurors confirmed their ability to try the case in accordance with the evidence. There is, in our view, no basis for doubting their assurances. We cannot accept the submission that a juror who did in fact feel sufficient concern about his or her ability to try the case fairly would not be able to say so. On the contrary, it seems to us, a juror who was frightened or apprehensive could say so and would be expected to say so. 29. Thirdly, we see no arguable merit in the submission that the jurors and/or their colleagues had failed to comply with the judge's instructions. As the judge said in her ruling, the matter raised by the two jurors was one which developed over a period of time. It was not a single event which they could be expected to report as soon as it happened. 30. Nor do we see any arguable merit in the criticism that juror 12 changed her account in relation to what she had said to an usher. Like the judge, we see no necessary inconsistency between the juror's two statements. 31. in those circumstances, we see no basis on which it could be argued that any or all of the jurors were prejudiced against the applicant so that he could not have a fair trial. It is accordingly not arguable that the judge should have acceded to the applications to discharge two, or all twelve, jurors, or to sever the trial of the applicant. 32. We would add that the prosecution case against the applicant was very strong. 33. For those reasons, which are essentially the same as those given by the single judge, we see no arguable basis on which the safety of the conviction could be challenged. Grateful though we are to counsel, this renewed application accordingly fails and is refused. ____________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] _________________________________

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Case No: 201101429D4 & 201102705D4 Neutral Citation Number: [2011] EWCA Crim 2991 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT IPSWICH HHJ GOODIN T20067220 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/12/2011 Before : LORD JUSTICE HOOPER MR JUSTICE EDWARDS-STUART and HIS HONOUR JUDGE METTYEAR (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : (1) MICHAEL JAMES (2) RAYMOND FRANCIS BLACKBURN Appellants - and - THE CROWN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR. S. MINIHAN appeared for the 1 st Appellant. MR. N. WAYNE and MR. A. FITCH-HOLLAND appeared for the 2 nd Appellant. MR. A. ABELL appeared for the Respondent. Hearing date: 2 nd December 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Hooper : 1. The appellants appeal with leave against confiscation orders made by HHJ Goodin at Ipswich Crown Court on 8 December 2010 after a five day hearing. The appeal concerns only the benefit figure. In the case of the appellant James, the benefit figure was £159,521.00. In the case of Blackburn the figure was £135,371.00. Both figures were said to represent the benefit from their criminal conduct. No reliance was placed on the criminal lifestyle provisions. 2. This is another confiscation case involving tobacco, this time hand rolling tobacco (HRT). 3. The benefit figure represented in large measure unpaid excise duty on over 1000 kilos of HRT which was found in a factory or in a garage to which it had been sent from the factory for processing or which had passed through either of the premises”. The unpaid excise duty was £119,748.18 which had increased because of the change in value of money to £127,503. That figure of £127,503 was held by the judge to be part of the benefit figure for both appellants. Given that the appellant had realisable assets it seems likely that, if the order is not quashed, there would be full, or almost full, double recovery No or no meaningful confiscation orders were made against the convicted co-defendants. . If that were to happen the state would receive twice the amount of the unpaid duty. In May [2008] UKHL 28 ; [2008] 1 AC 1028 ; [2009] 1 Cr App R (S) 31 , Lord Bingham said: 45. ... There might be circumstances in which orders for the full amount against several defendants might be disproportionate and contrary to article 1 of the First Protocol, and in such cases an apportionment approach might be adopted, but that was not the situation here and the total of the confiscation orders made by the judge fell well below the sum of which the Revenue had been cheated. 4. No claim was made for any benefit arising from sales of any HRT. 5. The raw tobacco was delivered to the “factory”, namely an industrial unit in Stevenage, where it was processed in a machine that produces tobacco that can be smoked and can be sold as HRT. Blackburn was the “manager” of the factory. From the factory the tobacco went in boxes to the garage adjoining the home in Essex of the appellant, James. There it was put into, or was to be put into, 50 gram counterfeit plastic pouches to be sold under a well known trade name. 6. Duty becomes payable at the moment tobacco is processed into a smokeable condition. Thus duty was payable as it came out of the machine or a little later. The tobacco was smokeable by the time that it was packed into the boxes before leaving the factory. This is now accepted on behalf of Blackburn. 7. The judge, at the request of the prosecutor, added a figure to the unpaid excise duty a figure to represent expenses which it was said the appellants had incurred. Thus, for example, Blackburn had bought scales, saw blades for the machine (£50), had paid some rent, had paid money out as wages to those working in the factory and had paid other miscellaneous expenses and that was held to be a benefit, in the total amount of £6960.00, increased to £7411.00 by reason of a change in the value of money. For reasons which will be given by Mr Justice Edwards-Stuart, those expenses cannot to be treated as benefit and to that extent the benefit figure was wrong. 8. That leaves the unpaid excise duty. Facts 9. We shall set out the facts and background in a little more detail. 10. On 18 th March 2008 in the Crown Court at Ipswich (HHJ McKittrick) the appellants were convicted of conspiracy to contravene section 170 of the Customs and Excise Management Act 1970. Blackburn was sentenced to 3 years’ imprisonment and James to 2 years’ imprisonment. 11. Unfortunately much time passed before the confiscation hearing took place (albeit for good reason) and HHJ McKittrick was unable to hear the confiscation applications. 12. The two appellants and their co-accused were involved in a conspiracy to evade duty payable on hand rolling tobacco indicted between 7 th May and 11 th August 2006. There were two known premises involved, one being a fully operational tobacco factory in a large outhouse (unit 15) at a poultry farm in Stevenage which received boxes of raw leaf tobacco. This was treated with liquid chemical and processed through an industrial tobacco cutting machine into processed hand rolling tobacco. The processed product was packed into smaller boxes and sealed. These boxes were then transported by Charles to second premises, the garage of 29 Rockingham Avenue, Hornchurch, Essex. The boxes were opened, the tobacco weighed and put inside counterfeit 50 gram tobacco pouches for sale. There was no direct evidence as to who had done that, but, given the jury’s verdict, James must, at the least, have allowed that to happen knowing that HRT on which no duty had been paid was being packaged in his garage. 13. Unit 15 was raided on 10 th August 2006 by HMRC officials and Blackburn was one of four men arrested there. 14. The same afternoon James was arrested at the Hornchurch premises which he owned. A co-accused Charles, who died prior to trial, was also arrested there having that day, as he had earlier, driven a van containing boxes of processed tobacco onto the driveway. HMRC officials seized 3.027 tonnes of raw leaf tobacco from Unit 15 and a total of 521.9 kilograms of processed hand rolling tobacco either from the factory or the van. 43,000 empty counterfeit pouches were seized from the garage or the back of the van. 15. Unit 15 had been rented by a man giving the name Peter Ward from 8 th May 2006 at a rent of £500 per month. A total of £2,500 was paid in cash. The unit was modified by upgrading the electrical supply and building a partition wall. A man giving the name Ray contacted the lessors over a drainage problem. The contact number he gave was that of Blackburn’s mobile phone. Officers had kept surveillance on the various conspirators between 13 th June 2006 and 10 th August 2006. On 9 th August officials also placed hidden visual recording equipment in Unit 15. Blackburn declined to answer questions in interview stating he did not have his medication and felt stressed and tired. He declined to suspend the interview to give him the opportunity to see a doctor. James agreed that 29 Rockingham Avenue was his home and was self employed. He said that he had allowed people to store items in his garage because he had been in trouble and someone had sorted it out for him. He declined to answer further questions. 16. As against James, the prosecution relied on three withdrawals of £10,000 in cash withdrawn on 8 th June, 7 th July (two days after the transfer of some of the HRT from the factory to the garage) and 10 th August 2006 (the day on which James and Charles were arrested, as well as the other defendants). Who is liable to pay the excise duty? 17. In R v Smith [2001] UKHL 68 , [2002] 1 Cr App R 35 , [2002] 1 WLR 54 the House of Lords held that an importer of uncustomed goods, in this case cigarettes, who intends not to enter them for customs purposes and not pay any duty on them, derives a benefit under section 74 of the Criminal Justice Act 1988 through not paying the required duty at the point of importation, where the goods are forfeited by HM Customs following importation, before their value can be realised by the importer. 18. In Waya , UKSC 2010/0088, which will be re-argued before nine Justices of the Supreme Court next year, the parties have been sent a note which, amongst other things, asks the question: “Did Parliament intend that confiscation proceedings should be brought in respect of property that has been restored by or recovered from the defendant.” See for example CPS v N and other cases [2009] EWCA Crim 1573 , [2010] 1 Cr App R (S) 82 . The note also states that “it may be that the Court should reconsider” whether Smith was correctly decided. 19. Only the person or persons who are personally liable to pay the duty will have obtained a pecuniary advantage by evading its payment. Absent that liability, they will not have obtained a benefit in accordance with section 76 of the Proceeds of Crime Act, 2002 and its predecessors. This was established by the House of Lords in May ; Jennings [2008] UKHL 29 ; [2008] 1 AC 1046 ; [2008] 2 Cr App R 29 and applied in Chambers [2008] EWCA 2467 and Mitchell [2009] EWCA Crim 214 . 20. However, it does not follow from the fact that a person evades the duty which he personally owes, that he has necessarily obtained a benefit by evading it. We shall come back to that shortly. 21. It is not disputed that a person holding the tobacco products at the excise duty point, namely at or shortly after the tobacco emerged form the machine, is the person holding the tobacco products at that time or any person who caused the tobacco products to reach the excise duty point whilst retaining a connection with the goods at that point: see the Tobacco Products Regulations 2001 2001/1712, the validity of which and the meaning of which was discussed in White and others [2010] EWCA Crim 978 , paras. 56 and following. There can be more than one person who owes the duty and, under the Regulations, each is liable jointly and severally. However, HMRC can only recover the amount of the duty owed. There can be no double recovery. The word “holding” has not been authoritatively determined but a person would “hold” the HRT if he owned it or probably had possession or control. The appellant James- was he liable to pay the duty? 22. James would have been liable to pay the duty if he was holding the tobacco products at the time that excise duty became payable or if he caused the tobacco products to reach the excise duty point whilst retaining a connection with the goods at that point of time. In order to satisfy either requirement it would have to be shown by the prosecution, on the balance of probabilities and on the facts of this case, that James had, contrary to the evidence which he gave, some financial stake in the illegal operation. If he was a part “owner” of the tobacco, that would suffice. 23. We turn to the ruling of HHJ Goodin. He held that James was the provider of accommodation and facilities for packing and distribution and this was crucial to the success of the enterprise. The judge went on to say: “He wasn’t plainly located often on the scene of Unit 15 but he was in my view a visitor for planning meetings for the furtherance of the conspiracy to those premises. [He was] responsible for causing the tobacco to arrive at the duty point where indeed it seems to me [he] helped”. 24. The prosecution accept that the judge was wrong to make the finding that James was a visitor for planning meeting s . The only evidence from which the presence of James at the factory could be inferred was the sighting on one occasion, the 29 th June 2006, of his Cherokee jeep at the factory. James was himself not seen there. James gave an explanation for the presence of his jeep there - it was being driven by Charles, the co-defendant who had died and who drove the tobacco (albeit not in the jeep) from the factory to the garage. If the judge was going to rely on that one sighting from which to infer that James had attended a planning meeting and was responsible for causing the tobacco to arrive at the duty point because he had “helped”, then the judge should have given reasons for not accepting the evidence of James. 25. The judge went on to hold in one sentence that that the three sums of £10,000 withdrawn on 8 th June, 7 th July and 10 th August were payments “for or associated with tobacco produced at the factory”. The appellant gave evidence that he withdrew the sums to gamble with bookmakers and had produced to the judge a considerable body of documentary evidence which showed that he was a heavy gambler and had made numerous withdrawals of cash in large and round sums of money both before and after these withdrawals. The judge accepted that James “may well” have been a gambler and gave no reasons for his conclusion. Furthermore the evidence relating to the withdrawals relied upon by the appellant was introduced at the trial. That is important because the trial judge, having heard that and the other evidence, concluded in his sentencing remarks that the role of James was to allow his premises to be used as a base for the distribution of the processed tobacco and that James had played a lesser role than Blackburn. The trial judge said that it was plain that James was responsible for distribution as opposed to processing and that: “Never shall processing and distribution meet.” If HHJ Goodin was right, then the trial judge should have sentenced James as a financier of the unlawful enterprise whose responsibility was greater than that of Blackburn. Whilst not saying that a judge hearing a confiscation case may not reach a different conclusion than the trial judge, the confiscation judge will normally be expected to explain far more fully than did HHJ Goodin why he has reached a different conclusion on the same evidence considered by the trial judge. This HHJ Goodin did not do. 26. This is not a case where it would be right for the Court of Appeal to conduct a completely new hearing on the issue of benefit and we therefore quash the finding of benefit in so far as it related to evaded excise duty. The judge also held that the £30,000 (uplifted to represent a change in the value of money) was a benefit. For the reasons which Mr Justice Edwards-Stuart analyses and rejects below, the judge was in any event wrong to find this sum to be a benefit even if it had been used to fund the operation. It follows that the confiscation order made against James is quashed. The appellant Blackburn - was he liable to pay the duty? 27. In this part of the judgment we deal only with that part of the alleged benefit which represents the evaded duty. 28. Blackburn’s role was set out in an agreed note prepared for the confiscation hearing. That reads: Statement as to role Raymond Blackburn was described by HHJ McKitterick as the local manager, when sentencing him. There is no evidence that Mr Blackburn financed the purchase of the raw leaf tobacco. Mr Blackburn accepts the following: He was first observed on the 29 th June 2006 at the unit. He was made aware that the tobacco cutting machinery was being delivered to the Unit and assisted in putting it into the unit. He loaded tobacco onto the machinery, for the machine to process the tobacco. There is no evidence that the machinery was operated in the absence of Eric Cuerton. He was responsible for running, safety and security at Unit 15. He was responsible for preparation/modification of the unit so that processing could take place. He recruited labour to assist in processing of the tobacco – Mr Warr and Mr Chuter. He assisted in the transportation of the raw leaf tobacco from its stored location, said in evidence to be in Grimbsy. He obtained and paid for materials for the day to day running of the unit (see Albany notebook). He liaised with the landlord of Unit 15 including on occasions the payment of rent on the unit. He wrote on the wall the recipe for blending the hand rolling tobacco. Mr Blackburn said he obtained this recipe from another. 29. The effect of this agreed note is that Blackburn was in effect the local “salaried” manager of the factory with no proprietary interest in the tobacco. It might have been agreed or, if not agreed, decided that the £6960.00 which Blackburn spent on miscellaneous expenses was an investment by Blackburn in the unlawful enterprise. However it was agreed that was no evidence that Mr Blackburn financed the purchase of the raw leaf tobacco. It must follow that it had to be assumed that that Blackburn expected to be reimbursed for the expenses, albeit that there was no evidence that he was reimbursed. 30. Was Blackburn either holding the HRT or did he cause the tobacco products to reach the excise duty point whilst retaining a connection with the goods at that point of time? In Mitchell [2009] EWCA Crim 214 , a post Chambers decision discussed in White and others in paragraphs 105-115, the Court said that they had not heard full argument on the point but that it appeared that the words causing the tobacco products to reach the excise duty point were directed at the person who had real and immediate responsibility for causing the product to reach that point. In paragraph 115, the Court in White and others said that the correctness or otherwise of this obiter passage might have to be considered should the point arise. One of the problems for criminal courts in this area is that any interpretation given to the Regulations must be the same as the interpretation that would be given to the Regulations in civil proceedings (court or tribunal) concerning excise duty. Furthermore when construing the word “cause” in criminal cases, it is normally given a broad meaning: see Williams , [2010] EWCA Crim 2552 ; [2011] 1 W.L.R. 588 , applied in H [2011] EWCA Crim 1508 . 31. Whatever the precise meaning of the words “holding” and “causing”, it seems to us that the appellant as the local manager albeit with no ownership of the tobacco falls into one or both of these categories. The judge was therefore entitled to find that he caused the tobacco to arrive at the duty point. Did Blackburn obtain a benefit? 32. The judge took the view that, having found that Blackburn caused the tobacco to arrive at the duty point, he had obtained the benefit in that amount. It is submitted on behalf of Blackburn that he was wrong to so find in the light of May and Sivaraman [2008] EWCA 1736; [2009] 1 Cr. App. R. (S.) 80 ; [2008] Crim. L.R. 989. 33. In May Lord Bingham, giving the opinion of the Appellate Committee, said (paragraph 48(6)): D ordinarily obtains property if in law he owns it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else. He ordinarily obtains a pecuniary advantage if (among other things) he evades a liability to which he is personally subject. Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property. It may be otherwise with money launderers. 34. Blackburn, on the agreed facts, had no interest in the tobacco or the proceeds of sale. On the other hand he was more than a courier or custodian and it would be difficult to categorise him as a very minor contributor to an offence. 35. In Jennings the House of Lords said: 13. ... It is, however, relevant to remember that the object of the legislation is to deprive the defendant of the product of his crime or its equivalent, not to operate by way of fine. The rationale of the confiscation regime is that the defendant is deprived of what he has gained or its equivalent. He cannot, and should not, be deprived of what he has never obtained or its equivalent, because that is a fine. This must ordinarily mean that he has obtained property so as to own it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else. 36. In this case Blackburn, if not repaid the £6960.00, had lost that money and had made no money at all, given that HMRC had intervened before any distribution had effectively taken place. 37. We turn to Sivaraman . The appellant was the manager of a service station who accepted deliveries of “off road” diesel fuel on behalf of his employer, which was then sold to customers without the payment of duty. The Court (Toulson LJ, Jack J and HHJ Mettyear) held that his benefit was the amount paid to him by his employer for his participation in the scheme, not the duty evaded. The respondent seeking unsuccessfully to uphold the confiscation order made against the appellant which reflected the duty evaded, argued that, applying the passage in May (paragraph 34 above), the appellant was not a mere minor contributor but that he played a significant role as the petrol station manager. As to this the Court said: The way in which he sought to deploy that sentence illustrates the need for care in the way that courts approach judicial commentary, the purpose of which is to elucidate and not stand in the place of the underlying principle. 38. The Court asked whether the appellant was a joint purchaser of the fuel for resale as DERV who, by his conduct, jointly gained the pecuniary advantage of being able to resell it as DERV without having incurred the duty which would have had to be paid on purchasing DERV; or was he acting just as an employee? The Court held that he was the latter and quashed the confiscation order. 39. In the light of Sivaraman , it seems to us that Blackburn’s appeal against the confiscation order in so far as it represented the unpaid excise duty must succeed. In these circumstances we do not need to address the post hearing submissions that were sent to us on the question of whether or not Blackburn had the necessary intent to evade the duty. Mr Justice Edwards-Stuart 40. We turn now to the question of the expenses incurred by Blackburn. Blackburn's case was that he was never reimbursed for these expenses, and there was no evidence or finding to the contrary. We therefore proceed on this basis. 41. The expenses in question fall broadly into three types. First, the purchase of equipment or materials for the purpose of the venture. Second, payments by way of rent for Unit 15, “the factory”. Third, payments for casual labour for work in connection with the venture. In all, these amounted to about £7,000. For convenience, we will set out below those provisions of the Proceeds of Crime Act 2002 (“ POCA ”) that are of particular relevance to this issue, bearing in mind that the exercise that the court is undertaking is to decide whether the appellant has benefited from his particular criminal conduct: see section 6(4) . Section 76 of the Act provides: (1) Criminal conduct is conduct which (a) constitutes an offence in England and Wales . . . (3) Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs (a) conduct which constitutes the offence or offences concerned . . . (4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct. (5) If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage. (Emphasis added) 42. Section 84 of the Act provides that property is held by a person if he holds an interest in it. The purchase of equipment or materials for the purpose of the venture 43. It was not disputed that Blackburn purchased these items, which included things such as weighing scales, cardboard boxes and sundry building materials, from ordinary commercial suppliers in the usual way. He paid in cash. In relation to the cardboard boxes and packaging tape, it was said that he asked the supplier if the transaction could be done " without a ticket ", but the request was refused. 44. In our judgment it is quite clear that these were ordinary everyday transactions that were perfectly lawful in themselves. True it is that Blackburn intended to use these items in an unlawful venture, but there is no reason to believe that that would have been known to the supplier. If, for example, on returning to the factory Blackburn had discovered that the cardboard boxes were damp, there would probably have been nothing to prevent him from returning to the supplier and rejecting them, demanding the return of the price. The supplier would not have been entitled to refuse on the ground that he had since learned that Blackburn wanted the boxes in order to transport illegally processed tobacco products, because Blackburn did not have to rely on any particular purpose for which he bought the goods in order to complain that they were not of merchantable quality. See Tinsley v Milligan [1994] 1 AC 340 . Where property has passed pursuant to an illegal contract, relief will not ordinarily be refused to the person who acquired the property on the ground of illegality unless he has to rely on the illegal conduct in order to establish his title. 45. There is no suggestion that Blackburn paid anything other than the normal retail price for any of these items. At the outset we remind ourselves of the summary of the relevant principles given by the House of Lords at the conclusion of its opinion in R v May [2008] 1 AC 1028 , which included the following passage: “The court should proceed by asking the three questions posed above: (i) Has the defendant (D) benefited from the relevant criminal conduct? (ii) If so, what is the value of the benefit D has so obtained? (iii) What sum is recoverable from D? . . . These are separate questions calling for separate answers, and the questions and answers must not be elided.” 46. Looking at the matter broadly and addressing the first of these questions, we do not see how it can be said that Blackburn derived any benefit from buying these items. He paid for them and received goods in return to the same value. He gained nothing (in monetary terms) by the transaction. There was no pecuniary advantage. In these circumstances, it would be strange if the relevant legislation compels the conclusion that he had derived a benefit, measurable in money terms, from these transactions. 47. We do not think that the relevant provisions of POCA do compel this conclusion. First, Blackburn did not obtain the items as a result of any criminal conduct. He obtained an as a result of a lawful transaction with the supplier. 48. Second, he did not obtain the items in connection with any criminal conduct. His criminal conduct in participating in the conspiracy formed no part of the transactions by which he acquired the various items. Their acquisition was by way of lawful purchase for value. We accept that these transactions were entered into for the purpose of criminal conduct, but that is not necessarily a state of affairs caught by section 76(4) . 49. We accept also that the expression " in connection with " widens the meaning of the words " as a result of ": see R v Waller [2009] 1 Cr App R (S) No 76, at page 450. In our view, the expression was probably intended to cover the type of situation where a person obtains property in anticipation of the criminal venture. For example, suppose that A is provided with a car (which is registered in his name) by someone planning a criminal venture, ostensibly for A’s own use but really with a view to him using it also in order to act as a courier to transport illegal tobacco products for that criminal venture. In this situation it is clear that A has obtained the car in connection with his subsequent criminal conduct of transporting the illegal goods, although it may be open to argument whether he also obtained the car as a result of any criminal conduct. 50. In fact, this example is very similar to the facts of the leading case of R v Smith , which we have already mentioned. Smith bought a motor vessel with £55,000 provided by his co-defendant, John Marriott. Smith effectively acted as Marriott's shipowner and captain. When, as part of a smuggling operation, the vessel was sailed up the Humber estuary laden with cigarettes on which duty had not been paid, the benefit that he was found to have obtained from his criminal conduct included not only the duty evaded on the cigarettes but also the value of the vessel. That was because he had obtained the vessel in connection with the commission of the offence. Whilst this decision may have its critics on the ground that the defendants were treated as having benefited to the full extent of the amount of the duty evaded whilst having been deprived of the opportunity to sell the cigarettes, we do not understand there to have been any criticism of the conclusion that the vessel was properly treated as property obtained in connection with a commission of an offence (a point which was not argued in the House of Lords). 51. We were referred by Mr Abell to the decision of R v Waller , to which we have referred briefly above. The defendant was stopped at the Channel Tunnel by British customs officers, who found 250 kg of undeclared hand rolling tobacco in the boot of his car. The defendant admitted to buying the tobacco for himself, his family and his friends. He said that he had spent £2,000 of his own money and £12,000 given to him by three other people. He accepted that he bought the tobacco with the intention of evading duty. 52. In the subsequent confiscation proceedings the Crown contended that the defendant’s benefit amounted to £41,505, being the total of the evaded duty of £27,505 and £14,000, being the value of the cigarettes. The issue on the appeal related to whether the confiscation order should have included the value of the tobacco as well as the evaded duty. The case for the defendant on this aspect was that the judge should not have included the value of the tobacco as it had been purchased legitimately. The Crown’s response was that the whole enterprise was one tainted with criminal intent We note that a very similar metaphor (“ tainted with illegality ”) has attracted judicial criticism for its imprecision: see Euro-Diam v Bathurst [1990] 1 QB 1, Staughton J at 15. from its outset since, without dutiable goods to smuggle, there can be no pecuniary advantage. 53. The court gave six reasons in support of its conclusion that the judge was right to make a confiscation order not merely that the value of the duty but also the value of the tobacco. The first reason was based on the concluding paragraph of the judgment of the House of Lords in May , which stated: “(6) [The defendant] ordinarily obtains property if in law he owns it, whether alone or jointly which will ordinarily come out a power of disposition will control, as where a person directs a payment or conveyance of property to somebody else." 54. The third reason was expressed in the following terms: “Our third reason for accepting the contentions of the respondent flows from the wording of the statutory provisions because the court has to ask itself two questions. The first is whether the defendant has benefited from his criminal conduct. In this case, the answer must be in the affirmative, as the appellant obtained tobacco which he purchased. The second question, based on s. 76(4) is whether the appellant obtained property "as a result of or in connection with" the conduct of evading excise duty. In this case the answer must be that the appellant obtained property, namely the tobacco. This was the only property that he obtained and in reaching that conclusion, we have noted the width of the words used in the statutory provision because they talk about a person obtains property "as a result of or in connection with his conduct". The words "as a result of" apply to any consequence, while the words "in connection with" widen that meaning. In our view, the acquisition of property and this tobacco falls clearly within both categories." 55. It is clear on the facts of that case that the enterprise demanded the prior purchase of the tobacco outside the United Kingdom with the consequence that it was obtained “ as a result of ” the criminal conduct, namely the smuggling enterprise. It is evident also that it was obtained " in connection with " the smuggling enterprise, since the tobacco was itself the subject of the operation. Leaving aside the defendant’s admission, it was not as if there could have been any other conceivable reason for buying such a large quantity of tobacco outside the United Kingdom: the defendant and his friends could hardly have wanted to buy it just in order to set up a stockpile of tobacco on the mainland of Europe. 56. However, the decision is not without its critics: see Archbold , 2012 Edn, at 5-1051, where the editors refer to an article in which the decision is criticised on the grounds that it misapplies May and is out of line with Smith (because in that case it was never suggested that the benefit included the value of the smuggled goods). 57. We consider that there is a significant difference between the purchase of the tobacco in Waller and Blackburn's purchases of the various items with which we are concerned in this case. Mr Waller's purchase of the tobacco was central to the smuggling operation on which he had embarked since the tobacco in question was the very thing that was to be smuggled. In those circumstances it is unsurprising that the court concluded that the purchase of the tobacco was in connection with the criminal conduct: it formed part of it. 58. Turning now to the judgment in the present case, the judge dealt with the issue of the outlay on the purchase of equipment for the enterprise, such as the scales, boxes and so on, in a single sentence. He said, very simply, that those expenses " are in my judgment caught by the legislation ". He gave no reasons. 59. For the reasons we have given, we consider that the sums spent by Blackburn on the purchase of equipment or materials for the purpose of the venture are not caught by the legislation. Accordingly, they did not form part of the benefit. 60. We should add that the Crown did not seek to include in the assessment of the benefit to Blackburn any sums in respect of either the raw tobacco that was found at the factory or in respect of the HRT that was produced or seized. It is not obvious to us why the Crown chose to omit these whilst including the items purchased by Blackburn. Payments by way of rent for the factory building 61. As the agreed statement of Blackburn’s role records, he paid some of the rent for Unit 15 during the relevant period (£2,000, according to his notes). As we have already mentioned, a man giving the name Peter Ward rented the unit from 8 May 2006 at a rent of £500 per calendar month (this was stated in the Crown’s opening note for the trial). 62. In Jennings the House of Lords held that “ obtains ” must ordinarily mean obtaining property so as to own it, thereby ordinarily connoting a power of disposition or control. Since it appears that the agreement to rent Unit 15 was not in Blackburn's name, or at least the Crown did not prove that it was, it seems to us that the payment of the rent did not confer on Blackburn any right of disposition or control over the unit. 63. The most that can be said is that the payments of the rent enabled “Mr Ward” to continue to enjoy the rights under the agreement with the lessor. Whilst it may be argued that he (Ward) thereby obtained property, we consider that the relevant evidence, namely that Blackburn paid the rent for certain months out of his own pocket, fell short of establishing that Blackburn obtained any property, or any property rights, that amounted to a benefit. 64. However, if we are wrong about this, for much the same reasons that we have given in relation to the purchases of the items of equipment, we would have concluded that these payments in respect of the rent were not made in connection with the criminal conduct within the meaning of the legislation (we are assuming, because there was no evidence to the contrary, that the rent was in line with prevailing market rates). It is true that Unit 15 was rented for the purpose of enabling the criminal conduct to take place, but the arrangement to rent it was a contract that was not in itself in any way unlawful. Unlike the tobacco in Waller , the unit could have been put to another purpose or those controlling the enterprise might have changed their minds - perhaps because they thought that Unit 15 was under observation - and decided at the last minute to terminate the arrangement and to use another building. 65. We accept that, because the payment of rent was a continuing outlay, the connection to the criminal conduct is closer than in the case of the individual expenses. However, since this is a criminal statute and the confiscation process is not to be applied so as to operate as a fine (see Jennings , at paragraph 13), we consider that the words “ in connection with ” must be given a narrow construction provided, of course, that such a construction is consistent with the ordinary use of the statutory language. In these circumstances and for the reasons that we have given we consider that by paying the rent Blackburn did not obtain a benefit that is caught by the legislation. Payments for casual labour for work in connection with the venture 66. Mr Abell submitted that in paying for the casual labour Blackburn obtained a pecuniary advantage and that this advantage was gained in connection with the criminal conduct. 67. In R v Olubitan [2004] 2 Cr App R(S) No 14, May LJ said, at page 78: “The section [ section 71 (1A) of the 1988 Act , the precursor to s 6 of POCA ] is not to be construed so that a person may be held to have obtained property or derived a pecuniary advantage when a proper view of the evidence demonstrates that he has not in fact done so.” This passage was cited with apparent approval by the House of Lords in May , at paragraph 19. 68. In our judgment, Mr Abell’s submission falls at the first fence. We cannot see how a person who pays for services at a market rate can be said to have obtained a pecuniary advantage. It seems to us that, in terms of gain, the transaction is financially neutral. 69. It may be that, if one looks at it from the other end of the telescope, one could say that the men engaged to work at the factory on a casual basis thereby obtained a pecuniary advantage in the sense that they received money in return for their labour. By analogy with the now repealed section 16(2)(c) of the Theft Act 1968 . But whether or not that is the case, it is hard to see how the employer obtains a similar pecuniary advantage in circumstances where (a) he obtains no money as a result of the transaction and (b) the labour he obtains is paid for at the going market rates. Conclusion in relation to expenses 70. We conclude that none of the items of expenditure incurred by Blackburn that were treated as part of the benefit in the confiscation proceedings was caught by the legislation. Accordingly, that part of the decision of HHJ Goodin must be set aside. Conclusion 71. It follows that the confiscation orders in respect of both appellants are quashed.

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Neutral Citation Number: [2014] EWCA Crim 717 Case No: 201206316 C3 201206317 C3 201206319 C3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Harrow Crown Court His Honour Judge Greenwood T20127045 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15 April 2014 Before : LORD JUSTICE FULFORD MR JUSTICE HICKINBOTTOM and MRS JUSTICE SIMLER DBE - - - - - - - - - - - - - - - - - - - - - Between : Armajit Singh-Mann, Kamlesh Panchal and Jagjeet Singh Chahal - and - Regina - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Arlidge QC (instructed by Saunders Law Limited ) for Armajit Singh-Mann, Mr Etherington QC(instructed by Saunders Law Limited) for Kamlesh Panchal and Mr Hines (instructed by Brett Wilson LLP) for Jagjeet Singh Chahal Mr Haycroft (instructed by CPS Specialist Fraud Group ) for the Respondent Hearing date: 28 January 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Fulford : Introduction 1. On 10th October 2012 in the Crown Court at Harrow before H.H.J. Greenwood and a jury the appellants were convicted of one count of conspiracy to defraud. 2. On 29th October 2012 the judge sentenced the appellants as follows: Singh-Mann (“Mann”) and Panchal who are aged 60 and 50 respectively were sent to prison for 7 years and they were disqualified under s.2 Company Directors Disqualification Act 1986 for a period of 8 years. They were each ordered to pay prosecution costs in the sum of £6,500. Chahal who is aged 41 was sentenced to 3 ½ years’ imprisonment and he also was disqualified under s.2 Company Directors Disqualification Act 1986 for a period of 8 years. 3. Before this court they each appeal against their convictions by leave of the single judge. 4. Mann applies for an extension of time (5 days) in which to renew his application for leave to appeal against sentence and Panchal renews his application for leave to appeal sentence. 5. As regards Mann’s application for an extension of time to renew his application for leave to appeal against sentence, on 9 April 2013 the single judge refused leave to appeal. On 11 April 2013 the Court of Appeal Office sent the applicant notification of the refusal. On 30 April 2013 the applicant returned the relevant form (“SJ”) signed and dated 29 April 2013, and this was accompanied by a letter from his solicitors bearing the same date in which it was suggested that the appellant did not receive the renewal form before 15 April 2013. The renewal form was seemingly completed and signed by the applicant’s legal representative. We accept that the appellant may have received the relevant documentation late, and in consequence extend time. The issue on the appeal 6. The sole issue on the appeals against conviction is whether the judge properly summed up the case of each appellant. Principally, it is suggested the summing up failed to include an adequate rehearsal of the evidence and arguments relied on by the appellants in support of their respective defences, even though they each did not give or call evidence. The Facts Ablethird Ltd 7. At various times the appellants were the company directors or company secretaries of a number of different companies. Each was involved with a particular company called Ablethird Ltd which, at the time of trial, was in administration. Ablethird was a property investment company, based in Watford, which was incorporated in March 1988. It described its business activities as the development and selling of real estate. The company group had a number of subsidiaries which were primarily involved in adult gaming centres trading under the names of Agora Gaming and Leisure World Ltd. To use the expression of Mr Hines on behalf of Chahal “[i]n late 2007 Ablethird embarked on an ambitious, ill-timed and ill-fated scheme of expansion”. As a result a considerable amount of money was raised by way of loans that were fraudulently obtained. 8. Mann and his son Harjinder were the only directors and shareholders of Ablethird. Mann’s daughter was the company secretary. Although Panchal was never formally a director of Ablethird, he was described as ‘Finance Director’ on his business card as well as on a company organogram seized by the police when they searched the company offices. Chahal is Mann’s nephew and worked as the office manager. 9. In the spring of 2007 Ablethird took over a company called Deith Gaming Ltd. The latter company’s specialisation and core business was bookmaking. It was hoped that the company would complement Ablethird in the amusement arcade business. Matthew Deith, the Managing Director and owner of Deith Gaming Ltd, had experience in operating betting shops. He worked for Ablethird from the spring of 2007 until the demise of the company. 10. Deith gave evidence for the prosecution. He reported to Mann, whom he described as being very “hands-on” in that he visited the sites and came into the office frequently. Mann was involved in any dealings with estate agents. Deith said that Panchal worked closely with Mann as regards the company’s finances and properties. Chahal was the head of accounts and dealt with payments by the company and the company’s leases. Any loan applications were all dealt with by Chahal. The three appellants, according to Deith, formed the company management team. Deith testified that his primary involvement was with the gaming licences. The appellants had an existing relationship with the banks before he joined the company, and they continued to deal with them after Deith’s arrival. However, it is to be noted in August 2012 (before the trial in September) the Crown disclosed a considerable amount of unused material containing email traffic that arguably evidenced that Deith had been central to the management of the company’s property and financial affairs (contrary to his assertions). He was cross-examined extensively before the jury on this material. 11. It was alleged that Deith had facilitated the introductions between the banks and Ablethird in relation to some of the transactions set out in detail below. He accepted that he was described on his Ablethird business card as a director but he said that he was a divisional director in title only, to assist in his dealings with local authorities when attempting to obtain gambling licences. He did not agree that others absorbed some of the work that had once been undertaken by Mann, and he said that, although there was a funding manager, Panchal and Mann were still involved with the company’s finances, and in particular Panchal was very active within the company in this regard. Deith said that Panchal and Chahal dealt with the funding side of the business. 12. Deith agreed that, in accordance with his statement to the police, Mann was out of the office for most of the day and he saw him only on an occasional basis. However, Deith said that Mann was fully aware throughout the relevant period of all matters relating to Boylesports. Deith’s evidence was that Mann decided which properties he wished to purchase and Deith assisted by collating the relevant information. 13. Robert Gillard, a building surveyor for Ablethird between 2006 and 2009, gave evidence that he presumed Mann was the overall boss, although he and Panchal worked together. Chahal was always in the office and acted as the intermediary between the senior management and everyone else. Gillard said that Deith came to work for the company as a manager but he was told what to do by other members of the management team. Mann and Panchal were out of the office most of the time and therefore about ninety per cent of the information Gillard received was from Chahal. Gillard’s role was to secure planning consent, an issue of predominant interest to the appellants, and thereafter he instructed the builders. 14. In 2007 Alexander Anderson, a financial consultant, met with Mann and Panchal to discuss raising money for Ablethird. Panchal was Anderson’s main point of contact and did most of the talking at the meetings. Deith had no recollection of being involved in restructuring the finances at Ablethird. 15. Ablethird applied for loans on the basis that the company, acting as a landlord, had entered into tenancy agreements with a number of named tenants. These were false representations because the tenancy agreements did not exist. The reason for these false statements was that the value of the relevant commercial property was greater if tenanted than if untenanted. The detail of these arrangements is described in greater detail hereafter. Boylesports Ltd 16. Boylesports Ltd was a bona fide betting company based in Northern Ireland. Matthew Deith gave evidence that Deloittes introduced him to Boylesports in 2007, and he introduced Mann and Panchal to Steve McLoughlin of Boylesports. On his account, there were discussions about the two companies forming a joint venture to operate bookmakers at Ablethird properties under the Boylesports brand that lasted for several months. Deith said he was a contact for Boylesports and he dealt with them on behalf of the Ablethird. There were meetings at which Mann and Panchal were present, along with Deith. Chahal was possibly also present at one of these meetings. Deith indicated that the momentum eventually slowed, and in mid to late 2008 Boylesports pulled out. Deith informed Mann and Panchal that the deal was off. Although there was evidence that Deith played a significant role on behalf of the company in these negotiations, Deith said that as far as he was aware Boylesports had not signed any of the leases (these are considered in detail hereafter), and in any event it was his understanding that the plan was for a new joint company to be established between Boylesports and Ablethird which would take on the leases. 17. Deith gave evidence that he was not involved in the re-financing and the management of, or obtaining redemption figures for, any of the properties. He denied that he was either involved in the relevant financial arrangements or that he was aware of money having being borrowed on the basis of false Boylesports leases. He said that the administration team, of which Chahal was the head, handled lettings at Ablethird. 18. Deith said that latterly he concentrated on licensing and he left the company in September 2009, on the day he was arrested in connection with the investigation. Deith’s account was that he conveyed messages between the banks, on the one hand, and Mann and Panchal on the other. He said that he handed over many of the documents to Mann without reading them, given he reported to Mann and Panchal. He agreed that Chahal was not his boss but he gave evidence that Chahal nevertheless asked him to perform particular tasks. 19. Robert Gillard gave evidence that he once heard Panchal speaking to Deith in 2008 or 2009 about Boylesports. As he recalled the conversation, he heard Panchal say to Deith that a property had been leased to Boylesports. He testified that Deith had not acquired any properties on behalf of Ablethird and that Deith had only called him regarding planning permission once or twice. Gillard indicated that he was not involved in the financial arrangements and he had not heard about the negotiations with Boylesports. It was put to Gillard that Chahal’s role had altered and he stated that Chahal had moved from an open plan office into an office “with the others”. 20. Shane McLoughlin, the CEO of Boylesports, testified that whilst he was in negotiations with Ablethird he dealt primarily with Deith. He first met Deith and an Indian man who was clearly his boss at the Birmingham NEC in October 2007 (this, it was said, was Mann). Although Deith did most of the talking, he deferred to the other man. Deith made it clear that he needed to report to the directors before he would be in a position to enter any agreements. There were further meetings with Deith in London, when they were shown properties, and also in Dublin. Plans were drawn up and the meetings and correspondence with Deith continued until mid-December when Boylesports decided to abandon the project. Deith tried to resurrect the deal about six months later and McLoughlin met again with Deith and the same Indian representative of the company but Boylesports again decided against proceeding. In the course of these later discussions with Boylesports, Deith described himself as a director of Ablethird and he drew up a document suggesting the way ahead for the joint venture which he signed representing himself as the CEO of the Ablethird Group. However, Deith was neither a director nor CEO of Ablethird. Even under the draft plan, Boylesports would not have taken up any leases and in the event no lease agreement was finalised. McLoughlin said that the leases that he was shown purportedly involving his company were entirely bogus. He said that Deith gave the impression of desperation at the final meeting. Deith denied the allegation that was put to him that he was involved with the leases which carried the false signatures. Yorkshire Bank 21. At the end of 2007 an application for a loan was made to Yorkshire Bank on the basis that there was to be a tenancy agreement with Boylesports Ltd at 48 Grand Parade, London N4. On 29 November 2007 Mann and his son signed the relevant bank account mandate. On 19 June 2008 the solicitor for Ablethird, Satpaul Dard of Shoosmiths Solicitors, drafted a lease between Ablethird and Boylesports and sent it to Chahal. On 23 June 2008 Mann, on behalf of Ablethird, accepted the conditions of the loan, including a charge over 48 Grand Parade, when he signed the relevant letter that was sent by the bank. On 28 June 2008 a loan of £980,000 was granted by Yorkshire Bank to Ablethird. Mann and his son were the sole signatories on the account. The loan was provided on the promise that the Boylesports lease would be executed and forwarded to the bank on completion. Ablethird failed to provide the Boylesports lease to the Yorkshire Bank and approximately a year later Chahal emailed the bank to state that Boylesports had surrendered the lease and that a new lease had been granted to a company called Frankice Ltd. 22. Deborah Cullinane, Dard’s secretary, explained the procedure for creating a lease from a precedent form. She had heard of Boylesports, as this company was a tenant for whom Dard had used a precedent lease. Most of her contact at Ablethird was with Chahal who would sometimes request a copy of a lease or other documentation. She said she had little contact with Mann, who saw Dard infrequently, or with Panchal, who spoke directly with Dard. She sometimes sent Chahal a copy of unexecuted leases at his request. She agreed that she had dated the bogus leases on 18 April 2008 (the date on the leases). 23. Ashley Stewart, a trainee solicitor with Shoosmiths, said that Dard had daily contact with either Panchal or Chahal. He would also speak to Mann but far less often, and Mann was very much in the background as regards legal issues. Both she and Dard had some contact with Deith. Although not referred to by the judge in the summing up, the witness also indicated that Dard often prepared documents for Mann’s signature and he placed a post-it note on the document where his signature was required. 24. In December 2009 Yorkshire Bank discovered that Ablethird had gone into administration and another company, Valais Ltd, had used 48 Grand Parade as security for loans it had made to Ablethird. In the event, the Yorkshire Bank’s loan was unsecured. Letters relating to Valais were subsequently found at the home address of Mann, together with a copy of the valuation of the property. 25. Torsten Laughton, a solicitor acting for Valais Ltd, said that both Mann and Panchal (who played an equal role) were at the meeting when an offer was made for the loan that had been provided to Ablethird by Valais, which was secured against the property at 48 Grand Parade. He had also met Chahal but not at those meetings. 26. Jan Bright, the surveyor who had provided the valuation on 48 Grand Parade for the Yorkshire Bank, said in cross-examination that she was told that the property was going to be let and she had seen all three appellants at one time or another during her dealings with Ablethird. Her copy of the valuation that she had prepared was marked for the attention of Matthew Deith at Ablethird. Michael Hodge, Bright’s supervisor, said that he took calls from Panchal asking whether they were able to do a valuation for Yorkshire Bank. He was told they intended to grant a lease to Boylesports. In the seven or eight years he had known Ablethird he had met Panchal as well as others from the company, although generally it was Panchal who telephoned. He had also spoken to Deith. However, he normally tried to speak with Panchal as he had the answers and his English was good. He did not recall speaking to Mann. 27. The Boylesports Head of Finance confirmed that the company had never entered into a lease agreement with Ablethird. The loss to the Yorkshire Bank was the value of the loan, £980,000. 28. There were indications within the material disclosed to the appellants that Deith had had a clear opportunity to see the fake Boylesports leases, contrary to his assertion that he had only became aware of them after the irregularity had been discovered. Nationwide 29. A former Senior Lending Manager for Nationwide, Grant Tough, gave evidence. Panchal came to see him on a regular basis on behalf of Ablethird whenever they secured a new property. He said he did not have a great deal of contact with Mann. From 2005 he had a certain amount of contact with Chahal in respect of some of the paperwork. Panchal informed him in late 2007 that the company was in negotiations with Boylesports regarding a joint venture which involved leases on certain properties. Panchal told him that he and Deith had met with Boylesports. 30. In 2008 Tough left Nationwide in order to work for Ablethird. He was involved in a re-financing deal with Norwich Union. Panchal told him in June 2008 that there were leases in place with Boylesports. A finance agreement was secured with Norwich Union on this basis. A property valuation report was prepared and this was sent to all of the appellants, and possibly also to Deith. About a week after the deal was completed Tough learned from the broker that the Boylesports leases had purportedly been surrendered and new leases with Mann’s company, Agora Bet, had been put in their place. Tough said he knew nothing until this point in time about the surrender of the leases. He asked Panchal what was going on and Panchal told him not to worry as he was dealing with it. 31. When Norwich Union threatened legal action, he was called to a meeting with Mann and Panchal at which Mann did all the talking. Mann asked Tough to explain the position and in due course he told Tough to leave the office. Tough was given no explanation about the surrender of the leases. Mann later asked him to meet with the broker to see if he could influence the bank’s decision but the meeting was not successful. In due course, Tough reported this back to Mann and Panchal. 32. Tough said that Mann and Panchal were the individuals who made the decisions and Chahal had a limited role. Chahal told him at one point that Dard had sent him a blank lease to be completed, which had been used to insert the tenancy details. 33. Tough shared a room with Deith but they did different work. He said Deith had his own property portfolio. He did not recall Deith talking to any banks on behalf of Ablethird and he did not sign documents. Tough gave evidence that Deith cared about the perilous financial position of the company but he felt that others were burying their heads in the sand. Mann spent a lot of time away from the office. Panchal presented himself as director of the company and took every opportunity to inform others that it was “his” company. Tough said that a “them and us” scenario developed in the office and there were often conversations in Indian that excluded many of the staff. Chahal did not take part in the negotiations but he was there to support Mann and Panchal, and he provided the relevant documentation. Tough explained that Chahal and Deith were involved in the day-to-day management and Chahal was in charge of the property portfolio. The latter was not a decision maker. In Tough’s view more experienced personnel were needed: for instance, Chahal was not someone he would want to introduce to a lender when looking to borrow £10 million. He said that Deith hardly spoke about Boylesports. Abbey National Building Society/Santander 34. In early 2008 Ablethird approached the Abbey National Building Society as regards six properties with a view to refinancing existing borrowing and in order to raise working capital. Mann signed the relevant application, along with the mortgage acceptance form on 12 February 2008. The valuations for two of the properties, namely 122 High Street, Cheltenham and 92-94 Borough High Street, London, were provided on the basis that Boylesports was to be the tenant of the former property and MDM Leisure the tenant of the latter. Previously in November 2007 Chahal had sent an email to Panchal and to Andrew Lockhart, the company’s sub-contracted chartered surveyor, stating that MDM was a tenant of 92-92 Borough High Street. In the same month Lockhart provided Chahal with a valuation of 122 High Street based on rental income from Boylesports. Chahal then sent a copy of the ‘Boylesports lease’ to Dard, Ablethird’s solicitor. 35. Dard represented to Abbey National’s solicitor, Ray Oshry, that both properties were subject to leases and supposed copies of these documents were sent to the bank. These were false and senior officials at Boylesports and MDM Leisure in due course indicated that the signatures on the documents were either those of non-existent employees or were the forged signatures of real employees. Dard sent a copy of the MDM lease to all three appellants. 36. In March 2008 a further valuation of the Cheltenham property was prepared on the basis that the Boylesports lease had been surrendered and that the property was now the subject of a lease in favour of Costa Coffee. In an email dated 12 March 2008, Lockhart stated that Panchal had told him that the property had been leased to Boylesports but was to be surrendered in favour of Costa Coffee. On the same day Chahal wrote to Oshry informing him that the Costa lease would be completed later that week. A different solicitor acting for Ablethird, Mr. Bains, drew up a draft lease. He emailed Mann and Chahal on 14 March 2008 to inform them that the lease had been completed the same day. Although discussions had taken place between Ablethird, represented by Matthew Deith, and Costa Coffee, they never reached an agreement. 37. Deith said in evidence that Mann had asked him to find a tenant for the Cheltenham property. He spoke to Costa Coffee a number of times but they decided against the venture and he informed Mann of this result. Panchal was also aware of the position. 38. On 18 March 2008 the Abbey National Building Society made a loan of £10.47 million to Ablethird, relying on the representations that the two properties were subject to the leases described above. By October 2009 the bank, now called Santander, had concerns about the loan and requested meetings with Ablethird during which attempts were made to reassure the bank as to the lease on the Borough High Street property. Carol Mullins, a senior manager at Santander, Mann and Panchal attended these meetings. Once Ablethird went into administration, the loss to the bank was about £3,636,000. The receiver appointed by Santander, Mr. Tobin, met with Mann and Panchal in March 2010. 39. Miles Drew, the Abbey National / Santander Manager who acted during the negotiations for the loan said that Panchal was his main point of contact. He had a good deal of telephone communication with him and he met him both before and after the loan. He also met Mann once the loan was in place. He received information from Panchal as regards the possibility of granting a lease to Pret-a-Manger at the Cheltenham property (as set out above, the intended lessee was later to change to Costa Coffee). He said it was almost certainly Panchal to whom he spoke regarding MDM and 92 Borough High Street. Panchal spoke perfect English and was very familiar with the language of finance. He also met with Mann who clearly understood what was happening. 40. Ray Oshry, the solicitor who acted for Abbey National, received several phone calls from Panchal who was trying to progress the transaction and he also had a conference call with him and Drew. The solicitor, Dard, told him that Costa Coffee had replaced Boylesports as the tenant. 41. Andrew Lockhart said that either Mann or Panchal had informed him of the connection between Ablethird and Boylesports and a possible tenancy deal. He met them both on a number of occasions and there was more than one telephone conversation regarding Borough High Street. Chahal advised him by email of the supposed MDM lease. Chahal, therefore, provided him with information and was the contact point. He discussed the Cheltenham property with Panchal who told him that Costa Coffee had delayed taking the lease. 42. He spoke to Deith on occasions but did not keep him informed to the same extent as the appellants. He received information from Deith but the three appellants were his main points of contact. He said that instructions came from Panchal and Mann, whilst Chahal provided the detail of any information. 43. Mr Tobin, the chartered surveyor who acted as receiver for Santander, was involved with the Borough High Street property. There was a meeting at Tobin’s office, attended by Panchal and Mann, to discuss proposals for repaying Santander. He believed, but was not entirely sure, that it was Panchal who did the talking. It was said that they had prospective tenants once the building works were completed; Panchal intended to make up the shortfall in the payments in the meantime. It was said that MDM would have a rent free period whilst the building works were completed. Tobin informed Panchal that there was a problem because inaccurate information had been given regarding the suggested Costa lease on the Cheltenham property. Panchal insisted that the MDM lease on the Borough property was genuine and that the tenant was not telling the truth. 44. Carol Mullins’ evidence was that at one of the meetings with Panchal in October 2009, the latter said there was a lease with MDM for the Borough property. Panchal indicated they were not paying rent but were instead paying for the development work and rent would commence once this was complete. She subsequently met both Panchal and Mann but the former did the talking. She never received a copy of the MDM lease. Norwich Union/Close Brothers Bank 45. In May 2008 Ablethird made an application for a new loan to Norwich Union in order to refinance an existing loan with Close Brothers bank. Mann and Panchal met with a Frank Pennall of Close Brothers regarding this arrangement and the relevant email correspondence was with Chahal. 46. Pennall gave evidence about his involvement in arranging a re-financing deal with Ablethird. He dealt with Mann and Panchal when any decisions were taken, but progress in the arrangements was dependent on Mann. Chahal was effectively the office manager, with whom he spoke on the telephone from time to time. He had been informed by Mann and Panchal of the negotiations with Boylesports as to a joint venture and proposed leases. In cross-examination he said that given the passage of time he could not be sure who provided him with the details of the Boylesports deal. He understood that the link to Boylesports was via Deith who played an important role, in his view, as an employee of Ablethird. It was his understanding that there had been an agreement in place with Boylesports and the premises were being fitted out and were close to trading. Deith said he had attended a meeting with the Close Brothers Bank at Mann’s request but he had not taken the lead at that meeting. 47. Pennall understood that Grant Tough had been brought in to liaise with the bankers alongside Panchal. In his view, Tough and Deith had not replaced Panchal. Panchal was a director in all but title and he mainly dealt with Close Brothers in respect of financial matters, although Mann would also become involved. 48. A loan for £9,325,000 was eventually secured against twelve properties of which eight were allegedly subject to tenancy agreements. Tough concluded this arrangement and passed on information to the valuer that the property at 122 /126 Queensway, Bletchley, was subject to a tenancy agreement with the British Heart Foundation (“BHF”) and that a further seven properties across the south of England were subject to tenancy agreements with Boylesports Ltd. 49. The offer of a loan was made on the basis that all the suggested leases were genuine, and the relevant ‘acceptance of offer’ letter was signed by Mann. As set out above, although Boylesports had been in negotiations with Ablethird, nothing emerged from them and the signatures on the forged leases were from non-existent directors. In respect of the Bletchley property, BHF had once held a lease on the property, but this had expired. The lease used for the Norwich Union loan was false, in that the names of former employees of BHF were used, namely those on the earlier lease agreement. £9,325,000 was paid over by Norwich Union to Ablethird on 13 November 2008. 50. Dard acted for Ablethird on the Norwich Union deal. He was provided with the false leases although these were never passed to Norwich Union. Shoosmiths solicitors sent a copy of the ‘Boylesports leases’ relating to properties in Rushden and Chatham to Chahal. Dard kept all the appellants informed as to the progress of these arrangements. Dard was informed that Boylesports had surrendered the lease, and around 17 November 2008 he was instructed to create new leases on the seven properties in favour of Agorabet Ltd. Shoosmiths corresponded by email with Chahal on this issue. 51. Norwich Union was concerned when it was informed about the suggested surrender. A number of meetings were arranged during which Ablethird sought to reassure Norwich Union as to the validity of the leases. A meeting on 4 December 2008 was attended by Panchal on behalf of Ablethird and Ms Miller and Mr Paul Collier of Norwich Union. Collier said that Panchal informed him about the purported surrender of the leases by Boylesports. He understood that Panchal was the group finance director and he offered to restore the Boylesports leases. He was told that Deith and Tough looked after the day-to-day property side of the company, and Panchal indicated that other banks were not concerned about tenants changing without prior notification to the lender. 52. Antonia Miller of Norwich Union in cross-examination confirmed, in accordance with her contemporaneous note, that Panchal had said to her that the Boylesports lease could be put back in place. She had a very clear recollection of this being said, as it was an unusual suggestion. 53. All three appellants attended a subsequent meeting on 13 January 2009 with Sally Williamson, a solicitor from Norwich Union. Panchal was the main speaker and it was clear from his demeanour that he was in charge. Chahal came in at one point when they spoke about the rent. Panchal gave all the information about the occupancy of the properties. At one point he had implied that the surrender of the lease was the result of a commercial decision by Ablethird but later he said that Boylesports were no longer interested. 54. The loss to Norwich Union (now Aviva) as a result of the loan agreement was in the region of £3 million. Once Ablethird went into administration, the administrators found various documents at the company offices which included further false leases, although there was no evidence that these had ever actually been used to obtain finance. Other prosecution evidence 55. It was suggested the relevant documents on the Ablethird computers were available to the entire company via a server. Certain important documents were discovered at Mann and Panchal’s addresses and others were found on Chahal’s desk. 56. In interview Mann stated that he was involved in the day to day running of the company’s shops. On the issue of the process by which decisions were made, he said that there were three or four people within the company who had different responsibilities. Thereafter, he made no comment to the questions put to him. 57. Panchal and Chahal both did not answer any questions during their interviews. The Respective Cases The Prosecution Case 58. The prosecution case, therefore, was that each appellant was a party to a dishonest agreement to seek refinancing for Ablethird by falsely representing to the various lenders that the premises offered as security were subject to leases with particular named tenants. Mann was said to be the company owner and Managing Director. He was a signatory to significant documents and he was involved in the decisions made by the company. Thus, it was alleged he was a central figure in the crime. Panchal, it was said, orchestrated the fraudulent arrangements, he played a major role in dealing with important figures and he held himself out as a company director. Chahal was the office manager and it was alleged he dealt with all the relevant documentation. Therefore, it was contended he was fully aware of what was going on during the currency of the fraud. 59. It was the prosecution case that there was a close connection between the appellants, including on the issue of the tenancies, and that it was inconceivable that they would have been unaware of which companies held the leases at the various properties. The three appellants were said to be the inner circle of the Ablethird management. 60. The issues, as identified by the prosecution, were whether the appellant under consideration knew that the applications were false and whether he played a part in making the relevant applications. The Defence Cases 61. None of the appellants gave evidence and they did not call any evidence. The defence case of the appellants, as summed up by the judge, was that on the evidence the jury could not be sure of their guilt. In describing the defences of the appellants in the context of the closing speeches, the judge simply said: “What they have submitted to you in effect, is that on the evidence before you, you cannot be sure of the guilt of their respective clients. That is the effect of their submissions, because the defendants have put the prosecution to proof of their case.” 62. The appellants relied on evidence called by the prosecution, including answers given in cross-examination, to suggest they did not have knowledge of, or involvement in, this fraudulent activity. We have considered the main elements of the arguments that were presented for each accused below. The Conviction Appeals Mann’s Appeal 63. In support of the appeal against conviction on the part of Mann, it is contended that the judge failed to sum up the case to the jury fairly or adequately. Indeed, it is argued that the summing up was a model of what a summing up ought not to be, in that the judge stressed the strengths of the prosecution case and failed to remind the jury of the outline of the defence case or the particular evidence relied on by the defendants. Additionally, it is said that the judge made certain strong comments against Mann. It is suggested that the summing up lacked any coherent structure in that the judge failed to summarise the evidence in relation to the various separate issues in the case. He failed properly to organise his summary of the evidence in relation to the issues and he delivered the summing up at a speed that made it difficult to follow. 64. Mr Arlidge Q.C. for Mann expressed concern at the manner in which the judge opened his summing-up in respect of the appellant and the emphasis he placed upon his role in the company. Mr Arlidge contended that the judge made remarks which tended to indicate that because the appellant was behind the company he must be guilty. Additionally, he submitted during the summing up that the judge should indicate to the jury that the mere fact that the appellant owned the company and had signed particular documents did not necessarily mean he was guilty, and that certain other pieces of evidence should be brought to the attention of the jury in this regard. The judge replied that he was merely ensuring that the jury understood the prosecution case. During this exchange prosecuting counsel suggested to the judge “ No doubt you are going to deal with the defence case ”, to which the Judge replied, “ Well, I am going to deal with the evidence ”. 65. Furthermore, later in the summing up the judge declined to vary the content of the summing up following counsel’s submissions. A request was made on behalf of Mann for the judge to include in his summing-up certain particular pieces of evidence relied upon by Mann, namely the Sittingbourne evidence, along with evidence that Dard placed post-it notes on documents where Mann’s signature was required: Mr Arlidge: “There have been a number of details of evidence, which I relied on in relation to Mr Mann, which your Honour has not reminded the jury of and I just pick out two. One is the evidence about the property at Sittingbourne, now relied upon to make the suggestion that Mr Deith was making a similar excuse about surrender of leases in that regard as was said to have happened by the Crown in relation to some of the Boylesports leases. The other one is that Ashley Stewart mentioned that Mr Dard, when he left the office with documents, very often had a post-it where a signature was required.” 66. The Judge declined to expand his summing-up to cover these matters and he indicated that he had been deliberately selective. 67. Turning to the detail as regards the property in Sittingbourne, the evidence was that Deith owned a company called Deith Securities, about which he was questioned. He tended to arrive early in the office to deal with its affairs. Deith Securities, with the aid of Bank of Ireland, purchased a property in Sittingbourne, purportedly leased to Ablethird. Deith informed the bank that the lessee intended to surrender the lease shortly after the loan had been completed. When the bank queried this (on 23 March 2008) he gave an explanation which was untrue. He sent an email to the bank that Ablethird was expanding its business in the southeast and needed new office accommodation. He suggested that if they obtained planning permission for residential accommodation on the upper floors of the building they would surrender that part of the lease and secure separate office accommodation. If they failed to secure planning permission, the upper floors would remain for office use. This was false. Ablethird already had a gaming centre in Sittingbourne and large office premises in Watford. Thus, it is said that Deith was using a deception similar to that practised in the present fraud and Mr Arlidge asked the jury to consider whether it might have been Deith who was behind the fraud. As indicated, the learned judge was invited to remind the jury of this, but refused to do so, saying he had been deliberately selective. 68. Addressing the way in which documents came to be signed, it was Mann's case that he signed various documents which were placed before him for signature without reading them. Although Mann did not give evidence, Mr Arlidge contends there were particular pieces of evidence that supported this suggested scenario. For instance, he spent most of the day out of the office, often coming in only during the evening. The offer letters were lengthy and technical in nature, and contained details of properties that were subject to genuine leases as well as the properties for which false leases had been created. The solicitor, Dard, who dealt with these documents was not called to give evidence, but his secretary, Deborah Cullinane, said that she had very little contact with Mann, who came to Dard's office infrequently. Dard’s trainee, Ashley Stewart, testified that Mann was very much in the background when it came to giving legal instructions and that Dard often prepared documents for signature with coloured pieces of paper (“post-its”) indicating the places where his signature was required. As we have already rehearsed, the judge did not accede to the defence request to include this material as part of the summing up. Mr Arlidge accepts that the jury were entitled to rely on the appellant's signatures, but it is submitted the judge ought to have drawn together and summarised all these points so that the jury could at least consider the possibility that the appellant signed the documents without digesting the details. 69. Additionally it is observed that Deith was asked by defence counsel if he was party to leases which bore false signatures. He denied he was. The judge remarked to the jury “ I make the obvious comment that is the only evidence is on that point. An advocate making that suggestion cannot give evidence, he was not there. The only evidence that you have is from Mr Deith on this point .” Mr Arlidge contends that this effectively meant that the jury had to accept the witness's answer, when in reality there was other relevant evidence which bore on the point that undermined Deith’s response. The defence case was that Deith had lied about his part in these transactions. He had misrepresented his role in the company, and we have described above how Deith called himself as a director of Ablethird and that he had drawn up future plans for the proposed joint venture in which he described himself as CEO of the Ablethird Group (Deith was neither a director nor CEO of Ablethird). It was argued that there was evidence before the jury to support the suggestion that he was principally behind the joint venture and that he dealt with funding. It is contended that when the judge dealt with the evidence of Deith he failed to provide “any flavour of the defence attack on him”. 70. Finally, in this context it is noted that two solicitors, Dard and Raina Bains, who were involved in these arrangements, were not called to give evidence. It was alleged on behalf of Mann that Raina Bains, who acted for Ablethird in the transaction with Abbey National regarding 122 High Street Cheltenham, acted dishonestly when emailing Chahal that the lease by Costa Coffee had been completed, because this was untrue. The Crown originally intended to call Dard from Shoosmiths and opened his evidence. However, after their arrest the three defendants met Dard and in the course of their conversation (which was recorded) Dard stated he had destroyed some of the forged leases to prevent them coming into the hands of the police. During the prosecution case, a copy of the tape was provided to the Crown and prosecuting counsel decided not to call Dard. The jury were not told about the tape or its contents. 71. It is argued that there was a reasonable inference that both solicitors were involved in a dishonest conspiracy. There was, however, little evidence of contact between Mann and either solicitor about the leases. It was submitted, therefore, that it did not follow that Mann had been involved in their suggested criminality. The judge did not deal with this aspect of the case during his summary of the evidence. 72. Finally, there are a number of miscellaneous discrete complaints about the summing up. Early on, the judge commented on Mr Arlidge’s suggestion that the case was a “whodunit”. He went on to suggest that the jury should consider who was behind Ablethird when the fraud was committed and he indicated that they might want to follow the money: who, in reality, received it. The judge took the jury through the prosecution's events schedule. Shortly afterwards he said in relation to Yorkshire Bank that the prosecution case was that the appellant was implicated because he had signed the bank mandate and the acceptance of the offer: ‘ if you want to know who is behind Ablethird look at who signed .' Later he pointed out that the appellant had signed the application and the mortgage offer. Thereafter, he summarised the prosecution’s case that the appellant signed the documents on behalf of Ablethird and in that sense was the man behind Ablethird. He was managing director, taking part in decisions, and was a central figure in the fraud. It is argued that the judge, having invited the jury to consider who was behind the fraud, concluded the summing up without reminding the jury of those parts of the evidence upon which the defence relied in this regard and without summarising how Mann’s case was put. 73. In conclusion, it is submitted that a critical ingredient of a fair trial is the judge’s obligation to summarise the evidence fairly and to indicate, at least in general terms, how the case of each defendant has been argued. It is submitted that however strong the Crown case appeared to the judge, the evidence and the issues must be summarised fairly and comprehensibly for the jury’s benefit. Panchal’s appeal 74. In a nutshell, Panchal’s case was that, although he was not a director of the company, he was close to Mann. He had been the "financial brain" of the company but had given way to the newcomer, Matthew Deith, who joined the organisation as a result of the buy-out of his allied business. Panchal said that he did not get on well with Deith. Panchal’s case was that Deith assumed his role, up until the point when Panchal tried to stave off the collapse of Ablethird by meeting with the lenders. It is acknowledged that the lies Panchal told at this late stage constituted important evidence against him, along with his apparent knowledge of the leases. He argued, however, that the evidence concerning Deith graphically revealed the possibility that others had been responsible for the fraud. Panchal’s case, in essence, was that he only became aware of what had been happening ex post facto and he told lies solely to try to prevent the company from collapse. 75. Panchal placed 105 documentary exhibits from the unused material before the jury. Mr Etherington Q.C., on behalf of this appellant, accepts that the judge’s rehearsal of the evidence relied on to support Panchal’s case was adequate, but he submits he failed properly to explain the nature of the appellant’s case, and the summing up, in consequence, lacked proper balance. It is suggested that the failure to deal with the defence case operated as a significant adverse comment to the jury, in that it tended to position the arguments of the prosecution above those of the defence. Chahal’s appeal 76. For Chahal it is argued the judge in the summing-up failed to remind the jury adequately of the appellant’s defence and the evidence relevant to it. He neglected to remind the jury of the main submissions made by the defence in respect of the evidence called by the prosecution. By contrast, he reminded the jury of the prosecution’s contentions and, as such, it is argued the summing-up lacked balance and was unfair. 77. Mr Hines, on behalf of Chahal, highlights that there were numerous arguments that he deployed, based on the evidence, which received no or scant mention by the judge during the summing up. Centrally, during the trial it had been submitted on Chahal’s behalf that there was no evidence that he knew a) that the Boylesports leases were bogus or b) that the Boylesports deal had failed. It was suggested there was no direct evidence to this effect and that the prosecution case was based solely on the suggested inference that he must have been aware of what had been happening. The defence case was that as office manager he would not necessarily have been aware of all the relevant facts and although he was included as one of the recipients of a great many of the emails which contained the relevant documents such as the valuations, there was no evidence that he was a party to the conspiracy to defraud. It is noted that Chahal continued to include references to Boylesports on the tenancy schedules which were circulated widely within the company without challenge or comment. 78. It is said that Chahal had no direct contact with any representative of Boylesports and he had no involvement in, or insight into, the progress of the proposed new venture and that he, along with other members of staff, was unaware that the Boylesports deal had been abandoned. 79. Put generally, it was the applicant’s case that he was not a directing mind or decision maker within Ablethird. It was said that he played no part in applying for, or arranging, funding. Further, it was contended there was no evidence that he attended any meetings where funding was discussed. Instead, it was that argued that he was only involved with administrative issues. 80. It is highlighted that one of the recurring themes that emerged in the evidence was that there had been repeated criticism of Chahal's capabilities as an office manager. There had been complaints of his 'lack of organisation' and, as a result, others were recruited to address the problem. There was confirmation from several sources that Chahal’s role changed. It is said the judge failed to refer to this aspect of the case in the summing up. The evidence of Tough was that he and Deith, who together handled the largest application for £10m from Norwich Union/Aviva, tried to keep Chahal away from the deal. 81. A contention of this appellant at trial was that there was an absence of evidence that he had ever been in possession of any of the original false leases. To the extent that he had dealings with these documents, they were incomplete and in draft, and they did not bear the forged signatures. It was argued this is was consistent with the possibility that the Boylesports joint venture was still under contemplation. Additionally, there was evidence that the signed bogus leases were sent to Chahal by the company solicitors. 82. The prosecution evidence was that during 2008 the relevant premises were being fitted out and licensed by Deith as amusement arcades rather than betting shops (as contemplated in the bogus Boylesports leases). It was suggested by the prosecution that this was something about which Chahal would have been aware and thus he would have known that the Boylesports leases were bogus. However, the defence highlighted that because of his work, the applicant was office bound; further, there was no evidence that he ever visited any of the premises or that he was aware of what was happening 'on the ground'. 83. One of the main points made by the prosecution was that the appellant would know that Boylesports was not in occupation at the various premises because collection of rent was one of his responsibilities and none had been received from Boylesports. On his behalf it was pointed out that the leases contained rent-free periods to relieve the tenant from the obligation to pay rent during the period when the premises were being equipped (this applied to all the premises). Furthermore there was evidence from a professional insolvency practitioner, Mr Tobin, that rent-free periods were very common in commercial leases during the indictment period. It is the subject of complaint that the significance of these rent-free periods was not mentioned in the summing up. Discussion The Law 84. The obligation on the judge as regards summarising the evidence and the arguments is clear on the authorities. The judge’s responsibility in this regard was spelt out in R v Lawrence [1982] AC 510 , at 519 when Lord Hailsham observed: “A direction is seldom improved and may be considerably damaged by copious recitations from the total content of a judge's note book. A direction to a jury should be custom built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts.” 85. Clearly in a case in which there are no facts that are said to amount to a defence, there is little for the judge to do as regards summarising the arguments or evidence relied on by the defence, save to remind the jury that the accused maintains that the prosecution’s case is insufficiently strong to justify a conviction. R v Briley [1991] Crim LR 444 was such a case. A building society employee was charged with stealing £124,000 from the branch where she worked. She did not challenge that her signature was on the records associated with the issue of a passbook used for one of the offences. She did not give or call evidence. The judge referred to the fact that it was at least theoretically possible for another member of staff falsely to have attributed the issue of a passbook to the appellant, that she could have been duped by someone presenting a false passbook and that it was submitted another member of staff may have committed the offence. 86. Against that background this court observed: “The defence here […] came like this: "I am not guilty. Whatever the compelling concatenation of circumstances upon which the Crown relies as pointing to my guilt, they are not sufficiently strong to compel you, the jury, to convict me". There was no factual account said to afford a defence here. There were submissions that she would not have been so foolish if she had been so involved to leave her position so obviously exposed and susceptible to detection. It was also submitted to the jury, as I have said, that others could have committed the offence which equal facility. But that was the totality of the matter that was presented for the jury's consideration. Properly so called therefore there was, in our judgment, no defence of which the judge could or should have reminded the jury. It is often sensible for the trial judge to remind the jury of counsel's submissions but it is not mandatory for him so to do. […]” 87. Additionally, as we have observed, in Briley the judge reminded the jury of the potential inferences that could be based on the prosecution evidence which tended to indicate that the defendant had been duped or that someone else may have been responsible for the crime. 88. In R v Hillier & Farrar (1993) 97 Cr App R 349 the defendant in question did not give evidence and the correct approach was identified as follows: “What the jury needed to be reminded of in his defence was relevant matter contained in his pre-trial statements and interviews with the police—copies of those documents were in their hands—and possibly such assistance, if any, as counsel had been able to extract from the Crown's witnesses in cross-examination. […] We must make this clear yet again, namely that it is no part of a judge's duty to build up a defence for someone who has not chosen to give the jury the benefit of his version of material circumstances and events. The judge's obligation is limited to reminding the jury, in summary form, of what the defendant is said to have stated as to those matters at some time or another pre-trial and what assistance, if any, the Crown's witnesses have provided.” 89. Rose LJ in R v Soames-Waring Court of Appeal 16 June 1998 approved the approach taken by this court in R v Curtin Court of Appeal 24 May 1996 when it was stated that: “When the defendant has neither answered questions in interview nor given evidence, it will often be very difficult for the judge to say much in relation to the defence, though it will usually be appropriate in such a case for him to remind the jury of significant points made in defence counsel's speech.” 90. On the basis of those authorities, it is clear that when a defendant has said little or nothing in interview and has elected not to give or call evidence, ordinarily the limit of the judge’s duty is simply to remind the jury of “ such assistance, if any, as (defence) counsel had been able to extract from the Crown's witnesses in cross-examination” and any “ significant points made in defence counsel's speech”. In this context, it is to be stressed that in order to present a defence to the charges the defendant is not compelled to give or to call evidence; instead, he is entitled to rely on evidence presented by the prosecution or by his co-accused when advancing arguments for the jury’s consideration as to whether the prosecution has established his guilt. The rehearsal of this material by the judge does not necessarily have to be extensive or detailed – indeed, frequently it will be sufficient merely to identify the central submissions and the evidence that underpins them – but the judge must generally ensure that the jury receives a coherent rehearsal of the main arguments that are being advanced by the accused. 91. The timing and the form of this summary will depend on the circumstances of the case – most particularly, whether the relevant evidence needs to be gathered together in one section of the summing up or whether it is preferable to refer to it incrementally as the judge summarises the evidence in the case as a whole – but in either case the judge ought to explain the key submissions of the accused in support of his defence at a convenient juncture during the summing up. 92. A further factor that underscores the need to provide an adequate summary of the defence is the “adverse inference” directions that are given in cases when the accused fails to mention facts when questioned or charged that he later relies on in his defence ( section 34 Criminal Justice and Public Order Act 1994 ), or if he fails to give evidence at trial ( section 35 Criminal Justice and Public Order Act 1994 ). Given the jury are instructed that they must investigate whether the accused could reasonably have been expected to mention the fact or facts and whether it is proper to draw an inference from his failure to do so under section 34 , or whether it is proper to draw inferences from his failure to give evidence under section 35 , it is critical that they make these decisions on the basis of a clear understanding of the case he is presenting. His defence, together with the arguments and evidence that support it, is potentially a relevant consideration for the purposes of these decisions, although we stress the extent of the relevance will depend on the circumstances of the particular case. At the very least, it helps place these considerations in their true context. The Present Case 93. Turning to the present case, the issue for each defendant was set out clearly by the prosecution in opening (and repeated in Crown counsel’s closing speech): “The Defendants admit that the applications for the three loans were in fact made by Ablethird, and included in the applications were false tenancy agreements. Each of the defendants denies, however, that they were involved in any dishonesty in the transactions. So when you look at the evidence it may help to ask yourselves whether each Defendant knew what was happening and if he played a part. ” 94. It is clear from the rehearsal of the evidence set out above that the material on which each appellant relied was directed principally at undermining the suggestion that they knew about, and participated in, these fraudulent transactions. 95. We have broken down the complaints which are made about the summing up into, first, the discrete issues raised by each appellant as regards particular pieces of evidence that it is said the judge failed to summarise during the summing up. Second, we have addressed the overarching issue common to all three appellants that the summing up is vitiated by the failure on the part of the judge to remind the jury of the main elements of the submissions that were advanced by their counsel in their closing speeches, which reflected particular pieces of evidence that the jury had heard in the case. Mann: the discrete points “ Whodunit” 96. As set out above, the judge made a series of comments based on the fact that Ablethird was named as the landlord on the bogus leases. The judge referred to Mr Arlidge’s submission that the case was a “whodunit” and he suggested that in addressing criminal liability, it was legitimate to ask the questions, inter alia , “ who was it who used Ablethird Limited as a vehicle for fraud ?”, “ who lies behind Ablethird Limited in a fraud ?” and “ who in reality receives the money ?”. These were undoubtedly legitimate questions for the judge to pose for the jury’s consideration, and were clearly and properly identified as some of the issues that the jury would wish to incorporate into their discussions. We note also, as Mr Haycroft for the prosecution has pointed out, that Mr Arlidge’s submission about the case being a “whodunit” tended to obscure the real issue in the case, in the sense that this was not an offence for which there was necessarily a sole perpetrator. Instead, the jury needed to ask as regards each defendant in turn whether he knew what was happening and whether he took part in any of the admittedly dishonest transactions. Therefore, it was legitimate to invite the jury to consider who was behind the company, because this was directly relevant to whether the defendant under consideration would have known what was happening and, depending on the answer, this may have assisted in deciding whether they were involved. 97. The judge described the case against Mann as including the fact that he “ signed documents on behalf of Ablethird Limited and in that way was the man behind Ablethird Limited. They say he was involved in making decisions. They say he was the managing director. They say he was the sole owner of Ablethird Limited .” As regards Panchal it was alleged that he “ orchestrated the deals […] he played a major role in the dealings with important figures and he held himself out as a director of Ablethird Limited or he would tell people that he was the financial director of Ablethird Limited .” Finally, for Chahal, the summary of the prosecution’s case, this was described by the judge as he “ was the officer manager […] he dealt with all the necessary documents and therefore, they say, he was fully aware of what was going on during the period that Ablethird Limited was used for the fraud .” It was entirely legitimate for the judge to remind the jury that this was the prosecution’s case as against each accused. Sittingbourne 98. There was some evidence that Deith had been involved in a fraud in relation to his own company, Deith Securities, that was similar in nature to that perpetrated allegedly by these appellants. We consider that it would have been preferable for the judge to have referred to this evidence during the summing up, together with counsel’s submissions on the issue. However, even if the jury had accepted that the “Sittingbourne” material tended to indicate that Deith had been involved in the present fraud that would not have assisted Mann because it was untenable to suggest that any of the appellants was less likely to have been involved because Deith provided assistance to this criminal enterprise. It was essentially fanciful to argue that Deith was behind the fraud, without the knowledge and involvement of those who stood to profit from the criminality. Furthermore, there was no evidence that Deith had been a party to the plan to rely on the false leases in order to secure finance. It is of note in this regard that Panchal in his Grounds of Appeal suggested “ the Applicant did not (nor could he) accuse Deith of guilty complicity […] [15]”. Therefore, as the judge correctly observed, there was no evidence to contradict Deith’s assertion that he had not been involved in the false leases. 99. For similar reasons, even if the two solicitors were potentially implicated in this offending, that would not have assisted this appellant. Mann signing documents and his absence 100. We turn next to the argument that was advanced to the effect that Mann may not have appreciated the significance of the documents that he was signing. It was suggested that this was demonstrated, inter alia , by the fact that he was handed documents that needed to be signed with “post-its” indicating the page where he was expected to add his signature. The context of this particular complaint is that the judge emphasised that the prosecution’s case was that Mann was “implicated” because he had signed various key documents, such as relevant banking and mortgage documents. 101. It is correct to observe that the judge did not refer to the evidence and the defence submission concerning the “post-it” notes, although when the judge was summarising Deith’s evidence, the jury were reminded of the suggestion that “ people would give (Mann) documents and ask him to sign ” them, and that he had seen Mann sign pieces of paper like company memoranda. Otherwise, there was no evidence as to what happened when this appellant signed documents. In our judgment, if the judge had reminded the jury of this slender piece of evidence, it would not have served in a substantive way to reveal whether Mann simply signed the fraudulent documents at the place indicated or whether he read them. 102. Moreover, the judge reminded the jury as to how various witnesses reacted to the suggestion that Mann was not involved in the detail of the arrangements for the company. For instance, Deith rejected the suggestion that Mann’s role was taken over by newcomers to the company. As against this, the judge rehearsed Deith’s evidence that Mann was out of the office for the majority of the day and that Deith was unaware of what he did on a day-by-day basis. Deith confirmed that Mann was very busy, and that he could only see him briefly in the evenings. There was evidence that Mann ran markets at a number of different locations, and he was involved in a considerable business. Similarly, Lockhart said that Mann did not come into the office very often and that he visited amusement arcades and auction houses. The judge underlined Tough’s evidence that Mann spent a “lot of time” out of the office. 103. We do not consider that these discrete points raised by Mann render the verdict in his case unsafe. Panchal: the discrete points 104. By way of detail, Mr Etherington Q.C. complains that the judge did not sufficiently describe certain important aspects of Panchal’s case. Panchal was replaced by others 105. It is argued that the judge ignored the defence submission that Panchal had given way to Deith when the latter joined the company. However, this was only ever a suggestion and it was not accepted by any witness. For instance, the judge reminded the jury that Frank Pennall’s uncontradicted evidence was that Panchal’s role had not been taken over by Tough or Deith. The summary of the evidence set out at the beginning of this judgment reveals the extent to which there was material before the jury that indicated this witness was involved in the relevant affairs of the company. The lies Panchal told were “ex post facto” 106. It is suggested also that the judge failed to deal with Panchal’s argument that the lies he told after the loans were arranged were not evidence that he had been involved in the fraud, but instead were merely designed to save the company. The difficulty with this submission is that it was not based on any evidence that was called, given it was something that was essentially within Panchal’s knowledge and he chose not to testify. This remained, therefore, conjecture on the part of his counsel. Additionally, there was evidence before the jury that Panchal told lies before loans were made, and Oshry (the solicitor for Abbey National) indicated that Panchal was involved in directing the application for the relevant loan. 107. The judge reminded the jury that Mr Etherington had submitted that things said at a later stage should be addressed in the context of the time when the statements were made (the judge referred to the period after arrest), although he pointed out that the prosecution’s case was that later events may provide an understanding the significance of events that happened at earlier stages in these transactions. 108. Save for these matters (which we consider do not render the verdict against Panchal unsafe), Mr Etherington does not criticise the summing up, save in one respect. He has candidly accepted that “ there was nothing objectionable in (the judge’s) review of the prosecution case nor in the comments he made during the evidence. What was unfair […] was his failure to review the defence arguments at all. The judge’s view – that it was his duty simply to review the evidence in the case of the defendants – ignores the fact that the defence can make submissions to the jury upon that evidence .” 109. That is a serious, indeed understandable, criticism, to which we return later in this judgment. Chahal: the discrete points Chahal’s changing role 110. It is suggested that the judge failed sufficiently to emphasise the absence of Chahal from many of the important meetings or events, that he was an inadequate office manager and that this role changed with time. 111. However, as the judge went through the evidence of the various witnesses he routinely set out who attended the various meetings and which of the appellants met with the various prosecution witnesses. Although he did not add the additional fact that Chahal was often not present, the way this was presented to the jury served in a stark manner to emphasise the fact that Chahal had not been present on many of the occasions when relevant events occurred. By way of three examples, when summarising the evidence of Mr Lawton, the solicitor, who was concerned with a loan of £1.5 million to Ablethird Limited, the judge pointed out that Chahal (whom Mr Lawton had met) was not present at the meetings when the offer and the security were discussed. Similarly, Jan Bright, a chartered surveyor, who undertook a valuation on 48 Grand Parade, indicated that she saw Chahal at a property whilst she encountered the other two appellants at the offices. Grant Tough gave evidence that he dealt mainly with Panchal and only occasionally with Chahal. 112. Moreover, the judge reminded the jury that Lockhart said that Chahal was “in the office all the time”, and that he was the intermediary between senior management and everyone else. Chahal’s competence 113. As regards Chahal’s competence, the judge summarised Tough's evidence as follows: “[h]e [Chahal] is not someone I would put in front of the lender when you are looking to borrow £10m”. Similarly, as regards the Norwich Union ' [t]he day to day property side was looked after by Deith and Tough. ' Whilst it is correct that the judge failed to remind the jury that Pennall’s notes referred to Chahal’s lack of organisation the judge was not obliged to refer to each and every piece of evidence given during the case. Rent-free periods 114. The judge set out Mr Tobin's evidence that there were rent-free periods. As Mr Haycroft has submitted, it was the agreed evidence that Chahal dealt with the tenant schedules and rentals. As such he would be in possession of all relevant documentation regarding who was and was not paying rent, rates and utilities. Similarly, he would have known the reason why rent was not being paid ( e.g. rent free periods for refurbishment) and who was paying for any fitting out. Notwithstanding this involvement on his part, there were no documents put before the jury that identified or justified any rent-free periods. The tenancy schedules 115. There was reference during the summing up to the existence and use of the tenancy schedules, both of which were pieces of evidence relied on by Mr Hines on behalf of Chahal. Chahal’s involvement in the negotiations 116. As Mr Haycroft has submitted, although the Crown expressly submitted to the jury in closing that there was no evidence that Chahal knew about the nature or extent of the Boylesports negotiations, this was, in reality, a red herring as the issue was whether he knew that the false leases used to obtain finance were in fact false. The Crown's case was that virtually every relevant document regarding the procurement and execution of the loans went through Chahal (including copies of the false leases). As a result, whether he saw the original completed leases and other related points were not live issues in the case. Similarly, it was never suggested Chahal dealt with lenders for the purposes of obtaining funding; instead it was alleged he was the office manager. 117. Although the judge could have referred more extensively to certain parts of the evidence on which Chahal relied, we do not consider that these discrete complaints demonstrate that the verdict against Chahal is unsafe. The Three Appellants: the failure by the judge to summarise the defence submissions 118. As we have just rehearsed, the judge referred sufficiently to the evidence relied on by the appellants as he summarised the evidence for the jury. To that extent he had fulfilled this part of his obligation, although we note that the approach he adopted to summing up the facts was to take the jury, firstly, to the admissions, secondly to the events schedule and finally he simply went through his notebook, reminding the jury of the evidence of each witness in the order they were called or read. If they gave evidence live, he rehearsed their evidence in chief followed by any cross-examination. The authors of the Crown Court Bench Book observe that “ [a]lmost never will it be helpful or appropriate simply to summarise each witness in turn” [page 4], and this court in R v Amado-Taylor [2000] 2 Cr App R p. 189 at 191 indicated that “[e]vidence is not to be given sequentially – it comes out witness by witness and needs to be marshalled and arranged issue by issue. This is the judge’s responsibility – it involves work out of court […] ”. We regret to observe that the judge made no attempt to organise the facts for the jury’s benefit on an issue-by-issue basis, save to the extent that serendipitously the order in which the admissions and events schedule had been compiled, or the sequence in which the witnesses were presented by the prosecution, meant that different areas of the case were grouped together. Kennedy LJ in R v Green criticised this witness-by-witness ordering of the evidence in the summing up and set out the approach that ought to be taken in cases such as the present: “27. Furthermore in presenting the evidence it is often helpful […] to present it […] in chapters, arranged in chronological order, each chapter drawing together all of the evidence in relation to a particular aspect of the history before moving on. ” 119. We readily accept that this approach requires a not-inconsiderable amount of preparatory work on the part of the judge, but in our view this case called for more than a “notebook” summing up, and the issues – together with the evidence that related to them – should have been marshalled under discrete headings that reflected, inter alia , the loans/refinancing arrangements and the roles played by the three appellants and the other leading players. 120. Turning, against that background, to the joint complaint by all three appellants, namely that the judge failed to provide the jury with a summary of their individual cases, as we have already observed he did not at any juncture set out the submissions of counsel in their closing speeches and the principal evidence on which they relied in support of those submissions, thereby providing the jury with a coherent overview of their defences. In our view, the extent and detail of the material in this case required the judge to draw together the main areas or pieces of evidence relied on by each accused as part of a focussed summary of the central arguments advanced by counsel of their behalf. This could have been achieved by a relatively short description of the main contentions they each developed, and the core material to which they referred. We wish to stress that this would not have required a lengthy explanation; indeed, no more than a dozen or so sentences for each appellant would probably have sufficed to reflect the essence of the cases they were presenting. 121. In light of the failure by the judge to undertake this exercise, the critical question on this appeal is whether in the result these verdicts are unsafe. The central issue in this trial was extremely straightforward, in that the case turned on whether the appellants knew about the fraudulent steps that were being taken to secure the loans and whether they agreed to participate in this dishonest undertaking. As the judge explained: “What the prosecution must prove in this case therefore is firstly that there was an agreement to defraud, in other words the existence of such an agreement. Secondly, that the defendant whose case you are considering joined that agreement and, when the defendant joined that agreement he intended that the agreement should be carried out. ” 122. All of the arguments and the evidence in the case were essentially directed at that issue. The jury could not have failed to understand that the cross-examination by defence counsel and the evidence they highlighted were intended to demonstrate that the appellants were unaware of the fraud and that they did not agree to participate in it. After some anxious reflection, we are confident that although the defence submissions in this regard were not summarised by the judge, the jury would have clearly appreciated the arguments and the issues that they needed to bear in mind, along with their significance, when deciding if the prosecution had proved its case. In consequence, we are not persuaded that the verdicts are vitiated because of this notable deficiency in the summing up. This was an extremely strong case against each appellant, and given the straightforward nature of the underlying issue, we are confident that these verdicts are safe. The appeals against conviction are dismissed. Sentence 123. In passing sentence, the judge observed that the total loss to the three banks was in the region of £8.8 million, a very substantial figure. The judge emphasised that Mann was the managing director and sole owner of the relevant company, he signed the critical documents and he was involved in making decisions. Therefore the judge decided he was a central figure in the fraud perpetrated in the company’s name. Panchal orchestrated the deals; he played a major role in his dealings with the key figures in this undertaking; and he held himself out as a director, describing himself as the Financial Director. 124. The judge identified a starting point of seven years, given this was a banking fraud involving a substantial amount of money. The relevant negotiations were fraudulent from the outset and the offending extended over a significant period of time. 125. The court bore in mind that the fraud was not committed by professionals or in breach of trust, and he accepted there was an intention to repay or honour the obligations. The judge indicated the sentences were the shortest that matched the seriousness of the offending and he took into account the relevant mitigating factors for each appellant. 126. Panchal had one previous conviction dating from 1992 for six offences of Procuring Execution of a Valuable Security by Deception for which he received a total sentence of 2 years imprisonment. 127. For Mann it is submitted the sentence was wrong in principle as it is suggested the judge made no reduction either for the appellant’s previous good character (a fact which distinguished him from Panchal) or for the effect of the complete loss of his business. 128. For Panchal it is argued the judge wrongly placed the offence in the first category of the Sentencing Guideline for Fraud. It is suggested a lesser category would have been appropriate, to reflect the appellant’s long employment record with the company and it is said he gave insufficient weight to the fact that it was proposed to substitute the fraudulent leases for genuine ones and to repay the loan. It is submitted the judge paid inadequate attention to the fact that the fraudulent leases only applied to certain properties and that the properties in themselves comprised a significant security. It is suggested that the company failed principally for reasons unconnected with the fraud and it is said the judge should have reflected to a greater extent the absence of any personal gain by the appellant. Overall it is argued that he was disproportionately influenced by the size of the sums lost. Finally, it is contended that the sentence should be reduced because of the uncertainty faced by the appellant whilst his appeal against sentence has been resolved (he was convicted on 10 October 2012). 129. As regards the period of disqualification, on behalf of Panchal it is said the judge erred in imposing a disqualification order of 8 years because he accorded no weight to the fact that the appellant was not a director at any material time; it is contended he relied too heavily on the fact that the appellant falsely represented after the fraud that he was a company director; and he failed to assess fairly the evidence relating to extent to which the appellant acted as director. Finally it is argued he erred in considering that the fact of the conviction itself justified the disqualification (or length thereof) irrespective of whether the appellant had been a director of Ablethird. 130. In our judgment, the judge was wholly entitled to identify the top bracket within the banking and insurance fraud guideline, given this offence was fraudulent from the outset ( viz. from when the first approach was made for funding), it was carried out over a significant period of time and it involved multiple frauds. Given the scale of the criminality and the amount of money lost, the judge correctly sentenced at the top of the bracket. The judge bore in mind the good character of Mann and the mitigation available to both accused, but this was serious offending which merited a sentence of this length. This offending inevitably attracted a lengthy sentence and we do not consider that there is any reason for reducing the term imposed because it has taken 18 months to resolve the appeals against conviction and sentence. 131. A period of disqualification of 8 years comes within the bracket of 6 – 10 years that is generally reserved for serious cases which do not merit the top bracket of over 10 years (see R v Millard 15 Cr App R (S) 445). As we have just stressed, this was extremely serious offending with a number of different losers. The lack of evidence of direct personal gain and the ambiguity over the exact extent to which Panchal acted as a director – given the important role he played in the company – are of little weight when balanced against the seriousness of this offence, and these factors are overshadowed by the extent of the overall loss and the dishonesty involved. This period was not manifestly excessive or wrong in principle. 132. In all the circumstances the renewed applications to appeal against sentence are refused.

```yaml citation: '[2014] EWCA Crim 717' date: '2014-04-15' judges: - LORD JUSTICE FULFORD - MRS JUSTICE SIMLER DBE ```

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

Case No. 2007/2093/D2 Neutral Citation Number: [2008] EWCA Crim 872 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 5 March 2008 B e f o r e : LORD JUSTICE DYSON MR JUSTICE PENRY-DAVEY SIR CHRISTOPHER HOLLAND - - - - - - - - - - - - - - - - - - - - - R E G I N A v MICHAEL SUMMERS - - - - - - - - - - - - - - - - - - - - - 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 Mercer QC and Mr I Hughes appeared on behalf of the Appellant Mr M Edmunds QC appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE PENRY-DAVEY: On 2nd February 2006 in the Crown Court at Bristol the appellant pleaded guilty on rearraignment to 32 counts of obtaining a money transfer by deception. On 28th April he was sentenced to four years' imprisonment on each count concurrent. A count of conspiracy to defraud was quashed. Two counts of money laundering were ordered to remain on the file. Two other defendants called Mills and Mead were acquitted on a number of counts and were discharged. 2. On 15th March 2007 a confiscation order in the sum of £4 million was made, with 18 months to pay from that date and six years' imprisonment in default. Compensation of £1,902,464 was to be paid out of the sums recovered under the confiscation order. There is no appeal in this case against the sentence of imprisonment. The appeal, with the leave of the single judge, is against the confiscation order. 3. The offences charged covered a period from 1997 to 2004. The fraud perpetrated by the appellant was an elaborate investment fraud described by the Crown as a typical "Ponzi" scheme. Investors were persuaded that the appellant had access to High Yield Investment Programmes and a high yield or return was promised ranging from 25% to 60% and in some cases 100% in a year. It was too good to be true, but numbers were induced to invest substantial sums under what were described as Secure Investment Programme Agreements. Under the terms of the agreement the money was paid over for the sole purpose of investing in a trading programme for the buying and selling of what was said to be a form of bank investment. The security of the money was said to be guaranteed and secure because there was a form of bank guarantee or professional indemnity insurance backing it. The agreements however were entirely bogus. The appellant had no access to any sort of trading programme of the type represented into which the money could be invested and none of the money was so invested. The monies were paid into a succession of accounts. Some repayments of capital and interest were made to earlier investors by a process of teaming and lading with money coming from later investors and the earlier investors thinking their capital was producing a return from the trading programme they believed their money had been invested in. Payments were made to a number of intermediaries, including Mills and Mead who negotiated the agreements in part II of the indictment. 4. The first three counts of that indictment related to monies coming from a Miss Gordon, an elderly lady living in a retirement home in Torquay whose affairs were controlled by the proprietor of the home and her accountant, Mr Marlow. The total amount obtained from her in 1997 and 1998 was £1,744,000.00, the majority of which was paid into the appellant's account, Bank Sarasin, in Switzerland. Happily in civil proceedings brought by the Public Trustee, for whom Allen & Overy acted, £1,313,779.00 of Miss Gordon's money was recovered in due course. 5. Counts 5 to 27 of the indictment covering the substantial period of the fraud between 1998 and 2002 involved the use by the appellant of Channel Islands Accounts of companies operated by Mr Roger Taylor to receive the investors' monies. The total amount obtained in respect of those counts was well in excess of $2 million, approximately £1,450,000.00. The determined benefit in respect of payments into the Channel Island Accounts, not all from defrauded investors and excluding payments which were accepted as relating to Mr Taylor's own separate business, was approximately £5 million. 6. Counts 28 to 33 of the indictment related to further monies totalling £145,000 obtained by the appellant by means of substantially identical frauds committed in 2003 and 2004 when he was on bail. 7. It was the Crown's case that the appellant had no intention of investing the money and did not invest it, rather using it as if it were his own, spending much of it on himself. It was also their case that Mead and Mills were his assistants, recruiting investors and helping him keep them at bay. 8. The Crown made clear from the earliest stage of the confiscation proceedings their case that the appellant had undisclosed hidden assets. The appellant sought to say that he had no such assets beyond those disclosed and no undisclosed bank accounts. 9. The confiscation hearing extended over some days and at the outset of his ruling the judge referred to his earlier decision as to the amount of benefit, somewhat in excess of £11 million. That aspect of the matter was, it appears, ultimately agreed and the benefit figure is not significantly challenged in this appeal. The appeal relates solely to the amount of the confiscation order, namely the sum of £4 million, which it is submitted was manifestly excessive or wrong in principle. 10. The legislative framework for this case is contained in sections of the Criminal Justice Act 1988. Section 71(6) provided as follows: "Subject to section 1(c) above the sum which an order made by a court under this section requires an offender to pay shall be equal to- (a) the benefit in respect of which it is made; or (b) the amount appearing to the court to be the amount that might be realised at the time the order is made, Whichever is the less." Subsection (6) of section 73 provides: "If the court is satisfied as to any matter relevant for determining the amount that might be realised at the time the confiscation order is made ... the court may issue a certificate giving the court’s opinion as to the matters concerned and shall do so if satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the court assesses to be the value of the defendant’s benefit from the offence or, if more than one, all the offences in respect of which the order may be made." 11. It is clearly established by authority and was accepted in this case that the burden of establishing that the realisable amount was less than the benefit so as to justify a lower figure for the confiscation order was on the appellant to the civil standard on the balance of probabilities and it is equally clear that if he sought to establish that he had to do so by clear and cogent evidence: Walbrook & Glasgow [1994] 15 Cr.App.R (S) 783 followed in Anderson [2005] EWCA Crim. 3384 . Following from that, it is also clear that there is no burden on the prosecution to show a prima facie case of hidden assets, but for the appellant to provide evidence demonstrating the extent of his realisable assets: Barwick [2001] 1 Cr.App.R (S) 129 and Barnham [2006] 1 Cr.App.R (S) 16 . 12. At paragraph 39 of the judgment in the latter case, Gage LJ, giving the judgment of the court, said: "We reject the submission that the prosecution was required to do anything further at the second stage of the proceedings by way of providing a prima facie case for the appellant to meet. In our judgment the correct approach for the court to take when dealing with confiscation proceedings at the second stage is the same whether the benefit has been proved by evidence in addition to the statutory assumptions. Once the prosecution has established the benefit there is no requirement on it to provide a prima facie case. At the second stage the burden of proof shifts to a defendant to establish, if he can, his realisable assets to the satisfaction of the court. By the second stage a defendant will know exactly how the court has determined benefit attributable to him and must prove by evidence what his realisable assets are. It is for him to show why the confiscation order should not be 'the value of (his) proceeds of drug trafficking'. If he proves that he has no, or appreciably less, realisable assets than the amount of the benefit determined by the court the order will be made in the lesser sum. Provided the judge keeps well in mind the principle that the risk of serious injustice to the defendant must be avoided and does not just pay lip service to that principle the order will be in the amount assessed as either the amount of benefit or such other sum as the defendant shows represents his realisable assets. To hold that the prosecution must, in some way, show a prima facie case that the defendant has hidden assets in our judgment would defeat the object of the legislation. It is designed to enable the court to confiscate a criminal's ill-gotten gains. The expression 'hidden assets' is indicative of the fact that the prosecution can have no means of knowing how and where a defendant may have dealt with or disposed of the proceeds of his criminal activities." 13. We should refer finally to section 71(1C) providing as follows: "If ... the court is satisfied that a victim of any relevant criminal conduct has instituted, or intends to institute, civil proceedings against the defendant in respect of loss, injury or damage sustained in connection with that conduct - (a) the court shall have a power, instead of a duty, to make an order under this section; (b) subsection (6) shall not apply for determining the amount to be recovered in that case by virtue of this section; and (c) where the court makes an order in exercise of that power, the sum required to be paid under that order shall be of such amount, not exceeding the amount which (but for paragraph (b) above) would apply by virtue of subsection (6) below, as the court thinks fit." When that section applies it converts the duty to make the confiscation order into a power to do so and provides a discretion not otherwise available to make a lower order than that which would otherwise be required under subsection (6). 14. The ruling of the judge after a significantly lengthy hearing has the merit of brevity, but it is suggested that it is seriously defective in a number of respects. Having referred to the benefit figure, he said this: "I have been referred to a number of individual items upon which I have been invited to rule and really, apart from what has been frozen in the bank of Butterfield, the value of Highbridge Farm and comparatively small sums in the United Kingdom plants for cars, no real assets have come to light and I am invited to make assumptions that there are assets available to the defendant which should be included in any figure for confiscation. It is -- and indeed it is the law -- that the onus is upon Mr Summers to show that he has no assets." He went on to refer to two amounts paid to Mills and Mead, on which there had been submissions as to whether or not they constituted gifts, and in the event he concluded that he should not take them into account for the purposes of this calculation. He went on in these words: "The only other item about which I am able to make really an individual finding is Highbridge Farm. From the evidence I heard on the last occasion from Mr Summers I am in no doubt that the property belongs to him and to him alone, and that the sham of his wife paying the mortgage on no earnings demonstrates this completely. I am mindful of the danger of double taxation in respect of the purchase proceeds. His evidence, as I said on the first day of this application, shows him to be somebody who was prevaricating. He was attempting even then to minimise his considerable dishonesty, and when he has disclosed anything in this case it really has been drip-feed. He was untruthful, as demonstrated by him agreeing to a proposition and then having to concede it as being wholly erroneous when he was presented with the figures. The evidence shows that he is clearly adroit at laundering money; his revelation that he had, I think it was £56,000 in a locked tin box in cash in his garage. He had and does deliberately move money about, and has done so to make it difficult to trace. On his own acceptance and admission he has never paid any tax, and he agreed in cross-examination that his position was that if it was inconvenient to disclose any money to the authorities he would not do so. An example perhaps in this case was the €83,000 he failed to disclose in respect of the restraint order proceedings. I have come to the conclusion that I am not in a position to determine every item individually and make a ruling on each one. I have the information before me as to the funds that came to him and the amount by which he had benefited. His evidence does not satisfy me that there are no hidden assets. On the other hand, I am unable to be more precise than to take an overall view of what he has kept back and hidden for himself. The combination of all the evidence that I have heard and read, together with the amounts listed, allows me to say that of the benefit of just over £11 million the defendant has been able to satisfy me that £7 million of that is no longer available to him in the form of realisable assets. Accordingly, I have come to the conclusion that a figure of £4 million is the fair and proper figure to order by way of confiscation." ] 15. The appellant suggests that the rationale behind the principle that the onus is on the defendant to establish that the amount that might be realised is less than the benefit figure is that the prosecution often cannot know what has become of the proceeds of the defendant's criminal activities. It is however submitted on the appellant's behalf that there is a distinction to be drawn between the situation where a defendant is unable to show what has become of all or part of the proceeds of his criminal conduct reflected in the benefit figure and where it is asserted that he has other assets available to satisfy the confiscation order not derived from the proceeds of his criminal conduct. In the latter case it is submitted effectively that the burden should be on the prosecution to show that he has such other assets, alternatively that there should at least be some evidence that he does. It is submitted that the distinction is of importance in this case. The submission is made that the destination of the proceeds reflected in the benefit figure was substantially explained in the evidence and that the unexplained would not justify an order to the extent of £4 million. In particular the fact is relied on that the benefit figure was very much a gross figure which did not take into account repayments to investors of monies recovered in civil actions brought, for example, on behalf of Miss Gordon, or monies paid to or retained by others involved innocently or otherwise in the mechanics of the fraud. It is suggested that analysis of the bank accounts which formed the basis of the prosecution statements substantially demonstrated how much was received personally by the appellant and in particular during the substantial period of the fraud when payments into the Channel Islands accounts reflected in the benefit figure were approximately £5 million and payments out to the appellant were in the region of £428,000. It is suggested too that the destination of the monies received by the appellant and his various accounts and how the sums were spent is substantially explained by the prosecution's own analysis of the accounts. Following that, the appellant submits through Mr Mercer that although the judge was entitled to reach the conclusion on realisable assets on the basis of a broad assessment rather than a precise calculation, he failed in his judgment to explain in any way how he had reached the figure of £4 million or to address the submission that the disposal of benefit assets was substantially explained, or to make any findings to the extent to which it was unexplained, or to distinguish between benefit assets and other assets. In the result it is submitted that the order the judge made could only be justified by a finding that the appellant had substantial undisclosed other assets and that there was no evidence of that in this case. 16. The respondent submits that the burden lay and remained on the appellant to prove that the realisable amount was less than the benefit figure. The judge found that the appellant was dishonest, prevaricating, seeking to minimise his considerable dishonesty, not providing disclosure or, if so doing, only on a drip-feed basis, that he was adroit at laundering money, including moving it about to make it difficult to trace and was forced to admit in cross-examination that he would not disclose money to the authorities if it was inconvenient to do so. Those conclusions are relied upon by the Crown and it is submitted that the judge approached the assessment of the realisable amount applying proper principles. The suggestion is also made that the appellant may have been fortunate not to have been subject to a confiscation order in the full sum of the benefit figure, but it is contended equally that the fact that the judge identified a substantially lower figure amply demonstrates that he had taken account of the material before him as he said in terms he had done. It is, the respondent points out, common ground that the judge was entitled to reach his conclusion on the basis of broad assessment rather than precise calculation which may well in many cases be the only possible approach. 17. The assertion that where hidden assets are alleged by the Crown it is for the Crown to prove the amount and availability wrongly it is submitted seeks to reverse the clear burden on the appellant. Thus the judge properly concluded, it is suggested, that the appellant's evidence did not satisfy him that there were no hidden assets. He was however unable to be precise and only able to take an overall view of the amount that had been kept back and hidden. 18. The respondent concedes that the judge made no express reference to the matter in his judgment, but it is submitted that the practical effect of his ruling was to discount from the benefit figure the approximate sums recovered or paid to victims and intermediaries. That figure, it is submitted, can be identified from the evidence and in particular a schedule of amounts paid out of Swiss and Channel Island bank accounts, amounts frozen in the Channel Islands and other direct payments to the appellant. That figure overall it is submitted is in the region of £5.8 million, and with the retail price index addition at 15.2% as with the benefit calculation amounts to a total of approximately £6.7 million. That total, it is submitted, is in line with the figure the judge identified in his ruling of £7 million no longer being available to the appellant in the form of realisable assets. It is clear from the ruling that it was on the basis of that figure of £7 million that the judge concluded that the figure of £4 million was the proper amount to order by way of confiscation. 19. There was also in the case another schedule produced by the prosecution of realisable assets on which we were addressed. That totalled some £4.188 million, less the £600,000 or so which in the event was discounted by the judge in respect of gifts, leaving in the region of £3.5 million. Of that the appellant conceded in argument that £1.3 million was available and the judge was in our judgment entitled to conclude that he was not satisfied that the balance of £2.2 million was not available to the appellant on the evidence and arguments that he had heard. In any event, that schedule was limited to identified realisable assets related to the benefit amounts, and did not include realisable assets from other unconnected sources. 20. Thus, although the judge did not refer expressly to the discretion that he had as a result of the assistance of civil proceedings in the case, nor indeed did he refer to the other conceivable way of approaching the matter, it is submitted that what he ordered was in line with a proper exercise of discretion and was therefore not manifestly excessive or wrong in principle. 21. We have considered the ruling that the judge made with some care. It is in our judgment defective in that it fails to indicate the basis, even in general terms, of how the judge had reached the figures concerned and simply stating that he had taken all the evidence into account is no substitute for indicating, even if briefly, his conclusions and the basis on which those conclusions were reached including in this case the important figures of £7 million and £4 million. 22. However, in our judgment the fundamental submission made on the appellant's behalf to the effect that there is some form of shifting of the burden of proof away from the defendant is misconceived. On the basis of clear authority the burden of showing that his realisable assets are less than the amount of his benefit under the Act rests and remains on the appellant and it was, in our judgment, not for the prosecution to establish that the appellant had undisclosed assets, more particularly where the case from the outset was clearly that he had such assets, but for the appellant to the appropriate standard and on the basis of evidence to satisfy the court that he had no such assets. The judge properly concluded that the appellant had failed to discharge that burden. 23. Thus we come back to the figure for confiscation which the judge identified. Although the basis on which the judge reached the two figures of £7 million and £4 million was not explained in the course of the ruling and should have been, what we have to consider is whether the amount of the order, namely £4 million, was clearly excessive or wrong in principle. Although it was unsatisfactory for the judge not to identify the basis on which he reached the ultimate figure in our judgment there is a rational and proper basis for both figures, having regard to the matters that we have set out, and in the result there is no proper basis for saying that the ultimate amount of the order, namely £4 million was manifestly excessive, nor that the making of an order in that amount was wrong in principle. 24. Our decision in this case in no way discounts or diminishes the desirability of a judge in cases of this kind identifying, even if only in general terms, the basis on which figures are arrived at. In all the circumstances of this case, however, we conclude that there was a proper basis for the conclusion the judge reached even though he failed to explain or identify that basis and accordingly the appeal against sentence is dismissed.

```yaml citation: '[2008] EWCA Crim 872' date: '2008-03-05' judges: - LORD JUSTICE DYSON - MR JUSTICE PENRY-DAVEY - SIR CHRISTOPHER HOLLAND ```

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No: 200404163/A5 Neutral Citation Number: [2004] EWCA Crim 2823 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 28th October 2004 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE HENRIQUES MRS JUSTICE DOBBS - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 92 OF 2004 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR E BROWN appeared on behalf of the ATTORNEY GENERAL MR A JEBB appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988 , to refer sentences said to be unduly lenient. We grant leave. 2. The offender was born in August 1975 and is therefore 29 years of age. On 7th May 2004 he eventually pleaded guilty to aggravated burglary and also to an offence of conspiracy to pervert the course of justice. On 25th June 2004 he was sentenced by His Honour Judge Daniel, at Mold Crown Court, to 6 years' imprisonment for aggravated burglary and 2 years for conspiracy to pervert the course of justice concurrently. The judge made no order in relation to the unexpired period of licence to which the offender was subject and therefore made no order in relation to the total sentence of 6 years which he passed, save that it should run from the day when sentence was passed. 3. In summary, the offender and another man broke into the home of a couple at night and threatened the man with a knife. The offender held the male occupant on the bed with a wooden baton across his neck and eventually left with money and other items. There were injuries to the victim. Both the occupants were badly affected by the experience, to the extent to which we shall come. 4. Shortly before he was due to be tried for that offence of aggravated burglary, having earlier pleaded not guilty, the offender was party to an attempt to bribe the victim with the sum of £5,000 so as to alter his evidence against the offender. 5. A man called Gareth Evans lived in Llay in North Wales, and his fiancee, Miss Lees, stayed at the address four times a week. It was a semi-detached three bedroom house in a rural area. Mr Evans was the Managing Director of a fork- lift company. 6. In the early evening of 23rd October 2003 they had been out. They returned at about 7.30 and they went to bed. At about 1.30 in the morning they awakened to find the offender and another man in their bedroom. The offender had a hood pulled tightly over his head. He said: "You run a fork-lift company, we want a £1,000. You have cash here, you own a business, where's the money?" He was told that money was not kept in the house. Mr Evans got out of bed and approached the offender. The offender and his accomplice pushed Mr Evans back onto the bed which in consequence collapsed. Mr Evans was then held down by both men and the offender told his accomplice to punch Mr Evans in the kidneys. He then said to his accomplice: "Give me the knife". The offender, having been passed the knife, held it to Mr Evans' throat. He continued to demand money. Miss Lees was held down on the bed by the other man. She said there was a wallet downstairs. She was taken downstairs by the accomplice. At that stage Mr Evans was able to disarm the offender and the knife was thrown on the ground. However, the offender was still on top of Mr Evans and he took hold of a broken piece of wood from the bed. It had a nail in it. He held it across Mr Evans' throat and pushed the nail into Mr Evans. He said: "We're the Chester boys, don't fuck with us, where's the money, there'd better be money, if not we'll come back and blow your kneecaps off." The accomplice called from downstairs that he had found the money. The offender left the bedroom. The accomplice had been persuaded not to take Miss Lees car keys; she offered her jewellery instead and the man took her rings from her fingers. Both men ran from the house and drove away in a car at speed. There had been £350 and credit cards in Mr Evans wallet. That, together with his car keys, a mobile telephone and a DVD player were taken. Miss Lees' jewellery was worth something over £100. 7. As a result of this Mr Evans sustained a black eye, cuts to his head, bruising to his left arm, a chipped tooth, a slash on his finger and a grazing on his calf. Both he and Miss Lees were badly affected by the attack. They were very frightened and shocked at the time. They felt unable to return to the house. It was sold. Miss Lees needed to have friends staying with her to make her feel safe. For several months she would become very emotional as a result of the attack. In consequence of all this her relationship with Mr Evans broke down. The two split up and the wedding which they had planned for September 2003 was cancelled. 8. When the offender was arrested he denied, in interview, any part in this offence. But he was picked out by Mr Evans on an identification parade on 25th November. He continued in subsequent interview to deny the allegations and advanced an alibi. The rings taken from Miss Lees were returned anonymously to the police in January 2004. 9. The offender having, as we say, pleaded not guilty to the offence of aggravated burglary, his trial was fixed for 27th April 2004. The offender was in custody. However, on 9th and 12th April, Mr Evans received telephone calls from a man offering, at first, £1,500, and then £3,000 for him to retract his statement. He refused. He received further telephone calls on the 17th and 25th April, increasing the offer to £5,000. On 26th April, the same person said he had £5,000 to hand over and they agreed to meet. Mr Evans was handed £2,000 in cash by a woman who became a co-accused, Sarah Holmes. She was present with two men, one of whom was the defendant, Hine. Mr Evans was told that £3,000 would be put in his car, at court. Later, while Mr Evans was with the police, on the same day, he had a further call from Mr Hine, who said he had available the outstanding £3,000. Arrangements were made to meet Hine and Sarah Holmes. They were arrested. There was a sum just under £2,500 in cash in their car. 10. Investigation showed that there had been recorded telephone calls between the offender, whom it will be recalled was in prison, and Hine, Sarah Holmes and the offender's sister. Those recordings showed a plan to do that which we have described in seeking to buy off Mr Evans' evidence. 11. The judge sentenced the offender on the basis that the plan had been hatched by Hine, and Hine on the basis that it had been hatched by the offender, those being the allegations respectively made by the two defendants blaming each other. 12. The offender's sister accepted, when questioned, that she had obtained the money. Sentences of 21 months were imposed on her and on Hine and Holmes was sentenced to a community punishment order. 13. The offender has several previous convictions, including, in 1998, conspiracy to supply heroin, for which he was sentenced to 6 years' imprisonment and, in 2002, for burglary and handling stolen goods, when he was sentenced to a total of 2 years' imprisonment. In relation to that sentence he had been released on licence on 14th July 2003, that is some 3 months before the offence of aggravated burglary. 14. At the time when he appeared in the Crown Court there was approximately 10 months unserved in relation to the sentence for which he was on licence. 15. On behalf of the Attorney-General, Mr Brown draws attention to what he rightly submits are eight aggravating features in this case. First, there were two men involved, late at night, in breaking into the home of the sleeping victims, indicating targeting of these premises. Secondly, the offender had a knife which he held against Mr Evans' neck and he thereafter used the piece of wood with the nail protruding in the way we have described. Thirdly, Mr Evans was threatened with serious injury. Fourthly, the injuries which we have catalogued were caused to him. Fifthly, Miss Lees was threatened in order to assist the men in their search for money. Sixthly, the attack had a serious and lasting effect on the victims and the subsequent attempt to bribe Mr Evans made him more wary for his safety. Seventhly, the aggravated burglary was itself aggravated by the serious attempt to avoid justice, leading to the other offence which we have identified. Finally, both of these offences were committed while the offender was on licence. 16. Mr Brown draws attention to two mitigating features. First, the pleas of guilty, albeit that, in relation to the aggravated burglary it came very late and only in the circumstances which we have described. Secondly, the plan to bribe Mr Evans is not to be regarded as having been instigated by the offender. 17. A number of authorities are referred to in the written reference. They include Attorney-General's Reference No 34 of 2003 (R v Poyner) [2003] EWCA Crim 3073 , Attorney-General's Reference No 19 of 2000 (R v Stock) [2001] 1 Cr App R(S) 35, Attorney-General's Reference No 89 of 1999 (R v Farrow) [2000] 2 Cr App R(S) 382 and R v Harrison [2002] 1 Cr App R(S) 471. 18. The submission which is made by Mr Brown, on behalf of the Attorney, is that the sentences passed failed to reflect the seriousness of these offences. The judge erred in principle in failing to impose a consecutive sentence in relation to the conspiracy to pervert the course of justice and the submission is accordingly made that the sentences passed were unduly lenient. 19. On behalf of the offender, Mr Jebb draws attention to the letter written to the court by the offender, which refers to a relationship which has resulted in the birth of a baby, now 4 months old. The offender says that, now he has a family, all he wants to do is to get out and get a job and care for his family. He expresses regret and asks for one more chance. 20. Mr Jebb also draws attention to the terms of a report from the Valentines Unit of the prison where the offender is, which indicates that the offender has settled well into the prison regime and has attained level 4 of an incentive and privilege scheme, and he is currently in the enhanced unit at the prison. He is required to take voluntary drug tests and he is working in the engineering work shop and has not given any cause for concern. 21. Mr Jebb submits, having regard to the 21 months sentence imposed on his fellow conspirators to pervert the course of justice, that the 2 year sentence was not in itself unduly lenient. He concedes, however, that, in principle and on authority, a consecutive sentence could properly have been called for in relation to that offence. He submits that a term of 6 years was, by reference to the other authorities to which we have referred, not unduly lenient. He draws attention to the fact that, although the offender has significant antecedents, they are not offences of, as he put it, "the most serious kind". He has not previously committed a domestic burglary. He has no record for violent offences and Mr Jebb points out that the knife used to threaten Mr Evans was not brought to the premises in advance but was taken from the kitchen on arrival. To all of these matters we have regard. 22. So far as the sentencing process in the Crown Court is concerned, we would have expected the learned judge to order, first, that the offender serve the unexpired portion of the licence in relation to his previous sentence. We would then have expected him to pass a sentence of 6 or 7 years in relation to the offence of aggravated burglary, the running of that sentence to start consecutively to the service of the unexpired portion of the licence. We would also have expected the learned judge to impose the 2 year sentence, which he did, consecutively to rather than concurrently with the 6 year sentence. 23. It follows that, in our judgment, the total sentence passed on this offender was unduly lenient. Taking into account that the position in relation to the unexpired period of the licence is now quite different from what it was at the time the offender appeared in the court below so that no sensible order would now be made in relation to it, and taking into account double jeopardy, the sentence which we pass is one of seven-and-a-half years' imprisonment, made up as follows: 6 years for the offence of aggravated burglary and 18 months consecutively for the offence of conspiracy to pervert the course of justice.

```yaml citation: '[2004] EWCA Crim 2823' date: '2004-10-28' judges: - (LORD JUSTICE ROSE) - MR JUSTICE HENRIQUES - MRS JUSTICE DOBBS ```

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Neutral Citation Number: [2008] EWCA Crim 2653 Case Nos: 200801030 200801195 20081194 200801182 200801181 200804381 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/11/2008 Before: LORD JUSTICE LATHAM MR JUSTICE OPENSHAW and MR JUSTICE BURNETT - - - - - - - - - - - - - - - - - - - - - Between: R v Abdul Sherif Siraj Ali Muhedin Ali Wahbi Mohamed Ismail Abdurahman Fardosa Abdullahi - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Oliver Blunt QC and Mark Summers on behalf of Abdul Sherif Owen Davies QC) on behalf of Siraj Ali Charles Bott QC and Christopher Henley on behalf of Muhedin Ali David Spens QC on behalf of Wahbi Mohamed John King and Anne Faul on behalf of Ismail Abdurahman Jo Cooper (Solicitor Advocate) on behalf of Fardosa Abdullahi Max Hill QC and Emma Gargitter on behalf of the Crown Hearing dates: 22 October 2008 & 23 October 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Latham : 1. The first five applicants were convicted after a lengthy trial of offences arising out of the events on the 21 st July 2005. That was the day when three devices were detonated on underground trains and a fourth on a Number 26 bus. A fifth device was abandoned near Little Wormwood Scrubs where it was discovered two days later. Each device was carried in a rucksack and contained the primary high explosive triacetone, triperoxide (TATP), light bulbs, batteries, wires and plastic containers. Although four of the devices were detonated, in each case the main charge, which consisted of hydrogen peroxide and chapatti flour, failed to explode. The four whose bombs detonated were Muktar Ibrahim, Hussain Osman, Yassin Omar and Ramzi Mohamed. On the 9 th July 2007, they were convicted of conspiracy to murder and each was sentenced to life imprisonment with a minimum term of 40 years. Their applications for leave to appeal against conviction and sentence were refused by this court on the 23 rd April 2008. The judgment of the court, given by the President of the Queens Bench Division, is reported as R v Ibrahim and Others [2008] 2 Cr App. R. 23 at page 311. 2. The facts relating to the making of the bombs, their attempted detonation and the bombers’ movements between then and the time of their respective arrests are fully set out in that judgment. They clearly intended to cause carnage on a dreadful scale. Bearing in mind what had happened only a fortnight earlier, the 7 th July, the authorities were clearly under immense pressure to do all they could to ensure public safety. These applicants, in one way or another, all knew or believed that one or more of the bombers either intended to commit an act of terrorism, or knew that they had so intended, and not only gave assistance to them, but also failed to give information which either could have been of assistance in preventing the commission of an act of terrorism or could have helped in securing the bombers arrest. They accordingly faced an indictment containing a total of 27 counts charging them with offences contrary to s.38 B (2), in respect of conduct set out in s. 38 (1) (a) and (b) of the Terrorism Act 2000 (respectively relating to prevention of the commission of an act of terrorism, and securing arrest) and contrary to s.4 (1) of the Criminal Law Act 1967 , that is assisting an offender with intent to impede arrest or prosecution. 3. They and the sixth applicant have applied for leave to appeal against sentence. Their applications have been referred to the court by the Registrar. We give leave to all the applicants to appeal against sentence. Three, Siraj Ali, Ismail Abdurahman and Muhedin Ali have also applied for leave to appeal against conviction and their applications have likewise been referred to the court by the Registrar. We will deal with those applications after we have set out the facts in relation to the first five appellants. We will deal with the appellant Fardosa Abdullahi separately in the final part of this judgment. 4. Although we have stated that the story of the attempted bombings can be found in the judgment of this court in R v Ibrahim and Others , it may be helpful to set out very shortly the circumstances of the bombers’ arrests. The first to be arrested was Yassin Omar, who left London in disguise in the circumstances set out in the part of this judgment relating to Fardosa Abdullahi, and went to Birmingham. He was arrested there on the 27 th July. Ramzi Mohamed and Muktar Ibrahim both hid at 14K Dalgarno Gardens and were arrested there on the 29 th July. Hussein Osman was also arrested on the 29 th July. He had caught the Eurostar train to Paris on the 26 th July, and had travelled from there to Rome. A further background fact which was important to the accounts of some of the appellants was the shooting of De Menezes at Stockwell tube Station on the 22 nd July when he was mistaken for one of the suspected bombers. Siraj Ali 5. Siraj Ali was charged with and convicted of two offences of failure to disclose information that he had prior to the intended bombings, two offences of failing to disclose information after the intended bombings, and one offence of assisting an offender. The information in question in all four counts under s. 38B of the Terrorism Act was said to be information relating to the activities of Omar and Ibrahim. The count charging him with assisting an offender related to help that he was said to have given to Ibrahim by removing and disposing of incriminating property. 6. Ali and Omar had, as children, been in the care of the same foster parents. At the relevant time they lived respectively at number 65 and number 58 Curtis House, London N11. Ibrahim, who was a friend of both of them, stayed at Ali’s flat from time to time. Ali was arrested on the 25 th July, that is before the arrest of any of the intended bombers. His flat was searched, together with the flat of Omar and other areas of Curtis House. It became apparent that number 58 was likely to have been the place where the bombs were assembled. In Ali’s flat, there was a notepad bearing Ibrahim’s fingerprints with calculations relating to detonators and charges, a handwritten note containing steps to martyrdom, a handwritten list, in Arabic, of bomb making equipment, and visitor’s cards from two different suppliers of hydrogen peroxide, which was an essential ingredient in the preparation of the home made bombs. 7. The prosecution case was that these documents clearly demonstrated that the bombers had used the appellant’s flat when making their plans. Furthermore, the prosecution asserted that the process of concentrating the hydrogen peroxide by boiling, gave off such unpleasant fumes that it was likely that this was done at Omar’s flat, with Omar and Ibrahim moving to Ali’s flat. In the communal bins at the back of the flats the police found a large number of empty peroxide bottles, a plastic tub identical to those carried by the bombers to hold the main explosive charge, a pipette containing traces of sulphuric acid (an ingredient in the explosive), some light bulbs and holders (of an identical type to those used by the bombers to detonate the charges) receipts for the hydrogen peroxide and for various electrical components used in the making of the bombs and various documents including a timetable or rota for concentrating the peroxide by boiling, and calculations for determining the concentration of the peroxide. 8. In interview, Ali first denied that he had seen either Omar or Ibrahim for some time. He eventually admitted that Ibrahim had a key to his flat as he stayed there from time to time, indeed some of his clothes were in the wardrobe. But he denied responsibility for any of the items in the flat which he asserted must have been Ibrahim’s, and denied being involved in disposing of any of the items found in the bins. In evidence he repeated those denials and asserted that he had not seen Omar for two months and had last seen Ibrahim one or two months before his arrest. He had not seen either of them after the attempted bombings. 9. He was sentenced to a total of 12 years imprisonment, comprising sentences of 5 years imprisonment concurrently for the prior knowledge offences, 5 years imprisonment concurrent for the post event offences and 2 years imprisonment for assisting an offender. The last two were to be served consecutively to each other and consecutive to the sentences for the prior knowledge offences. Abdurahman 10. Abdurahman was charged and convicted of one charge of assisting Osman, and four charges of failing to disclose information after the event, relating to all the bombers. 11. At the time, he was working for a firm of solicitors as an administrative assistant. He lived at 61, Newport Street, London SE11. He had met Abdul Sherif, Osman’s brother, at college. Through him he met Osman. He became friendly with them, although according to him he did not see much of them. 12. The evidence showed that Abdurahman met Osman at Clapham Junction Station on the 23 rd July. Osman had been staying in Brighton until then. Abdurahman said that it was a chance meeting. Osman asked if he could have accommodation. Abdurahman took him to his home where Osman stayed until the morning of the 26 th July. During that time, the prosecution case was that Abdurahman was prepared to give him shelter even though he knew that Osman had been involved as a bomber, at the very least from having been told by Osman that one of the CCTV images shown on television was an image of him, and from a picture of Osman in the Daily Star found at his home and on which his finger prints were found. His assistance went further. He collected Abdul Sherif’s passport from Abdul Sherif and gave it to Osman. He also collected a video camera which had been used to film suicide messages by the would-be bombers and gave it to Osman. On the morning of the 26 th July, he accompanied Osman to the bus stop from where Osman caught a bus to Waterloo station where he purchased a ticket for the Eurostar, and, using Abdul Sherif’s passport, went to Paris. Osman spoke to Abdurahman twice by mobile phone that day and rang him twice on the 27 th July when he had reached Italy, the latter two calls were not successful. 13. Abdurahman did not give evidence. His case was based upon the witness statement that he had made to the police on the night of the 27 th /28 th July in circumstances to which we will return. In that statement he accepted that he had sheltered Osman. He said that the meeting at Clapham Junction station had been entirely by chance. Osman had said to him that the person on the CCTV footage was him; but he, Abdurahman, simply did not believe him. The picture did not look anything like Osman. Osman was called to give evidence by Abdul Sherif, and in cross-examination essentially confirmed this account. 14. He was sentenced to 5 years imprisonment for assisting an offender and 5 years imprisonment for all four offences of failing to give information, to be served concurrently with each other but consecutively to the sentence of assisting an offender. Abdul Sherif 15. As we have said, Abdul Sherif is the brother of Osman. He was charged with two counts of failing to disclose information before the bombings relating to Osman and Mohamed, one count of assisting Osman, and two counts of failing to disclose information after the bombings relating to Osman and Mohamed. The jury acquitted him of both counts alleging prior knowledge, and of the post knowledge count relating to Mohamed. 16. The prosecution case on the counts of which he was convicted was based essentially on his providing his brother with the passport to which we have referred when dealing with the case of Abdurahman. He handed the passport to Abdurahman on the 25 th July, having arranged to meet him for this purpose. During the period after the bombings, there were numerous phone calls and attempted phone calls between Osman and Abdul Sherif from which the prosecution asked the jury to infer that Abdul Sherif must have had the relevant knowledge or belief. 17. Abdul Sherif gave evidence in which he agreed that he had provided the passport. He accepted that there had been phone calls. From these, and from what Abdurahman told him, he knew that the police were looking for Osman but he believed that his brother’s life was in danger particularly because of the killing of De Menezes. He agreed to hand over the passport in those circumstances. He really did not think about whether his brother was involved in the bombings. He did not say anything to the police about his brother. He was fearful for his own safety because of the death of De Menezes. Osman gave evidence to the effect that his brother had been unwilling to hand over the passport until he, Osman, said to him: “which do you prefer, your passport or my life?” He told his brother that he believed that because of what had happened to De Menezes the police were operating a shoot to kill policy because of what had happened to De Menezes. 18. He was sentenced to 5 years imprisonment for assisting an offender and 5 years imprisonment, to be served consecutively, for failing to give information post event. Wahbi Mohamed 19. Mohamed was convicted on four counts of offences concerning prior knowledge relating to each of the four bombers. He was convicted on two counts of assisting an offender, one relating to Osman and the second Ramzi Mohamed. He was further convicted on four counts relating to post event knowledge again relating to each of the four bombers. 20. This appellant is the brother of Ramzi Mohamed. The Crown’s case was that he was present at 14K Dalgarno Gardens on the morning of the 21 st July as the bombers prepared to set off. He encouraged them to carry out their attacks by showing films. He then took away the video camera used by them to make their suicide videos. He handed the video camera to Abdurahman to give to Osman after the bombings. Also after the bombings he provided his brother with a mobile phone, a SIM card, a charger, and food, whilst his brother remained in hiding with Ibrahim at 14K Dalgarno Gardens. There was evidence of considerable telephone contact between Wahbi Mohamed and his brother and with Osman before the bombings. Within a short time of the bombings having taken place, Muhedin Ali, Osman, and his brother all tried to contact him. 21. He was sentenced to a total of 17 years imprisonment comprising 5 years imprisonment concurrent for the prior knowledge offences, 2 years imprisonment for one offence of assisting an offender, 5 years imprisonment for the offence of assisting an offender and 5 years imprisonment concurrent for failing to give information post event. The last three sentences were to be served consecutively to each other and to the sentence on the prior knowledge offences. Muhedin Ali 22. Muhedin Ali was charged with, but acquitted of, two counts of failing to disclose information before the bombings, these counts relating to Osman and Ramzi Mohamed. He was convicted of one count of assisting an offender, which related to Osman and two counts of failing to disclose information after the bombings, relating to Osman and Ramzi Mohamed. 23. Muhedin Ali was a close friend of Osman. Before the bombings, he received Ramzi Mohamed’s suicide note, together with a mass of Islamist audio tapes. He retained the suicide note, indeed it remained in his possession until after his arrest. In the hours and days after the bombings he was involved in a number of telephone calls with Ramzi Mohamed and Osman’s wife, Yeshi Girma. During the course of a telephone call with Osman, when it would appear that Osman was in Brighton, he offered Osman the opportunity to stay in his flat in Chesterton Road, London. This offer of accommodation formed the basis of the count of assisting an offender. 24. He was sentenced to 2 years imprisonment for assisting an offender and 5 years for the failure to give information post event. These sentences were to be served consecutively. The conviction applications Siraj Ali 25. It is submitted that in relation to each of the counts on the indictment relating to the failure to disclose information, the judge misdirected the jury as to what they were entitled to take into account when considering whether the applicant had the requisite state of mind, that is either “knowledge” or “belief”. The direction given by the judge, after argument from the defence and the prosecution, was in the following terms: “The question of whether the defendant “knew or believed” a particular fact or state of affairs arises in respect of each of the 27 counts you have to consider. I give you this direction. The prosecution need only make you sure of either knowledge or belief. The question of whether a defendant knew or believed something is a subjective one, that is did that defendant himself know or believe a particular fact or state of affairs? Knowledge involves having seen, heard or experienced something yourself. Belief involves reaching a conclusion based on credible evidence, often from a number of sources. But let me underline this, please: knowledge or belief is very different from suspicion. Let me give you an example. On count 11, Siraj Ali, assisting an offender, must be proved to have known or believed that M. Ibrahim had committed an arrestable offence such as conspiracy to murder. As I have told you, an arrestable offence includes any arrestable offence relating to the central criminality of the events of 21/7. Suspicion on Siraj Ali’s part, even coupled with the fact that Siraj Ali may have closed his eyes to the circumstances is not enough of itself to prove knowledge or belief. It is open to you to take into account, when considering the finding of knowledge, evidence that a defendant has deliberately shut his eyes to the obvious or refrained from enquiry because he suspected the truth but did not wish to have his suspicions confirmed. Let me be clear that suspicion is not enough to found any one of these charges.” 26. It is submitted that this direction, in so far as it referred to a defendant deliberately shutting his eyes, amounted to misdirection. We have been referred to R v Moys 79 Cr App R 72 and R v Forsyth [1997] 2Cr App R 299. It is submitted on the basis of those authorities that the judge was wrong to suggest that the jury could take into account a conclusion that a defendant has deliberately shut his eyes as that in itself cannot amount to any more than suspicion, and a direction to the jury should eschew any attempt go beyond the use of the words “knowledge” or “belief” in such circumstances. The Crown submit that the position is properly set out in the court’s judgment in Westminster City Council v Croyal Grange Ltd 83 Cr App R 155 in which the court said: “it is always open to the tribunal of fact to base a finding of knowledge on evidence that the defendant had deliberately shut his eyes to the obvious or refrained from enquiry because he suspected the truth but did not wish to have his suspicions confirmed”. 27. In our view, the judge was fully entitled to give the direction that he did. He made it abundantly plain that it was not sufficient for the prosecution to establish that a defendant had closed his eyes, but that the jury was entitled to conclude, if satisfied that he had deliberately closed his eyes to the obvious because he did not wish to be told the truth, that that fact was capable of being evidence to support a conclusion that that defendant either knew or believed the fact in question. There is nothing wrong with the direction. We refuse leave to appeal against conviction. Ismail Abdurahman 28. Abdurahman’s application raises a point of some difficulty. We give him leave to appeal against conviction. As we have already indicated, Abdurahman attended the police station on the 27 th July, and was interviewed over a prolonged period into the early hours of the morning of the 28 th July. The interview took place without a caution and without the presence of a solicitor. The information obtained was taken down by the interviewing officers, D.C. Vernon and D. C. Stewart in the form of a witness statement. The statement was completed by 5am on the 28 th July. The interviewing officers were then instructed to arrest Abdurahman. He was subsequently interviewed on the 30 th July in the presence of a solicitor. He then handed the officers a prepared statement and declined to answer any further questions. In the prepared statement he took issue with one or two matters of detail in his witness statement, but essentially repeated the main thrust of his witness statement, which was that although Osman had claimed knowledge of participation in the events of the 21 st July whilst he was staying with Abdurahman, he, Abdurahman, did not believe him. He stated that he believed that he had given the police valuable assistance during the course of the interview and in his statement. In his second interview on the 1 st August he again declined to answer questions but insisted that he had been assisting from the beginning and did not wish to make any further statements. He was interviewed further on the 2 nd August and repeated that he was not and never would be a terrorist and had never played any part in what had happened. In his last interview on the 3 rd August he said that everything he knew was contained in his original witness statement. 29. The circumstances surrounding the taking of the statement and the subsequent arrest was the subject of two separate applications on behalf of the appellant. Counsel sought in the first instance to persuade the judge to exclude the witness statement as evidence either on the basis that it was a confession made by Abdurahman in circumstances likely to render any confession unreliable pursuant to s. 76 (2) of the Police and Criminal Evidence Act 1984 , or in the exercise of the court’s discretion under s. 78 of the Act. The judge rejected that submission. At the end of the evidence for the prosecution, counsel then submitted to the judge that the prosecution should be stayed as an abuse of the process of the court in all the circumstances. The judge again rejected that submission. Before us, counsel submits that the judge was wrong in both those rulings. 30. Before coming to his decision on admissibility, the judge heard evidence on a voire dire from both DC Vernon and DC Stewart. They accepted that when they first approached this appellant on the afternoon of the 27 th July, it was with a view to his assisting the police as a potential witness. It was accepted on this appellant’s behalf that at that stage they had no sufficient information to justify arresting him, or treating him as a suspect. No complaint is therefore made about the fact that he was not cautioned when he was first taken to the police station and interviewed. Both of the officers accepted that some time after 7pm that evening, as a result of the answers that he was giving, they considered that he should be cautioned. They accordingly sought instructions from a senior officer who told them to continue with the interview as if Abdurahman was to be a witness. DC Vernon in his evidence expressed surprise that when the witness statement had been completed at 5am on the 28 th July, he was then instructed to arrest the appellant. 31. At trial the prosecution accepted that the witness statement could properly be described as a confession for the purposes of s. 76 of the Act, and accepted that there had been a breach of the appropriate paragraphs of the Code in failing to caution him or offer him the services of a solicitor when the interviewing officer came to the conclusion that they should take instructions from their superior. It should however be said that when he was first arrested on the 28 th July, he was asked whether he wanted the services of a solicitor, but declined, saying “No, maybe after interview if it gets serious.” 32. It was submitted on his behalf that he had been induced to make a statement on the basis that he would be a witness, and would be allowed home after the interview was completed. These were circumstances, it was said, which were such as to render his confession likely to be unreliable. This was compounded by the fact that the interview continued into the early hours of the morning when he must have been tired. It is further submitted that even if not rendered inadmissible by s. 76, the judge should exclude under his general discretionary powers under s. 78 of the Act. The judge having ruled the statement admissible in terms to which we will return, counsel submitted that it was clearly unjust and therefore an abuse for prosecution to continue on the basis of the statement which had been taken from this appellant when he believed that he was merely going to be a witness. 33. As we have said, the prosecution accepted that the witness statement amounted to a confession and that the interview, from the moment that the two officers believed that they should arrest him, was carried out in breach of the Code. But, it was submitted, in the subsequent interviews, and at trial, he adopted what he had said in the witness statement as his account, accordingly there was no basis for concluding that it was taken in circumstances which were likely to render it unreliable in that it would be unfair for it to be admitted or for this trial to proceed. 34. The judge, having heard the evidence of the police officers and the submissions, came to the conclusion that so far as s. 76 of the Act was concerned, he was satisfied that nothing was said or done by the police officers which could have rendered the witness statement unreliable. He accepted that the course that the police adopted at that stage was essentially driven by the fact that they believed that at least three of the bombers were still at large and could be motivated to try further attacks. 35. It should be noted that in the case of the bombers themselves, after they were arrested, the interviews were in the first instance conducted in the absence of legal advice, an issue dealt with in the judgment in R v Ibrahim and Others . The police were anxious to obtain as much information as they possibly could. In his prepared statement after he had been cautioned and had had an opportunity to take legal advice, this appellant said after denying any knowledge of the events of the 21 st July 2005: “I totally deplore those events. I was stopped by the police on Wednesday 27 th July and agreed to assist them in every way possible. (See my statement witnessed 28 July 2005). I gave them as much detail as possible about somebody known to me as Hamdi.” That is a reference to Osman. The statement then went on to correct certain matters of detail which were wrong, stating that as the statement was not completed until 5am, he was by then tired. 36. The judge said that this prepared statement helped him to determine whether or not the circumstances were likely to have rendered any confession unreliable, and concluded that the statement indicated that nothing was said or done by the police which would undermine the confession’s reliability. He also declined to exclude it under s. 78 of the Act, essentially on the basis that in the subsequent interviews which were perfectly conducted, this appellant adopted, subject to the matters of details to which we have referred, the contents of the witness statement as his defence. 37. Mr King on behalf of Abdurahman, submits that the judge’s decision was plainly wrong. He submitted that as far as s. 76 of the Act is concerned, the only proper conclusion from the fact that the appellant was being treated as a witness who would be allowed to go home and when it was clear that the police were desperate for any information, was that those circumstances were likely to render any confession unreliable. It was impermissible of the judge to look at the subsequent statement made by him as a means of determining whether the statement was likely to be unreliable. The witness statements should not have gone before the jury. It is impossible to say that the jury would necessarily have come to the same verdicts without it. 38. The way the police behaved is undoubtedly troubling. The decision not to arrest and caution Abdurahman when the officers interviewing him believed that they had material which gave them reasonable grounds for suspecting that he had committed an offence was a clear and deliberate instruction to ignore the Code. But at that stage the police dilemma is understandable. Abdurahman was providing information about Osman which could have been of critical importance in securing his arrest, which was the priority at that time. It seems to us that the judge was entitled to come to the conclusion that the prosecution had established that nothing was said or done which could undermine the reliability of the witness statement. He was entitled to take into account the fact that in the prepared statement he made after caution he asserted that he was seeking to give assistance to the police. That was repeated in the later interviews. He said nothing therefore to suggest that the circumstances were such as to render it likely that what he said was not reliable. It seems to us, therefore, that the judge was also entitled to conclude from all material that Abdurahman with the help of legal advice, was repeating, subject as we have said to some corrections, what was in the witness statement as his account of the part such as it was, that he played in relation to Osman in the days after 21 st July. Further given the appellant’s adoption of that witness statement, we do not consider that the judge’s decision to permit the statement to go before the jury in the exercise of his discretion under s. 78 of the Act can be said to be perverse or affected by any error of law. 39. That leaves the argument that the judge was wrong to refuse to stay the proceedings as an abuse of process. The main thrust of the argument on Abdurahman’s behalf is that to prosecute on the basis of a statement that he gave when being treated as a witness is quite simply unfair. He was, it is said, effectively being told that he would not be prosecuted and gave assistance accordingly. The judge in our view rightly rejected this argument. There was no evidence that this appellant made his statement because he believed he was not going to be prosecuted. He gave no evidence to that effect; and there is nothing in the interviews after he was arrested to suggest that that was the reason for his having made the witness statement. On the contrary, he made the witness statement because he wanted to assist the police. In this type of case, the court is only likely to conclude there has been an abuse of process if a defendant can establish that there has been an unequivocal representation by those responsible for the conduct of the prosecution and that the defendant has acted to his detriment: see R v Abu Hamza [2007] 1 Cr. App. R 27 , in particular at paragraph 54. That was not the situation here. 40. We accordingly dismiss the appeal against conviction. Muhedin Ali 41. Mudedin Ali applies for leave to appeal against his conviction on count 12, that is for assisting an offender, namely Osman. The prosecution case was that he did so by offering him accommodation in London at the time that he was in Brighton. S. 4 (1) of the Criminal Law Act 1967 is in the following terms: “ Where a person has committed an arrestable offence any other person who, knowing or believing him to be guilty of the offence or of some other arrestable offence, does without lawful authority or reasonable excuse any act with intent to impede his apprehension or prosecution shall be guilty of an offence” 42. The submission made on behalf of this appellant is that making an offer of accommodation over the telephone cannot in law amount to doing “an act” which is a necessary part of the actus reus of the offence. It is clear that the judge was troubled by this aspect of the matter. As we have already indicated the offer was made in one out of a number telephone calls between this appellant and Osman. The judge considered that the offence could only be made out if the appellant had made the telephone call, on the basis that the act was the making of the telephone call. Receiving a telephone call would not be sufficient. He according directed the jury that they could only convict if satisfied that the offer had been made in a telephone call initiated by this appellant. 43. In our judgment, nothing turns on the question of who made the telephone call. The vice was the making of the offer of accommodation not the making of the phone call. We can see no reason why, on an ordinary construction of the wording of the sub-section, the making of the offer of accommodation cannot be, in itself, an act. It is as much an act as making the offer in writing. The jury’s verdict necessarily means, that it concluded that the offer was made. Accordingly there is nothing which undermines the safety of this conviction. 44. We accordingly see no merit in this application and it is refused. The appeals against sentence 45. Before turning to the individual appeals, it is necessary to deal with some issues of principle which have been raised. (a) The offences under s. 38B of the Terrorism Act 2000 carry maximum sentences of 5 years imprisonment. The first general question, therefore, is whether the judge was right to impose, on so many counts, the maximum sentence. It is well established that the maximum sentence for any offence should not be imposed except for the worst type of offending. In this case the bombers planned and attempted murder on an indiscriminate scale. They sought to cause terror not only in London, but also throughout the country. They were each convicted of a conspiracy to murder and they were sentenced to life imprisonment with a minimum term of 40 years. We shall examine the particular criminality of each individual appellant on each particular count, but we have no doubt that the enormity of this crime and the dreadful risk which these bombers posed to the public safety until they were later arrested, is capable in appropriate circumstances, of justifying the imposition of the maximum sentence to either, and even to both, limbs of s. 38 B of the Act. In many cases, it will be the seriousness of the terrorist activity about which a defendant has failed to give information which will determine the level of criminality, rather that the extent of the information which could be provided which will affect the sentence. There is, in the present cases, however some force in the argument that the judge may have applied the maximum sentence to too many offences, particularly in the light of the comment that he made in his sentencing remarks that in his view the maximum sentences were “woefully inadequate”. Whatever our views may be, we are bound by the maxima laid down by Parliament. (b) The second issue of general principle arises out of the fact that consecutive sentences were imposed. It seems to us that there is nothing wrong in principle with imposing consecutive sentences where both limbs of s. 38 B of the Act have been charged. The failure to give information before the act, arguably the more serious offence, and failure to give information afterwards are entirely separate offences, although the failure may arise out of the same state of mind, for example misplaced loyalty. Where, as here, the offence of assisting an offender is charged, however, care needs to be taken to ensure that there is criminality over and above the failure to inform if a consecutive sentence is to be justified. (c) We then turn to consider the relevance of an appellant’s personal circumstances in these cases. There is of course always a place for exceptional personal mitigation even in cases as grave as this. We are very much alive to the personal dilemma that can be presented to someone faced with the unexpected and unwelcome news, or the gradual realisation, that a close family member or friend may be about to participate or has participated in a terrorist outrage. We understand that every encouragement must be given to such people to come forward to tell the authorities what they know, to prevent bloodshed or to bring to justice those responsible. There may be cases where the court may be able to show some understanding and even mercy when someone, if vulnerable either because of age or their particular relationship with an offender, for a time, mistakenly and misguidedly puts loyalty to a family or to a friend before duties to the public or before disclosing what they know to the police. As will be seen, this is undoubtedly a consideration in the appeal of Fardosa Abdullahi. But as to the others, they are all men between 26 and 34 years old. They were not young or vulnerable. The jury determined that each of them knew or believed what the bomber in question was setting out to do or had done and that carnage was intended and had been avoided only by chance. Each knew the extent of public outrage and fear which their conduct had caused even though the bombs had not detonated. Each acted without any regard whatsoever to their public duty. None except Abdurahman made any disclosure at all until they were arrested. None of the men pleaded guilty; none has shown the slightest remorse. (c)(i) All the appellants were ultimately granted bail subject to an electronically monitored curfew. Siraj Ali, Sherif, Mohamed, and Muhedin Ali were all subject to a 24 hour curfew, in other words house arrest. Abdurahman was subject for a time to a curfew between 7pm and 8am, then 10pm to 8am, and finally during trial to 10pm to 7am. Fardosa Abdullahi was subject to a 12 hour curfew. We have been asked to reflect these periods of curfew in our consideration of the sentences that have been imposed as, in particular in relation to those who have been subjected to house arrest, that is a deprivation of liberty which although not as serious as a remand in custody, nonetheless has a similar effect. It is accepted that under the current legislation, there is no statutory provision which requires the court to do so. But s. 21 (4) of the Criminal Justice and Immigration Act 2008 , which received royal assent in May introduces a new s. 240 A into the Criminal Justice Act 2003 . It came into force on the 8 th November 2008. But it provides that, subject to rules to be made by the Secretary of State, the court will, unless it considers that it is not just to do so, give credit against the ultimate sentence of one half the number of days when a defendant has been subject to an electronically monitored curfew of at least 9 hours a day. It is submitted that we should reflect the fact that Parliament has passed this Act in our consideration of these appeals. (ii) The issue arose in R v Glover, Cox and Issitt [2008] EWCA Crim 1782 . In that case the relevant appellant had been effectively subject to a 24 hour curfew electronically monitored. Hughes LJ in paragraph 14 of his judgment indicated that it was incorrect to equate time spent under a home curfew with time in prison, because life at home was clearly preferable to life in prison; however, he continued: “It is possible that in some circumstances a judge might be persuaded by the facts of a particular case to make some modest adjustment in the final sentence in circumstances of this kind, but it seems to us that that is a question of assessment by the judge in each case”. (iii) It does not appear as though the court was there addressed on the effect that should be given to the passing of the 2008 Act . In our view, until s. 240 A comes into force, a court should deal with the matter in the way suggested by Hughes LJ at least in relation to house arrest. This may justify a modest period of credit in cases such as the present one. The period spent under house arrest were substantial, in the region of 16 months, the figure we consider appropriate is 3 months. But the same considerations do not apply where the curfew is in the night. A curfew period of this sort has been a common place for many years; and whilst the court may of course have had regard to the restriction of liberty, it has not in the past made any formal reduction for such a curfew. (d) During the course of his sentencing remarks, the judge referred to the death of De Menezes who was mistakenly shot dead by the police whilst they were looking for Osman. We do not think that the judge meant to suggest that he was holding those appellants responsible for that death, still less that he had increased the sentence in consequence. He was merely reflecting the grave threat to public safety which was the result of the bombers remaining at large and gave the example of De Menezes as representing one aspect of the threat to the public which was thereby created by the bombers remaining at large. Siraj Ali 46. The jury concluded that he knew or believed that at least two of the bombers were intending to commit a terrorist act which, as we have said, is the more serious of the offences under s. 38B of the Terrorism Act 2000 . For the reasons that we have given we can accordingly see nothing wrong, bearing in mind the nature of the act which was intended, with the imposition of the maximum sentence in his case. It was appropriate for these two sentences to be ordered to be served concurrently. The jury also clearly found that he was involved in clearing up the flat. But that adds little to the failure to give information after the bombings. We conclude that the sentences for giving assistance and of failing to give information should not have been ordered to be served consecutively. We also consider that, taking into account what we have said about house arrest, to which Siraj Ali was subjected to for 479 days, the appropriate sentence for failure to give information in counts 14 and 15 should be one of 4 years imprisonment for each. But these were clearly discrete and separate offences from the offence of failing to inform before the event; accordingly these sentences should be served concurrently, and concurrently with the sentence on count 11, which will remain one of 2 years imprisonment but they should be served consecutively to the sentences imposed on counts 1 and 2. The total sentence is therefore one of 9 years. To that extent this appeal is allowed. Ismail Abdurahman 47. The assistance that he gave to Osman was of the utmost significance. We conclude, however, that we can and should reflect the fact that, albeit only after he had been seen by the police, he gave at least some help and information. The sentence for assisting an offender, that is count 12, should therefore be one of 4 years imprisonment. The offence of failing to give information in relation to Osman, count 17 in the indictment, adds little to the criminality involved in assisting Osman. In our view the sentence should be one of 4 years imprisonment but to be served concurrently with the sentence on count 12. As far as counts 16, 18 and 19 are concerned, that is failing to give information about the other four bombers, that is clearly a separate offence that justifies a consecutive sentence. But again we consider that the appropriate sentence should be somewhat shorter than 5 years. We substitute the sentence of 4 years in each case. The consequence is a total sentence of 8 years imprisonment. Abdul Sherif 48. He presents a more difficult sentencing exercise. He played a critical part in enabling his brother to escape to Italy, which in our view justifies a very severe sentence which cannot be mitigated, as it was in the case of Abdurahman by his giving any information at any stage to the police. After acknowledging that there must be divided loyalties when a brother is involved in such activity, nonetheless we consider that the total criminality involved justifies, taking into account the fact that he was subject to house arrest for 467 days, a sentence of 6 years and 9 months. We impose that sentence on count 12 of the indictment. But for the reasons that we have already given, the offence of failing to give information adds little to the seriousness of the matter. We impose a sentence of 4 years imprisonment, but order that that be served concurrently. The total sentence is accordingly 6 years and 9 months. Wahbi Mohamed 49. Like Siraj Ali he knew or believed that the bombings were to take place and failed to give information accordingly. He knew or believed sufficient to have been able to give information about all four bombers. He was present at 14K Dalgarno Gardens when the final preparations were being made. We can see nothing wrong with the maximum sentence of 5 years being imposed in respect of counts 5, 6, 7 and 8. Those will be served concurrently. After the event, he gave assistance both to Osman and to Ramzi Mohamed. As far as Ramzi Mohamed was concerned, that was particularly important assistance, in that he effectively hid and fed him. The judge clearly concluded that the overall sentence for Mohamed should be substantially greater than for the others because of this closeness to the bombings themselves. However, we think that the present sentence discloses too great a disparity between him and Siraj Ali who also had prior knowledge. We conclude, taking into account the fact that he spent 304 days under house arrest, that the total sentence that he should serve should be one of 13 years. We propose that he should be sentenced to 4 years imprisonment on each of the offences of assisting an offender, that is counts 12 and 13, and failing to disclose information, that is counts 22, 23, 24 and 25. The sentences under counts 12 and 13 are to be served consecutively. But the sentences under counts 22, 23, 24 and 25 are to be served concurrently to each other and concurrently with the sentence imposed on count 13. Muhedin Ali 50. He was prepared to give assistance by way of accommodation to Osman when he was on the run. That justifies a far more serious sentence than one of 2 years imprisonment which is what was imposed by the judge. We conclude that the proper sentence would have been in the region of 5 years imprisonment. But taking into account the period of 479 days that he spent under house arrest, we propose to reduce that figure to one of 4 years and 9 months. We conclude that the failure to give information can in this case be said to be subsumed within the criminality of giving assistance, so that we reduce the sentence on counts 26 and 27 to one of 4 years imprisonment and order that they be served concurrently with the sentence on count 12. Fardoza Abdullahi 51. At the time she was 17 years old. She was born in Somalia and had been in the United Kingdom for about 6 years before the events with which we are concerned. She was formally engaged to Yassin Omar on 17 th July 2005. She was charged in an indictment containing 2 counts, number one of assisting an offender, that is Omar, and one of failure to disclose information after the event. She pleaded guilty to the first count in the indictment that is, assisting an offender. That plea was accepted, and count 2 remained on the file. She was sentenced to 3 years in a young offender institution. The judge indicated that his starting point after trial had been 5 years. He discounted that for the plea and for the powerful mitigation advanced on behalf of the appellant. 52. The assistance that she gave was that she first of all stayed with him in an hotel on the night of the 21 st July. She then helped him to escape to Birmingham disguised as a woman in a full length burka. CCTV footage showed her and Omar close to Golders Green coach station which is where he clearly took a coach to Birmingham. She provided him with a mobile phone. It is clear therefore that she gave the utmost practical assistance to Omar, enabling him to escape from London. 53. We consider that the judge was generous in concluding that the right sentence after the trial would have been one of 5 years. This case could have justified a sentence of up to 7 years. But there was powerful personal mitigation. She was a young girl who was clearly under great pressure from Omar who had a powerful personality, and others. Although it was accepted that she could not put forward duress as a defence, the extent of the pressure under which she was placed can properly be reflected in the sentence. The pressure was not helped by the fact that she suffers from post traumatic stress disorder from events in her childhood. The reports before the judge suggested that she may have difficulty in adjusting to an institutional regime. Current reports which we have seen are rather more optimistic. She was at the time of sentence pregnant, and has now given birth to a healthy child whilst in custody. Mr Cooper submits finally, that the judge was wrong to give a discount of only 10%. Although it was a late plea, it was intimated some weeks before trial. He submits that in any event the fact of pleading guilty was a brave thing to do in all the circumstances and showed remorse. 54. In our judgment, the judge in sentencing this appellant to 3 years in a young offenders institution reflected more than adequately all the mitigation that was available to this young woman, particularly bearing in mind the fact, as we have already indicated, that we conclude that 5 years was a generous starting point in all the circumstances. Despite the clear and able submissions from Mr Cooper both in writing and orally, we do not consider that the sentence imposed was manifestly excessive or wrong in principle. Accordingly this appeal is dismissed.

```yaml citation: '[2008] EWCA Crim 2653' date: '2008-11-21' judges: - LORD JUSTICE LATHAM - MR JUSTICE OPENSHAW - 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. 2008/00215/B2 Neutral Citation Number: [2008] EWCA Crim 2712 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday 4 November 2008 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MRS JUSTICE SWIFT and MR JUSTICE CRANSTON - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - CHRISTOPHER ROWE - - - - - - - - - - - - - - - - - - - - - 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 J Edwards appeared on behalf of the Appellant Mr C Morgan appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T THE LORD CHIEF JUSTICE: 1. This is an appeal by Christopher Rowe against his conviction on 13 August 2003 in the Crown Court at King's Lynn before His Honour Judge Lawrence and a jury of twelve counts of possession of an indecent photograph of a child contrary to section 160(1) of the Criminal Justice Act 1988 . The appeal follows a Reference by the Criminal Cases Review Commission. 2. On 3 November 2003 the appellant was sentenced to six months' imprisonment, concurrent on all counts, and appropriate notification orders were made. 3. The appellant sought leave to appeal against conviction. The grounds of appeal, which were very lengthy, included the following contentions: "1. The Crown had a duty to prove to the requisite standard that the [appellant] knowingly possessed those images, not just the floppy disks that the 'deleted' images were found on. Virtually no evidence was adduced by the Crown as to the significance of the 'deletion' of the images and the impact that that fact may have had upon the concept of 'possession'...." A further ground asserted that the judge had failed, in any way "to direct the jury in his summing-up as to the possible impact that the fact of the 'deletion' of the images may have on the concept of 'possession' or on the defence that the [appellant] had advanced under section 160(2) (b)." 4. The single judge refused the application on the basis that the trial judge had correctly identified the two relevant questions for the consideration of the jury: first, whether the appellant had been in possession of the floppy disks; and second, whether the appellant had been aware that the floppy disks contained indecent images. The application for leave to appeal against conviction was not renewed. 5. On 16 March 2006 this court allowed an appeal and quashed the conviction in R v Porter [2006] EWCA Crim 560 . The appellant, Ross Porter, was charged with similar offences to those of which the appellant was convicted. In relation to the counts in the indictment which alleged possession of relevant indecent material which had been deleted from Porter's computer, this court observed: "21. It is true that the context of possession of photographs or pseudo-photographs on the hard drive of a computer is different from the context of possession of drugs. Making allowance for those differences, however, in seeking to elucidate the meaning of 'possession' in section 160(1) in the present context, we see no reason not to import the concept of having custody or control of the images. In the special case of deleted computer images, if a person cannot retrieve or gain access to an image, in our view he no longer has custody or control of it. He has put it beyond his reach just as does a person who destroys or otherwise gets rid of a hard copy photograph. For this reason, it is not appropriate to say that a person who cannot retrieve an image from the hard disk drive is in possession of the image because he is in possession of the hard disk drive and the computer." The appeal in relation to the counts where this problem arose was allowed on the basis that the judge had directed the jury that: "25. .... the only issue for them to decide was whether the defendant knew that the images were indecent or likely to be indecent. He did not direct them about the factual state of affairs necessary to constitute possession and the result is that a vital issue was wrongly removed from the jury. Nor did he direct them about the mental element required to constitute possession. It seems to us that in principle this would require proof that the defendant did not believe that the image in question was beyond his control. However, as we have not heard argument on the point, we express no concluded view on it." 6. The fact of the present case are summarised in the Reference. On 22 August 2002 police officers, who were in possession of a warrant, visited the home where the appellant lived with his parents and searched the premises. They seized twenty floppy disks from the appellant's bedroom, eight of which contained a large number of deleted files containing images of child pornography. Two of the disks also contained movie images. A total of 124 images were contained on the eight disks. Three of the disks contained a total of six movie files with pornographic images of children. The computer tower was also seized. 7. The appellant was arrested and interviewed. When asked whether the disks were his he said, "I imagine so", although he later said that he could not say for certain because he had not paid a lot of attention when the search was being conducted. His account in interview was that he had never knowingly accessed a child pornography site. He also said that he had never bought floppy disks, although he did use them, and that the disks in question probably came with the computer in a package when he acquired it. The appellant said that he had not down-loaded any pornographic images onto his hard drive or onto the disks and had no idea where the images came from. When charged, the appellant said, "I did not have them in my possession. I did not make them". 8. The defence case statement asserted that: "(1) at no time did the appellant knowingly own or have possession of any pseudo-photograph of children of an indecent or pornographic nature; (2) he denies ever purchasing any floppy disks with pornography on those disks of which he had knowledge; (3) he denies ever down-loading pornography from internet web-sites through his or any other computer and placing those pseudo-photographic images of an indecent or pornographic nature on the floppy disks seized from his parents' house; (4) he denies receiving knowingly any floppy disks containing pseudo-photographs of a pornographic or indecent nature." At paragraph (g) of the statement the assertion is made that the pornographic indecent images were in actual fact deleted files on the disks and not readily accessible to view. That subparagraph goes on to state that the defence rely on the statutory defence that, "even if the disks are proved to be in the [appellant's] possession, he had no knowledge of the material". 9. During the course of the trial a former friend of the appellant was called as a witness. It was suggested to him in cross-examination that he might have been responsible for the disks which were seized from the appellant's bedroom. That raised a new issue. In effect it suggested that the appellant was to be acquitted on the basis that he had never had possession of any of the material, disks or otherwise. 10. An officer from the Computer Crime Unit gave detailed evidence for the Crown about the material found on the disks. Among other things he said that he had recovered 124 pornographic deleted images of children from eight of the floppy disks. He explained in evidence that deleted images are not deleted completely until the space that the image occupies on the floppy disk has been used. When he was cross-examined he said that the images covered by the twelve counts on the indictment came from eight of the floppy disks that had been seized. He explained the software which he had used to examine the disks and to recover the images. When it was put to him that all the files containing these images had been deleted he replied, "That's correct, yes". He also said that the disks had been used in the appellant's computer but that it was not possible to say whether the pornographic images had been viewed on that computer. 11. The defence called an expert, Mr Vella. In his evidence he stated that the file names matching those from some of the disks were found on the computer's hard drive, which suggested that the disks had been used in the computer. However, he differentiated between the disks being used in the computer and the images being viewed. He stated that he did not believe that any of the relevant pornographic images had been down-loaded or viewed on the seized computer. He explained the reasons for that conclusion and he added that if the disks had been planted, the person who planted them must have used them in the computer. However, in cross-examination, and by way of contrast to the evidence of Detective Constable Turrell, the defence expert said that the images subject to counts 9 and 10 had not been deleted and that they could have been viewed on the appellant's computer. But he repeated that there was no evidence that they had been. He complied a schedule, which was before the jury, which identified the files on each floppy disk, the individual counts in the indictment, the images that were relevant to each count and the status of each image. 12. Both defence and Crown experts at trial were agreed that the appellant's computer did not have the necessary software to enable him to recover the deleted images. Nor was there any evidence to suggest that the appellant had the necessary specialist knowledge to enable him to access them. 13. One of the problems with the trial, however, was the suggestion that the disks had been planted. When he came to give evidence the appellant appeared to resile from what he had said in the course of his interview, where he conceded that he "imagined" that the disks were his, by saying that although he had said that in interview, he did not know then what was on them. He gave positive evidence to suggest, at any rate as a possibility, that his former friend may have been responsible for the disks found by the police in his bedroom. 14. That appears to have been the most critical issue at trial. When the judge came to sum the case up to the jury (and it is worth bearing in mind that his summing-up long predated the decision of this court in Porter ), he directed the jury on the issue of possession and the appellant's knowledge or awareness of the contents of the disks. He said: "Does the totality of the evidence satisfy you so that you are sure that the defendant -- first of all, that he possessed those floppy disks, because he said, 'No, I didn't'. He is now saying in court, 'No, I didn't. They were planted there by somebody. I know absolutely nothing about them at all', although at the police station he acknowledged that they were his. Secondly, if he was in possession of them, was he aware of what was on them? Looking at the totality of the evidence, has that evidence satisfied you so that you are sure that he was aware? If it has, then he is guilty on all such counts as you consider that applies to. But, if you are not sure, and you feel it is possible, quite reasonably, on the evidence that he did not know what was on those floppy disks, and you cannot be sure that he did know, then it will be your duty and your pleasure to return verdicts of not guilty." 15. The summing-up was adjourned overnight. The judge returned to this issue the following morning. He said: "First, just to recapitulate the issue: if the totality of the evidence has satisfied you so that you are sure that the defendant knew that he had these floppy disks, and he was aware of what was on them –- that is, the indecent images of children -– then undoubtedly your verdict will be guilty. But, if you come to the conclusion that the position is, or may be, that he was unaware that they were there because they were planted all around his bedroom in different places, and in those circumstances he had no knowledge at all of what was on the floppy disks, then it will be your pleasure to acquit him." 16. In fairness to the judge, the summing-up was reflective of the trial as it had unfolded before him and the issues raised by the Crown and the defence. The significance of the deletions, both as a matter of fact and as a matter of law, was far from apparent at that time, although it is plain that the defence case statement raised the issue of the deleted files. The matter was canvassed both with the police officer responsible for the investigation and with the expert called on behalf of the defence. Indeed for some time there was some confusion about precisely what was contained on the disks referred to in counts 9 and 10. It is now been fully investigated by the Commission. Having regard to the investigations of the relevant software manufacturer and detailed examination of the evidence of the police officer, it is as plain as can be that the images in counts 1-8 and 11 and 12 were indeed deleted, but that those referred to in counts 9 and 10 were not. 17. Among other responses to the Commission's inquiry -- and we treat this in effect as fresh evidence -- the detective officer told the Commission that specialist software would have been required to undelete these files and that the appellant's computer did not have any such software. He also said in relation to count 9 that on his analysis the last occasion when that file had been accessed was 11 May 2000; and that so far as the item in count 10 was concerned, the file had last been accessed on 29 March 2000. 18. The Commission has expressed the view that this court would be likely to conclude that the appellant did not possess the images the subject of counts 1-8, 11 and 12, as they had been deleted from the floppy disks in question before 22 August 2002, which was the date specified on the indictment; that there was no specialist software available to the appellant which would have enabled him to undelete the files; and that there was indeed no evidence that he had any specialist knowledge which would have enabled him to recover the images which had been deleted. The Commission further expressed the conclusion, as we have already indicated, that the images subject to counts 9 and 10 were active at the time when the disks were seized. 19. The Commission identifies a distinction between the facts of Porter and the present case. Porter related to images deleted from a computer hard drive, whereas the present case involved in ten of the twelve count images deleted from the floppy disk. Like the Commission, we can see no distinction in principle in the context of the problem of possession for the purposes of section 160 of the 1988 Act , whether the deletions were made from a hard drive or a floppy disk. 20. There is a further distinction, namely that in Porter the appellant himself admitted that he had deleted the images, and so it is possible that he could have been charged with possession of the images before the deletion had taken place, or indeed as part and parcel of the deletion. The appellant in the instant case never made any such admissions. This distinction too has no relevance to the essential legal principles; but we cannot help observing that if Porter's conviction was quashed, notwithstanding that he had deleted the images in question, on evidential grounds at any rate, the appellant's case in relation to the possession issue where deletion arises is stronger than that of Porter . 21. The Crown suggests that this reference may raise the problem of change of law cases addressed by this court in R v Cottrell and Fletcher [2007] EWCA Crim 2016 . However, we do not see this as such a case; nor do we think that section 42 of the Criminal Justice and Immigration Act 2008 , which came into force on 18 July 2008, bears on our decision. We must briefly explain our reasons. Before the decision in Porter this court had not addressed the problem of possession of indecent images of children in the context of items deleted from a computer or computers in a defendant's possession. Porter explained the principles. It is binding upon us. It is not suggested that it was wrongly decided or decided per incuriam. If, following his application, the appellant had been granted leave to appeal, whether by the single judge, or, following refusal by the single judge, if he had applied to this court, we must assume that the principles now explained in Porter would have been decided in this case some time before Porter was decided. Until Porter was decided, however, the law had simply not been defined. 22. The greater problem is not any possible change of law, but the passage of time. However, here again the very point addressed in Porter arose for consideration in this case and in particular in the context of the grounds of appeal which were prepared and advanced on the appellant's behalf. In the context of deleted items, although the issue was not taken as a matter of law at trial, it was certainly addressed as part of the evidence in the case. 23. In our judgment, in the particular circumstances here, justice would not be done if we did not permit the argument which would have been sound then (and was taken then) to be deployed, bearing in mind that in the light of Porter it remains sound now. In short, these convictions were rightly referred to the court by the Commission. 24. The problem with the convictions on counts 1-8, 11 and 12 must be acknowledged. If the issues had been fully addressed before or during the course of the trial, the prosecution might well have sought to amend the dates in counts 1-8, 11 and 12 of the indictment (and perhaps counts 9 and 10 as well). That would have raised some interesting questions in relation to the expert defence evidence, and indeed the evidence of the investigating police officer. But what is clear is that the Crown knew in advance of the trial that its own witness had concluded that the deletion problem applied, in his view, to all twelve counts. What seems clear therefore is this. In the context of the counts alleging the appellant's possession of the material, knowledge or lack of it was adequately and clearly in issue throughout the trial. The deletion problem was in our judgment directly relevant to that issue. Its relevance, however, was never addressed, and certainly never sufficiently addressed. If it had been, it may be that the Crown would have proceeded by providing entirety satisfactory answers to the problem. However that may be, during the course of this trial the jury, for understandable reasons, was not directed to consider the potential significance of the fact that the images in counts 1-8, 11 and 12 had been deleted; nor to the potential significance of that fact to the question of knowledge as a necessary ingredient of criminal possession of this material as explained in Porter . For those reasons the convictions on these counts will be quashed. 25. We turn to counts 9 and 10, which were also rightly referred to the court in these terms: "Had [the appellant] been arrested after the Porter judgment, the Commission is of the view that the prosecution case would have been limited to the two active movie files in counts 9 and 10. In the circumstances, the jury may well have been persuaded that there was reasonable doubt as to whether the [appellant] had knowledge of the presence of the two active movie image files." 26. The question whether these counts too should be quashed is not entirely straightforward. We do not propose to repeat the passages in the summing-up which have already been quoted in the course of this judgment. Porter demonstrated that the issue for the jury was whether the appellant was in possession of indecent images of children, not possession of the floppy disks. When the judge directed the jury to consider the totality of the evidence as it bore on the question of knowledge or awareness, it seems significant to us that the attention of the jury could not be, and certainly was not directed to the possible significance of the deletion of the indecent images in relation to the ten remaining counts which of course formed part of the totality of the evidence. Although we reject the suggestion that the judge failed to direct the jury that the issue was whether the appellant was in possession of the indecent images (because that is precisely what he did), the trial proceeded on the premise that in the context of knowledge, the totality of evidence, which by definition included the evidence on the counts where deletion had occurred, should and could be examined by the jury and considered by them as throwing light on, and of potential relevance to, the Crown's case that the appellant did indeed have the necessary knowledge. In fact, nothing in the evidence relating to the ten counts which, as they stood before the jury and which have now been quashed, provided support for the Crown's case as advanced at trial in relation to counts 9 and 10. 27. It is always necessary to reflect on the direction to the jury rightly given by the judge that they should consider each count separately in the factual context of the individual case. The Commission has reminded us that the Crown's case at trial was that the appellant possessed 124 indecent images on a number of floppy disks. The absence of the ten counts from the indictment would have effected a significant change in the facts which were presented to the jury because in the absence of those ten counts, only eight still images taken from the two movie image files would have remained for the jury to consider. 28. In his letter to the Commission dated 23 January 2007, Mr Michael Cole, the appellant's solicitor, encapsulates the significant submission now advanced to us for the purposes of this appeal. He said: ".... the fact that the Porter decision applies to the majority of the files on those floppy disks leads .... to the conclusion that had a full and comprehensive direction on the significance of deleted files been given to the jury .... then they might have come to a different conclusion. It is quite one thing for a jury to conclude that [the appellant] was unaware of the existence of a considerable number of files on a number of disks where the significance of deletion has not been explained to them, but if the correct arguments had been addressed then even if those two images [on the two counts] were not deleted, the jury might have come to the conclusion that as there was no evidence that they had in fact been read on that computer, [the appellant] could have been in ignorance of their existence." 29. In the particular circumstances of this case we cannot avoid the clear impression that if the jury had appreciated all these realities and been directed to and had an opportunity to apply them to the instant case as they considered their verdicts, they might very well have entertained reservations about whether the appellant's guilt on counts 9 and 10 was proved. In those circumstances the convictions on these counts too are unsafe and they must be quashed. 30. There are two footnotes to this judgment. We must briefly address an important but tangential aspect of the Reference. At page 17 we find footnote 3 which reads: "At paragraphs 56-58 [of the judgment of this court in Cottrell and Fletcher ], it was stated that in exercising its discretion whether or not to refer a case to the Court of Appeal, the Commission should have regard to the court's practice regarding out-of-time leave applications. It should also be noted that in R(DRCP) v CCRC [2006] EWHC 3064 (Admin) , in which the matter of the Commission's exercise of discretion was the central issue, the Divisional Court had ruled (paragraph 28 of the judgment) that the Commission is under no obligation to have regard to the practice of the CACD." To the extent that this footnote implies that the Commission is entitled to apply the observations of the Divisional Court in R(DRCP) v CCRC when they are inconsistent with the observations made by this court in Cottrell and Fletcher , it is, with respect, unsound. It is not open to the Commission to choose between those two authorities. On this topic Cottrell and Fletcher is authoritative; R(DRCP v CCRC is not. 31. The second footnote is this. We should not leave the case without expressing our respect for the tenacious and determined efforts made by Mr Michael Cole, the appellant's solicitor at trial, on behalf of his client to secure this favourable outcome. It is obvious that he applied considerable energies and resources on an unfunded basis. His conduct was in the best tradition of his profession.

```yaml citation: '[2008] EWCA Crim 2712' date: '2008-11-04' judges: - MRS JUSTICE SWIFT - 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} ======

No: 200801416/A4 Neutral Citation Number: [2008] EWCA Crim 1358 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 1st May 2008 B e f o r e : MR JUSTICE FORBES MR JUSTICE BLAKE - - - - - - - - - - - - - - - - R E G I N A v PAUL CHURCHILL HAMMOND - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Miss K Hunter appeared on behalf of the Appellant Miss M Winter appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE FORBES: On 6th December 2007, at the Luton Crown Court, this appellant pleaded guilty on rearraignment to a five count indictment. On 15th February 2008 he was sentenced as follows. On counts 1 to 4 inclusive, each of which charged him with making an indecent photograph of a child, concurrent community orders with requirements of supervision for three years and attendance on a sex offender programme were imposed on each. On count 5, which charged him with possession of an indecent photograph of a child, a further identical community order was also imposed. In addition, the judge imposed an indefinite Sexual Offences Prevention Order pursuant to section 104 of the Sexual Offences Act 2003 (" the 2003 Act "). He ordered the appellant to pay £250 prosecution costs and also ordered the forfeiture of the images and computer equipment in question pursuant to section 1 of the Obscene Publications Act 1964 . Having been convicted of an offence listed in Schedule 3 of the 2003 Act , the appellant was required to comply with the notification provisions of the Act for a period of five years. 2. The terms of the Sexual Offences Prevention Order were to the effect that the appellant was: (i) not to purchase or download any evidence elimination software; (ii) not to have unsupervised access to any child under the age of 16; (iii) not to refuse a police officer access to any computer he owns or has access to whilst under the terms of the Sex Offenders Register; (iv) not to download any material from the internet save that applying to downloading for the purpose of any lawful employment or lawful study. 3. The appellant now appeals against the terms of the Sexual Offences Prevention Order pursuant to leave granted by the single judge. 4. The specific aspects of the Sexual Offences Prevention Order to which the appeal is directed are (1) the indefinite term of the order and (2) the breadth of terms (iii) and (iv) of the order. 5. The brief facts of the matter are as follows. As a result of a police investigation of people who had viewed indecent images of children through a particular site on the internet, officers executed a search warrant at the appellant's home address on 17th November 2006 and seized his computer and associated equipment. The appellant was arrested but when interviewed denied having accessed the site in question. He said that he had only viewed adult pornography when accessing the internet. He suggested that somebody else must have come into his house in order to access the child pornography site through his computer. 6. The computer and other equipment were analysed and the officers found a total of 25 indecent images of children. 7. The appellant is now aged 57. He has a number of previous convictions. They include eight previous convictions for indecent exposure, three for taking indecent photographs of a child, one for indecent assault on a female and one for permitting indecent photographs of a child to be taken. 8. In the pre-sentence report, dated 4th February 2008, the probation officer expressed the view that there was a high risk of further sexual offending. The probation officer also acknowledged that the appellant accepted that he needed help. In all the circumstances, the probation officer recommended a community order with appropriate requirements of supervision and attendance on a sex offender programme. The recommendations of the probation officer were accepted by the judge when imposing the sentence that he did. 9. As we have already indicated, the only matter that is the subject of the appeal against sentence is the Sexual Offences Prevention Order and, in particular, its indefinite term and the terms of prohibitions (iii) and (iv) 10. So far as concerns the indefinite period of the order, it is submitted that it is longer than is necessary and is disproportionate having regard to the other orders made by the judge. On behalf of the appellant, Miss Hunter submitted that the Sexual Offences Prevention Order should have been for a term of five years. Such a period would make it consistent with the terms of condition (iii) of the order, in which the right of access by a police officer to the appellant's computer equipment was expressed to be for the period that he was subject to the notification requirements of the 2003 Act . 11. We have been informed, and accept, that in circumstances such as this the notification requirements of the 2003 Act have to run parallel to the term of a Sexual Offences Prevention Order. Although the judge imposed the correct period of time in respect of the notification requirements, that period of time is overridden by the provisions relating to Sexual Offences Prevention Orders. This means that there is an inconsistency between the terms of the Sexual Offences Prevention Order imposed by the judge and the term of the notification requirements made under Schedule 3 of the 2003 Act . 12. We are persuaded that these submissions are correct. In general terms, when imposing a Sexual Offences Prevention Order at the same time as imposing the requirement to register under Schedule 3 of the 2003 Act , it will normally be important to ensure the terms of the Sexual Offences Prevention Order are consistent with the duration of the notification requirements. 13. In our judgment, the appropriate period for the Sexual Offences Prevention Order in this case would have been five years. In the event that there is any cause for concern, it would be open to the police to apply for an extension of the order. There will be a period of two years between the end of the community orders and the expiry of the Sexual Offences Prevention Order during which the police will be able to monitor the appellant's computer activity to ensure that the benefits that one hopes will be achieved as the result of the programme to which the appellant is committed under the community orders having been successful. 14. So far as concerns condition (iii) of the order, Miss Hunter submitted that it was unnecessary and disproportionate to enable police officers to have access to any computer to which the appellant has access, as opposed to having access to any computer that he owns. 15. We do not agree with that submission. In our view, the terms of the original Sexual Offences Prevention Order are entirely satisfactory in that respect. If we were to accede to Miss Hunter's submission, the modification to term (iii) which she suggested, namely the removal of the words "or has access to", would give the appellant an obvious way of avoiding the effectiveness of the right given to the police to search his computer equipment. In our view, the original term is not disproportionate, nor is it too wide. 16. However, we do agree that term (iv) is too wide. For example, currently expressed, the term would prevent the appellant from accessing the internet to order a train ticket or to book a holiday. The purpose of a Sexual Offences Prevention Order is to do exactly what it says, namely the prevention of sexual offences of the type that the subject of that order has committed, and any term of the order must be both proportionate and designed to achieve that purpose. 17. In our view, the current term (iv) is far too wide and should be quashed. For it we would substitute the following term which will achieve the necessary protection against the risk of this appellant exploiting or otherwise using or accessing child pornography, namely this, that "he is not to download any photographs or pseudo photographs of any person under the age of 18". Accordingly, we quash the current term (iv) and for it we substitute one in the terms that we have just expressed. 18. To that extent, and for those reasons, this appeal against sentence is allowed. The Sexual Offences Prevention Order will be for a term of five years, term (iv) will be quashed and for it will be substituted the one in the terms to which we have just referred.

```yaml citation: '[2008] EWCA Crim 1358' date: '2008-05-01' judges: - MR JUSTICE FORBES - MR JUSTICE BLAKE ```

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Neutral Citation Number: [2018] EWCA Crim 1069 Case No: 201605447/B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 4 May 2018 B e f o r e : LORD JUSTICE SINGH MRS JUSTICE LANG DBE THE RECORDER OF CARDIFF HER HONOUR JUDGE REES QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - R E G I N A v ALAN P - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - Non-Counsel Application - - - - - - - - - - - - - - - - J U D G M E N T (Approved) If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity ( Sexual Offences (Amendment) Act 1992 ), or where an order has been made in relation to a young person. 1. MRS JUSTICE LANG: The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence and so nothing shall be published which may lead to the complainant being identified. 2. On 6 October 2016 at Basildon Crown Court, the applicant was convicted of 12 counts of indecent assault, contrary to section 14(1) of the Sexual Offences Act 1956 . He was sentenced to a total of six years' imprisonment. 3. The offences were committed against his stepdaughter in about 1980/81 when she was aged 15 and 16. 4. Permission to appeal against conviction and for an extension of time of 28 days were refused by the single judge. 5. We agree with the detailed reasons which the single judge gave as follows: "First, it is suggested that the police failed to investigate the allegations made against you properly. Various points are made in this regard. You say that the officer in charge of the case had been pregnant during a part of the investigation and this may have affected the quality of that investigation. There is absolutely nothing in this point which is speculative and misconceived. You also say that the police failed to interview various family members who may have been able to give evidence in support of your defence. Again, there is nothing in this point: it was for you to call evidence in support of your case. As your counsel has explained, a decision was taken in relation to your former wife and your son, D, which was that it would be better if they were not called to give evidence. That decision was a decision which you made in conjunction with your counsel, and has nothing to do with the steps taken by the police in relation to their investigation.... You go on to refer to a list of some 35 questions which you maintain ought to have been addressed by the police. Your complaint appears to be that these questions were not asked in the ABE interview. Your counsel has explained, however, that he told you that there is a difference between an ABE interview and an interview under caution. The questions were ... explored to the extent appropriate during cross-examination of the prosecution witness and raised in your counsel's closing speech. You add that your property ought to have been searched. Again, however, this is a matter for the police and not the matter for complaint by you. The same applies in relation to your criticism that the police did not interview either of your sons despite their having visited the house at the relevant time. Secondly, you complain about the representation provided by your counsel (and, indeed, your solicitors). You complain specifically about the 35 questions which you suggest were not pursued. The answer to this is that, as your counsel has explained, they were pursued to the extent appropriate. You also complain that your counsel did not take exception to the prosecution counsel's reference during the course of opening to the offences having been committed during a 'matrix of violence'. It was, however, a matter for prosecution counsel to present the case as she thought fit. Likewise, to the extent that you criticise the practice adopted by the prosecution of reading out your police interview, this is utterly misconceived. This practice is widespread and your counsel cannot be criticised for failing to object to its adoption at your trial. Thirdly, you suggest that the judge pressurised the jury into making a rushed decision by making it clear at the outset of the trial that the trial should conclude within four days. Your counsel has explained that there is nothing in this point. He is not, indeed, sure that any mention was made of the judge being unable to sit on the Friday in the presence of the jury. If any such mention was made, whether in the presence of the jury or in the jury's absence, your counsel has explained that there was, in any event, no pressure of the sort which you suggest. On the contrary, the judge gave every indication of being content that the trial should, if necessary, go into a second week." 6. For these reasons, given by the single judge, we conclude that there are no arguable grounds of appeal against conviction and leave ought to be refused. In those circumstances, the application for an extension of time also ought to be refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.

```yaml citation: '[2018] EWCA Crim 1069' date: '2018-05-04' judges: - LORD JUSTICE SINGH - MRS JUSTICE LANG DBE ```

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

Neutral Citation Number: [2016] EWCA Crim 1541 No: 201601295 A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 22nd September 2016 B e f o r e : LORD JUSTICE DAVIS MRS JUSTICE CARR DBE MRS JUSTICE PATTERSON DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v THOMAS MICHAEL HANNIFIN - - - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph notes of WordWave International Ltd trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Miss Moore QC & Miss C Sumnall appeared on behalf of the Appellant Mr E Lewis appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. MRS JUSTICE CARR: 2. Introduction 3. On 13th October 2015 in St Albans Crown Court, the appellant, now aged 23 years, pleaded guilty to and was sentenced for the following offences: on count 1, conspiracy to commit burglary contrary to section 1(1) of the Criminal Law Act 1977 , 12 years' imprisonment; on count 3, robbery contrary to section 8(1) of the Theft Act 1968 , 38 months' imprisonment, such sentence to run consecutively to the sentence on count 1. Thus the total custodial sentence was one of 15 years and two months. A victim surcharge order was imposed in the normal way. 4. This is the appellant’s appeal against sentence, brought with the leave of the single judge. The facts 5. The conspiracy the subject of count 1 involved a series of burglaries committed over a three-month period between August and October 2014 across the south-east of England. All in all, 19 premises were attacked, 11 of which were sheltered accommodation for the elderly. The age of the victims ranged between 73 and 99 years. 6. Cell site analysis incriminated the appellant. 3 telephone numbers relating to him showed that he was in the proximity of all of the offences at the relevant times. He left his fingerprints in one of the premises and was actually caught on camera in another. He drove a distinctive silver Audi which was present at all the burglaries and was also caught on camera. The Audi had a sun roof unusual for its make and model. The conspirators also changed its number plate on a not infrequent basis. 7. To understand the full nature and extent of this appalling offending, it is necessary to set the facts out in a little detail. 8. On 31st August 2014 the 79-year-old complainant was at home alone. The appellant claimed that her water supply needed checking and he accompanied her into the kitchen and turned the taps on and off. At the same time his accomplice was searching the house. Nothing was stolen. The appellant was identified by his fingerprint on the kitchen taps. His telephone was within the location and number plate recognition put the Audi near it as well. 9. Count 3, the robbery, took place 2 weeks or so later. Late in the afternoon of 15th September the 77-year-old complainant was again at home alone. He left his front door ajar. 4 men burst in, claiming that they were from the police and that they needed to see his valuables. He objected. When he did so, they claimed that he was becoming hysterical. 2 of them pushed him onto the sofa and sat on him. The other 2 ransacked his bedroom, stealing £13,200 which he had been saving in a pillow in his bedroom. The 4 men then left. Again, CCTV and number plate recognition showed the Audi to be present and the appellant's telephone number was also identified at the location. The very same day, in the very same road, an 86-year-old returned home to find that she had been burgled and her purse containing £40 had been taken from the kitchen table. Both of these premises involved sheltered accommodation. 10. The next day there were 2 burglaries, involving a 79-year-old complainant in the first and an 80-year-old in the second. They answered their doors to a man wearing a blue fake NHS lanyard claiming, again, that there was a problem with the water. The man went to fetch a colleague. One man distracted the complainants by fiddling with the taps in the kitchen whilst another went upstairs. The 79-year-old lost £130 in cash and jewellery which was of personal value. The 80-year old complainant was present with her husband and her son who was visiting. Her husband suffered from dementia and was recovering from a surgical operation. As the burglar went to leave she confronted him; he claimed to be looking for a dog. He left with the other 3 men. Again, the Audi was caught on number plate recognition. 11. On 24th September 2014 the 73-year-old complainant was alone. The appellant approached her, claiming to be from the police. She showed him the memocam the police had fitted. He left and she noticed that he was wearing a distinctive blue lanyard. The police viewed the memocam and the appellant was identified, as was his telephone activity at the relevant time and the relevant location. 12. On 29th September 2014 the same modus operandi was engaged. This time the complainant was 94 years old. She answered the door to a man claiming that he wanted to check the water. The man was wearing a lanyard again with the words "NHS Trust". He distracted her in the kitchen. Another man entered and searched the house. She watched the men walk away and meet up with another. 13. The next day, 30th September, two distraction burglaries again using the same ruse, took place. 2 elderly ladies, aged 88 and 93, were home alone. The first was an unsuccessful attempt, because the complainant confronted the men. They shoved her out of the way as they made their escape. The second complainant lost £100 in cash taken from her purse in the kitchen. Jewellery was stolen. Notably, she lost her mother's engagement ring dating back to 1917 and her own engagement ring. Again, the appellant could be identified by location. 14. On 18th October no less than 7 burglaries took place. The first was unsuccessful in the sense that the 99-year-old complainant would not allow anybody in and threatened to call neighbours. The next 4 burglaries took place in sheltered accommodation involving 4 ladies, aged 80, 82 and two aged 88. Again, a bogus water board official approached them. The appellant's telephone was put in the location. In the third burglary the complainant was not at home. Her front door was forced and an untidy search carried out with jewellery being stolen. The fourth complainant lost £50 from the kitchen. 15. Moving on to the next 2 burglaries, in the first of which nothing was taken, but in the second an 86-year-old lady had £3,000 worth of cash and jewellery stolen, again through the ruse of water board officials. 16. 17. The final 5 burglaries took place on 23rd and 24th October. An 84-year-old lady lost £9,000 worth of cash and jewellery from her bedroom, again after being approached by a bogus water board official. The appellant was identified by location, the car and through his telephone. The next day the first 2 burglaries failed as entry was refused. One of the complainants was frail, using a stick. She noticed that there had been an attempt to jemmy open her back door; she then contacted her neighbours. In the third burglary, jewellery was taken. In the final burglary, an 82-year-old was burgled in sheltered accommodation by burglars pretending to be plumbers who obtained access through an insecure front door. 18. The appellant was arrested on 10th March 2015 and gave a “no comment” interview. He was 21 years old at the time of this offending. He had 5 previous court appearances for offences in 2011 and 2012. In 2011 he was sentenced to 6 months' imprisonment suspended for 2 years for an attempted theft of a dwelling. 19. The effect of these dreadful crimes has inevitably been very significant. Victim impact statements are to an extent available, but some of the victims did not feel able to provide statements due to health issues or, for example, because they were looking after ill relatives, or indeed because they have passed away since the incidents in question. The victim impact statement of the complainant and victim the subject of the robbery is particularly moving. He describes his savings, which he had hoped to pass on to his 3 children, as having been lost. He can no longer afford to buy Christmas presents or go out for visits and is trying to save from his pension. 20. The sentence below 21. In passing sentence, the judge described this offending, quite rightly, as careful, planned and an executed enterprise of some sophistication. It was cowardly and despicable given that the victims were frail, often in poor health, both physically and mentally, isolated, vulnerable and their home was their place of safety. Fraud and trickery was used to gain entry and almost every aggravating feature that one could identify in the guidelines was present: the duration, planning, targeting, the number of burglaries, one of which of course turned into a robbery. The nature of the accommodation was also identified as was the nature of the property that had been stolen, including in particular the sentimental property stolen in the shape of the jewellery. 22. The judge commented that the sentencing guidelines were of no relevance, because this offending was, in his view, way beyond what was envisaged by those guidelines. He took into account the appellant's available mitigation. Having reviewed all of the facts, he concluded that a starting point of 15 years should be taken for the conspiracy to burgle, allowing for aggravating and mitigating factors, which would be reduced to 12 years after the 20 per cent credit that he would allow for the appellant's guilty plea. As for the robbery, that carried a starting point of 8 years, which the judge viewed as lenient to the appellant. That 8 year period was further reduced by 50 per cent to allow for totality, so that sentence was reduced to 4 years. With a further 20 per cent credit for guilty plea, that would be reduced yet again to three years and two months to run consecutively. Grounds of appeal 23. Miss Moore QC advances the following succinct but central points. She submits on behalf of the appellant that the sentence of 15 years and 2 months was manifestly excessive. Firstly, the judge applied a starting point that was wrong in law in respect of the conspiracy to burgle. It is in fact not clear what the maximum available sentence the judge in fact thought was available at the time. Secondly, even if the error of law had not been made, the starting point of the maximum sentence was too high. The starting point, in her submission, should have been around 13 or 12 years, bringing the sentence down to approximately 10 years’ imprisonment. 24. As for the robbery count, the starting point was too high. Whilst the judge had been legally entitled, she concedes, to have made the robbery sentence consecutive to the conspiracy to burgle sentence, looking at the facts of this particular case the sentence for the robbery could have been marked by a high starting point on the conspiracy and by a concurrent sentence. It is submitted that no sufficient credit was given for the identified mitigating factors available to the appellant other than for his guilty plea. 25. Mr Lewis, who appears for the Crown and for whose assistance we are also grateful, accepts that the learned judge took an unlawful starting point on the conspiracy to burgle count, but submits that, whilst high, the total offending may have merited an overall sentence of 15 years and 2 months. Ruling 26. The judge's starting point of 15 years on the conspiracy count exceeded the statutory maximum sentence available for the offence. The maximum sentence for dwelling burglary is 14 years (see section 9(3) of the Theft Act 1968) and, by section 3(3) of the Criminal Law Act 1977 , that is also the maximum on the count of conspiracy to burgle. Unfortunately, though perhaps understandably in the circumstances of this particular case, no-one appears to have realised this error at the time of sentencing. It is an error which we need to address. 27. Beyond that, whilst perhaps unorthodox, the judge was undoubtedly entitled to pass a consecutive sentence on the count of robbery, provided always that the principle of totality was fully taken into account. The robbery involved different offending on a separate occasion and the judge was, as is fairly accepted by Miss Moore, entitled to mark it separately. 28. The real question for us is whether or not the overall sentence of 15 years and 2 months' imprisonment was manifestly excessive. 29. These were, we repeat, truly shocking and despicable crimes with multiple aggravating features, as the judge pointed out. Crimes committed on elderly and frail people such as these are ones from which the victims often, and demonstrably here in fact do, never recover. But we have come to the conclusion that a total sentence of over 15 years’ imprisonment on a plea of guilty, where the appellant had some, though not very significant, previous offending and was only 21 years old at the time of the offending and had not been to prison before, was manifestly excessive. 30. On the count of conspiracy to burgle we have been taken to a large number of authorities, many of which involve different facts, a single burglary or far fewer burglaries. They are illustrative only, and Miss Moore points to them mainly as a touchstone to demonstrate that a sentence of 10 years’ imprisonment is a sustainable and realistic one. We have, in particular noted 2 cases. First, R v Casey and Maloney [2007] EWCA Crim 2568 : that case involved a campaign of 38 burglaries over a period of 3 ½ months, mainly involving elderly victims. The court in that case said the maximum 14 year sentence was appropriate for the individual defendant Maloney on the facts of his case. Secondly, we have noted Attorney General's Reference No 44 and 45 of 2013 [2013] EWCA Crim 1640 . There the defendant McDonagh was aged 33 years old and very heavily convicted. On a count of conspiracy involving 17 burglaries, and again elderly victims, this court said that a starting point of 13 to 14 years would be appropriate. 31. This was, in our judgment, a conspiracy involving offending close to the very worst case of its kind. Taking into account all aggravating and mitigating factors, a starting point of around 12 years on the conspiracy to burgle before credit for guilty plea would, in our judgment, be appropriate. This was very serious offending for the reasons which we have identified. After credit for guilty plea, that produces a sentence of 9 years and 6 months’ imprisonment on the count of conspiracy to burgle. 32. As for the count of robbery, we have some reservations as to the starting point of 8 years adopted by the judge, but he did go on thereafter to make very significant reductions, not only for the appellant's guilty plea, but also to reflect totality. Taking into account in particular the principle of totality, an appropriate sentence on the count of robbery (to run consecutively) is one of 2 years’ imprisonment. 33. To this extent, and for these reasons, we allow this appeal. The sentence on count 1 will be quashed and a sentence of 9 years and 6 months' imprisonment will be substituted in its place. The sentence on count 2 will remain a consecutive one, but the period of 3 years and 2 months will be quashed and a sentence of 2 years will be substituted in its place. Thus the overall custodial sentence following this appeal is one of 11 years and 6 months.

```yaml citation: '[2016] EWCA Crim 1541' date: '2016-09-22' judges: - LORD JUSTICE DAVIS - MRS JUSTICE CARR DBE - MRS JUSTICE PATTERSON 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 2036 Case No: 201801391 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT NORWICH HHJ A SHAW T20177064 Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/09/2018 Before: LORD JUSTICE LEGGATT MR JUSTICE LEWIS and MRS JUSTICE CARR DBE - - - - - - - - - - - - - - - - - - - - - Between: The Queen Respondent - and - Welland Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Isobel Ascherson (instructed by Crown Prosecution Service ) for the Respondent Karl Volz (instructed by Mitchell Solicitors ) for the Appellant Hearing date: 13 September 2018 - - - - - - - - - - - - - - - - - - - - - Judgment Approved Lord Justice Leggatt (giving the judgment of the court): Introduction 1. There was a time when a person accused of a crime in this country was not allowed to give evidence at his trial – in accordance with a principle that no one could be a witness who had an interest in the outcome of the case. But conceptions of criminal justice have changed. The bar to a defendant giving evidence was abolished in 1898 and since 1994 an adverse inference may generally be drawn if a defendant does not give evidence. The right of a defendant to give evidence in his own defence is now recognised to be an essential aspect of a fair trial. The main issue raised on this appeal is whether the appellant, who did not give evidence at his trial, was afforded a fair opportunity to do so in the particular circumstances of this case. 2. The appellant was tried in the Crown Court at Norwich over five days between 12 and 16 February 2018. He was charged with two offences: wounding with intent and causing serious injury by dangerous driving. Both charges related to an incident which occurred on 20 September 2016 in Great Yarmouth, when a Range Rover car which the appellant was driving hit the complainant, James Smith, pinning his leg against a wall and causing him a serious injury. At the trial the appellant was acquitted of wounding with intent but convicted of the offence of causing serious injury by dangerous driving. This is his appeal against that conviction brought with leave of the single judge. Summary of the facts 3. The background to the incident was a dispute between the appellant and James Smith who had known each other socially for some months – originally, it appears, through the connection that the appellant was James Smith’s hairdresser. The dispute arose from what the appellant believed to be James Smith’s role in causing the appellant’s partner, Racquel, to break off their relationship. Racquel was a good friend of James Smith’s partner, Claire. On the afternoon of 20 September 2016 the appellant turned up at Claire’s house demanding to see Racquel, who was present in the house, but Claire refused to let him in. Claire then called James Smith and told him what had happened. James Smith in turn called the appellant and they had an altercation on the phone. Following that phone call, at 6:36pm, the appellant made a 999 call to the police in which he claimed that James Smith had threatened to shoot him and had told him to meet at 7:30pm at a place called Barnard Bridge – presumably for a fight. 4. It so happened that James Smith was asked to go and collect Racquel’s son, Luca, from a friend’s house at 7pm. He went with two friends on foot. They collected Luca and were walking back when they saw the appellant, who was also on foot. This seems to have been a chance encounter, but the appellant went and fetched his car which was parked nearby and approached James Smith and the others in his car. An argument took place between the appellant, who was in his car, and James Smith, who was on the pavement. There were issues at the trial about what was said and about how James Smith then came to be injured. The prosecution case was that the appellant was telling James Smith to get into the car, where the appellant had a cut throat razor, and that, when James Smith refused to do so, the appellant drove deliberately at him and pinned his leg against the wall. The defence case was that the appellant was asking James Smith to let Luca get into the car, which he refused to do. According to the defence, James Smith then walked menacingly towards the car, and in a state of panic the appellant tried to put the car, which had automatic gears, into reverse but accidentally moved the gear stick into the drive position, causing it to lurch forward and collide with the complainant. The trial 5. The trial was originally due to take place in July 2017, but in June the appellant was involved in a road traffic accident in which he sustained very significant injuries which caused the trial to be adjourned. The appellant also suffers from seizures. The trial began on Monday, 12 February 2018. At lunch time on the first day a letter from a hospital consultant was provided to the court which described the appellant’s medical condition. On the basis of this letter, defence counsel, Mr Volz, applied for an adjournment to enable the defence to obtain a full medical report. The suggestion at this stage was that such evidence could potentially support the appellant’s case by giving a possible explanation of how he could (as he alleged) accidentally have engaged the wrong gear. The judge, HHJ Shaw, refused the application, noting that the appellant was not himself claiming that he had had a fit at the time and that it had never been suggested that the case involved anything other than a factual dispute. 6. At the end of the first day, however, just after the jury had left court, the appellant suffered a fit in court. The fit lasted around 4 or 5 minutes. Paramedics were called, who oversaw the appellant’s recovery and administered first aid. 7. On the afternoon of the second day of the trial, when the appellant’s partner, Racquel, was giving evidence, he fitted again. This fit was witnessed by the jury. It lasted about 4 minutes and was managed by the dock officers until the paramedics arrived. He then had another fit, slighter shorter in duration. He was taken to hospital by ambulance, where various tests were carried out, all of which were apparently inconclusive. He was not discharged until 2:30am, returning home at 3.30am. 8. On the morning of the third day counsel for the defence applied to discharge the jury. The application was supported by counsel for the prosecution. It was submitted that medical evidence was needed to provide advice on the causation and management of the appellant’s seizures, and also to the enable the court to determine what, if any, special measures could be taken to enable the appellant to participate effectively in the trial and, if possible, to give evidence without a serious risk of further fitting. It was envisaged that because of the time that it was likely to take to obtain such evidence it was preferable to have a new trial before a fresh jury rather than allow the trial to continue. 9. The judge refused the application and made it clear that he proposed to proceed with the trial. He said that the appellant need not remain in court that day and could take the time to rest but that he proposed to carry on and hear the rest of the prosecution evidence. The judge granted a short adjournment to enable Mr Volz to speak to the appellant about what he had said. When the court reconvened, Mr Volz renewed his application for the jury to be discharged. The judge maintained his decision that the trial could fairly proceed without the appellant being present in court. The judge indicated that if the next day, when the time came for the defence to present their case, the appellant felt well enough to give some evidence, the court would seek to manage it. If not, the judge said that he would direct the jury that the appellant’s failure to give evidence must not be held against him. 10. The trial then continued, with the judge explaining to the jury why the appellant was not present in court. 11. On the fourth day, the Thursday, when the prosecution case was closed, Mr Volz informed the court that it had, throughout the trial, been the firm intention of the defence to call the appellant to give evidence. He said that he had, however, now taken the decision himself that it would be irresponsible to do so knowing that the appellant was likely to fit when giving evidence. Not only would this put an intolerable stress on the appellant, but it could also expose him to physical danger. Accordingly, the appellant did not testify. The trial continued with the appellant not present in court but watching the proceedings over a video link from a room in the court building. 12. On the fifth and final day of the trial the judge summed up the case to the jury. In his summing-up, the judge outlined the fits which the appellant had experienced during the trial and directed the jury, as he had said he would, that the fact that the appellant had not given evidence in court must not be held against him. 13. The jury returned their verdicts early in the afternoon. As mentioned earlier, they acquitted the appellant of the offence of wounding with intent, but convicted him of causing serious injury by dangerous driving. The main ground of appeal 14. The main ground of appeal is that the judge was wrong to reject the applications made by the defence to discharge the jury in circumstances where the appellant’s ability to participate in the trial was severely compromised and he was not in a fit condition to give evidence as he had intended to do. Mr Volz submits that the result of the judge’s decision that the trial should continue was that the process was rendered unfair and the appellant’s conviction unsafe. 15. On behalf of the Crown, Ms Ascherson has argued that the appellant was able to and did participate effectively in his trial until its conclusion. She emphasises that his fits did not affect his ability to give instructions to his counsel and that he was able to view the proceedings via the video link. Ms Ascherson also draws attention to the fact that no medical evidence has been provided to establish that, if there were another trial, the appellant would be able to give evidence without suffering stress-related fits. She submits that there is therefore no evidence to show that discharging the jury would have made any difference to the process ultimately followed. She also relies on the judge’s direction to the jury not to hold the appellant’s failure to give evidence against him and on the fact that the judge summarised in his summing-up the appellant’s account of events given when he was interviewed by the police. She submits that in these circumstances the trial was fair. Was it fair to continue the trial? 16. We agree that this is not a case where a trial has taken place in the absence of the defendant or without his participation. Apart from his absence for part of the third day – which was encouraged by the judge and cannot be said to have prejudiced the appellant – he was throughout the trial either present in court or observing the proceedings over a video link and was able to give instructions to his counsel. The fact remains, however, that the judge required the trial to continue even if that meant that the appellant would not give evidence without properly investigating whether steps could be taken that might enable him to do so. 17. It must be emphasised that this is not a case where, as sometimes happens, a judge takes the view that a defendant is feigning or exaggerating illness or using illness as a pretext to seek to frustrate the trial process. It was and is not in doubt that the appellant had suffered several seizures in court, that they were genuine fits apparently induced by stress, and that there was perceived by both counsel and the judge to be a high risk that he would have further fits if he gave evidence in court. The judge’s acceptance of the latter point is implicit in his direction to the jury that they must not hold the appellant’s failure to give evidence against him. Under s.35 of the Criminal Justice and Public Order Act 1994 a judge will ordinarily direct the jury that, in determining whether the defendant is guilty of the offence charged, they may draw such inferences as appear proper from the defendant’s failure to give evidence. There is an exception, however, if “it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence.” As discussed in Blackstone’s Criminal Practice (2018) at F20.46, that is a high test, but the judge evidently considered that it was satisfied in the present case. 18. The second point which requires emphasis is that the right of a defendant who wishes to do so to give evidence in his own defence is – as we have indicated – an important element of the right to a fair trial. If this right is to be real and not illusory, a defendant who wishes to give evidence must be given a full and fair opportunity to do so. A decision to proceed in circumstances where such a defendant is understood not to be in a fit state to give evidence should be taken, if at all, only after the most full and careful consideration. Again, there is no doubt that in this case the appellant intended and wanted to give evidence. We are satisfied that this is not a case of a defendant who was happy to avoid having his story exposed to cross-examination without adverse comment. There were significant differences between his account of events and that of the complainant, James Smith, and the credibility of their respective accounts went to the heart of the case. We do not doubt that the defendant wanted to testify and that his counsel considered it essential to his defence that he should do so. 19. It is regrettable that no medical evidence has been obtained by the defence at any stage addressing the appellant’s medical condition and whether there were measures which could reasonably have been taken to enable him to give evidence without undue risk to his physical or mental health. There is force in the point made by Ms Ascherson that there is no evidence to show that there were any measures reasonably available which would have enabled the appellant to give evidence by some means if the trial had been adjourned for a day or so and then resumed or if the jury had been discharged and a new trial had later taken place. We consider, however, that a proper opportunity ought to have been afforded to the defence to explore that question by obtaining medical evidence when problems occurred during the trial, that it is unfair to blame the defence for failing to adduce such evidence when that opportunity was denied and that it would be wrong to speculate about what such evidence would have shown. 20. The judge was entirely justified in our view in refusing the application for an adjournment made on the first day of the trial. There was no evidential basis for suggesting that the appellant had had a fit at the time of the incident and it was not at that stage anticipated that his seizures were likely to interfere with his participation in the trial. Circumstances changed, however, when the appellant suffered several fits in court. We accept that the judge sought to manage the situation as he thought best and that an appeal court should be slow to review case management decisions. Nevertheless, we consider that, in the particular circumstances of this case, the judge’s decision made on the third day of the trial to require the trial to proceed without intermission, even if this meant that the appellant did not give evidence, was a clear error. 21. We do not in fact think that the judge need necessarily have discharged the jury at that stage – although he was invited to do so by the prosecution as well as by the defence. It might, at least in the first instance, have been sufficient to adjourn the trial. But the judge should in our view have allowed time for medical evidence to be obtained addressing the significance of the appellant’s fits and any means of controlling them. Such evidence was required to find out whether any measures could be taken – for example, allowing the appellant a day or two of rest and/or through the use of any medication – which might enable him to give evidence. To insist that the trial must proceed without exploring that possibility and without establishing through medical evidence that there was no realistic means of enabling the appellant to give evidence was unfair. 22. We would add that, even if there had been a sufficient basis for concluding that no measures could reasonably be taken which would enable the appellant to give evidence and that the trial should nevertheless proceed, we do not consider that the direction given to the jury about his failure to do so was adequate. It is fair to record that, in accordance with best practice, the direction was provided in written form to counsel in draft and was agreed by them. But insufficient attention was in our view given to its content. On more than one occasion in the summing up the jury was told that the appellant had the judge’s “permission” not to give evidence. That was an inapt expression, as the decision whether or not to give evidence is that of the defendant and his legal representative. It is not a matter in gift of the judge. Simply then to tell the jury that they must not hold against the appellant the fact that he did not give evidence was cursory to say the least. In our view the direction should have spelt out the consequences of the fact that the appellant had been unable to give evidence – in particular, that the jury had not had been able to hear at first hand his account of events – including where it conflicted with that of other witnesses – and assess its credibility. Consideration should also have been given to whether specific points of significance had been raised by the prosecution evidence which were not covered in the appellant’s police interview and which he had therefore never had an opportunity to address. 23. We conclude that in the circumstances the trial process was unfair and that the appellant’s conviction is unsafe. The second ground of appeal 24. In view of this conclusion, it is unnecessary to deal in any detail with the second ground of appeal. It was argued that the judge’s summing up was unfair in that he emphasised and urged the jury to consider carefully various points in relation to the evidence that were favourable to the prosecution but, in contrast, made no mention at all of points on which the defence relied. It was submitted that, in consequence, the summing up was entirely unbalanced. 25. We think there is force in the criticisms made of some of the judge’s comments which were clearly favourable to the prosecution. It is not the function of the judge in summing up the evidence to tell the jury that particular pieces of evidence are “significant” or “important”, as the judge did in a number of places. It is, however, a misconception to suggest that a summing up must be “balanced” in the sense that observations favourable to the prosecution must be offset by points relied on by the defence. The essential task is to remind the jury of the most relevant evidence and to do so in a way that relates the evidence to the factual issues which the jury need to consider. The summing up in this case fulfilled that function. In particular, the judge reminded the jury of the defence case and of the main evidence relied on in support of that case, including what the appellant had said in interview. The points favourable to the defence which it is suggested that the judge should have made were mostly matters of argument and are points which no doubt were made in argument on behalf of the defence. Notwithstanding our reservations about some of the comments made, we do not consider that the judge exhibited a bias in favour of the prosecution of a kind which made the trial unfair. Conclusion 26. For the reasons already given, however, we have concluded that the appellant’s conviction is unsafe because the decision to proceed with the trial was made without proper regard to the principle that an accused is entitled to a fair trial, which includes a fair opportunity to give evidence in his own defence. 27. Accordingly, the appeal is allowed and the conviction will be quashed.

```yaml citation: '[2018] EWCA Crim 2036' date: '2018-09-14' judges: - LORD JUSTICE LEGGATT - 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} ======

No: 200503513/A8 Neutral Citation Number: [2005] EWCA Crim 2445 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 25th August 2005 B E F O R E: MR JUSTICE GAGE MR JUSTICE BEAN SIR JOHN ALLIOTT - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 66 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 F BROWN appeared on behalf of the ATTORNEY GENERAL MR C ASPINALL [SOLICITOR ADVOCATE] appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. LORD JUSTICE GAGE: In this case the Solicitor General on behalf of the Attorney General seeks the leave of the Court to refer to this Court a sentence which the Attorney General considers unduly lenient. The offender is Fraser Gormanly. He is now aged 20. He was charged with one offence of robbery and pleaded guilty at the Crown Court on 10th May 2005. Sentence was adjourned for the preparation of pre-sentence reports. But on the occasion when he was due to be sentenced, 6th June 2005, there was no report available. He was content for the matter to be dealt with without a further adjournment. Accordingly, at the Sheffield Crown Court, he was sentenced in respect of that offence to six months' imprisonment. 2. The facts of the matter are as follows. On the evening of Sunday 16th April 2005 some friends of the offender were driving along a road in the Woodseats area of Sheffield. They saw the offender staggering about in the road. He appeared to be very drunk. The driver of the car stopped and spoke to the offender who asked for a lift to a cashpoint machine. He was argumentative and smelt strongly of alcohol. The car was driven to a BP garage where the offender got out. He staggered to the cashpoint machine and then into the shop. It was by now 8 o'clock in the evening. 3. The victim was working in the shop with one other female colleague. The victim was serving a customer when the offender walked in. The offender walked up to the till and picked up the credit card chip and pin machine. He was muttering to himself. He then struck the victim on the head with the machine. Having done so, he picked up some chocolate bars from the shop's display and threw them at the victim before running out of the shop carrying a display which held lotto scratch cards. The offender ran to his friend's car, but was refused entry. He ran off leaving the lotto cards behind. 4. Police officers were summoned. They attended the scene and acting on information provided by one of the occupants of the car they went to the offender's home address and arrested him. He was interviewed by the police. He said that he had been drinking since lunch time in a number of public houses. He said he had a vague recollection of being in a car and going to a petrol station but remembered nothing else. 5. The victim suffered a laceration to his head which was glued. We have been told that he suffered no lasting consequences from the injury. 6. The Attorney General relies on three aggravating factors which appear to him to be present. First, the offender caused injury to the victim; as we have said, an unpleasant injury to his forehead, but one which has not in any way discomforted him subsequently. Secondly, the victim was vulnerable because of his position as a shop assistant working at night. There was, as again we have said, only one other person present in the shop. Thirdly, the offender had plainly been binge drinking before the incident. 7. The Attorney General recognises that there are mitigating factors which are present. First, the offender was 19 years of age at the date of the offence. Second, he pleaded guilty at the earliest opportunity. Third, he was remorseful. He said he did not recall much of the incident, but was sorry that it had occurred. 8. He has a number of previous convictions, two of which are for offences of minor violence. The last one occurred some three months before the instant offence. He has previously not served a custodial sentence. 9. The Attorney General refers to a number of decisions of this Court to support his submission that the sentence passed was unduly lenient. 10. For the offender Mr Aspinall has informed the Court that since the sentence was passed, on the very moment it was passed, the offender received advice that there was a possibility, if not a probability, that the Attorney General might seek a reference to this Court. Mr Aspinall relies on the fact that the offender has no recollection of the events. It is accepted that he was heavily in drink at the time. He was working as a scaffolder. He had some leave off what was obviously an arduous job and he went out drinking. It is submitted that the value to him of the lottery scratch cards which were taken was nil and in any event he abandoned them. 11. So far as his present circumstances are concerned, he was arrested and brought back into custody for breach of a home detention curfew which had permitted him to go home on 22nd July 2005. He was found to be in breach of the curfew and rearrested on 17th August 2005 since when he has been in custody. We are told that the explanation for his breach of the home detention curfew was that he confidently expected that his case would be dealt with by this Court on 15th August. Since he had been advised that there was a possibility that he might be returned to custody, he had spent the two previous nights at the home of friends. He was distressed and upset to learn at a late stage that the case had been taken out of the list. That is the explanation for him being in breach of the home detention curfew conditions which resulted in him being rearrested. 12. The decisions which the Attorney General relies upon are the Attorney General's Reference No 60 and 61 of 1995 [1996] 2 Cr App R(S) 243, Attorney General's Reference No 18 of 1997 [1998] 1 Cr App R(S) 151, Attorney General's Reference No 68 of 1999 [2000] 2 Cr App R(S) 50, and finally R v Rees and others [2005] EWCA Crim 1857 . We have considered all those decisions. From these decisions it is clear that the level of sentence for robberies of small shops and vulnerable premises is higher, and substantially higher, than the six months passed in this case, even on a guilty plea. 13. In Attorney General's Reference No 69 of 1999 the facts are not very dissimilar to the facts of this case, save for one important exception to which we will refer. The Court increased the sentence from six months to two years. The facts of that case differed from this case because the offender at the time of the robbery pretended he had a handgun in his pocket. He also did not have the mitigation of a guilty plea. The Court said that there were circumstances which brought the case outside and less serious than the normal category of attacks on vulnerable premises with a pretend firearm. In our judgment, the instant case is also less serious than the usual case of robbery of vulnerable premises. Nevertheless, it was a serious case and the offender has previous convictions. 14. We have also seen and taken account of the observations of the Lord Chief Justice in R v Rees , the reference to which we have just referred. At paragraph 9 of the decision in that case the Lord Chief Justice said this: “When it is the habit of young men (and young women) to drink excessively and then behave out of character, it is important that the courts send a message that there are very real dangers in embarking in that sort of binge drinking. It may cause a person to behave in a way which is out of character. While the courts wish to be sympathetic towards offenders, they must bear in mind the consequences of the offence as a whole on the public. The problem is that when drinking at this level takes place, what starts as an exhibition of high spirits descends into conduct which is criminal.” 15. Having considered all the circumstances in this case, we have reached the conclusion that the sentence was unduly lenient and we give leave. We think at first instance the appropriate sentence should have been at least two years. Taking into account all the circumstances, including double jeopardy, we quash the sentence of six months and for it substitute a sentence of 15 months' imprisonment. That will run from the date when the sentence was first passed.

```yaml citation: '[2005] EWCA Crim 2445' date: '2005-08-25' judges: - MR JUSTICE GAGE - MR JUSTICE BEAN - SIR JOHN ALLIOTT ```

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WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making are 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. I N THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2023/01883/B5 NCN: [2024] EWCA Crim 210 Royal Courts of Justice The Strand London WC2A 2LL Friday 16 th February 2024 B e f o r e: LORD JUSTICE COULSON MR JUSTICE HOLGATE THE RECORDER OF REDBRIDGE ( Her Honour Judge Rosa Dean ) ( Sitting as a Judge of the Court of Appeal Criminal Division ) ____________________ R E X - v - LINTON BLOOMFIELD ____________________ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _____________________ Non-Counsel Application ____________________ J U D G M E N T ____________________ Friday 16 th February 2024 LORD JUSTICE COULSON: I shall ask Mr Justice Holgate to give the judgment of the court. MR JUSTICE HOLGATE: 1. On 1 st June 2023, following a trial in the Inner London Crown Court before Mr Recorder Barnett and a jury, the applicant (then aged 43) was convicted of causing serious injury by dangerous driving. On 8 th December 2023, he was sentenced by the judge to 4 years' imprisonment. He now renews his application for leave to appeal against conviction following refusal by the single judge. He also seeks leave, pursuant to section 23 of the Criminal Appeal Act 1968 to introduce fresh evidence of the road layout and from Marc Cullen, Steve Paciello, and Tristan Swain relating to the trial process and the evidence. 2. The case concerned a road traffic incident between a cyclist, Mr Thomas Lewis (the complainant) and the applicant who was driving an Audi A4 vehicle. 3. The prosecution case was that at about 6.30 am on 7 th June 2021 both the applicant and the complainant were travelling in the same direction. The complainant was ahead in a cycle lane. The applicant pulled very close alongside him and the complainant tapped on the vehicle's bonnet to alert the applicant. As they approached a narrowing in the road with bollards in the centre of the carriageway, the complainant repeated this tapping action. The applicant then deliberately swerved his vehicle left into the complainant who was thereby knocked off his bicycle. The applicant did not stop. Instead, it was said that he drove away at speed. 4. Mr Steve Paciello was travelling in a vehicle behind, at a distance of about 200 metres. He observed the incident. He called the emergency services. He had a dashcam in his vehicle. 5. The complainant sustained a partial amputation and lost sensation to the tip of his finger, which required multiple surgery. The nerve was irreparable. He had chronic pain for weeks. His left ankle also required surgery. 6. The defence case was that it was the complainant who caused the accident; he was both violent and aggressive. The applicant gave evidence that the complainant attempted to undertake him. In the process of hitting the Audi, the complainant fell off his bicycle and struck the kerb. The applicant called the police around 30 minutes after the incident and stated that damage had been caused to his vehicle. He received a crime reference number. He was not interviewed by the police. 7. The main issue for the jury was whether the applicant's driving fell far below that expected of a competent and careful driver. 8. The trial was listed to begin on 30 th May 2023. The applicant represented himself. At a case management hearing on 4 May 2023 the applicant said that the proceedings should be stayed. He submitted that as the dashcam footage in Mr Paciello's vehicle was not available, the continuation of the case amounted to an abuse of process. Counsel for the prosecution submitted that no abuse was involved, relying upon the decision of the Divisional Court in R(Ibrahim) v Feltham Magistrates' Court [2001] 1 WLR 1293. His Honour Judge Reid directed that the prosecution should make inquiries and explain the process to the applicant. This was dealt with in a witness statement provided by Mr Swain dated 16 th May 2023, to which we will return. 9. A further case management hearing was held before His Honour Judge Seed KC on 26 May 2023. The applicant submitted that as the prosecution had failed to serve further evidence properly (because it had been sent to his previous address), he needed additional time within which to review the material and to seek legal advice. 10. Counsel for the prosecution accepted that the material had been sent to the applicant's old address, but paper copies of the documentation would be provided to him that day and the audio recordings of the 999 telephone conversations would be provided on the first day of the trial. The transcripts of those conversations had been given to the applicant previously. 11. The judge ruled that the trial would remain listed for 20 May 2023. He did not accept that there was any justification for the matter to be adjourned generally, or to be refixed for another trial date. However, he ruled that the trial would not begin before 2 pm and that no witnesses would be called on the first day. 12. When the trial began before Mr Recorder Barnet on 30 May 2023 the applicant again asked for the trial to be adjourned on essentially the same grounds. The judge ruled that the trial would start that day but the applicant would have the rest of the day to go through the material. 13. The Respondent's Notice filed on 4 th August 2023 in response to the application for leave to appeal against conviction contains a very helpful and detailed chronology, which sets out the key events between the date of the offence and the applicant's ultimate appearance for trial. 14. On 14 th and 15 th February 2024, this court received applications on behalf of the applicant that the renewed application for leave to appeal be adjourned so that he could be represented by new counsel. We refused both applications. In our judgment it was clear that they were made at the last moment. They are consistent with the manipulative approach that the applicant has taken towards the trial process, as is plainly revealed by the Respondent's Notice. 15. With regards to the complaint about the submission of late material, the prosecution has explained that, although they accepted that the bundle they produced for the trial had been sent to an old address for the applicant, it nevertheless contained material which had been provided to him by other means about ten weeks before the trial. So, in essence, he was not taken by surprise by the presentation of the documents in the form of a convenient paper bundle. The prosecution said that the only additional evidence which they had served after the date when material was previously disclosed was the statement of Mr Tristan Swain, dated 16 th May 2023. That had been uploaded to the Digital Case System on 19 th May 2023. This point appears in the Respondent's chronology at entry 25 and at entry 37. It is explained that the prosecution sought to serve Mr Swain’s statement on the applicant at court after the hearing on 26 th May 2023, but he was not prepared to wait to receive it. A similar point is also made in entry 38. 16. The applicant has not made any material challenge to this explanation by the prosecution at any point. We are satisfied that there is no possible basis upon which either of the decisions not to adjourn the trial could possibly be criticised. No prejudice was suffered by the applicant in the way that the trial was handled, even allowing for the fact that he was a litigant in person. 17. It was suggested at the trial that the judge should rule on the admissibility of Mr Swain's statement. The prosecutor said that ordinarily the contents of the statement would be agreed, but he recognised that the applicant was a litigant in person. The applicant said that he would not agree the document as he had a number of questions about it. 18. We have carefully considered the information in Mr Swain’s statement. It is a very short document indeed. In summary, it contains two paragraphs, the first of which confirms that on 17 th June 2021 the case manager had contacted Lambeth Council by email and requested that a check be made on the local cameras for CCTV footage. Full details were provided, confirming the day, date, time and place of the incident. On the same day a response was received confirming that the incident was not caught on camera. 19. That information was contained in the Respondent's Notice served in August of last year. It appears at entry 6, an entry for 2 nd July 2022, when the information was conveyed to the applicant. We also note that on 6 th July 2022 the applicant wrote to the officer concerned thanking her for checking these matters and expressing his appreciation for her assistance. 20. In the second paragraph of his statement Mr Swain says that on 27 th September 2022 Mr Paciello was contacted by the case officer regarding any dashcam footage which he might have. He responded on the same day and confirmed that he checked it an hour after the incident, but for some reason it had not filmed the few relevant hours. That information is also set out in the Respondent's Notice. It appears in the entries to which we have already referred and so the position was made clear to the applicant as long ago as September 2022. 21. We appreciate that in a handwritten note at 7.45 am on the day of the incident, Mr Paciello suggested that he had deleted the dash footage – a slightly different explanation. But, either way, there is no conceivable basis upon which it could be said that the prosecution should be stayed as an abuse of process. There was no failure by the prosecution to take appropriate steps to ascertain whether any such material existed which could have led to the trial being stayed. 22. The applicant has made two applications to adduce fresh evidence which we have carefully considered. They do not contain a witness statement. Instead, there is a brief assertion by the applicant as to what might be said by Mr Paciello and Mr Swain. No proper details are provided of what additional evidence they could give, different from that which was provided to the trial. This material does not satisfy the requirements for admissibility under s. 23 of the 1968 Act. 23. The letter from Mr Cullen has not been provided to the court as fresh evidence in the appropriate way, but all three matters were before the single judge and were fully considered by him in his reasons for refusing the application for leave to appeal. In particular, the material from Mr Cullen would not be admissible and it had no bearing on the conduct of the trial. 24. The single judge had the benefit of the very detailed Respondent's Notice to which we have referred. He gave detailed reasons as to why the application for leave to appeal against conviction should be refused on the basis that it was wholly unarguable. 25. We have considered each of the matters which the applicant seeks to raise. We have considered the Respondent's Notice and the careful reasoning of the single judge. We entirely agree with what the single judge has stated. We note in particular that there has been no attempt by the applicant in renewing his application to explain why the Respondent's Notice is inaccurate, or why the single judge was wrong. In these circumstances we do not find it necessary to repeat the single judge's reasons in this judgment. 26. The proposed grounds of appeal are wholly unarguable. We refuse the applications for leave to call additional evidence and we refuse also the renewed application for leave to appeal against conviction. The applicant should consider himself fortunate that the court does not propose to make a loss of time order in this instance. _______________________________ 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 210' date: '2024-02-16' judges: - LORD JUSTICE COULSON - 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} ======

Case No: 201302447 A7, 201302499 A7, 201302495 A7, 201302498 A7, 201302681A8 Neutral Citation Number: [2014] EWCA Crim 2158 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM The Crown Court at The Central Criminal Court, Simon J T201227273 (Dart) The Crown Court at Woolwich, Wilkie J T20127446 (Iqbal, Ahmed, Arshad & Hussain) Royal Courts of Justice Strand, London, WC2A 2LL Date: 31/10/2014 Before : LORD JUSTICE PITCHFORD MR JUSTICE SWEENEY and THE HONORARY RECORDER OF MIDDLESBROUGH HIS HONOUR JUDGE BOURNE-ARTON QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - Between : Dart & Others Applicants - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - Ali Bajwa QC and Mozammel Hossain for the Applicant Richard Dart James Wood QC and Hugh Mullen (instructed by McCormacks) for the Applicant Zahid Iqbal Henry Blaxland QC and Hossein Zahir (instructed by Birnberg Peirce and Partners ) for the Applicant Mohammed Ahmed Joel Bennathan QC (instructed by Birnberg Peirce and Partners ) for the Applicant Umar Arshad Hossein Zahir (instructed by Birnberg Peirce and Partners ) for the Applicant Syad Hussain Max Hill QC and Rebekah Hummerstone (instructed by the CPS ) for the Respondent Hearing date: 16 April 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Sweeney J: Introduction 1. On 15 March 2013, at a Plea and Case Management Hearing before Simon J in the Central Criminal Court, Richard Dart (aged 31) and his then co-defendants Jehangir Alom (now aged 28) and Imran Mahmood (now in his mid 20s) each pleaded guilty, with a Basis of Plea, to an offence of engaging in conduct in preparation for acts of terrorism, contrary to section 5(1) of the Terrorism Act 2006 (“ the 2006 Act ”). Dart’s Basis of Plea was not agreed by the prosecution, nor was Mahmood’s, but it was not considered to be necessary to determine the points at issue by the calling of evidence. 2. On 25 April 2013 Dart was sentenced by Simon J to an extended sentence of 11 years with a custodial term of 6 years and an extension period of 5 years; Alom was sentenced to 4 years 6 months’ imprisonment; and Mahmood was sentenced to an extended sentence of 14 years 9 months with a custodial term of 9 years 9 months and an extension period of 5 years. Dart and Mahmood were each subject to terrorist notification periods imposed pursuant to the provisions of Part 4 of the 2008 Act for 15 years, and Alom for 10 years. A deprivation order in respect of specified property was made pursuant to s.143 of the Powers of Criminal Courts (Sentencing) Act 200 (“ the 2000 Act ”), and a forfeiture order in relation to £4,800 in cash was made against Dart under the provisions of section 23A of the 2008 Act . 3. Dart now renews his application for leave to appeal against sentence, and for a representation order, following refusal by the Single Judge. 4. On 1 March 2013, at a Plea and Case Management Hearing before Wilkie J in the Crown Court at Woolwich, Zahid Iqbal (now aged 33), Mohammed Ahmed (now aged 27), Umar Arshad (now aged 26) and Syad Hussain (now aged 23) each pleaded guilty, with (in their cases) a Basis of Plea which was not contested by the prosecution, to an offence of engaging in conduct in preparation for acts of terrorism, contrary to section 5(1) of the 2006 Act . 5. On 18 April 2013 Iqbal was sentenced by Wilkie J to an extended sentence of 16 years 3 months with a custodial term of 11 years 3 months and an extension period of 5 years; Ahmed was also sentenced to an extended sentence of 16 years 3 months with a custodial term of 11 years 3 months and an extension period of 5 years; Arshad was sentenced to 6 years 9 months’ imprisonment; and Hussain was sentenced to 5 years 3 months’ imprisonment;. Each was subject to terrorist notification periods imposed pursuant to the provisions of Part 4 of the Counter-Terrorism Act 2008 (“ the 2008 Act ”) – Iqbal and Ahmed for 30 years and Arshad and Hussain for 15 years. A deprivation order in respect of specified items of property was made pursuant to s.143 of the 2000 Act . 6. Each now renews his application for leave to appeal against sentence, and for a representation order, following refusal by the Single Judge. 7. There is no factual link between the two cases. However, it was convenient to hear them together - given that all the sentences were imposed for an offence contrary to section 5(1) of the 2006 Act (the maximum penalty for which is life imprisonment), and that it was suggested in each, whether explicitly or implicitly, that we should endeavour to give some (further) general guidance as to sentencing in s.5 cases. The relevant legislation and authorities 8. Section 5 of the 2006 Act provides that: “(1) A person commits an offence if, with the intention of – (a) committing acts of terrorism, or (b) assisting another to commit such acts, he engages in any conduct in preparation for giving effect to his intention. (2) It is irrelevant for the purposes of subsection (1) whether the intention and preparations relate to one or more particular acts of terrorism, acts of terrorism of a particular description, or acts of terrorism generally…….”. 9. Section 20 of the 2006 Act provides that: “ (1) Expressions used in this Part and in the Terrorism Act 2000 (c.11) have the same meanings in this Part as in that Act. (2) In this Part – ‘act of terrorism’ includes anything constituting an action taken for the purpose of terrorism, within the meaning of the Terrorism Act 2000 (see section 1(5) of that Act)……….” 10. Section 1 of the Terrorism Act 2000 (“ the 2000 Act ”), as amended, defines terrorism as follows: “ (1) In this Act “terrorism” means the use or threat of action where— (a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause. (2) Action falls within this subsection if it— (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied. (4) In this section— (a) “action” includes action outside the United Kingdom, (b) a reference to any person or to property is a reference to any person, or to property, wherever situated, (c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and (d) “the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom. (5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.” 11. At para.27 of the judgment in R v Gul [2014] 1 Cr.App.R.14 the Supreme Court summarised the effect of s.1(1), as follows: “ The effect of s.1(1) of the 2000 Act is to identify terrorism as consisting of three components. The first is the ‘use or threat of action’, inside or outside the United Kingdom, where that action consists of, inter alia, ‘serious violence’, ‘serious damage to property’, or creating a serious risk to public safety or health – s.1(1)(a), (2) and (4). The second component is that the use or threat must be ‘designed to influence the government [of the United Kingdom or any other country] or an [IGO] or to intimidate the public’ – s.1(1)(b) and (4). The third component is that the use or threat is ‘made for the purpose of advancing a political, religious, racial or ideological cause’ – s.1(1)(c).” 12. It follows that s.5 of the 2006 Act requires proof that an individual had a specific intent (albeit that it may have been general in nature) to commit an act or acts of terrorism (as defined) in this country or abroad, or to assist another to do so, and that he or she engaged in conduct in preparation for giving effect to that intention. 13. As is clear from the definition of terrorism, it makes no difference to the seriousness of the offence whether the intended act or acts were to take place in this country or abroad – see e.g. Regina v F [2007] QB 960 . 14. In Tabbakh [2009] EWCA Crim 664 , on an application for leave to appeal against sentence, this Court was not prepared to lay down any general range for s.5 offences. More recently in Khan & Others [2013] EWCA Crim 468 , which was an appeal against sentences imposed principally for s.5 offences, this Court declined to set out guidelines or indicative sentences. In giving the judgment, Leveson LJ (as he then was) said: “ 73. Although potentially highly relevant both to culpability and potential harm (and, thus, of importance for the purpose of fixing the punitive part of any sentence) in our judgment, when assessing the future risk to the public, too much weight should not be placed on conversations for the purpose of ascribing comparative sophistication: it is not implausible that some self-publicists will talk ‘big’ and other, more serious plotters, may be more careful and keep their own counsel…………….. 74. It is not the purpose of this judgment to seek to set out guidelines or indicative sentences for terrorism which comes in many different forms. Offences range from murder, attempted murder and conspiracy to murder, through causing explosions likely to endanger life or cause serious injury to property ( s.2 of the Explosive Substances Act 1883) , conspiracy or possession with intent to cause explosions likely to endanger life or cause serious injury to property (s.3 of the 1883 Act) to engaging in conduct in preparation for or assisting in committing acts of terrorism contrary to s.5 of the Terrorism Act 2006 . This last offence is particularly wide covering acts just short of an attempt to conduct that only just crosses the line into criminality. 75. A number of principles, however, can be properly emphasised. First, as with any criminal offence, s.143 of the Criminal Justice Act 2003 directs the sentence(r) to consider culpability and harm: in most terrorist cases the former will be extremely high. Second, the purpose of sentence for the most serious terrorist offences is to punish deter and incapacitate. Rehabilitation will play little, if any part: see Martin [1999] 1 Cr App R (S) 477. Third, the starting point for sentence for an inchoate offence is the sentence that would have been imposed if the objective had been achieved with an attempt to commit the offence being more serious than a conspiracy; see Barot [2008] 1 Cr App R (S) 31 . Fourth, sentences that can be derived from Martin – or, indeed, any cases before the impact of Schedule 21 of the Criminal Justice Act 2003 identifying minimum terms for murder – are of historical interest only and do not provide any assistance as to the approach which should now be adopted: for the impact of Schedule 21 in uplifting determinate sentences, see AG’s Reference Nos 85-87 of 2007 [2008] 2 Cr App R (S) 45 and, in relation to terrorism, Jalil [2009] 2 Cr App R (s) 40 at paras. 22 and 24. 76. Finally, because of the enormous breadth of potential offences (and, consequently, the differing potential assessment of culpability and harm depending on the precise facts), we do not consider it appropriate to seek to provide guidelines based on these cases alone (or a combination of these cases and those in Jalil). If guidelines are needed, a better course would be for the offences to be considered by the Sentencing Council for England and Wales although we readily accept that (the) breadth of s.5 of the Terrorism Act 2006 would make the task of providing guidelines extremely difficult.” 15. Having started with the notional sentence that would have been imposed if the intended act(s) of terrorism had actually been carried out, the factual nexus between the offender’s conduct in preparation for giving effect to that intention and the future commission of the intended act(s) of terrorism will be a significant factor in determining the ultimate sentence for a s.5 offence – see e.g. Attorney General’s Reference (No.7 of 2008) [2008] EWCA Crim 1054 . 16. Whilst the purpose of sentence for the most serious terrorist offences is to punish deter and incapacitate, what was said by Lord Phillips CJ (albeit in a case concerned with an offence of dissemination of a terrorist publication, contrary to s.2 of the 2006 Act ) in giving the judgment of the Court in Rahman and Mohammed [2009] 1 Cr.App.R. (S.) 70 at para.8 must also be borne in mind, namely: “….. It is true that terrorist acts are usually extremely serious and that sentences for terrorist offences should reflect the need to deter others. Care must, however, be taken to ensure that the sentence is not disproportionate to the facts of the particular offence……..If sentences are imposed that are more severe than the particular circumstances of the case warrant this will be likely to inflame rather than deter extremism…” 17. A small number of other offences under the 2000 and 2006 Acts also carry a maximum sentence of life imprisonment. An offence contrary to s.57 of the 2000 Act (possession of articles for terrorist purposes) carries a maximum sentence of 15 years’ imprisonment. A number of offences, including those contrary to s.6 of the 2006 Act (providing or receiving terrorist training - which was relied on in argument in the instant cases) carry a maximum sentence of 10 years’ imprisonment. Two offences, including those contrary to s.2 of the 2006 Act (see immediately above) carry a maximum sentence of 7 years’ imprisonment. Others carry a maximum sentence of 5 years’ imprisonment. 18. As the then Vice-President (Hughes LJ) said at para.9 of the judgment in Roddis [2009] EWCA Crim 585 : “ …..It seems to us that some caution needs to be exercised in the welter of anti-terrorist legislation that now exists in making any assumption as to the exact Parliamentary intent. Some overlap between offences, even in the same statute, undoubtedly exists… ” 19. Section 6(1) of the 2006 Act makes it an offence to provide certain types of instruction or training. Section 6(2) makes it an offence to receive certain types of instruction or training. 20. Section 6(2) provides that: “ A person commits an offence if – (a) he receives instruction or training in any of the skills mentioned in subsection (3); and (b) at the time of the instruction or training, he intends to use the skills in which he is being instructed or trained – (i) for or in connection with the commission or preparation of acts of terrorism or Convention offences; or (ii) for assisting the commission or preparation by others of such acts of terrorism.” 21. It is therefore clear that, whilst there is an overlap, the intention required for the commission of an offence contrary to s.6(2) is wider than the intention required for the commission of a s.5 offence – in that intentions to use the relevant skills for or in connection with the preparation, or in assisting the preparation by others, of acts of terrorism (or Convention offences) are also caught. 22. In Iqbal & Iqbal [2010] EWCA Crim 3215 the first applicant sought to argue that there was no logical reason that Parliament should have intended to cover training in both sections 5 and 6, not least given the different penalties, and that where the alleged activity fell quintessentially under s.6, as was said to be the position in that case, a s.5 offence should not be charged. At para.10 of the judgment the Court said: “ In our view, there is nothing illogical in a degree of overlap in the offences created by the different sections of the Act. It was a point that the Vice-President commented upon in Roddis at [9]……… [above] ………Section 5 casts the net wide. It is an offence which was intended to add to the existing common law offences of conspiracy to carry out terrorist acts and attempting to carry out such acts. Conspiracy demands that there be an agreement, and the law of attempts requires something more than acts which are merely preparatory. The offence created by this section goes further and catches acts of preparation, when coupled with the relevant intention. In our view, there was no reason for the behaviour of the first applicant in this regard not to be charged under section 5 .” 23. Our attention was drawn to the sentences imposed, on their particular facts, in the various cases to which we have made reference above, and to a number of other cases in which, again, the sentence imposed was dependant on the particular facts. Overall, the sentences imposed for s.5 offences ranged from life imprisonment to four-and-a-half years’ imprisonment. Given the very limited assistance which that exercise provided, we do not propose to cite all the cases. We simply observe that the lowest of those sentences was imposed in Attorney General’s Reference (No.7 of 2008) (above) following a plea of guilty which attracted a discount of 25%. The defendant, who it was accepted might be a Walter Mitty type, was stopped leaving this country with kit and money. He intended to make himself useful to the cause in one way or another. The Court concluded that the sentence was lenient but not unduly so. Our approach 24. Given the relatively limited number of cases in this Court to date in relation to sentences imposed for s.5 offences (which cases were, in any event, decided on their own facts); the breadth of the offence; the consequent difficulty in giving general guidance beyond the identification of the principles identified in Khan and Others and in the other cases also cited above; and our agreement with the view that, if guidelines are needed, it would be better for the offence to be considered by the Sentencing Council, we decline the invitation to give any further general guidance. These renewed applications, and any consequent appeal(s), must be decided by reference to established principles and on their own facts. Dart: The Fact s 25. Dart and Alom had no previous convictions, whereas Mahmood had a number and was in admitted breach of a suspended sentence – albeit that, in the end, no order was made in relation to that. Dart lived with his wife in Ealing. Alom lived in East London and had, in the past, been a Community Support Officer with the Metropolitan Police and a member of the Territorial Army. 26. The Indictment contained a single Count to which, as we have already indicated, all three pleaded guilty with a Basis of Plea. The Particulars of Offence asserted that the defendants: “ …between the 25 th day of July 2010 and the 6 th day of July 2012, with the intention of committing acts of terrorism or assisting another to commit such acts, engaged in conduct for giving effect to their intention, namely: i. travelling to Pakistan for training in terrorism, ii. travelling abroad to commit acts of terrorism, iii. advising and counselling the commission of terrorist acts by providing information about travel to Pakistan and terrorism training, and operational security whilst there.” 27. All three defendants held radical Islamist beliefs. Alom had an associate named Mohammed Tariq Nasar. In July 2010 Mahmood (then aged around 20) travelled from this country to Pakistan where he received terrorist training – including rudimentary training in explosives. Thereafter, however, he was arrested by the authorities in Pakistan and held in custody. In July 2011 (whilst Mahmood was still in custody in Pakistan and preceded by Nasar who had helped them to procure visas) Alom and Dart travelled separately from this country to Pakistan with the intention of obtaining terrorist training in order thereafter to fight coalition forces in Afghanistan. Alom’s flight to Karachi was on 13 July 2011. When questioned by the police at Heathrow before his departure he said that he was going to a wedding and that thereafter he was to be introduced to a cousin of the bride with a view to marriage. The following day Alom was in telephone contact with Dart (in this country) and Nasar (in Pakistan). Telephone contact between Alom and Dart continued on an almost daily basis until Dart also left this country for Pakistan on 29 July 2011. There was a clear inference (via the subsequent lack of telephone contact between them) that thereafter he and Alom were together in Pakistan until Alom returned to this country – arriving at Heathrow on 10 August 2011. On his return Alom was stopped and interviewed by the police – during which he admitted that he had been in Quetta (close to the border between Kandahar Province and Afghanistan). He said that he had attended the wedding of his friend Tariq (though he could not give Tariq’s surname). He said that, as part of the celebrations for the wedding, he had fired a handgun and a rifle, and that he had taken the opportunity to become engaged to a local girl. 28. Dart returned to this country on 19 August. He too was interviewed on arrival and said that he had been to visit his friend Tariq Khan in Quetta, and that he had left early for a number of reasons. 29. Mahmood was deported from Pakistan and arrived back in this country on 24 August 2011. He had two rucksacks with him, which were seized by the police. In interview he said that he had been travelling about in Pakistan and had been detained near Quetta after he had been unable to produce evidence of his identity. Later examination of the rucksacks revealed, between them, the presence of traces of a number of high explosives at levels consistent with Mahmood having handled explosives during his training (as it was eventually admitted that he had). Mahmood’s passport was retained by the police. 30. After their return Dart and Alom continued to be in regular telephone contact and began to plan their return to Pakistan – again in order to obtain terrorist training with a view to going on to fight coalition forces in Afghanistan. Preparations were put in train to obtain visas. On 27 October 2011 Alom booked flights to Karachi on 11 November 2011 for both of them. Dart paid for his own ticket. 31. In the afternoon of 4 November 2011 Dart and Mahmood met up at Dart’s flat in Ealing. Being security conscious, they then sought to conduct a “silent conversation” by typing entries into a Word document on Dart’s computer, not saving the entries and then deleting them. They were clearly under the misapprehension that, once deleted, the text could never be recovered. In the event, much of the text was later able to be reconstructed by the prosecution expert Professor Sams and interpreted by one of the investigating officers DS Rye. 32. During the sentencing process there was, as Simon J put it, “little enthusiasm” to cross-examine DS Rye about her interpretation of the words used, nor did Dart and Mahmood offer to explain their intended meaning. Hence Simon J proceeded upon the basis that unless he was sure of the meaning of material exchanges he would not draw any adverse inference from them. In particular, Simon J made clear that although it was likely that Dart was speaking with Mahmood on behalf of both himself and Alom he would not, in view of Alom’s accepted Basis of Plea (which denied any connection with the conversation), treat what was said as affecting Alom’s sentence. . 33. We therefore confine our summary of the silent conversation between Dart and Mahmood to the matters of which Simon J was sure. They discussed the fact that the people to be contacted in Pakistan were the TTP (a Taliban movement in the tribal areas), with Mahmood saying that he knew the people to approach, where they were to be found, that they were a mixture of the TTP and Al Qaeda, and that he would be able to effect an introduction to those who had carried out the “Abu Dujani Op” (which was a suicide attack on a US forward operating camp called Camp Chapman in Afghanistan). Dart made clear that he wanted “to be active with the right people”. Mahmood indicated that, due to the number of people wanting to take part, there would be a limit to the number of operations that might be carried out. Mahmood asked Dart to get his (Mahmood’s) book whilst he was in Pakistan as in it he had noted the necessary quantities of easily obtained chemicals from which a bomb could be made. There then followed a discussion about what would constitute a legitimate target. Dart then talked about the perceived advantages and disadvantages of attacking civilians rather than soldiers. He was equivocal about attacking civilian targets in this country, since it might be treated as justifying war. In any event, he later distanced himself from a terrorist attack in this country. Mahmood then talked about testing an improvised device and detonator in this country without the need to travel into the countryside to do so. He also mentioned various commonly available chemicals used for explosive devices. They then discussed how to make contact with the right people in Pakistan in order to get training - with Dart saying that he was not definitely planning to come back to this country, but that he would try to get information back to Mahmood. Mahmood then advised Dart as to how to make contact with the TTP, how to set up a webmail account in a way that would make covert communications easier, and also gave operational security advice. 34. On 7 November 2011 Alom sent an email to Dart with instructions as to how to avoid the two of them being associated together whilst at the airport on 11 November. 35. On 8 & 9 November 2011, using the same silent method that he and Mahmood had used on 4 November, Dart had conversations with his wife at their flat. These were concerned in the main with the ways in which they would communicate after Dart had arrived in Pakistan without alerting the authorities to his whereabouts and the purpose of his travel, together with what could be done to protect his wife from prosecution. Dart made it clear that he intended to remain in Pakistan for some time. He said that, even if the plane crashed on the way out, Allah would accept him as a martyr because of his intention in going to Pakistan. Dart also referred to Mahmood’s visit on 4 November - saying that although the authorities had been unable to prove anything against Mahmood they were still monitoring him. 36. On the morning of 11 November 2011 Mahmood travelled from West Yorkshire to Ealing where, that afternoon, he met Dart and they had another silent conversation – this time exchanging messages on their iPhones. Thereafter Alom received a call from Nasar, who was still in Pakistan. 37. Dart and Alom then travelled separately to Heathrow, but were stopped by the police from boarding the flight to Karachi. 38. Dart was found to be in possession of a visa sponsorship letter asking that he be permitted to attend a wedding on 15 November 2011, and stating that he would also be introduced to potential marriage candidates. The telephone number given in the letter was Nasar’s Pakistani number. Dart also had a USB stick the content of which included his Islamic will – which listed Anjem Choudary (the leader of al-Muhajiroun who had presided over Dart’s conversion / reversion to Islam) and Alom as his executors. Also recovered from Dart were £4,800 in cash, two SIM cards and two mobile phones (in one of which was stored Nasar’s Pakistani number under the name ‘Tariq, Pakistan’. When questioned Dart said that he was travelling with Alom who was intending to get married, and that he (Dart) was also going to hike and horse ride in the region. He said that £3,500 of the money was his, and that the remainder had been collected by others and was intended for charity. 39. Alom was found to be in possession a black ski jacket, gloves, a telephone which contained Nasar’s details, and a SIM card. When questioned he said that he was travelling to Pakistan in order to attend the wedding of a man called Zaid Uddin, and to be introduced to potential brides. 40. Dart’s home in Ealing was searched. The laptop that had been used for the silent conversations was recovered, along with an external hard drive containing a video file relating to the proscribed group ‘Muslims against Crusaders’ – with Dart reading the script of what was called ‘Message to the EDL’ (English Defence League). Also found was a Pakistani visa sponsorship letter purporting to be signed by Imran Adil, and notes relating to the visa application process and the cover story to be used. 41. Alom’s home was also searched. The property recovered there included a sponsor letter, dated May 2011, also purportedly from Imran Adil, which bore the same contact telephone number and Pakistani ID card number as the letter found at Dart’s address. 42. Dart and Alom were not arrested at that stage. On 12 November 2011 (the day after they had been due to leave) the telephone normally used by Alom’s sister was used on several occasions to try to contact Nasir’s number in Pakistan. 43. In the following months the authorities continued to keep a careful watch on all three men. Dart and Alom were in frequent telephone contact and were seen to meet in November 2011, December 2011, late March 2012 and June 2012. 44. Dart and Mahmood kept their distance from each other until 16 February 2012 when they were observed, in particular, in a restaurant in Ealing. Surveillance officers overheard aspects of their conversation during which Dart was variously heard to say words to the effect of: “ Things have to be done. It doesn’t matter if you are in this country or abroad, things have to be done. That’s the thing with this country, even though I’m going to be watched, innit. A lot of brothers are scared for going inside but I’m not. I don’t need brothers around me to study Jihad…..I’ll do it on my own…..Where’s the fighting at the moment…… (after talk about beheading, specific areas of fighting and mention of the north west) ….No one can do it full-time, it’s too much to do it full time…” 45. Dart and Mahmood were observed meeting again on 23 February 2012, on four occasions in March 2012, twice in April 2012 and finally on 25 May 2012. In the meanwhile Nasar had returned from Pakistan on 17 March 2012 and Alom met him on 18 April and 7 May 2012. 46. There was a coordinated arrest operation on 5 July 2012, during the course of which Dart, Alom and Mahmood were arrested. Alom’s by then wife was found to be in possession of an SD card on which there were two copies of ‘Inspire’. (which included material intended to inspire fundamentalist Islamists to undertake terrorist activities in their own countries and provided practical instruction and guidance). Nothing of significance was found in relation to Dart and Mahmood. 47. Alom and Dart made no comment in their interviews. Mahmood spoke but said little of any significance - other than denying that he knew that Dart held extremist views. 48. Dart was charged on 18 July 2012, and was sent for trial shortly thereafter. The trial was fixed for 10 April 2013. The prosecution served its evidence in or around November/December 2012. Dart was permitted to change his solicitor and counsel in December 2012. In February 2013 Dart put forward a Basis of Plea which was rejected by the prosecution. Thereafter the PCMH was postponed more than once in order to allow further discussion between the parties as to an acceptable basis of plea. It finally took place on 15 March 2013 (less than a month before the trial date). 49. Dart’s Basis of Plea (which included a number of footnotes) stated that: “ 1. The defendant’s conduct in the UK in preparation for the intended act of terrorism was: a. To make arrangements to travel to Pakistan on 29 July 2011 with a view to exploring possibilities in relation to undertaking combat training (however, the defendant did not undertake any training during the 3-week trip to Pakistan in July/August 2011); b. To make arrangements to travel to Pakistan on 11 November 1991 in order to undertake combat training, with a view to engaging in combat in Afghanistan against such sections of NATO controlled armed forces as he might encounter; and c. In October and November 2011 to seek and obtain advice about training and contacts in Pakistan (this includes discussing where to go, who to contact, how to contact them, who would be ‘active’ and about opportunities to engage in combat operations). 2. The defendant did not intend to commit an act of terrorism (a) involving the targeting of civilians or loss of civilian life or (b) in the UK. 3. Between the authorities refusal to permit him to fly to Pakistan on 11 November 2011 and his arrest on 5 July 2012, the defendant did not engage in conduct in preparation to commit an intended act of terrorism.” 50. It was, however, accepted that on 4 November 2011 Dart had spoken about the possibility of the commission of acts of terrorism in the UK, and it was noted that the prosecution observed that the overheard conversation with Mahmood on 16 February 2012 demonstrated an ongoing fervour for extremist activity. 51. As we have already touched on above, Dart’s Basis of Plea was not accepted by the prosecution and nor was Mahmood’s, but it was not considered necessary to determine the points in issue by the calling of evidence. Sentence therefore had to be passed on a factual basis consistent with the Basis of Plea. 52. There was a Pre-Sentence Report in respect of each defendant. The authors of those in respect of Dart and Mahmood reached the clear conclusion that they were dangerous offenders. 53. During the course of mitigation defence counsel drew the judge’s attention to s.6(2) of the 2006 Act which, as already touched on above, makes it an offence (with a maximum sentence of 10 years’ imprisonment) to receive terrorist training. All submitted that if the facts relied upon in an indictment charging offences under s.5 of the 2006 Act went no further than alleging attempts to obtain training, any sentence of imprisonment should be set at less than ten years. 54. The broader mitigation advanced on Dart’s behalf included reliance upon his previous good character; the fact that he never got near his goal of training for terrorism, and thus did not get near to his further goal of carrying out terrorist attacks abroad; and his plea of guilty. It was, however, accepted that although he did not intend to kill civilians, his intended actions might have resulted in civilian losses. Reliance was also placed on sentences imposed in a small number of other s.5 cases including Khan and others (above). 55. Alom’s Basis of Plea, which was accepted by the prosecution, was to the effect that part of his purpose in travelling to Pakistan in July 2011 was to seek out groups from whom to obtain instruction/training to be used by him thereafter to engage in combat with allied forces in Afghanistan. He had not, however, succeeded in locating any such group, and accordingly did not receive any training. He had sought to travel to Pakistan again on 11 November 2011 for the same purpose. The silent conversation between Dart and Mahmood on 4 November 2011 was no reflection of his own intentions – indeed there was no evidence emanating from him of any wider intention beyond his admitted purpose of travel. 56. In his long, detailed and clearly expressed sentencing remarks Simon J set out the facts including, as we have already touched on in para.33 above, the aspects of the silent conversation between Dart and Mahmood on 4 November 2011 of which he was sure. He also observed that the commitment of Dart and Mahmood to Jihad activities seemed not to have been moderated by what had happened in November 2011 - given what had happened afterwards. 57. As to the argument advanced in relation to s.6(2) of the 2006 Act , Simon J accepted that some s.5 offences were very much more serious than others, and that it followed when looking at a particular s.5 offence, and where the offences were of broadly similar culpability, the court should have a broad regard to the maximum sentence under s.6. 58. Having referred to the matters relied upon in mitigation, Simon J observed that it was clear that the defendants were all fundamentalists (although they would be sentenced for their criminal actions rather than their beliefs), and that they all intended that training in Pakistan would be followed by acts of terrorism - which meant killing people to the extent that it was possible to do so. He accepted that, to some extent, Dart and Alom had been the subject of suspicion from their fellow radicals, and may have felt the need to prove themselves. 59. Simon J then went on to conclude that Mahmood was the most dangerous of the three defendants – indicating that the fact that Mahmood had asked Dart to get hold of the book that he believed held the means to make a viable explosive device was highly relevant to the question of dangerousness. 60. Simon J observed that Dart had wanted to be “active with the right people” – i.e. those most committed to Jihad and most effective in promoting it. He had intended to use the £4,800 in cash found upon him on 11 November 2011 for the contacts provided by Mahmood. Simon J then underlined that he did not sentence Dart on the basis that he had intended to carry out terrorist activities in this country, but rather upon the basis that his immediate objective had been to go out to Pakistan for training, with a view to carrying out subsequent (albeit as yet not crystallised) terrorist operations there. The ways in which he had communicated with others showed that he was surveillance conscious and belied the argument that his offence was unsophisticated. His conversations with Mahmood were relevant to both his culpability and the risk of serious harm to members of the public. The fact that he had acted in concert with Alom was an aggravating feature. 61. In Alom’s case, Simon J observed, there was no more than his thwarted intention to obtain training in Pakistan, and the persistence of it – together with the aggravating feature of his having acted in concert with Dart. 62. As to dangerousness, Simon J accepted that neither Dart nor Mahmood had identified a target, whether at home or abroad, but was sure that neither had ruled out an attack of some sort in the United Kingdom, and that Mahmood was looking for ways of arming himself with a rudimentary bomb. Having considered the consequences of imposing an extended sentence, Simon J concluded that Mahmood’s commitment to terrorist activity over a significant period, and the determined steps taken by Dart to obtain information and assistance for the purpose of obtaining terrorist training abroad marked each out as being particularly dangerous. He therefore exercised his discretion to impose the extended sentences to which we have already made reference upon them – giving, in the process, a discount for plea of 25%, and taking into account the need to focus on the nexus between the preparatory acts and the ultimate intended terrorist act(s), and that purpose of sentence in cases of this type is to punish, deter and incapacitate. It follows that the notional custodial term after trial that Simon J had in mind in Dart’s case was one of 8 years. 63. Simon J also concluded that Alom was dangerous, but was persuaded that it was not a risk that could only be managed by means of an extended sentence. He therefore exercised his discretion not to pass such a sentence in Alom’s case. Instead he imposed the determinate sentence to which we have already made reference – again giving a discount for plea of 25%, and particularly taking into account the impact of sentence for an offence under s.6. It follows that the notional sentence after trial in Alom’s case was one of 6 years’ imprisonment. Dart: Grounds & Submissions 64. The imposition of an extended sentence is not disputed. The Ground of Appeal asserts that: “ The applicant’s sentence of 6 years’ imprisonment is manifestly excessive, in particular: a. The learned judge took too high a starting point of 8 years’ imprisonment; b. There is an objectionable disparity with Alom’s sentence of 4 years 6 months’ imprisonment; and c. Insufficient credit of 25% was given for the applicant’s guilty plea. 65. Mr Bajwa QC, on Dart’s behalf, concentrated his oral submissions on the notional custodial term after trial and the alleged unfair disparity with Alom’s sentence. 66. As to the notional custodial term after trial, Mr Bajwa asserted that there was a risk in s.5 cases, where it was less than certain what the basis of fact was, of an excessive sentence being imposed. Hence, he submitted, there was a need to be clear as to the intended act of terrorism and the preparatory conduct of which a defendant was convicted or admitted; for consistency with other s.5 cases and amongst co-defendants; for the sentence to be no more than the maximum for the intended offence being prepared for; and for care to be taken to ensure that non preparatory matters were not given disproportionate weight. 67. Mr Bajwa submitted that, in accordance with his Basis of Plea, Dart’s intention was to receive terrorist training with a view to fighting coalition forces in Afghanistan, and that therefore his intended offence amounted to no more than an aggravated form of receipt of training for terrorism, contrary to s.6(2) of the 2006 Act , but one which came nowhere near the sort of completed offence which would attract the maximum sentence of 10 years’ imprisonment – which, Mr Bajwa postulated, would be a case in which the defendant managed to receive training, had a bad record, and was intent on mass murder. Here, Mr Bajwa submitted, the judge ought to have had in mind more clearly where the admitted intended offence fitted in the scale of s.6(2) cases, the limitations of the admitted conduct in preparation, Dart’s previous good character and the fact that, as between his attempt to fly to Pakistan on 11 November 2011 and his arrest on 5 July 2012 he had gone no further. All of which, Mr Bajwa asserted, should have resulted in a notional custodial term after trial of less than 8 years. 68. As to disparity, Mr Bajwa submitted that Alom was, in reality, an equal partner with Dart. The only difference between them was that it was Dart who had met with Mahmood on 4 November 2011 and had the silent conversation with him. The reality of that conversation was that Dart had been speaking on behalf of both himself and Alom and, notwithstanding the prosecution’s acceptance of Alom’s Basis of Plea (distancing him from that conversation), the Judge could have honoured Alom’s Basis and still found no difference between them. In particular, the parties had been prepared to have a Newton hearing as to the content of that conversation; what was accepted by Dart as to the content (which thus should have been the basis of sentence) did not justify an inference of difference with Alom; and the judge wrongly took the view that it added to Dart’s dangerousness even though it was not conduct in preparation as such. 69. In his written submissions, having set out the chronology of events post charge (see para.48 above), Mr Bajwa asserted that it was arguable that, in those circumstances, Dart ought to have been given full discount for his plea. 70. On behalf of the Respondent, Miss Hummerstone submitted that it was clear that the principal acts of terrorism that Dart intended to carry out involved him killing coalition forces in Afghanistan, with the accepted reality that his intended actions might have resulted in civilian losses as well. As he had made plain in his silent conversation with his wife, he did not intend to return until the coalition forces were out of Afghanistan. In addition his acts in preparation, both travelling to Pakistan in July/August 2011, and trying to travel there again in November 2011, combined with the evidence of what he had said in the various conversations, showed a considerable determination to succeed in his ultimate intention. 71. Miss Hummerstone further submitted that, given the conversations to which Alom was not a party, and for the reasons given by the judge, there was clearly no unfair disparity with the sentence imposed on Alom. Nor, she submitted, was this a case for the award of full credit for plea – given that an unacceptable Basis had first been forwarded only in mid-February 2013, and that the PCMH had been postponed on several occasions at the behest of the defendants, and had eventually taken place less than a month before the trial date. Dart: Conclusion 72. There is, rightly in our view, no criticism of the Judge’s finding of dangerousness, nor of the exercise of his discretion to impose an extended sentence. As to the length of the custodial term, the prosecution were clearly entitled in accordance with Iqbal & Iqbal (above) to charge a s.5 offence, which thus carried a maximum sentence of life imprisonment. Dart pleaded guilty to that offence. There was no dispute that the ultimate acts of terrorism that Dart intended to commit involved the killing by him of coalition forces in Afghanistan, with the acceptance that his intended acts might have resulted in civilian losses as well. It made no difference to the seriousness of the offence that the intention was to be achieved abroad. This was therefore a very serious case, in which (in accordance with established principles) the starting point was the notional sentence which would have been imposed if that intention had been achieved. Hence, in this case, the relevant starting point was one of life imprisonment. It was then incumbent on the judge to consider, as he did, the factual nexus between Dart’s admitted conduct in preparation for giving effect to his intention and the act(s) of terrorism ultimately intended, and to have in mind (as he also did) the purpose of sentence in cases of this type, and (we would add) the need to ensure that nevertheless the sentence was not disproportionate to the facts. As to the nexus, Dart, who on the evidence was a committed extremist, had travelled to Pakistan once, and had determinedly tried to travel there again to get training in order to go straight on to carry out his ultimate intention of killing coalition forces in Afghanistan (with the risk of killing civilians as well). He had also tried to take a significant sum in cash, part of which was to be given to terrorist to assist them. He had only failed because the authorities had intervened – albeit that he did not try again. The nexus was thus relatively close. We reject the argument that the judge was bound by the maximum sentence for a s.6 offence and that a comparison with the worst type of s.6 case that can be envisaged shows that the notional custodial term after trial of 8 years was too long. Indeed, in the circumstances of the hypothetical worst case postulated by Mr Bajwa, it would obviously be wholly inadequate to charge a s.6 offence. That is not to say that there will not be s.5 cases in which it would be appropriate, on the particular facts, to give weight to the maximum sentence for a s.6 offence. On the particular facts of this case, however, it is simply not arguable that a notional custodial term after trial of 8 years was manifestly excessive. Indeed, there could have been no realistic complaint if a significantly longer notional custodial term had been identified. 73. For the reasons which the judge gave, there was clearly an appropriate basis in relation to Alom upon which to exercise his discretion against the imposition of an extended sentence, and also to identify a shorter notional custodial term after trial. No arguably unfair disparity arose. The argument that, in the particular circumstances of this case, the judge erred in confining the discount for plea to 25% is, in our view, equally unmeritorious. 74. In all those circumstances, Dart’s renewed application is refused Iqbal, Ahmed, Arshad & Hussain: The Facts 75. The applicants, each of whom was of previous good character, pleaded guilty to Count 1 of a 14 count indictment. The Particulars of Offence were as follows: “ On divers days between 1 January 2011 and 25 April 2012 (each of the applicants) with the intention of committing acts of terrorism or assisting others to commit such acts, engaged in conduct in preparation for giving effect to that intention, namely (i) facilitating, planning and encouraging travel overseas (ii) organising, encouraging and participating in physical training (iii) purchasing survival equipment (iv) downloading, researching and discussing electronic files containing practical instruction for a terrorist attack (v) discussing methods materials and targets for a terrorist attack including firearms and improvised explosive devices (vi) collecting and supplying funds for terrorist purposes overseas.” 76. The remaining 13 counts on the indictment variously charged Iqbal (Counts 2 & 3), Ahmed (Counts 4-6), Arshad (Counts 7-10) and Hussain (Counts 11-14) with the possession of information, contrary to section 58(1)(b) of the 2000 Act (which carries a maximum sentence of ten years’ imprisonment). In each case the material was found when their home was searched on 2 September 2011. Those counts were eventually ordered to lie on the file. However, and without objection, the undisputed facts underlying them were taken into account when sentence was imposed. 77. Each of the applicants lived in Luton at the material time. The prosecution case was that Iqbal had a contact in Pakistan who was thought to have access to insurgents on the border with Afghanistan. The contact was used for the purpose of assisting Iqbal in placing Ahmed for terrorist training in Pakistan. To that end, Iqbal and Ahmed discussed, in particular, how to ensure success without drawing the attention of the security services, or even Ahmed’s own family, to what he was doing. Discussions included what Ahmed should wear and pack for his trip, and what telephone numbers would be used whilst he was in Pakistan. Iqbal also provided Ahmed with £850 to be passed on for use for terrorist purposes. He also discussed with his contact the arrangements for Ahmed’s travel and for his reception in Pakistan for the purposes of terrorist training. Arshad also provided assistance to Ahmed during the course of the preparations for the trip – including providing him with Pakistani SIM cards (one of which Ahmed later used, whilst in Pakistan, to keep in touch with Iqbal and Arshad), encouraging him, giving him £100 for the purposes of terrorism and coaching him as to a cover story. 78. On numerous occasions Ahmed attended a gym for training and went on trips to mountainous areas (in particular Snowdonia) – all with a view to becoming physically fit for purposes connected with terrorism. He was also instrumental in encouraging and transporting others to take part in outdoor military style physical training. 79. In February 2011 Iqbal discussed (in veiled terms on the phone) acquiring firearms and ammunition. On 21 February 2011 he met a third party and they discussed more explicitly the procurement of a firearm and ammunition as well as referring to the Al Qaeda magazine ‘Inspire’ (as to which see para. 46 above). 80. Ahmed duly travelled to Pakistan on 9 March 2011 but returned (ten days earlier than expected) on 15 March 2011. The foreshortening of the trip was said by Ahmed to be due to his lack of facility in Pashtu and Arabic, and to enhanced security in the relevant part of Pakistan. 81. Iqbal claimed to have joined a gym in March 2011. After his return from Pakistan, Ahmed went on a number of further physical training trips to Snowdonia in April and July 2011 – accompanied by Arshad on a number of occasions and by Hussain on one occasion. Iqbal and Ahmed discussed training for military purposes, as did Ahmed and Hussain. 82. In the meanwhile, in April 2011, Ahmed had a conversation in his car with two other people about the acquisition of firearms and ammunition. In May 2011 Ahmed and Hussain discussed the possibility of obtaining firearms. Ahmed indicated that he was minded to buy a gun and Hussain advised him as to potential sources. Thereafter, on 25 May 2011, Ahmed had a conversation in his car with two other males - during which the purchase of a firearm was discussed. There was no evidence that any of the expressed intentions about firearms and ammunition ever got beyond the discussion stage, but they were serious discussions. 83. Also in April 2011, and again in May 2011, Iqbal and Ahmed had a discussion based around the magazine ‘Inspire’ which they recognised enabled people such as themselves to take terrorist action in their home country without the need to travel abroad and to attend training camps there. They also discussed an article in ‘Inspire’ about assembling an IED from readily available items and ingredients. Further, they spoke of modifying the device that was described in the article with a view to attacking a Territorial Army Centre in Luton. The evidence showed that, as described in the article, the device was viable, but that, if modified in the way discussed, it would not have been. Nevertheless these were detailed and serious discussions, even though they did not get beyond that stage. 84. Arrangements were made for Iqbal to travel to Pakistan on 4 September 2011 for terrorist purposes (including, once there, giving up to £10,000 to the insurgents). He discussed the plan with Ahmed – including the logistics of travelling with his family, the physical and weapons training that he would hope to receive in the mountains, and how best he might assist the terrorist cause with those in Pakistan. 85. Iqbal and Ahmed also discussed the possibility of Hussain travelling in the cause of Jihad. On several occasions Ahmed discussed with Hussain the desirability of Hussain travelling abroad for terrorist training and, thereafter, taking part in fighting. Indeed, Ahmed encouraged Hussain to do so. Nevertheless, the discussions never got beyond the aspirational stage – albeit that in June 2011 Iqbal and Ahmed discussed facilitating Hussain’s travel overseas, and thereafter discussed Hussain going to Pakistan or the Yemen for training purposes. Hussain was believed to have some £15,000 available to contribute to the terrorist cause overseas and to be awaiting a call to leave home. Arshad was engaged in sending money to Pakistan for terrorist purposes. 86. Each man had access to, and did access, many documents espousing violent jihad as an essential part of the obligation of a fundamental Islamist. 87. However, starting in January 2011 (which was the opening date alleged in the indictment) aspects of their activities and conversations had been the subject of surveillance and covert recording by the authorities. In consequence, on 2 September 2011 (two days before Iqbal was due to travel to Pakistan) each of the applicants’ homes was raided and searched. The various items the subject of Counts 2-14 were recovered – they had, for the most part, been downloaded onto computers. The nature of the publications, particularly the electronic versions of ‘Inspire’ magazines, illustrated the extent to which each had exposed himself to fundamentalist beliefs, including the desirability of advancing those beliefs by terrorist activities – both abroad and at home (as advocated in ‘Inspire’). Iqbal also had Cyberscrub software which could be used to delete data from a computer. In addition, £13,400 in cash was found at Iqbal’s home address, and £2,500 in cash was found in Ahmed’s bedroom. The prosecution alleged that the £2,500 was money which Ahmed had collected for terrorist purposes. He, however, disputed that. Many phones in different names were also found, the examination of which showed significant contact between each of them. One of the phones had been used by Iqbal to communicate with his contact in Pakistan, and to contact Ahmed whilst Ahmed was in Pakistan. Another was the one used by Ahmed in Pakistan – with the SIM card provided by Arshad. 88. There were no arrests on 2 September 2011. The applicants were eventually arrested on 24 April 2012 (which was the day before the closing date alleged in the indictment) when their homes were again searched. The property found at Iqbal’s home included “39 ways to support Jihad” (which had been downloaded since the previous search), concealed press cuttings relating to drone attacks, additional mobile phones (the number for one of which was stored in a phone belonging to Ahmed), a DVD for an Arab language course and a rucksack the content of which included a GPS Navigator, torches and a compass. The property found at Ahmed’s home included, on his computer, a complete set of ‘Inspire’ magazines (all of which had been downloaded since the previous search and included the latest edition which commemorated the 9/11 attacks). In addition, survival equipment, including a head torch and maps of Snowdonia, was recovered from a car connected with Ahmed that had not been searched before. Nothing of significance was found at the homes of Arshad and Hussain. 89. Iqbal, Ahmed and Arshad made no comment in their subsequent interviews. Hussain replied to some questions - otherwise he too made no comment. 90. There was a preliminary hearing before Fulford J (as he then was) on 11 May 2012. On 31 May 2012 Fulford J allowed Ahmed to change his solicitors. The trial was fixed for 10 April 2013. In December 2012 (after an earlier refusal by Fulford J) Wilkie J allowed Arshad and Hussain to change their solicitor to the solicitor representing Ahmed. A Plea and Case Management Hearing was fixed for 1 March 2013. In the last week of February 2013, following discussions between the parties that had begun at the end of January 2013, the Bases of Plea were put forward. At the PCMH on 1 March 2013, and supported by the prosecution, each of the four applicants sought a Goodyear indication. Wilkie J declined to give a full Goodyear indication, but did indicate the approach that he would take, as a matter of principle, to the sentence of each applicant and the areas in relation to which he would require further information and upon which he required to be addressed by both sides in relation to sentence. Thereafter each applicant pleaded guilty with a written Basis of Plea which, as we have already touched on, was not contested by the prosecution. There were Pre-Sentence Reports on Iqbal and Ahmed; neither Arshad nor Hussain requested such a report. 91. Combining each applicant’s Application for a Goodyear indication, Basis of Plea, Pre-Sentence Report (where appropriate) and mitigation: (1) Iqbal accepted that he was an Islamist who sympathised with the insurgency in Afghanistan. His own terrorist intent was generalised, ill formed and never settled. His discussions were embryonic. Although he contemplated the possibility of committing an act of terrorism in the UK, he did not form a specific intent to do so. Of all the matters discussed, he was most likely to have travelled abroad himself. He had intended to travel to Pakistan in September 2011, taking some £10,000 in cash (which he had saved and collected) with him – some of which was to be used for terrorist purposes [Particulars (i) & (vi)]. He accepted that prior to that he had assisted Ahmed to travel to Pakistan in March 2011 by discussing with him methods to avoid detection, by putting him in touch with his contact and by arranging for them to meet. He did not know his contact in Pakistan well, but believed him to have contacts with insurgents in the border area of Pakistan and Afghanistan. He had also given Ahmed £850 to pass on to his (Iqbal’s) contact for use for terrorist purposes overseas [Particulars (i) & (vi)]. However, he had thought that it was unlikely that his contact would be able to use Ahmed and that Ahmed would be sent home. He had lost touch with his contact after Ahmed had returned. He accepted downloading, researching and discussing electronic files containing practical instructions for terrorist attacks [Particular (iv)]. He also accepted discussing methods, materials and targets for a terrorist attack (including exploring the possibility of constructing an IED by the method described in ‘Inspire’ – though he did not pursue that idea beyond the reflection and consideration stage). He further accepted that he had made enquiries with a friend from London about the feasibility of purchasing a firearm (though he had no specific plan as to what to do if he had acquired one and had last discussed it in February 2011) [Particular (v)]. In addition to Iqbal’s previous good character and employment record, reliance was placed in mitigation upon the fact that he was married with two young children, had been in custody since 24 April 2012; the fact that the prosecution accepted that there was no evidence of contemplation by him of further terrorist action in the UK or abroad after September 2011; that the prosecution also accepted that the evidence did not demonstrate that he posed an imminent threat in the months leading to his eventual arrest; that the great majority of the items recovered from his address on 24 April 2012 were in his possession for innocent purposes; and that the Pre-Sentence Report indicated that he had been naïve and susceptible to the views and influence of others and posed a low risk of re-offending (albeit posing a high risk of harm). It was further submitted that there was no distinction to be drawn between his role and that of Ahmed; that he had never met Hussain; that he had only briefly met Arshad on one or two occasions; and that, in reality, his was a case about limited actions and about conversations which had never remotely come to fruition. (2) Ahmed accepted that between 1 January 2011 and 2 September 2011 he had sought to travel to Pakistan for terrorist training, and had sought to achieve physical fitness and to acquire outdoor survival equipment to take with him to Pakistan. That had been his focus. He had travelled to Pakistan in March 2011 and had provided less than £1,000 to those purporting to offer training (which money he understood was to be deployed for a terrorist purpose overseas), but had been rejected and had returned within a few days [Particulars (i) & (vi)]. After his return he had maintained an aspiration to return to Pakistan for training, but had been unsuccessful. He had also sought to travel to other countries to learn Arabic, but had again been unsuccessful. In addition to his own travel, he had sought in general terms to encourage Hussain to travel to Pakistan for training [Particular (i)]. He had also been involved in the organisation of, and had participated in, mountain walks and physical exercise with others – one of the purposes of which had been to prepare himself for the rigours of a training camp [Particular (ii)]. He had purchased survival equipment for use in Pakistan, as well as for exercising in the UK [Particular (iii)]. He had downloaded and read copies of ‘Inspire’ (some of the editions of which contained information of a type likely to be useful to a person preparing or committing an act of terrorism) principally to access the ideological content [Particular (iv)]. On 22 April 2011, in the context of having read Inspire, he had discussed the possibility of engaging in terrorist action in the UK using an IED – however that had been speculative and nothing had been done to further the idea. Whilst he had contemplated the possibility of committing an act of terrorism in the UK, he had not formed a specific intent to do so. On 12 May 2011 he had discussed obtaining firearms - however that too had been speculative. On 25 May 2011 he had again discussed obtaining a firearm – but that had been in the context of an escalation of violence between Muslim groups in Luton. Thereafter he had neither obtained, nor attempted to obtain, a firearm. [Particular (v)]. He had also received funds from others and provided funds to those whom he reasonably believed were engaged in terrorist activities overseas [Particular (vi)]. In the period after the police searches on 2 September 2011 there was, as the prosecution accepted, no evidence that he had pursued any ambition to leave the UK for training. Reliance was placed in mitigation on a letter from Ahmed’s elder sister; the fact that he had since married a woman chosen by his family; and the assertion that he was not dangerous - as to which reliance was placed on the letter from the sister, references in the Pre-Sentence Report to the fact that he had exaggerated his experiences in Pakistan and had since disengaged from radical Islamist ideology voluntarily, and the lack of imminent threat posed by him between September 2011 and his arrest in April 2012. (3) Arshad had no intention of travelling to Pakistan himself, but accepted that he had become aware of his friend Ahmed’s intention to depart there for military training - but only shortly before Ahmed’s departure on 9 March 2011. He had provided Ahmed with limited practical assistance on 8 & 9 March 2011 – namely the provision of SIM cards (which had been left over after his own trip to Pakistan in 2010 for a wedding), advice about a cover story and advice about how to blend in when in Pakistan [Particular (i)]. He had also participated in physical training and had undertaken a number of trips with Ahmed and others to Snowdonia and elsewhere. It was submitted that he had gone on training days with his friend Ahmed and in support of Ahmed’s terrorist ambitions – rather than that evidencing his own terrorist ambitions [Particular (ii)]. In mid-August 2011 he had downloaded a number of electronic editions of ‘Inspire’, principally for their ideological content, but accepted that some editions contained information likely to be useful for a person preparing acts of terrorism, and that he was aware, in general terms, of the content [Particular (iv)]. However, he had never engaged in discussions about the construction or deployment of an IED in the UK, or about the procurement of firearms. He had given Ahmed £100 before Ahmed’s departure to Pakistan - which funds were to be passed on to others and to be deployed for terrorist purposes overseas [Particular (vi)]. In addition to his previous good character and young family, reliance was placed in mitigation upon a letter from his older brother, his remorse, and the fact that, overall, his actions had been confined to a few days. (4) Hussain had not formed a specific intent to commit an act of terrorism in the UK. He accepted that between mid-May and early July 2011 he had discussed travelling to Pakistan with Ahmed, that Ahmed had encouraged him to travel there, and that he himself had expressed a desire to do so – but, in the end, he had not made any plans as such. He had not facilitated or encouraged anyone else to do so either [Particular (i)]. He had not organised or encouraged physical training for terrorist purposes, but had participated in a walking trip to Snowdonia on 14 July 2011 – one of the purposes of which was preparation for training in Pakistan [Particular (ii)]. He accepted that he had downloaded electronic editions of ‘Inspire’ in order to access their ideological content, and was aware that they also contained information likely to be useful to a person preparing or committing an act of terrorism [Particular (iv)]. On 12 & 25 May 2011 he had had discussions with Ahmed about sourcing a firearm, but had not taken that any further. He had never discussed IEDs, nor was he aware of any discussion amongst others about them [Particular (v)]. Although he had intended to provide funds to others which he believed would be sent to those engaged in terrorism in Pakistan, he had not in fact done so [Particular (vi)]. In addition to his previous good character, reliance was placed in mitigation upon a letter from his father, the continuing support of his family, his remorse, and the doubts and fears that he had expressed when indicating a desire to travel to obtain terrorist training. 92. The judge was referred to a small number of cases, decided at first instance and in this Court, in which sentences had been imposed for s.5 offences -including the sentences that he himself had imposed at first instance in R v Chowdhury and Others , some of which were the subject of the appeal in Khan and Others (above). 93. On behalf of each applicant it was argued, by reference to the relevant Sentencing Council Guideline, and to the then recent guideline case of Caley and Others [2013] 2 Cr.App.R. (S.) 47 (which Wilkie J had drawn to the attention of the parties), that there should be full discount, or at least more than 25% discount, for plea. On behalf of Arshad and Hussain it was argued that their late change of representation meant that 1 March 2013 was their first reasonable opportunity to indicate a plea. On behalf of all the applicants it was argued that it was important for a precise Basis of Plea to be formulated for all of them before the first reasonable opportunity to indicate a plea could be said to have arisen for any of them or, alternatively, that the complex factual and evidential basis of the prosecution case meant that this was a case where considerable benefits accrued from the avoidance of a scheduled three month trial, and that that should be reflected by a discount of more than 25%. 94. It was further argued on behalf of each applicant that he was not dangerous in the terms of s.229 of the Criminal Justice Act 2003 (“ the 2003 Act ”) and that, even if he was, the effect of s.246A of the 2003 Act (as to eligibility for release under the extended sentence provisions) was such that the court’s discretion should be exercised against the imposition of any extended sentence. 95. In his full and clear sentencing remarks (which ran to 114 paragraphs) Wilkie J first set out the facts by reference to each of the numbered Particulars, and then the combined effect of the Basis of Plea and mitigation in the case of each applicant. Having recorded the procedural history, and identified the approach to discount for plea required by the combination of the relevant Sentencing Council Guideline and Caley and Others [above], Wilkie J concluded that (for reasons that he set out in detail) none of the applicants had indicated an intention to plead guilty at the first reasonable opportunity because each well knew what he had done and did not need any sophisticated advice to inform him that what he had done amounted to a s.5 offence. In this regard Wilkie J noted that, at least until 20 September 2012, Arshad and Hussain had had the benefit of representation by counsel and solicitors (including the benefit of one or more consultations with leading counsel) and that from 19 December 2012 they had had the benefit of representation by the solicitor who had been representing Ahmed since the end of May 2012. Wilkie J further concluded that, although the evidence was multifaceted and substantial, the question of whether the applicants were guilty or not guilty, given what they knew they had done, was neither complex nor difficult, and that nor was this a case where a wholly exceptional course should be taken by giving more than the standard discount of 25% for pleas at a PCMH (which, in this case, had been postponed until just over a month before the trial date). Hence he applied a discount of 25% in each case. 96. Against the background that s.5 of the 2006 Act is a specified offence, Wilkie J then went on to consider the dangerousness provisions of the 2003 Act and the guidance given in Lang [2006] 1 WLR 2509 ; whether dangerousness was proved in the case of any applicant; and, if so, whether he should exercise his discretion to impose an extended sentence. In the result, he concluded (for reasons that he set out in detail) that neither Arshad nor Hussain was dangerous, and that thus he would pass determinate sentences upon them. In contrast, he concluded (for reasons which he again set out in detail) that both Iqbal and Ahmed were dangerous, and exercised his discretion to impose an extended sentence upon each of them. In particular, Wilkie J made clear that he regarded the discussions in which they had respectively been involved in relation to IEDs and firearms as being serious in nature (albeit that, by September 2011, no practical steps had been taken to carry them into effect). Iqbal was, he concluded, naïve – but only about the extent to which he would continue to be under surveillance. 97. Wilkie J summarised his conclusions in relation to the dangerousness of Iqbal and Ahmed, and the exercise of his discretion, as follows: “ 92. Despite the search on 2 September 2011, on 24 April there was evidence that he [Iqbal] continued to have the same views as had informed his earlier activity. He had downloaded, since September 2011, “39 ways to support Jihad”. He had concealed press cuttings relating to drone attacks in Waziristan. He had mobile phones, one of which evidenced a continuing connection with Ahmed. Also found were items capable of use in terrorist related activities or training for it such as torches, a rucksack with GPS navigator and compass. I have been told by counsel that these are innocently possessed in connection with his work as a lorry driver and to enable him to pray facing Mecca. In addition there was found a DVD said by him to be an Arabic Koranic language course which relates to his religious observances. Whatever may be the truth of that, I regard the downloading of the “39 ways” as significant. …………… 95. In my judgment, the nature persistence and extent of his [Iqbal’s] involvement in a series of different types of possible terrorist activity described above coupled with the evidence that he continued after September 2011 with the mindset which informed those actions satisfies me that he continues to be a person who poses a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. I do therefore find him to be dangerous….. 100. Although he is younger than Iqbal, I do not regard that as a significant factor in assessing Ahmed’s dangerousness nor in comparing their culpability. In Ahmed’s case, having regard to the nature, intensity and persistence of his preparatory activities prior to 2 nd September and having regard to the evidence of his continuing in the same mindset thereafter and until the search on 24 April 2012, I am satisfied that, as of that date, he was a person who posed a significant risk to members of the public of serious harm occasioned by the commission of further specified offences. Whilst I have regard to the assessment of the authors of the pre-sentence report and their expertise in such matters, I am of the view that the effect of the material up to 24 th April is not overborne by subsequent assertions by him of a change of heart since his remand into custody to the extent necessary to avoid my coming to the conclusion that he still satisfies the dangerousness condition. 101. In each of their cases, having concluded that they satisfy the dangerousness condition, I have to consider whether to exercise my discretion to impose an extended sentence……. 102. In my judgment, however, in each of their cases, their persistent commitment to terrorist activity, in a number of different ways, over a significant period of time and, in each case, their willingness to take practical steps to obtain terrorist training abroad, marks them out as particularly dangerous. This, coupled with the fact that, after their houses had been searched, and they were obviously under serious suspicion, they nonetheless continued to access material consistent with the mindset which informed their previous preparatory activities, persuades me that they continue to be ‘dangerous’ to such a degree that I should exercise my discretion to pass an extended sentence. It is, in my judgment, appropriate for the public to be protected by requiring a direction from the Parole Board that they be released, before they are released prior to the expiration of the custodial term. That direction will be given, or not, in the light of the circumstances which exist after they have served two thirds of the appropriate custodial sentence and only on the basis that the Parole Board is satisfied that it is no longer necessary for the protection of the public that the offender should be confined. Accordingly, I will impose on Iqbal and Ahmed an extended sentence….” 98. Wilkie J reminded himself that the fact that the main thrust of terrorist activity was aimed abroad was not a relevant factor in determining seriousness, and considered the sentences imposed in the other s.5 cases to which he had been referred – concluding that the offences were less serious than those with which he had dealt in Chowdhury & Others (considered on appeal in Khan & Others above). Wilkie J concluded that, in their different ways, Iqbal and Ahmed were the most serious offenders in this case and bore equal culpability. He underlined (at para.107 of his remarks) that Iqbal had not only facilitated, through his contact, the travelling by Ahmed to Pakistan for terrorist training, but had virtually completed the practical arrangements for himself to go to Pakistan for a similar purpose, taking with him a very significant sum for use, at least as to part, in supporting terrorist activity abroad. In addition he had seriously discussed with Ahmed the assembling and deployment of an IED with a specific target in mind, and had discussed with others the acquisition of a firearm and ammunition. 99. Wilkie J further underlined (at para.108 of his remarks) that Ahmed had travelled to Pakistan for training taking funds with him to support terrorism abroad. He had persisted in his wish to do so, envisaging obtaining the necessary language skills by travelling, if need be, to obtain them. He was actively involved in undertaking and encouraging relevant training in the UK for himself and others, including Arshad and Hussain. Taking a steer from the change of direction envisaged in ‘Inspire’, he had joined with Iqbal in serious discussions about assembling and deploying one or more IEDs and possibly targeting a Territorial Army base. He had also investigated obtaining a firearm and ammunition. Against that background Wilkie J identified the notional custodial term after trial in relation to both Iqbal and Ahmed as being one of 15 years, and then (having applied the 25% discount for plea) proceeded to impose the sentences upon them to which we have already made reference. 100. Wilkie J then concluded (at para.111 of his remarks) that Arshad’s offending was at a lower level than that of either Iqbal or Ahmed. Arshad, he said, was however no “Walter Mitty” character, but was rather a serious minded person who had actively participated in assisting and encouraging Ahmed to go to Pakistan for terrorist training, by providing him with a SIM card, supplying him with advice and support and giving money to support terrorism abroad. Thereafter, he had been sufficiently serious in his commitment to undertake, repeatedly, training in mountainous and other terrain in preparation for terrorism. He, too, had exposed himself to the influence of ‘Inspire’ and to other texts of radical Islamist ideology. Hence in his case Wilkie J identified a notional sentence after trial of 9 years’ imprisonment, and then (having again applied the discount for plea of 25%) imposed the sentence to which we have already made reference. 101. Wilkie J then concluded (at para.112 of his remarks) that Hussain’s offending was less serious than that of Arshad. He was also younger than the others. He had discussed a variety of types of terrorist activity and expressed a willingness and ambition to travel for training, to provide funding for terrorist purposes and to source a firearm for Ahmed – but it had never got beyond that, save for one attendance on a trip organised by Ahmed for military style training in a remote country area. He too had accessed the literature advocating a violent fundamentalist Islamist ideology over a period of months prior to the searches on 2 September 2011. Hence, in his case, Wilkie J identified a notional sentence after trial of 7 years’ imprisonment, and then (having again applied the discount of 25%) imposed the sentence to which we have already made reference. Iqbal, Ahmed, Arshad & Hussain: Grounds & Submissions 102. Contrary to some of the Grounds originally advanced in writing, it was accepted in argument that, in the light of the then recent decisions in Attorney General’s Reference (No.27 of 2013) [2014] EWCA Crim 334 and Francis and Lawrence [2014] EWCA Crim 334 , Wilkie J had not been required to reduce the custodial terms of the extended sentences imposed in order to reflect the new early release scheme for such sentences. 103. Mr Wood QC, on behalf of Iqbal, argued that Wilkie J had erred in three respects: (1) The finding of dangerousness and the imposition of an extended sentence. (2) The length of the custodial term. (3) Giving less than full discount for plea. 104. As to dangerousness, Mr Wood submitted that there were failures, errors and weaknesses of reasoning in Wilkie J’s factual assessment which should give rise to anxious consideration and re-evaluation by the Court. In this regard Mr Wood placed particular emphasis upon paras.92 & 95 of the sentencing remarks (quoted in para.97 above), and e.g. the fact that phone seized in April 2012 had originally been seized in September 2011 and then handed back – hence its connection with Ahmed was old not new. Mr Wood relied upon the fact that Iqbal had not been arrested in September 2011, and that the prosecution had accepted that in the period between then and his arrest in April 2012 the evidence did not demonstrate that he posed an imminent threat, and that no further material in relation to preparatory acts had come to light. Nor, Mr Wood submitted, did the Pre-Sentence Report support a finding of dangerousness. As to the imposition of the extended sentence Mr Wood initially sought to argue that, having found dangerousness, Wilkie J had then failed to consider the requisite exercise of his discretion as to whether an extended sentence should actually be imposed. However, that argument was abandoned after the passages in the sentencing remarks showing that Wilkie J had plainly done so were pointed out. 105. As to the length of the custodial term Mr Wood, whilst acknowledging that it had been a difficult sentencing exercise for all involved, submitted that (given, in particular, that the admitted intention was general in nature) Wilkie J had failed to honour Iqbal’s Basis of Plea in a number of respects - relying, amongst others, on paragraphs 14-16, 39, and 42-43 of the sentencing remarks. Thus, it was said, Wilkie J had taken inappropriate matters into account. Mr Wood submitted that a notional custodial term after trial of 15 years was “way too long” and in completely the wrong bracket. This was in reality, he submitted, a case involving much talk which had never progressed to preparatory action. 106. As to the discount for plea, Mr Wood submitted that this was, in effect, a plea indicated at the first opportunity. It was a complex and difficult case in which the defence needed to wait until they could see the case in the round, and the defendants needed legal advice before being able to indicate a plea – hence the case fell within the exception recognised in para.14 of the judgment in Caley (above). It was simply not possible for a plea to be indicated until after negotiations involving all parties had taken place – with the prosecution being aware of the full picture and thus able to decide upon the acceptability of all the defendants’ bases of plea. In the alternative, the fact that a long trial had been avoided made it a proper case for full discount. 107. On behalf of Ahmed, Mr Blaxland QC relied upon four Grounds, as follows: (1) There was no proper evidential basis for the finding of dangerousness. (2) The judge should have exercised his discretion against imposing an extended sentence. (3) The notional custodial term after trial was significantly too long. (4) Full discount for plea should have been given. 108. As to the finding of dangerousness, Mr Blaxland strongly relied upon the content of Ahmed’s Pre-Sentence Report and, in particular, the fact that the authors recorded that he appeared to have disengaged from his previous ideology and that that reflected a reduction in risk. Mr Blaxland submitted that the fact that in the period between September 2011 and April 2012 Ahmed had downloaded a complete set of ‘Inspire’ magazines (including the then latest edition which commemorated the 9/11 attacks), and that outward bound equipment was recovered in April 2012, did not displace the “very clear” conclusion of the author of the Pre-Sentence Report that Ahmed had disengaged. Mr Blaxland relied upon the fact that Ahmed was not arrested in September 2011, and the undisputed inference to be drawn from that that the authorities did not believe that he posed an imminent threat. Mr Blaxland also relied upon the approach in para.73 of the judgment in Khan & Others (see para.14 above). Thus, he submitted, Wilkie J’s finding of dangerousness was against the weight of the evidence. If those submissions were rejected, Mr Blaxland invited the Court to conclude that, given the terrorist notification provisions, this was a case in which the judge should have exercised his discretion against the imposition of an extended sentence and imposed an appropriate determinate sentence instead. 109. As to the notional custodial term after trial, Mr Blaxland submitted that it was important to distinguish between what Ahmed did by way of actual preparation and what he talked about but took no further. The many hours of recordings of conversations gave a clear evidential picture of what Ahmed and the others were actually up to – which amounted to much talk but little by way of action. For example, whilst there had been talk about Improvised Explosive Devices and firearms, no explosive materials or firearms had ever been obtained. Ahmed’s principal focus had been on travel abroad and training – hence the determinate term should not have exceeded the maximum for a s.6 offence. Ahmed also had strong personal mitigation. Whilst rightly accepting that comparison with other cases decided on their own particular facts did not assist a great deal, Mr Blaxland submitted that, in Ahmed’s case, Wilkie J had “got it badly wrong”. 110. As to discount for plea, Mr Blaxland accepted that normally there could be no complaint about the award of a 25% discount for a plea first indicated at a PCMH (especially when it took place relatively shortly before trial). He submitted, however, that given the breadth of s.5 there were problems in this case (which were likely to occur in other s.5 cases) in view of the broad nature of the Particulars. That had required advice to be tendered before pleas were indicated – which advice could only sensibly be given once the picture in the round could be seen, particularly given the problems in representation. It was also impracticable and undesirable to have semi-public negotiations about the basis of plea. In any event, the pleas had resulted in a huge saving of public money and Wilkie J should have regarded the case as being one where the exercise of his residual flexibility, as explained at para.28 of the judgment in Caley (above), required the award of full discount. Hence, by whichever route, there should have been full discount in this particular case. 111. On behalf of Arshad, Mr Bennathan QC relied on two Grounds, as follows: (1) The notional sentence after trial of 9 years’ imprisonment was manifestly excessive. (2) There should have been full discount for plea. 112. As to the notional sentence after trial, Mr Bennathan underlined that the particulars of conduct in preparation for giving effect to his intention that Arshad had admitted in his Basis of Plea were limited to facilitating the overseas travel of Ahmed (i.e. two months after Iqbal and Ahmed had discussed Ahmed travelling to Pakistan and pretending to be a member of the Tablighi sect as cover, he had two conversations with his friend Ahmed in the course of which he encouraged Ahmed to go, saying e.g. “ true Muslims march towards death and don’t come back ”, gave advice as to how a Tablighi would dress, gave Ahmed two appropriate hats, gave advice about not drinking the water and avoiding being cheated by taxi drivers, and gave him a local SIM card - which Arshad had obtained on an innocent visit to Pakistan); participating in physical training (namely trips with Ahmed and others to Snowdonia and to the countryside near Luton, and playing football on a number of occasions – but not with the intention of going to Pakistan or elsewhere for training himself); downloading electronic files containing practical instructions for terrorism (which was done over a period of three days in early August 2011 and involved the bulk downloading of “Jihadist” material including copies of ‘Inspire’ but not, albeit that he was aware in general terms of the nature of the material, the accessing of all the copies of ‘Inspire’ - given that his principal interest was in their ideological content, and he had not downloaded any further material after 2 September 2011); and supplying funds for terrorism (namely the £100 that he had given to Ahmed in the hope that it would be given to those with whom Ahmed hoped to train for terrorism). 113. Thus Mr Bennathan submitted that, by reference to other s.5 cases (albeit decided on their own facts) and to the statutory maxima of 7 years’ custody for encouraging terrorism (contrary to s.1 of the 2006 Act ) and 10 years’ custody for providing training (contrary to s.6 of the 2006 Act ), and given the mitigation provided by Arshad’s previous good character, good work record, age and the impact on his family (albeit accepting that personal mitigation is of less importance in cases of this type), the notional sentence after trial was “far, far too high”. 114. As to the appropriate discount for plea, Mr Bennathan submitted that in saying (at para.74 of his sentencing remarks) that this was not one of those cases in which “a wholly exceptional course should be taken of giving more than the standard discount for a plea of guilty at the PCMH” Wilkie J applied the wrong test – in that in dealing with residual flexibility at paras.28 & 29 of the judgment in Caley (above) the Court did not so limit the exercise of a judge’s discretion. Hence, in the particular circumstances of this case, full discount for plea should have been given. 115. On behalf of Hussain, Mr Zahir also relied on two Grounds, as follows: (1) The notional sentence after trial of 7 years’ imprisonment was manifestly excessive. (2) In the particular circumstances of this case, there should have been full discount for plea. 116. As to the notional sentence after trial, Mr Zahir emphasised that the particulars of conduct in preparation that Hussain had admitted in his Basis of Plea were limited to the period between May 2011 and September 2011 and to planning travel overseas (but only to the very limited extent of being encouraged by Ahmed to travel to Pakistan for training and on occasion expressing a desire to do so); participating in physical training (but only by going on a walking trip to Snowdonia with Ahmed and others on 14 July 2011 – in part in preparation for training in Pakistan); downloading electronic files containing instruction for a terrorist attack (by downloading a number of electronic editions of ‘Inspire’ – principally in order to access the ideological content, but accepting that some of the editions contained information of a kind likely to be useful to a person preparing an act of terrorism); discussing firearms (with Ahmed on 12 & 25 May 2011, when they discussed the possible sourcing of a firearm – but he had never attempted to obtain a firearm and had never formed a specific intent to commit an act of terrorism in the UK); collecting and supplying funds (but limited to intending to provide funds to others who he believed would send them to those engaged in terrorism in Pakistan) 117. Against that background, Mr Zahir submitted that Hussain was very much at the lowest end of the wide spectrum of s.5 offences, and that when compared to the sentences imposed in other cases, and given the mitigating features (including the fact that that Hussain was aged only 20/21 during the material period, his previous good character, the fact that his offending was largely talk that never went anywhere and involved a degree of bravado, the fact that after the search of his home in September 2011 his offending had ceased and that the prosecution accepted that there was no evidence demonstrating that he posed an imminent threat) the appropriate notional sentence after trial in his case was shorter than 7 years. In the Grounds originally submitted on Hussain’s behalf it was argued that the correct sentence in his case was one of no more than 5 years’ imprisonment. 118. As to discount for plea, Mr Zahir argued that Hussain’s previous solicitors had failed to provide him with sensible advice, and that it was not until after his representation order had been transferred to his current solicitors in December 2012 that work on his case (which involved voluminous papers) had truly begun. Mr Zahir further argued that given, amongst other things, that Hussain was aged only 21 when he was charged, that a substantial amount of key prosecution evidence was only served in September 2012, that (in Hussain’s particular circumstances) legal advice was required to help him as to whether he was guilty or not, that his current lawyers could not have acted more quickly than they did, and for the sound reasons advanced by the other applicants, full discount should have been given. 119. On behalf of the Respondent, Mr Hill QC submitted, in short, that: (1) It was quite wrong, in particular in the cases of Iqbal and Ahmed, to seek to equate the Respondent’s acceptance that, in the period between September 2011 and April 2012, there was no evidence that either posed an imminent threat (such as to require an operational decision to arrest them), with a concession that neither was dangerous for the purposes of the 2003 Act . Mindful of all the served material, it was axiomatic that the police and the Security Service maintained close coverage upon the applicants during the period between the two police searches, and imminence of threat and dangerousness were not one and the same thing. The Respondent had never conceded, as had been asserted at one stage on Ahmed’s behalf, that he had not posed a threat in September 2011. (2) Rather, for the reasons that he carefully explained, Wilkie J was obviously entitled to conclude that Iqbal and Ahmed were dangerous, and to exercise his discretion (as he undoubtedly did) to impose an extended sentence in each case. He was, for example, not bound by the views expressed in Ahmed’s Pre-Sentence Report, and clearly entitled to take into account what had been found during the searches at the homes of Iqbal and Ahmed in both September 2011 and April 2012. (3) The applicants had each pleaded guilty to a joint s.5 offence, rather than to any other offence, and in circumstances in which the activities alleged in the remaining counts were subsumed in those pleas. In relation to s.5 offences the prosecution were entitled to rely upon a general intent to commit an act of terrorism (as defined) and/or an intention to assist one or more others to do so. It was perfectly possible for the applicants to have indicated what broad type(s) of act of terrorism they intended to commit, or that they intended to assist others to commit and, failing that, it was open to the judge to draw any appropriate inferences, consistent with each applicant’s Basis of Plea, as to what the general intention of each involved. (4) Viewed overall, the instant case involved a course of conduct over many months, including in the cases of Iqbal and Ahmed facilitation for and/or actual travel, as well as multiple discussions of attack planning, together with discussions about firearms and improvised explosive devices. Thus, even if it was right to have the maximum for offences contrary to ss.5 & 8 of the 2006 Act in mind at the outset, the application of aggravating features would result in the same custodial terms being achieved. In addition, the joint venture nature of much of the surveilled and recorded activity was an important feature of the case in general – notwithstanding the comparative roles and therefore the limited culpability of Arshad and Hussain as compared to Iqbal and Ahmed – as reflected in the marked distinctions in the respective notional custodial terms after trial. (5) This was clearly not a case in which the pleas had been indicated at the first reasonable opportunity. Wilkie J, who was a member of the Court in Caley , was right to conclude that all the applicants “ well knew what they had done and did not need any sophisticated legal advice to inform them that what they had done amounted to the section 5 offence ”. Whilst discussions between the parties had begun at the end of January 2013, the pleas did not crystallise until very shortly before the PCMH on 1 March 2013, which was some ten months after charge and only some six weeks before the trial date. The Respondent had not been able to scale down its preparation until that stage - by which time the majority of the necessary pre-trial work (including about three quarters of the electronic presentation material) had been completed. Hence this was not a case for the exercise of residual flexibility to give full discount. Wilkie J had clearly been entitled to limit discount for plea to 25%. Iqbal, Ahmed, Arshad & Hussain: Conclusion 120. In our view Wilkie J was clearly entitled to conclude, for the reasons that he gave, that both Iqbal and Ahmed were dangerous. The prosecution’s concession that there was no evidence that, in the period between September 2011 and April 2012, they posed an imminent threat (such as to require their arrest) did not prevent such a conclusion. As the Respondent argued, in the circumstances of this case, imminence of threat and dangerousness under the 2003 Act are not one and the same thing. Equally clearly, Wilkie J was entitled to take into account, amongst other things, the content of the recorded discussions involving Iqbal and/or Ahmed (which he was equally entitled to conclude were serious in nature - notwithstanding that they did not result in any crystallisation of intent, nor in any further action prior to the searches in September 2011), as well as what was found during the searches in both September 2011 and April 2012. Nor can we see any arguably significant failures, errors and weaknesses of reasoning in Wilkie J’s factual assessment, and (to the extent that he did) he was plainly entitled, given the wider evidence, to reach a different conclusion those expressed in the Pre-Sentence Reports in relation to Iqbal and Ahmed. Nor is there any arguable merit in the submission that he should have exercised his discretion against the imposition of an extended sentence. 121. As to the 25% discount for plea, it will be recalled that Wilkie J was a member of the Court in Caley (above) and that it was he who drew the attention of the parties to it. 122. At para. 28 of the judgment in Caley the Court said: “ …..A third case which is sometimes treated as meriting exceptional treatment is the exceptionally long and complex trial, whether in fraud or otherwise (such as people trafficking, complex drug cases, serial sex abuse cases with many complainants and the like). Since the rationale of reduction for plea is the public benefit which we have described, we leave open the possibility that, unusually , some considerable benefits may well ensue from a plea of guilty even at a late stage. Care must however be taken with such a proposition so that it does not become routine……… ” ( our emphasis ). 123. At para.68 of his sentencing remarks Wilkie J accurately summarised the effect of that part of the judgment in Caley . Whether the words that we have highlighted are accurately summarised in a phrase to the effect that the giving of a greater discount than the standard discount is “a wholly exceptional course” (which Wilkie J used at para.74 of his sentencing remarks) or “an exceptional course” may be debated. However, we are clear that Wilkie J did not inappropriately fetter his residual flexibility in relation to discount for plea. In the particular circumstances of this case, and for the reasons that he gave, the pleas simply did not merit a discount in excess of 25%. The contrary is, in our view, unarguable. 124. That leaves, in the case of each applicant, the question of whether it is arguable that his notional custodial term after trial was manifestly excessive. 125. By his plea of guilty each applicant admitted that he intended to carry out an act of terrorism (as defined) and/or to assist another to do so. As we have noted above, s.5(2) of the 2006 Act makes clear that it is irrelevant whether the intention (and preparations) relate to one or more particular acts of terrorism, acts of terrorism of a particular description, or acts of terrorism generally. In this case each asserted that his intention was general in nature. It is a striking feature of the Bases of Plea that whilst, in a number of instances, there were statements as to what the general intention did not include, there was little spelling out of the broad sort(s) of acts of terrorism that were encompassed within the scope of the admitted general intent. Accordingly, Wilkie J was entitled to reach his own conclusions in that regard provided that, in each case, his finding was consistent with the relevant Basis of Plea. It is clear that he concluded, whether explicitly or implicitly, that the broadly intended acts were at the upper end of the spectrum of operational acts of terrorism – i.e. killing people, endangering life, and other serious violence. In our view he was entitled to do so. As he rightly reminded himself, the fact that the main thrust of the terrorist acts was aimed abroad was not a relevant factor in determining seriousness. It follows that the starting point in the consideration of each custodial term was one of life imprisonment. 126. It was then necessary to examine the factual nexus between each applicant’s conduct in preparation for giving effect to his intention and the future commission of the intended act(s) of terrorism. Again, that is what Wilkie J did. We detect, in that process, no arguably significant departure by him from any Basis of Plea. 127. Iqbal, who was an Islamist who sympathised with the insurgency in Afghanistan, clearly intended both to commit an act or acts of terrorism himself (whether alone or in conjunction with others) and to assist others to commit such acts. His conduct in preparation for giving affect to those intentions (which included acting with others) took place over an extended period of time and included use of his contact in Pakistan (who in turn was in contact with insurgents) to assist Ahmed to travel to Pakistan in March 2011 for terrorist training with a view to terrorist action. He also gave Ahmed £850 to be passed on to his (Iqbal’s) contact in Pakistan for use for terrorist purposes. Ahmed did travel to Pakistan - albeit that he did not obtain any training. Iqbal downloaded electronic files containing practical instructions for terrorist attacks. He also conducted serious, albeit embryonic, discussions about methods, materials and targets for a terrorist attack (including exploring the possibility of constructing an IED by the method described in an edition of ‘Inspire’) and about the feasibility of obtaining a firearm. He had virtually completed the practical arrangements to travel to Pakistan himself in early September 2011 for terrorist training with a view to terrorist action, intending to take with him some £10,000 in cash (which he had saved and collected) – some of which was to be used for terrorist purposes. It was only because of the intervention by the authorities that he did not go to Pakistan. Whilst, in the sense described by the Respondent, there was no evidence that he posed an imminent threat in the months between September 2011 and his arrest in April 2012, he had during that period downloaded “39 ways to support Jihad” 128. As in Dart’s case (see para.72 above) the prosecution were clearly entitled in accordance with Iqbal & Iqbal (above) to charge a s.5 offence, and the judge was not bound by the maximum for a s.6 offence. 129. Having taken into account all the relevant factors advanced in mitigation, Wilkie J concluded that, in Iqbal’s case, the appropriate notional custodial term after trial was 15 years. Given the dual intention, the nexus of the conduct in preparation in relation to each intention, the period of time of the conduct, the involvement with others, and the purpose of sentence in this type of case (tempered by the need to avoid disproportionality) it seems to us that that term, albeit tough, was within the appropriate range. Accordingly it is not, in our view, arguable that Iqbal’s ultimate sentence was manifestly excessive. 130. Ahmed also clearly intended both to commit an act or acts of terrorism himself (whether alone or in conjunction with others) and to assist others to commit such acts. Like Iqbal his conduct in preparation for giving effect to those intentions (which included acting with others) took place over an extended period of time. It included the fact that in March 2011 he had travelled to Pakistan for the purpose of obtaining terrorist training with a view to terrorist action. Albeit that he had failed to obtain the training, he had taken money with him - somewhat less than £1,000 of which he had given to those purporting to offer training to be deployed for a terrorist purpose overseas. After his return he had been persistent in his desire and planning to obtain training in the end. He had also sought, in general terms, to persuade Hussain to travel to Pakistan for training. He had purchased survival equipment for use in Pakistan, and for exercising in the UK. He had been involved in the organisation of, and had participated in, mountain walks and physical exercises with others – in part to prepare himself for the rigours of a training camp. He had downloaded copies of ‘Inspire’ and, in that context, had seriously (but speculatively) discussed engaging in terrorist action using an IED and (on one occasion) firearms. Between September 2011 and April 2012 he had downloaded a complete set of ‘Inspire’ magazines 131. Against that background it seems to us that Wilkie J was entitled to conclude that, in their different ways, the culpability of Ahmed and Iqbal was broadly equal. Hence, having taken into account all the relevant mitigating features (which were also broadly equal) he identified a notional custodial term after trial of 15 years. For broadly the same reasons as our conclusion in relation to Iqbal, it seems to us that that term, albeit tough, was within the appropriate range in relation to Ahmed as well. Accordingly it is not, in our view, arguable that Ahmed’s ultimate sentence was manifestly excessive. 132. Arshad’s intention was to assist others to commit acts of terrorism. Wilkie J was entitled to conclude, as he did, that Arshad was a serious minded person. Arshad’s conduct in preparation for giving effect to his intention took place on a relatively limited number of days but was spread across the period between March and September 2011. In the run up to his friend Ahmed’s departure to Pakistan in March 2011 he had two conversations with him in the course of which, knowing that Ahmed was going with the intention of undergoing terrorist training with a view to terrorist action, he encouraged him to do so and gave him practical assistance and advice in a number of respects. He gave Ahmed £100 to pass on to others in Pakistan for use for terrorist purposes overseas. After Ahmed’s return he participated in physical training on a number of occasions with others, including Ahmed, in support of Ahmed’s terrorist ambitions. Over three days in early August he downloaded a great deal of “Jihadist” material, including copies of ‘Inspire’ and thereafter accessed a number (but not all) of the copies of ‘Inspire’. His principal, but not his sole, interest in doing so was the extremist ideological content. 133. Having taken into account all the relevant factors advanced in mitigation, Wilkie J concluded that, in Arshad’s case, the appropriate notional custodial term after trial was 9 years. In all the circumstances that was, in our view, too severe. Accordingly in his case we propose to grant leave, and to treat the hearing of the application as the hearing of the appeal. We have concluded that the correct notional custodial term after trial in his case was one of 7 years, resulting after discount for plea in a sentence of 5 years 3 months’ imprisonment. In his case therefore we quash the sentence imposed and substitute for it a sentence of 5 years 3 months’ imprisonment. 134. Wilkie J correctly concluded that Hussain’s offending was less serious than that of Arshad. Hussain is also younger than the rest. His intention appears to have been to commit acts of terrorism. His conduct in preparation for giving effect to that intention involved, as set out in para. 116 above, limited planning to travel overseas, participating in physical training on one occasion, downloading electronic files containing instruction for a terrorist attack (principally in order to access the ideological content), discussing sourcing a firearm on two occasions, and intending to provide funds to others (but never actually doing so). 135. Having taken into account all the relevant factors advanced in mitigation, Wilkie J concluded that, in Hussain’s case, the appropriate notional custodial term after trial was 7 years. In all the circumstances that was also, in our view, too severe. Accordingly in Hussain’s case we propose to grant leave, and to treat the hearing of the application as the hearing of the appeal. We have concluded that the correct notional custodial term after trial in his case, particularly bearing in mind his age, was one of 5 years, resulting after discount for plea in a sentence of 3 years 9 months’ imprisonment. In his case therefore we quash the sentence imposed and substitute for it a sentence of 3 years 9 months’ imprisonment. It follows that his terrorist notification period is automatically reduced to one of 10 years 136. For the avoidance of doubt, we have considered whether the substituted sentences in relation to Arshad and Hussain result in any unfair disparity with the sentences imposed on Iqbal and Ahmed, and have concluded that they do not. Overall Conclusion 137. For the reasons that we have set out above, we refuse the renewed applications of Dart, Iqbal and Ahmed. On the particular facts relevant to them, we grant leave to Arshad and Hussain, treat the hearing of their applications as the hearing of the appeal, quash the sentences imposed upon them, and substitute for them sentences of 5 years 3 months’ imprisonment and 3 years 9 months’ imprisonment respectively. In consequence, Hussain’s terrorist notification period is automatically reduced to 10 years. 138. Finally, we grant representation orders to Arshad (Mr Bennathan QC) and Hussein (Mr Zahir) but refuse all other applications for such an order.

```yaml citation: '[2014] EWCA Crim 2158' date: '2014-10-31' judges: - LORD JUSTICE PITCHFORD - MR JUSTICE SWEENEY ```

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No: 201501854/B3 Neutral Citation Number: [2015] EWCA Crim 1684 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 8 th September 2015 B e f o r e : LORD JUSTICE BURNETT MR JUSTICE LINDBLOM MRS JUSTICE CARR DBE - - - - - - - - - - - - - - - - - R E G I N A v MICHAEL BOXER - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - Ms T Lloyd-Nesling appeared on behalf of the Appellant Ms S Thomas appeared on behalf of the Crown - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE BURNETT: Between 17th and 20th March 2015 the appellant was tried in the Crown Court at Merthyr Tydil before His Honour Judge Richards and a jury on an indictment containing two counts of sexual activity with a person with a mental disorder impeding choice, contrary to section 30(1) of the Sexual Offences Act 2003. 2. The complainant, whom we shall call "A", was a 46-year-old man with a mental functioning age of a child of 7 or 8. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence to protect the identity and anonymity of A. The two alleged offences were part of a course of conduct over a short period said to have occurred on 16th March 2014 in a park in Aberdare. 3. The appellant was convicted on count 1 but not on count 2. He was later sentenced to a community sentence with various ancillary orders and restrictions. 4. The appellant appeals with leave of the single judge on four grounds, albeit that the terms in which he gave leave indicated his view that there might be substance in only the first. They are: (i) The judge was wrong to allow the prosecution to play the Achieving Best Evidence interview of A because the officer who conducted it failed to adhere to the guidelines for conducting such interviews. It is said that judge should have excluded it under section 27(2) of the Youth Justice and Criminal Evidence Act 1999; (ii) Notes from the jury, one during the evidence and one after they retired, suggested that they were speculating in particular about the appellant's character; (iii) In consequence the judge should have discharged them and (iv) The verdicts were illogical and thus the conviction unsafe. 5. It was common ground at the trial that A was competent to give evidence and also that he was unable to consent to sexual activity. That was the expert view of both an intermediary and psychiatrists. 6. A lived with his cousin, John, who was also his carer. He was able to go out and about alone and also held down a job. He often visited the park where he was well known to other park users including the appellant who had known him for some years. The park keeper also knew him well. The appellant used to walk his dogs in the park. The park had public lavatories, close to which were some bushes or small trees. On 16th March A went alone to the park. At about 10.30 he and the appellant were seen by Konrad Pastor to enter the area of bushes. Mr Pastor knew the appellant, who he saw standing in the bushes making eye contact with A. He sat on a bench nearby and continued to observe because he felt uneasy about the situation. Both men were still in the bushes. A few minutes later he saw A jogging away and the appellant "scuttled" out of the bushes. He reported the matter to the park keeper. He thought there were two separate incidents of the appellant going in and out of the bushes. He observed the appellant adjusting his flies on one of those occasions. 7. The park keeper ran over to investigate but neither A nor the appellant was any longer there. About five minutes later he saw A by the cricket pitch. He spoke to A who said that the appellant had put his hand inside his trousers. A kept apologising but was told by the park keeper that he had done nothing wrong. Later the park keeper spoke to John and also contacted the police. 8. Later that evening A repeated his allegation to John saying that it was the "lollipop man". That was a description he was also to use in his ABE interview. He knew the appellant from the days when the appellant was indeed a lollipop man working outside a nearby school. It was common ground that they knew each other from those days. 9. John asked the complainant to explain precisely what had happened because there had previously been a misunderstanding when some girls had put their hands in his pockets. On that occasion it was assumed that the girls were trying to take some money from him. 10. A was ABE interviewed on 19th March 2014. There was no intermediary present. The essence of his account was that the appellant had sexually assaulted him twice, by undoing his trousers and touching his penis. Before doing so A said that the appellant had tied up his dogs. 11. The appellant was arrested the next day. In his first interview he explained that he had entered the bushes to urinate. Although A had followed him into the bushes nothing else had happened. In a subsequent interview the appellant repeated that he had gone to the bushes to urinate but said that A had been masturbating. As a result he, the appellant, left. He denied any wrongdoing. 12. At trial the appellant's case was that he was not involved in any sexual activity with A. The allegation was completely false. A had unexpectedly removed his penis from his trousers and started to masturbate of his own accord. The appellant had told him to stop and put it away. 13. The appellant said that the account he gave in his second interview was the correct and true account. The omission in his first account to explain the additional detail was because he could not believe he was in the cells and he just wanted to get home. He explained that his failure to use the lavatories which, as we have indicated, were close by the bushes was because it would have been inconvenient to do so given he had two dogs with him. 14. In advance of the trial the prosecution sought the advice of an intermediary about the appropriate way to deal with A's evidence in court. The intermediary provided a report and also gave evidence before the jury at the trial. She explained that A had moderate to severe learning difficulties, in relation to both receiving and expressing information. Nonetheless he could communicate in a basic way. He had some problem in identifying colours. He could understand concepts of "what" and "where" but he had more difficulty in explaining "why" he had done things. He would not find it easy to express his own motives. 15. Questions for cross-examination of A were agreed in advance by all concerned with the assistance of the intermediary. The answers given by A in the course of his cross-examination added very little to the account which he had given in the ABE interview. In that cross-examination he repeated that he had told both the park keeper and John about what had happened. He denied that he had touched his own penis. Ground 1, the ABE interview 16. As material, Section 27 of the 1999 Act provides: "27 Video recorded evidence in chief. (1)A special measures direction may provide for a video recording of an interview of the witness to be admitted as evidence in chief of the witness. (2)A special measures direction may, however, not provide for a video recording, or a part of such a recording, to be admitted under this section if the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording, or that part of it, should not be so admitted. (3)In considering for the purposes of subsection (2) whether any part of a recording should not be admitted under this section, the court must consider whether any prejudice to the accused which might result from that part being so admitted is outweighed by the desirability of showing the whole, or substantially the whole, of the recorded interview." Comprehensive guidance is available for those who conduct specialist ABE interviews known as "achieving best evidence memorandum of guidance". 17. Ms Lloyd-Nesling submitted to the judge, as she submits to us, that the ABE interview should not have been played to the jury because of failures by the interviewing officer, DC Powell, to conduct the interview in accordance with that guidance. It is her contention on behalf of the appellant that the evidence should not have been placed before the jury in DVD form because the failings were, for the purposes of section 27(2), circumstances which should have led to the conclusion that it was not in the interests of justice for it to be played. She also formulated the application before the judge by reference to section 78 of the Police and Criminal Evidence Act 1984. 18. In her written submissions to the judge Ms Lloyd-Nesling relied upon four factors: (i) The officer did not involve an intermediary. (ii) There was an inadequate explanation whether A understood the difference between truth and lies. (iii) DC Powell used many leading questions during the course of the interview and also what are known as "tag" questions. They are a form of leading question which comprise a statement followed by a tag such as "isn't it" or "that's right" at the end. The guidance cautions against using such questions. (iv) No assessment was made regarding A's competence to give evidence before he was questioned by the police officer. No point is now taken regarding the questions of competence or A's understanding of the difference between truth and falsehood. The result of the application, had it succeeded, would have been to require the prosecution to elicit A's evidence in chief in the conventional way, albeit with appropriate special measures in place including, no doubt, the advice of, and careful crafting of questions with the help of, an intermediary. 19. The correct approach of a trial judge when confronted with an application of this nature is well settled. It is summarised in two judgments of Hooper LJ in this court, namely in R v Hanton [2005] EWCA Crim 2009 and R v K [2006] EWCA Crim 472 [2006] 2 Cr App R 10 . The test is found in paragraph 23 of K : "In R v Donald Hanton ... the Court of Appeal ... was concerned with a case where there was a number of alleged breaches. Having considered G v The DPP, it adopted as the test: 'Could a reasonable jury properly directed be sure that the witness has given a credible and accurate account on the video tape, notwithstanding any breaches?' If 'Yes', it was a matter for the jury. If 'No', the interview would be inadmissible (see paragraphs 10, 19). The test could also be expressed in this way: 'Were the breaches such that a reasonable jury properly directed could not be sure that the witness gave a credible and accurate account in the video interview'. 20. That formulation recognises that the guidance is designed to elicit evidence which can be relied upon. If on any view the evidence cannot be relied upon it should not go before the jury. The test echoes the well-known formulation in the second limb of R v Galbraith [1981] 1 WLR 1039 . 21. The first question for a judge when considering such an application is whether there has been a failure to comply with the guidance. 22. The interviewing officer spoke to A before the interview and had also spoken to John about him. She was aware of his developmental problems and that he had an intellectual age of 7 or 8. She was trained in dealing with vulnerable adults. Following her assessment she concluded that an intermediary was not required at that stage. Having watched the totality of the DVD interview we can well see why she formed that view. The guidance requires consideration to be given to an intermediary and then, if it is decided to use one, to take advantage of the assistance an intermediary can provide in the form and structure of questions. 23. There was no non-compliance with the guidance in this regard. The fact that later the prosecution involved an intermediary who gave advice on the form of questioning does not lead to a conclusion that the guidance was breached at the interview stage. That said, it may provide support in an appropriate case for an argument that the evidence is so unreliable that it should be excluded under section 78. 24. As it happens, in this case the intermediary gave evidence about her assessment of A which explained in detail his difficulties and the shortcomings of his evidence including shortcomings relating to his understanding of tag questions and so forth. It is clear that the jury had the full picture. 25. At this point we note an additional factor raised by Ms Lloyd-Nesling in her oral submissions which although not a feature in the written submissions before either the judge or the grounds in this appeal, is a point upon which she places some reliance. It is that the officer should not have had a discussion with A before the interview. During that discussion he gave an account which was essentially the same as that which appeared in the ABE interview. The guidance cautions against such an approach, no doubt to avoid any unintentional possibility of coaching. We shall bear that argument in mind when we come to determine the issue. 26. It is clear that the interview did not comply with guidance in that there were indeed many leading and tag questions. Furthermore, at the beginning of the interview, when the officer was performing introductions, she suggested that "something has happened that its not very nice, is it" along with other observations that A was there to explain what had happened in the park. Ms Lloyd-Nesling submits that is an expression of view by the officer which raises at least a danger of encouraging A to make a complaint which is not true or not accurate. It is the sort of suggestive language which the guidance cautions against. 27. We remind ourselves that it is for the trial judge to form the opinion or not identified in section 27(2) of the 1999 Act. This court will interfere only if the conclusion was not open to the judge. In his ruling the judge correctly identified the test he was obliged to apply, namely the test which we have quoted from K . The judge accurately identified the shortcomings in the interview process. That said, the judge took the view that A had given his central account at least as regards the first incident early on in the interview in response to an open invitation to him to explain what had happened. A gave direct answers. As the judge noted, he gave an account relating to the whole of the events without leading questions. For the most part leading questions came later in the interview, by way of repetition. The officer had the good sense to use appropriate language when questioning A. By that the judge meant using language of the sort that A himself used rather than more complex language which might ordinarily be employed with an adult. The judge found that feature compelling. He had particular regard to the overall impression he gained from viewing the video in coming to his conclusion on what he described as the fundamental question, namely "could a reasonable jury come to the conclusion that he is giving a reliable and accurate account of something which happened to him during the course of this video-tape?" Ms Lloyd-Nesling criticises the ruling for failing to deal, if not with each and every of the leading and tagged questions, at least with many of them. We do not accept that criticism. The ruling was clear. It set out the test at the beginning and at the end. It summarised the substance of the interview in the context of the breaches of the guidance which the judge recognised. It reached a clear conclusion. 28. We asked for a copy of the DVD and have watched it. We too would come to the same conclusion as the judge, were it for us to make the primary decision. It follows that we have no doubt that he was entitled to come to the conclusion that he did. It appears to us that A gave a coherent and clear account in answer to open rather than leading questions. The criticised observations at the outset of the interview in our judgment were made almost in passing; and we did not form the impression that they conditioned anything that followed. 29. The answers given by A suggested a degree of confidence and no obvious lack of comprehension. For example, he quickly corrected the officer when she mistakenly suggested that he had earlier said the appellant was wearing a red hat. When asked which hand the appellant had used A without hesitation immediately said his right hand and then demonstrated. A was clear when asked about his underwear that he was wearing pants and not boxers. He asked some questions including when the police would sort this out. When asked: "What have you come to tell me" he gave his account. In answer to the question whether the appellant had asked him, that is A, to touch the appellant he gave an immediate and clear answer in the negative. We would add that we can see no basis for believing that the criticism of the officer in having an anterior discussion rendered the interview which followed unreliable. 30. Despite Ms Lloyd-Nesling's careful submissions, in our judgment the circumstances of this interview were far removed from those which would have called for the exclusion of the DVD for use as evidence in chief by applying the test in K . 31. The DVD was then edited to exclude questions and answers about which the defence team had concerns. In his summing-up the judge went out of his way to make sure that the jury was alive to the shortcomings in the process including in the cross-examination of A. The judge emphasised the need for the jury to bear all that in mind in fairness to the appellant. Grounds 2 and 3, the jury notes 32. Underpinning the appellant's concerns arising from the jury notes is that they were speculating about his character. No good character direction was given because the appellant has a conviction as a man in his early 20s for indecent assault on a male under 16. He is now 76. For reasons which are understandable the appellant was anxious that this conviction should not be in evidence before the jury. It may also explain why no character evidence was called on his behalf. 33. On the second day of the trial the jury asked two questions in one note: "John (cousin & carer) said the first words [A] said walking up the stairs was 'The lollipop man'. John, in turn, said something like 'That caused alarm, due to the past/history' What was his reason to be alarmed?" Second question: "[A] said "The parky doesn't like him' (Mr Boxer) What made him think or say that?" 34. We do not have a transcript of how the judge dealt with those questions but do have Ms Lloyd-Nesling's helpful note. As to the first part the note reads: "Not a great deal of light that I can shed your note. You have no evidence as to that. [The cousin]now not here, so couldn't asked him today and not sure it would be proper use of court time to wait for him to answer. The defence have closed their case anyway. Wrong to speculate on what, if he had been, both counsel had the opportunity to present whether evidence they think appropriate. That is what was said it would be speculation to try to work out what was said. Try not to speculate." As to the second the note continues: "Re park keeper, we don't know the answer to that question. Counsel couldn't ask it because advice of intermediary was he had great difficulty with questions beginning why and he shouldn't be asked. Intermediary said he would not be able to explain and to ask why another person didn't like someone would be too long and complex given his communication difficulties.... Could he might be asked by either counsel. Neither counsel chose to ask and he didn't express his views about Boxer. No suggestion he had any adverse view still less he had been influenced in his behaviour. Would be simple speculation to attribute any views to him, or that A correct. In these circumstances, important you don't speculate, down attribute anything significant to anything not explored. It is counsel's job to explore. Pity not here to give his account don't speculate." 35. These exchanges took place before speeches and the summing-up. The questions appear to us to be an example of a relatively common phenomenon in criminal trials of the jury asking for a loose end to be tied up which, for one reason or other, the parties have overlooked, considered irrelevant or left alone for good reason. No criticism is made of the way in which the judge dealt with it. It maybe the questions were prompted by an interest in whether there was something about the appellant which the jury had not been told. We cannot know. However, in the summing-up which followed the judge gave a clear warning against speculation about which no criticism is made. 36. During their retirement the jury asked this question: "Did the court disallow any character witness or other on behalf of the defendant?" This led Ms Lloyd-Nesling to submit that the jury was necessarily speculating and thus ignoring the clear direction given in the summing-up. In the result she submitted that the jury should be discharged. She prayed in aid the cumulative effect of the three questions. As one would expect the judge answered the question and also repeated his speculation direction. He did so in those terms: "JUDGE RICHARDS: Well you have sent me a note ladies and gentlemen, which reads, 'Did the court disallow any character witnesses or other on behalf of the defendant?' The simple answer to that question is no, there has been no disallowing of any witnesses on either side. I should emphasise because the suspicion might arise that you were thinking as it were beyond the actual evidence which you have heard, it is extremely important that you confine your considerations to the evidence which you have heard and endeavour to reach verdicts based on that evidence. I did say during the course of my summing-up that you must not speculate, and that is extremely important. The only way in which a fair trial can take place is if juries apply their minds to the evidence which they have heard and endeavour to reach verdicts based on that evidence. So I do underline that." 37. The last of these jury questions does suggest that the jury were thinking about the appellant's character. They were reminded in clear terms not to speculate and in those circumstances we consider that the judge was right not to discharge them. Juries regularly asked questions about why something they might expect to have heard about was not given in evidence. On questions of character the reality is that the jury's interest may be sparked because one or more of them may have sat on another jury where a good character direction was given and character witnesses were called. 38. At a more prosaic level the ubiquity of television court room dramas may provide the background to questions of this nature. If such questions arise it is the judge's duty firmly to remind the jury that they should not speculate and must try the case on the evidence. That the judge did. For that reason there was no basis for discharging the jury. Illogical verdicts - ground 4 39. Ms Lloyd-Nesling's submission is a simple one. The appellant's credibility was central to the case. He had described two incidents, albeit separated by a short time and so too had Mr Pastor. If the jury was not sure on one count they could not logically be sure on the other. 40. The judge gave the jury a direction they should consider the two counts separately, to which no objection was taken. Having considered the evidence in the round, we do not consider that the jury's verdict reflected any illogicality. In the video interview A gave a clear account of the first incident. However, his account of the second was more vague. Furthermore, the agreed editing of the DVD excised much of the officer's attempt to clarify matters relating to the second alleged incident, because many of the questions were indeed leading or tagged. Thus, the jury was presented with evidence in chief much less compelling as regards the second alleged incident by comparison with the first. 41. It is quite correct that Mr Pastor gave evidence that he saw the men in the bushes on two occasions. That said, it was only on the first occasion that he saw the appellant doing his zip up. Given the standard of proof and the judge's clear and extended warning to the jury of the difficulty the appellant faced in dealing with A's evidence, in our view, the differential verdicts do not more than reflect the care that the jury took in considering the evidence. 42. We would not wish to leave this appeal without noting the very high quality of the submissions placed both before the judge and before us by Ms Lloyd-Nesling and by Ms Thomas for the Crown, who in the event we did not call upon. 43. In the result we dismiss the appeal.

```yaml citation: '[2015] EWCA Crim 1684' date: '2015-09-08' judges: - LORD JUSTICE BURNETT - MR JUSTICE LINDBLOM - 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} ======

Case No: 200705805, 5811, 5812 & 6123 A9 Neutral Citation Number: [2008] EWCA Crim 1436 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 13th June 2008 B e f o r e : LORD JUSTICE HUGHES MR JUSTICE ANDREW SMITH HIS HONOUR JUDGE LORAINE-SMITH Sitting as a Judge in the Court of Appeal Criminal Division - - - - - - - - - - - - - - - - - - - - - R E G I N A v (1) LIAM DUFFY (2) THOMAS WILLIAM FORSHAW (3) F (4) RYAN LLOYD - - - - - - - - - - - - - - - - - - - - - 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 J McDermott QC appeared on behalf of the First Applicant Mr S V Riordan QC appeared on behalf of the Second Applicant Mr N R Johnson QC appeared on behalf of the Third Applicant Miss A White appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - Judgment 1. LORD JUSTICE HUGHES: These are four applications for leave to appeal against sentence. They arise out of a gangland shooting in Liverpool which displayed, to an alarming degree, the grip which gang culture among the young has or had upon a section of that city, as it has in others, and the ease with which almost casual resort is made to planned murder in the course of gangland disputes. We are able gratefully to adopt by way of summary of what happened what the trial judge had so clearly to say when he came to pass sentence after a trial which had lasted something like ten weeks. He had had unparalleled opportunity to master the intricacies of the case and it is apparent that he had done so. 2. Liam Smith was a member of a gang called the "Strand Gang". It was, perhaps habitually, in dispute with another called the "Croxteth Crew". A previous attempt to kill Smith by shooting him had been made. It had failed. No prosecution had ensued because part of the gangland culture, to which everybody on both sides subscribed, involved minimal cooperation with the police. Smith himself did not even report the attempt to kill him. He no doubt preferred personal revenge. 3. On 23rd August 2006 Smith visited an inmate at Altcourse Prison in Liverpool. In the visitors' area he saw Lloyd. Lloyd was a member of the rival Croxteth Crew. He, Lloyd, was then on remand awaiting trial for gang-related firearms offences and he was in the visitors' area to receive a visit from some of his family. There was some kind of disagreement or confrontation, perhaps at a little range, between the two men. The result was that Lloyd cut short his visit, returned to his cell and, using a mobile telephone to which he clearly had extensive access, set about arranging for Smith to be ambushed outside and killed. 4. Within about half an hour or thereabouts, a convoy of perhaps as many as 20 young people arrived outside the prison to attack Smith. They came in a number of cars. Some stayed in one or other vehicle and others concealed themselves in some bushes nearby which Smith was likely to pass. When Smith left, some of those in the bushes emerged and headed for him. One of them (and his identity has not been established) shot Smith in the head at point blank range with a sawn-off shotgun. The murder was carried out in broad daylight in front of members of the public, and indeed, for that matter, with prison officers about their ordinary business not far away. 5. All those involved made good their escape. Most of them had concealed their identities by way of hoods or similar, and no doubt they were able to escape in part because of the large numbers who were present and the confusion which inevitably followed. 6. When the evidence demonstrated was that this was a planned public execution. After the shooting, any evidence which might link the perpetrators to the crime was destroyed. Cars were burned out, mobile telephones -- which significantly had been chiefly unattributable pay-as-you-go phones -- were disposed of. The gathering of evidence by the police was obstructed by a mixture of lack of cooperation and fear amongst those who were in a position to give some information. The fear came both from the general reputation of the gang for retribution and, in some cases, from specific threats which were made to individuals, though not directly attributed to any of the applicants. 7. The judge described the background evidence which had been given in the case relating to the gang warfare which underlay this killing as follows: "During the course of the trial the jury heard evidence relating to some of the activities of these gangs during 2004 and 2005. That evidence was truly chilling. There were regular shootings and attacks on property and people. Youths aged only 15 and younger were involved, they were obsessed with firearms but, more frighteningly, they were able to get access to firearms, the real things, and to ammunition and to use them. Teenagers were walking around the streets of Croxteth wearing body armour to protect themselves from being shot at. All this happened despite intensive police activity involving regular stops and searches of young people in the area. Some firearms were recovered but clearly others became available to replace those which were taken by the police." That was the situation on the ground with which the judge had to deal. 8. The judge was also conscious -- and, as it seems to us, rightly conscious -- of the real risks that gangs of this kind, chiefly populated by young people, can achieve among such people a wholly misguided reputation for glamour. The judge was rightly concerned to do what he could to correct that illusion. As he said, there is nothing glamorous in being a member of this sort of a gang on either side. Anyone who becomes a member is likely to end up either dead or serving a very long sentence of imprisonment. It is clear to us that the sentences that the judge passed had regard to that consideration; that is to say, to the urgent need for deterrence for the sake of the public, amongst whom this warfare was going on. As it seems to us, the judge cannot be faulted for adopting that approach. 9. Lloyd was the instigator of this murder. Even though he was in prison at the time, he set it up. He had the resources, and plainly the obedience or cooperation of others so that he could do it within half an hour or so of seeing Smith in the visitors' area of the prison. He was convicted of murder. He had begun the process by making a number of calls, starting with the applicant Duffy (though he did not get through), and shortly afterwards including Forshaw and Farrell. 10. Those latter two applicants, Forshaw and Farrell, were among those who responded to the call. Both of them were convicted of murder by the jury. It had been alleged by one witness that Farrell was the gunman. The jury was permitted to return a special verdict disclosing whether or not it was sure that he was. It was not sure that he was. The position accordingly is that both he and Forshaw were convicted on the basis that they joined the attack, formed part of the numbers which were a critical part of the plan, and did so knowing that the object was to attack Smith, and that it was at least a foreseeable possibility that he would be shot dead; as he was. As we understand it, Forshaw at the material time was one of those who was still in one of the vehicles. Farrell, it has to be assumed on the verdict of the jury, could well have been one of those who was in the bushes. 11. Lloyd also called on the assistance of Duffy, either directly or indirectly, and Duffy, it is clear, made himself responsible for taking an organising and leading role in assembling this ambush. He made a total of 35 telephone calls in the relevant period. Some were before the attack -- plainly in order to organise the participants -- and some of them were afterwards. It would appear to be a proper inference that some, at least, of those were in order to coordinate the elimination of evidence. He accepted that he had a part in the destruction of at least one of the vehicles. He was also at the scene at some stage. It may be that he was at a little distance, and it is at least possible that he left the scene moments before the shooting. Whether that is the reason or whether there is another does not perhaps matter, but he was convicted by the jury not of murder but of manslaughter. As the case had been left for the jury, that involved the finding that he knew that a firearm might well be used, but he fell to be sentenced on the basis that he had not been proved to the jury's satisfaction to have the intention or foresight that Smith would be killed or seriously injured, as distinct from threatened or frightened with the gun. 12. In the case of those three applicants convicted of murder, the judge was of course required by statute to pass sentences of life imprisonment or its young offender equivalent. He was required by the terms of the Criminal Justice Act 2003 to fix minimum terms before release can be considered. In the case of Duffy, the maximum sentence for manslaughter is life. It is not, however, a mandatory sentence as it is for murder. 13. Lloyd was 18 at the time of the offence. He had relatively minor recorded convictions, though there was a history of expulsion from school for breaking somebody's nose, and there had been reprimands for assaults. He was, as we have indicated, at the time of the shooting on remand awaiting trial for firearms offences which were gang-related. In due course, after the killing but before this trial, he was convicted of those offences and a sentence of imprisonment for public protection was passed with a notional determinate term of 6 years; that is to say a minimum term of 3 years to serve. In his case the statutory starting point under the relevant schedule of the Criminal Justice Act was, because he was 18 at the time and the murder was convicted with a firearm, 30 years to serve. The judge moderated that sentence to an extent. He took into account the age of Lloyd. He recognised, as this court and other courts have consistently recognised, that the statutory nomination of different starting points for those who are under 18 on the one hand and over 18 on the other means that there is an enormous leap upwards at the passage of the 18th birthday. As the judge observed, had Lloyd been a year younger the starting point would have been 12 years. Those are well recognised difficulties. The judge in each case must, whilst beginning to consider a sentence with a statutory starting point, arrive at a sentence which properly reflects the aims of sentencing; that is to say retribution and, particularly in this kind of case, deterrence. The judge passed a sentence of custody for life with a minimum term of 28 years. 14. Lloyd's written application contends that in view of his age and suggested immaturity, that term was manifestly excessive. In the circumstances of this case, and given the instigation by Lloyd of this execution, we take the view that there is nothing wrong with the sentence whatever. An additional factor which may or may not have had a mathematical effect upon his sentence, but was certainly properly taken into account by the judge, was that the life sentence now being passed would subsume within it the previous sentence of imprisonment for public protection based on a notional determinate term of 6 years. That was a legitimate and proper consideration for the judge to have in mind. 15. Forshaw was 17 at the time of the trial. He had by way of previous conviction only a single offence for possession of cannabis which the judge understandably ignored for the purposes of sentence. He too had a record of expulsion from school for disruptive behaviour. He was at the time awaiting trial for an offence of racially aggravated criminal damage, and had been since October 2005. It was still outstanding because he had failed to attend court when he was supposed to. There was clear evidence that he was an active gang member with a fascination for firearms. At his home were found a number of drawings and similar material which plainly demonstrated it. There was a history of admission of some involvement in previous shooting. 16. In his case the starting point according to the statute was 12 years because of his age. The judge was at pains to explain that whilst a significant increase in that starting point was inevitable in view of the appalling facts of the case and the use of a firearm, he had not attempted, in arriving at the minimum term, to achieve any kind of parity with Lloyd. The order that he made was for a minimum term of 20 years. Mr Riordan QC for whose submissions, as of all counsel, we are very grateful, submits in effect that Forshaw's age and the limited proven participation in the offence meant that the judge was not justified in making so large an adjustment from the statutory starting point. 17. Farrell was even younger. He was 15, and only by three or four months, at the time of the offence. His record was rather similar. He had very minor previous convictions, though a record of disruptive behaviour at school. There was before the judge a psychological report which demonstrated that he had a very low IQ; at 71 it is within the bottom 3 per cent or so of the population. The judge had careful regard to that. He was well alive to the age of this young man. He observed that whilst his IQ was very low, he certainly demonstrated street wisdom. But it is no doubt correct that a low IQ of that kind in a young man of 15 would be likely to increase susceptibility to peer pressure. In his case the judge set a minimum term of 18 years. 18. These two terms imposed upon Forshaw and Farrell were very long sentences passed on very young men. The judge was fully conscious of it. He said: "No-one enjoys sending young men to prison for all of their young adult life." He described it, rightly, as the most terrible waste. But what he had to have in mind was that this kind of gangland warfare, replicated in other cities in this country at the moment, is rather different from the kind of gangland activity associated with organised crime which used to be encountered 20 years or so ago. This kind of gangland warfare is very largely the province of young men in this age range, as the judge's brief description of what had been going on in Liverpool in 2004 and 2005 demonstrated. This kind of gang culture does come close to destroying any sense of security in a number of areas in a number of cities. It is not a problem which is in any sense confined to Liverpool. It carries, as the judge said, a wholly illusory aura of glamour. 19. It seems to us that it has to be completely clear, for the sake of others who may be caught up in it and for the sake of the public who are entitled to live their lives unblighted by it, that very long sentences will follow offences of this blatant and chilling kind. Whilst these are very long sentences we are, for that reason, unable to say that the judge was arguably wrong in arriving at them. 20. Duffy was a man of 25, significantly older than the others. He has a number of convictions going back to 1996. They were for a variety of offences, but a common feature of a number of them was the supplying of drugs. He told the Probation Officer that he effectively had been in that trade since he had left school. He did not have convictions for serious violence, but he did plainly have a close acquaintance with the gang which assembled in this case and was able to assemble them. He, as Mr McDermott rightly reminds us, was convicted not of murder but of manslaughter. 21. The judge said that sentences for manslaughter need to bear some relation to those for murder. He did not of course mean that they should be comparable, and they are not. He passed on Duffy a sentence of 20 years determinate, which is of course effectively half the sentence passed on Forshaw and significantly less than that proportion of the sentence passed on Lloyd. What he meant was that there must be some sensible relationship between what are now the statutory prescribed periods for murder and the sentences generally which are imposed for manslaughter. In that, we are satisfied that he is clearly right. That does not mean, and we do not mean, that there is any kind of standard formula or arithmetical relationship between the two offences. There is not. Each case must undoubtedly depend, as always, upon its own facts. It will sometimes happen that a defendant convicted of manslaughter alongside co-defendants convicted for murder can plainly be seen to have played a minor or peripheral role in what went on. But that was not the case which confronted the judge with Duffy. Duffy had played a central and organising part in assembling an ambush with a gun. He had not intended or foreseen killing, but he set the scene with all those youngsters and at least one gun which turned into homicide. In those circumstances, we are unable to see that there is any arguable complaint that can be made about the long sentence of 20 years which has been imposed upon him. 22. We should say that with Mr McDermott's help we have looked at two cases to which he referred. The first is R v Tomney [1986] 8 Cr.App.R(S) 161, and the second is R v Kent [2004] 2 Cr.App.R(S) 367. The first of those was a sentence in 1986 or earlier for manslaughter in the course of armed robbery. It provides a good example of how sentencing has to be adjusted to changes in public behaviour. It proceeded upon the basis that the maximum likely sentence for armed robbery, according to the then governing guideline case of Turner , would be 15 years, which is no longer the case. It proceeded upon the basis that sentences for manslaughter arising out of such armed robbery need not be very much longer than the sentence for the armed robbery would be. The modern approach to the impact of death is different. 23. Kent is a much more recent case. It is a case of a shooting in the street by a man who pursued a rival, though in the end missed the rival and shot somebody else. There is no reason to suppose that there was any element of gang warfare in that case. The sentence was one of 12 years upon a prompt plea of guilty. We agree with Mr McDermott that that indicates a sentence of 18 years after trial. We regard that as quite consistent with the sentence which Saunders J passed upon Duffy in the present case where there was the added element of gang warfare and the organisation to which we have referred. 24. In those circumstances, whilst we are, as we say, extremely grateful to counsel for their careful and moderate submissions, these applications are all refused.

```yaml citation: '[2008] EWCA Crim 1436' date: '2008-06-13' judges: - LORD JUSTICE HUGHES - MR JUSTICE ANDREW SMITH - HIS HONOUR JUDGE LORAINE-SMITH ```

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

Case No: 200805079 D2 Neutral Citation Number: [2010] EWCA Crim 1325 COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Central Criminal Court before HH Judge Worsley QC and a jury between June 23 and July 10 2008 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/06/2010 Before : LORD JUSTICE PITCHFORD MRS JUSTICE RAFFERTY and HIS HONOUR JUDGE GOLDSTONE QC - - - - - - - - - - - - - - - - - - - - - Between : JERMAINE CALLUM Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - David Spens QC (instructed by Kaim Todner - Solicitors) for the Appellant Duncan Atkinson (instructed by CPS ) for the Respondent Hearing date: 20th May 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford : 1. This is an appeal against conviction with leave of the full court. Mr David Spens QC who represented the appellant in the appeal was also counsel at his trial. Mr Duncan Atkinson who appeared for the respondent in the appeal was junior counsel for the prosecution in the trial. 2. The trial took place at the Central Criminal Court before HH Judge Worsley QC and a jury between June 23 and July 10 2008 when the appellant was convicted of murder. He was sentenced on 1 st August to custody for life with a minimum term of 19 years. 3. Mr Spens QC has advanced a single ground of appeal namely that the identification evidence of two prosecution witnesses should not have been admitted and the state of the identification evidence was such that the verdict of the jury was unsafe. The background facts 4. Shortly before midnight on 2 October 2007 the 21 year old male victim, Robel Tewelde, had congregated with his brother and some friends in the ground floor stairwell in a block of flats at Jephson Court, Stockwell. A friend, Jason Aird, arrived on his motorcycle. The security door was opened to allow Aird to enter. He was followed by a person identified subsequently as the appellant, who reached into his jacket. The friends, realising that this person was hostile, ran up the stairs. The gunman fired three shots, two of which struck the deceased at close range in the leg and back. One of those shots penetrated the deceased’s liver, lungs and heart and he died at the scene. A CCTV camera was situated to the gunman’s right and above head height. A still photograph was prepared for the jury. Its quality, it was agreed, was insufficient for the purpose of attempting an identification but the jury was entitled to view the photograph for the purpose of judging whether the gunman’s appearance was consistent with, or different from, the appellant. A second individual appeared to have accompanied the gunman but remained outside the flats. An arrest of that person led to a separate trial. The bullet recovered from the deceased’s body, and samples found at the scene, enabled a firearms expert to conclude that the weapon used was a Mac 10 submachine gun converted to fire bullets. That weapon was never recovered. Identification Evidence 5. Identification evidence was given by three young men who formed part of the group in the stairwell. They gave evidence behind screens and were permitted to use pseudonyms. 6. Nigel Halton was interviewed within three hours of the shooting. The stairwell was well lit. He was, when interviewed, unable to provide significant detail about the gunman save to describe his height as about 5’10”, medium build, wearing a black hooded top and trouser bottoms. Halton gave evidence that he thought there were three men in all in the gunman’s group, while other witnesses described only two. On 6 October 2007, Halton attended a video identification parade. He viewed the images, particularly image number 7, several times. He said that he was 90% sure that No. 7 was the gunman. The appellant was standing in position No. 7. He said during cross-examination that as he opened the door for Jason Aird (another pseudonym) he had a two to three second glimpse of the gunman, but had a somewhat better look when he was inside. He could not recall seeing the gunman before the day of the shooting but agreed that he might have seen him around the estate. 7. Jason Aird said that when he arrived on his motorcycle he saw two men standing on their bikes outside. Halton opened the door for him. He noticed the look in Halton’s eyes, as if worrying about the presence of the two men outside. Almost as soon as he entered everyone started running up the stairs and he followed. He heard a shot, turned back and saw that his friend was down. When seen by the police at about 4.45 pm on 3 October 2007, he had told them that he looked in the face of the gunman and knew that he had seen him about. He was asked to provide a name and replied that he could not do that because he wasn’t a grass. He did however, off the record as he put it, name the person as ‘J’ or ‘JJ’. The gunman was 6’3” or taller and skinny. When interviewed at 5.45 pm he did not mention the name but gave a description of the two men. The gunman was a black man, with dark skin and skinny. 8. Aird took part in three video identification procedures on 6 October. The first was conducted by police officer Lewington. The appellant was not present in the video but the suspected second man was standing at image number 7. Aird picked out a volunteer standing at No. 3 thinking the man was JJ. Following the parade he became agitated and told PC Hardy that he had been confused and “thought it was all wrong”. He was then shown a second video film in which the appellant was in image number 6 and identified him. He informed Inspector Burnell that he had identified the person known to him as JJ on parade 2 and believed that he was the person he had been looking for on parade 1. Inspector Burnell asked for a third parade to be conducted, this time by police officer Scott. Aird was asked if he could identify the second man and he did. 9. The third identifying witness was Andrew Temple (the third pseudonym), the brother of the deceased. When he saw his brother lying face down on the ground he removed his belt to attempt to stem the bleeding from his wounds but became hysterical and punched a glass panel in a door in the stairwell injuring his hand. A neighbour, Mr Goncalvez, reported Temple as saying “See, I swear I am going to kill someone if I find out who did this”. PC Newman arrived at about midnight. She found Andrew Temple bleeding from his arm, upset and agitated. Mistakenly, she assumed that he had been shot. She asked Temple what had happened and was told that he saw two males, one he recognised but did not really know, and the other he had never seen before. He told her that in his anger he had punched a glass door. Temple required treatment at hospital. Later the same morning Temple was interviewed as a significant witness. During the course of the interview he said that he did not know if he had seen the man before, “I don’t think so, I am not too sure”, and “I didn’t get a good look”. Asked whether he would recognise the face again he said, “No. I don’t even know”. 10. Temple took part in an identification procedure conducted by Scott on 6 October. The applicant was standing in image number 4 but the witness appeared to be focussing on the volunteers in images 1 and 3. He was unable to make an identification. During an interview on 22 October, he said that he knew the gunman was one of the two on whom he had been focussing during the procedure. 11. At the end of the identification procedures conducted on 6 October, the three witnesses were driven together by DC Hooper from the identification suite to their homes. DC Hooper gave evidence that Aird repeatedly stated that he had picked out JJ as the “shooter man”. DC Hooper acknowledged that he had not warned any of the three witnesses not to talk about the case or the identification procedures and did not intervene to prevent Aird speaking as he did. DC Hooper inferred from the words spoken by Aird and the reaction of Halton and Temple that each of them knew who JJ was. When asked about the conversation in evidence, Halton said that he could not recall Aird speaking of JJ. He denied saying that he knew the person whom Aird had picked out at the parade. DC Hooper described Temple as being very subdued during the car journey. 12. DC Hooper and police officer Jenner were both family liaison officers. They paid a visit to Temple on 7 October. Temple’s evidence was that he had been telling his family on 4 and 5 October that the gunman was JJ. The day before the shooting he had seen JJ “smiling at us when we was near the car and he was round his Mum’s area smiling at us”. Since DC Hooper had received the impression from the car journey that each of the three witnesses knew who JJ was, during his visit on 7 October he asked Temple the direct question “Do you know JJ?” DC Hooper said that Temple shifted uncomfortably and told him that he did not know JJ personally. He was not someone Temple had associated with but he had seen him about on the road. He acknowledged that he did not know who he was. DC Hooper asked the question “If you knew JJ why not pick him out on the identification parade”. Temple replied “I just remember him smiling, his nose. I saw him in a flash. I just run up the stairs. I got to the top and someone was saying that was JJ”. He continued “I am confused, all mixed up about what has happened, and I don’t want to make a mistake. I just didn’t know what to do”. Temple was the only witness to say that someone mentioned at the time of the incident itself that the gunman was JJ. In the family liaison log, Jenner recorded that Temple ran up the stairs, got to the top, and was later told that it was JJ. She gave evidence that her understanding of Temple’s account was the same as DC Hooper’s. When in evidence Temple was asked about his conversation with DC Hooper on 7 October he agreed with DC Hooper’s recollection. He went on “it all sounds vaguely right. Now I am 150% sure that the man who came through the door was JJ. It is getting back to me. I have de-stressed. At the time my brain was in a big muddle. I was sure ten days after when I came out of hospital. I thought about it when no-one was influencing me.” 13. During his interview on 22 October, Temple was saying that he was sure the gunman was JJ. During cross-examination by Mr Spens, Temple explained himself as follows: “I was so traumatised that night. I did recognise the gunman on the night itself. I thought about it and realised that I had seen him the day before, 1 October. It was late on the night of 3 October. I thought that I realised when I had seen him. I was thinking about it between 3 and 6 October. It was on the first visit to hospital before I was seen by the police. I was just thinking about it. Before I saw the police, I knew at the back of my brain I knew it was JJ but I was more worried about what had happened to my brother. I did not tell the police about my suspicions. I wanted to be sure myself.” 14. Asked why he was concentrating on numbers 1 and 3 at the identification procedure, he said: “I identified no-one. I picked out two people as close, as possibilities. I did not want to be involved. ... In my brain, they resembled the gunmen. I had to pick someone. I was not 100% sure.” 15. Temple made a further witness statement dated 23 June 2008. He reiterated that JJ was the male who came into the stairwell and pulled out a gun. He had heard from people that JJ was “into gun crime”. He had seen JJ on various local estates in the previous two years as someone pointed out to him. As to the identification procedure he said “I was out of my mind. My brother had just been killed and I just didn’t know what was going on. I was confused. That day everyone looked the same to me. My brain was not clicking”. In evidence Temple said that he had seen JJ a few times, perhaps twice before. He said he required medicine for his diabetes. He accepted that he had been smoking skunk on the day of the shooting. He repeated that he had been traumatised on the night of the shooting. He realised that he had seen the gunman the day before on 1 October. He had not wanted to say anything to anybody until he realised that the best thing was to talk to the police. Judge’s Ruling 16. Applications were made by Mr Spens QC on 24 June 2008 for the exclusion of the evidence of Halton and Temple. Mr Spens was not submitting that Holton’s 90% sure identification was inadmissible in itself. He submitted that Holton’s evidence must have been contaminated by his presence in the car in which DC Hooper conveyed the three witnesses to their homes. Any prospect that Mr Spens might have been able further to reduce the cogency of Holton’s identification would have been removed by the knowledge that Aird had identified JJ as the gunman. The judge declined to exclude the evidence, concluding that it was open to Mr Spens to explore with the witness both the qualification in his identification and the possible effects of knowledge acquired during the car journey. 17. In the case of Temple no identification was made at a formal procedure, yet the witness claimed to have known from an early stage that JJ was the gunman. He had given conflicting and inadequate explanations for his failure to make an identification at the appropriate time. He had lately made a witness statement which purported to confirm his certainty. There was a real danger that his evidence was also and particularly contaminated by after-acquired knowledge, particularly during the car journey on 6 October. The judge concluded that the evidence was admissible. Mr Spens had all the material upon which to mount cross-examination going to the reliability of Temple’s evidence. These were matters for the jury to assess. Appellant’s Grounds of Appeal Halton 18. Mr Spens repeats the submission that he made to the trial judge. He does not contend that the qualified identification made by Halton was inadmissible in itself. However, he argues that during the car journey on 6 October Halton heard Aird state repeatedly that he had picked out JJ and that JJ was the shooter man. The state of the evidence was unsatisfactory. DC Hooper said that all three men appeared to know to whom Aird was referring. At the time the judge was invited to make his ruling, DC Hooper’s evidence was undisputed. It would not be possible for Mr Spens effectively to explore the reason why Holton had expressed himself as 90% sure of his identification since Temple’s state of mind would have been affected by his exposure to a conversation which should not have been permitted to take place. 19. The code of practice, Code D Annex A paragraph E10 issued under the Police and Criminal Evidence Act 1984 specifies procedures designed to prevent contamination of identification witnesses before the holding of video identification procedures. Similar precautions are provided for other forms of identification procedure (see Annex B paragraphs D14 and D15. Mr Spens acknowledges that no such precautions are stipulated for the purpose of preventing contamination after an identification procedure has been conducted. It would, indeed, be impracticable to prevent the possibility that the quality of a witness’s identification would be affected by after-acquired knowledge. If Mr Spens’s argument is correct, then the trial judge would be required in any identification case, not just one in which the witness’s identification is qualified, to exclude the evidence if there was evidence that the witness’s identification may have been affected by after-acquired knowledge. Mr Spens recognised that this was not an argument which was likely to find favour with the court. These are matters for the jury, defence counsel having had the opportunity to test the quality of the evidence in cross-examination. 20. Mr Spens further argued that by the time the jury came to consider Halton’s evidence, they had two versions of the conversation in the car. Halton, when asked about the conversation in evidence, said “I can’t remember that”. When Mr Spens put to him that he had been involved in a conversation in the car whose terms were such that it implied knowledge that all three witnesses knew JJ, he said, “No, I didn’t say I knew the person that Jason had picked out”. Mr Spens submitted that in view of the failure of Halton to accept the proposition put to him, it was necessary for the trial judge, in summing up, to direct the jury that they should make a decision which of these accounts was accurate. They needed to resolve the question whether, in truth, Holton knew that the person he had identified with 90% certainty was JJ, the same person whom Aird had recently identified. If they were sure he did then that judgement may affect their consideration of the reliability of Halton’s identification such as it was. Furthermore, when asked whether he had seen the person he had identified on any previous occasion, Halton accepted that it was a possibility. This reply opened up the question whether Halton may have identified the gunman, not because he was the gunman, but because he was a person whose face was familiar. At pages 43 and 44 of his summing up the judge dealt with the Turnbull weaknesses. He summarised the defence argument as follows: “So far as the conversation in the car, driven by DC Hooper back from the parade is concerned, on 6 October, that officer’s evidence was that they had spoken in the back as if they all appeared to know JJ and that was something denied by this witness. They point out that, at the parade, it was a 90% qualification on the positive identification that he made.” 21. Mr Spens argues that the judge’s reference to the defence argument was inadequate warning to be cautious before placing any weight upon Halton’s identification.. Temple 22. In Mr Spens’s submission, Temple should not have been permitted to give evidence of identification. By analogy, if contamination of the witness’s evidence takes place before a video identification procedure, thus rendering the procedure unreliable and unsafe, so must contamination of a witness render his latest assertion that he knew all along the identity of the gunman be rendered unsafe. Had Temple made an identification at a procedure which followed the conversation in the car on 6 October, the defence would have had a strong argument that it should be excluded under Section 78 Police and Criminal Evidence Act 1984 as substantially prejudicial. The same considerations applied to Temple’s evidence. Further, the implication behind the conversation between DC Hooper and Temple on 7 October 2007 was that if JJ was known to Temple he should have been in a position to identify him at the procedure. Such a question can only have implied to Temple that Aird’s identification of JJ was correct. Furthermore, it was Temple’s evidence that others had identified to him JJ as the gunman. It should have been apparent to the trial judge that the contamination of Temple’s identification evidence was such that it went beyond mere weight and undermined the value of Temple’s evidence altogether. Its admission can only have been prejudicial. 23. Secondly, it is submitted that the state of Temple’s evidence was such that the jury required careful and specific directions about its dangers, the more so since Temple was the deceased’s brother and thus deserving of sympathy. The judge merely referred to weaknesses in the following terms: “First, that he is the brother of Robel, of course, and would be more upset than anybody else perhaps at the scene; that he agreed that he had been smoking some form of cannabis that night; Mr Spens submitted it is too unsatisfactory for you to rely on his evidence at all; he pointed to the description he gave about moving from the bottom stair to the door and to claim to have the face to face meeting with the gunman – there was no reference to that when he spoke to the police soon after the event; that he did not in fact realise who it was because he said to the neighbour Mr Goncalez, “I am going to kill someone if I find out who it is”, and that he told the police woman, Newman, he saw that one had a gun and he could not have seen that. This goes to show that he is unreliable and that he has said to the police that he had seen a black boy, “whom I don’t know and I don’t think I would recognise him again”. On 6 October, of course, he did not pick him out at the parade, and thereafter he was in the car when Jason was talking about “I picked out JJ as the shooter”, and therefore his mind was influenced, suggests the defence, by things he has learned by 2 October, and it is not until 22 October that he is saying to the police in a statement that he is 100% sure it was JJ because he had seen him the day before the shooting.” 24. In Mr Spens’s submission, the evidence having been admitted, the learned judge, in summing up, should have drawn explicit attention to the possibility that Temple’s identification of the appellant could have been brought about by after-acquired knowledge. First, he knew on 6 October that Aird had identified JJ as the gunman. Second, on the following day the implication behind DC Hooper’s questions was that Temple ought to have identified the appellant as the gunman. The danger of contamination in Temple’s identification evidence was such that the jury should have been told either to discount Temple’s evidence altogether, or to exercise extreme caution. Application of Section 78 Police and Criminal Evidence Act 1984 25. No breach of Code D issued under PACE 1984 is asserted on behalf of the appellant. Mr Spens’s argument is that the value of the identification made by Temple and Halton was so undermined that the evidence can only have been of prejudicial effect and should have been withdrawn from the jury under Section 78 of the Act . Alternatively, Mr Spens submits that the jury could have received further assistance from the judge pointing out the dangers inherent in the evidence. 26. Mr Atkinson, on behalf of the respondent, drew our attention to the guidance given by Lord Lane CJ in Quinn [1990] Crim LR 581 on the application of Section 78 to cases involving disputed identification evidence; “... normally preceedings are fair if a jury hears all relevant evidence which either side wishes to place before it, but proceedings may become unfair if, for example, one side is allowed to adduce relevant evidence which, for one reason or another, the other side cannot properly challenge or meet, or where there has been an abuse process, e.g. because evidence had been obtained in deliberate breach of procedures laid down in an official code of practice.” 27. In a further appeal of Quinn (FJ) [1995] 1 Cr App R 480 Lord Taylor CJ, giving the judgment of the court, at pages 489E-490G, drew attention to the need in summing up to draw the jury’s attention specifically to any breach of the Code capable of affecting the reliability of an identification. Lord Taylor’s remarks received the approval of the House of Lords in Forbes [2001] 1 AC 473 . Lord Bingham, at paragraph 27, in connection with evidence of identification which has been admitted notwithstanding a breach of Code D, said; “the trial judge should in the course of summing up to the jury - (a) explain that there had been a breach of the code and how it has arisen and (b) invite the jury to consider the possible effect of that breach. The Court of Appeal has so ruled on many occasions, and we approve those rulings; see for example Quinn [1995] 1 Cr App R 480 at 490F. The terms of the appropriate direction will vary from case to case and breach to breach.” 28. In George [2003] Crim LR 282 it was submitted on appeal that evidence which did not amount to an unequivocal positive identification at an identification procedure should be excluded under Section 78 pace 1984. It was submitted that no evidence should have been given as to why a witness purported to make a qualified identification or failed to make an identification at all. The effect of admitting such evidence was to encourage the jury to treat the witness as having made an identification when none had taken place. In such a case, it was submitted that the jury should simply be told that the witness failed to make a positive identification. 29. The court rejected these arguments. Lord Woolf CJ, having recognised at paragraph 34 the danger of mistaken identity or the clothing of a non-identification with the appearance of an identification, continued: “However, there are at least two situations where a qualified identification may, in appropriate circumstances, be both relevant and probative. First, where altogether the weight of the evidence will still be less than a positive identification, it supports or at least is consistent with other evidence that indicates the defendant committed the crime with which he is charged. Secondly, the explanation for a non or qualified identification may help to place the non or qualified identification in its proper context, and so, for example, show that the other evidence given by the witness may still be correct. Otherwise, a non or qualified identification could be used to attack the credibility of other evidence given by a witness when the explanation for this may show that such an attack is unjustified. In each case it will be for the judge to decide whether the evidence is more prejudicial than relevant and probative bearing in mind the importance of protecting the position of the defendant against unfairness. In this case, as we shall see, part of the case for the prosecution is based on the pattern of identification evidence including the build, the complexion and clothing which the appellant was wearing. Subject to the jury receiving appropriate warnings which were given in this case, the general evidence of the witnesses who saw a man who the prosecution say was the appellant was highly probative.” Argument for the Respondent 30. Mr Atkinson submitted that the evidence of Aird was unequivocal. He had told police officers on the day of the killing that he knew the identity of the gunman. At that stage he was only prepared to give a description of the two men, including the gunman. He knew who the gunman was, he said, because he had seen him on previous occasions. It was the day after the killing that he realised that the person that he recognised was called JJ. It is time that Aird had identified a volunteer at the first parade. However, it was a matter for the jury to assess the value of the identification evidence in the light of appropriate directions from the trial judge. The jury would have been entitled to return a verdict of guilty upon the identification evidence of Aird alone. 31. As to the evidence of Halton, the admission of this evidence fell squarely within the category of evidence considered by the Court of Appeal in George . Subject to the effect of the conversation in D.C. Hooper’s car, the evidence was plainly admissible. It is not suggested that Halton firmed up a qualified identification in the course of his evidence. Mr Spens’s approach at trial was to take Halton’s identification at the video procedure at face value. The fact that Halton had either been a party to the conversation (a conversation which he said he did not remember) or had been an observer of the conversation, cannot, submits Mr Atkinson, be a reason for excluding the evidence from the jury’s consideration. Mr Spens was not prevented from cross-examining Halton upon any aspect of his evidence which it was contended may have undermined his reliability or created difficulties for the defence. While the judge did not specifically direct the jury to resolve what, if any, part Holton played in the conversation the different accounts of the conversation were squarely put before the jury for their consideration and they well knew the significance of the issue. It was Halton’s evidence that he had seen the gunman on previous occasions. While it was conceded by Mr Atkinson that the judge did not specifically draw to the jury’s attention the possibility that Halton had identified the appellant as someone he had seen on the estate in the past, and not because he recognised him as the gunman, the jury can have been under no misunderstanding as to the possibility placed before them on behalf of the appellant. If this was an omission, its materiality may be judged by the fact that no request was made for the judge to add to his directions in this respect at the close of the summing up. 32. Andrew Temple failed to make any identification at the identification procedure. Only after the conversation in D.C. Hooper’s car did he say that he knew the gunman was JJ. This was not a case in which Code D was breached but a case in which a witness purported to identify by name someone he had all along been able to identify. The issue for the jury was whether Temple’s post-procedure identification was reliable. In this respect, there was a context which the jury was entitled to take into account. There is no doubt that Temple was overwrought on the night of the shooting of his brother. He gave indications during his first interview at 3.20 am that he might be able to identify the gunman (if he smiled again). Temple claimed that he had been telling members of his family that the gunman was JJ on 4 and 5 October. On the other hand, the conversation in the car on 6 October, and at his home on 7 October, were matters which the jury were entitled to evaluate when considering whether Temple’s purported identification had any value. Mr Atkinson submitted that the judge was well aware of the difficulties created by Temple’s evidence but was correct to leave these matters for the jury’s evaluation with appropriate directions. Given the explicit directions the jury received, there can be no danger that the jury failed to approach Temple’s evidence with the requisite caution. Discussion and Conclusion 33. In the course of the judge’s ruling on 24 June, upon the admissibility on the evidence of Halton, he said: “Mr Spens submits the defence are significantly disadvantaged in any attempt to explore Holton’s purported “90% sure” identification of the defendant, since the identification parade by virtue of his having heard what Aird, another witness, had to say about the correctness or otherwise of the identification. I disagree because it seems to me that Mr Spens is able to explore the fact that although there is a positive identification of his client, it falls short of being 100% sure at the time of the identification. It is a matter for Mr Spens, of course, to decide whether he wishes simply to explore what 90% means and that it clearly means something less than 100% and if the Holton witness is not sure, how could a jury act on his evidence as being sure? Whether he wishes to explore the conversations that took place in the car thereafter is a matter for him, but it seems to me this is prima facie admissible evidence, clearly relevant to the central issue before the jury which will be one of identification, and that the qualification made by Holton is a matter which goes to the weight of the evidence, and I am in no way persuaded that Mr Spens cannot properly represent his client, or that the jury would inevitably reach a conclusion that this is reliable evidence which cannot be tested. It is clearly open to being tested, and if I may say, Mr Spens has some pretty good ammunion with which to attack the reliability of this witness’s identification. Accordingly, I rule that it is admissible.” 34. In our view the judge’s decision was undoubtedly correct. Contrary to Mr Spens’s assertion, the defence had two lines of attack. The first was that even before the conversation in the car, Halton did not purport to be certain in his identification. Secondly, there was available to Mr Spens the argument that if, contrary to his assertion, Halton heard Aird’s protestations that the gunman was JJ, it was improbable that the defence would be able to shift him from his qualified identification. These were, in our view, clearly matters for the jury to consider. We do not regard it as having been incumbent upon the trial judge to take the jury through the progression of Mr Spens’s argument which they had just heard from him, provided that the relevant issues of fact and their significance were placed fairly before them. In our judgment, the jury can have been under no misapprehension as to the caution they must apply to this and any other identification evidence, particularly when there was a risk of contamination. 35. In providing his ruling in the case of Temple’s evidence, the judge said: “What happened was that an interview on 3 October 2007 that witness said he did not identify JJ who he knew by sight. On 6 October he did not identify him during an identification procedure. There is evidence that on the same day the officer was driving that witness and others from the identification parade, there was a conversation in the car about the identification of JJ, and on 7 October in answer to questions, that witness purported to identify JJ as the gunman for the first time, saying according to the note in the liaison log, “later on this witness told the officer it was JJ”. By 22 October, this witness ... says he is now 100% sure it is JJ, and of course, in his most recent statement of 23 June, he makes clear that it was indeed JJ who he saw going into the block of flats and putting his hand inside his jacket as if to pull something out. ... I am entirely satisfied that there is admissible evidence here which will go before the jury. The defence are able to test that evidence by reference to the significant witness interviews which were recorded at the time, and [are] now in transcript form, the statement of Detective Constable Hooper who overheard the conversation in the car after the identification parade which has been put in writing in the liaison log and there to be used for the purposes of cross-examination, and, of course, the recent statement of Andrew Temple which comes many months after the incident. These can be put to the witness. It does seem to me that bearing all those matters in mind, the evidence is prima facie admissible as to why Andrew Temple did not pick out JJ who he says was responsible when he attended the identification parade. It does also seem to me that this is essentially a matter for the jury to assess, and, accordingly, I rule this evidence is admissible.” 36. We accept that the evidence of Temple was more problematical for the judge than was the evidence of Halton. The effect of Temple’s evidence was that after the killing he believed he might be able to identify the gunman if he saw him smiling. He associated the gunman with someone who smiled at him on a previous occasion. He told Newman that night that he recognised but did not really know the gunman. Temple said he did not realise who the gunman was until the following day, but, he explained, he could not point anyone out on the identification procedure so as to be sure. It was only after the conversation in the car, when interviewed by DC Hooper on 7 October, that Temple said that he knew who JJ was and had failed to pick him out because he was “confused, all mixed up about what has happened and I just didn’t want to make a mistake. I just didn’t know what to do”. While there was undoubtedly a risk that Temple’s evidence of identification was contaminated by the conversation in which he took part in the car, this was evidence which, it seems to us, was for the jury to resolve. The issue was not whether an identification made at a procedure was or may have been rendered unreliable by breaches of the Code but whether Temple’s later assertion that he had known all along that the gunman had the street name of JJ was true and reliable. There were various conclusions available, for example: that Temple had known throughout who the gunman was but was frightened to say so until sure of support; that Temple, but for his confusion and anxiety at the identification procedure, would have been able to recognise the gunman without being able to put a name to him until informed of that name by Aird; that Temple had always been unable to identify the gunman but in his anxiety to do justice to his brother, he had persuaded himself that he could. 37. In our opinion this evidence was at the borderline of proper admissibility having regard to the risk of contamination. We accept Mr Spens’s criticism both of the car journey on 6 October and the conversation with Temple on 7 October. These were undoubtedly matters which went to the issue of reliability of Temple’s late identification. However, we are not prepared to accept that the judge’s decision to admit the evidence for evaluation by the jury was wrong. Our reason is, as it was the judge’s, that there was available to the defence all the material needed to examine the reliability of Temple’s evidence. As we have observed, there were various conclusions to which the jury could have been driven by the evidence. The defence was not in the position of being deprived of the opportunity effectively to explore the reliability of the evidence, as contemplated by Lord Lane CJ in Quinn. 38. We accept Mr Spens’s submission that this evidence could only be safely considered by the jury if they received explicit directions going to the reliability of Temple’s evidence. In his summing up (transcript pages 13–16) the judge gave the jury the full Turnbull direction, in the course of which he informed the jury that he would draw their attention to specific weaknesses in the identification evidence identified on behalf of the appellant. He paid tribute to the care with which counsel both for the prosecution and the defence had taken the jury through the evidence with a view to identifying any strengths and weaknesses. In particular, at page 16D, the judge posed the following question, of relevance to the evidence both of Halton and Temple: “May witnesses who purport to identify Mr Callum have identified him as someone they have seen around the estate but who in fact had no connection with the shooting?” 39. While the judge did not pose any explicit question for the jury identifying the dangers, the underlying context in which he invited the jury to consider the evidence of contamination was unquestionably the risks from contamination about which they had just heard from Mr Spens. The jury was reminded that the unchallenged evidence of Mr Goncalvez was that Temple “was going mad, walking up and down and saying, “I swear I am going to kill someone if I find out who did this.”” The jury can have been in no doubt that they needed to consider whether these words indicated that Temple had no contemporaneous knowledge who had shot his brother. The judge reminded the jury of DC Hooper’s evidence that Aird was saying, in the car, that he had picked out JJ. Temple was very subdued during that time and did not say very much at all. The next day when DC Hooper raised with Temple the question whether he knew JJ, “Temple shifted uncomfortably and said he did know JJ from the road but didn’t know him personally just from someone who had pointed him out once”. He reminded the jury that it was DC Hooper’s impression that all three witnesses were aware who JJ was. He reminded the jury that Temple conceded that DC Hooper’s recollection of the car journey was “vaguely right”; that it was not until ten days later that Temple purported to identify JJ as the gunman. It follows, in our view, that the jury’s task was to assess whether Temple had given reliable evidence that he knew independently who the gunman was or had only been able to make that identification in consequence of Aird’s remarks. The judge drew attention to Mr Spens’s cross-examination upon Temple’s remark to Mr Goncalvez; about his purported recognition of the gunman the day after the shooting; his explanation that he was traumatised; about his failure to inform the police of his recognition until much later; why he had been unable to identify JJ at the identification procedure; about his explanation “I didn’t want to say nothing to nobody until I realised the best thing was to talk to the police”; that during his interview with the police on 22 October, he conceded that someone might well have told him that the gunman was JJ although he had himself been informing his family and friends that JJ had been the gunman; that he had these thoughts as early as the 3 October but had not mentioned them to the police until 22 October. 40. At page 78 of the transcript of the judge’s summing up, he summarised the weaknesses in Temple’s evidence including his remark to Mr Goncalvez, the conversation in the car, and the lateness of his assertion that JJ was the gunman. 41. In our view, the judge did give to the jury explicit directions about the caution which they must exercise before relying about the identification evidence of any of the witnesses, and, in the case of Temple, the particular issue of unreliability occasioned by after-acquired knowledge. 42. This was a single issue case in which counsel for the appellant took infinite care to explain to the jury why the identification evidence may be unreliable. Indeed Mr Spens was explaining why there was no case which required an answer from the appellant who elected not to give evidence. This was not a case which involved several different compartments of circumstantial evidence requiring the judge to re-focus the jury’s attention upon issues relevant to identification. The whole case was about identification and the risks of error, contamination and mistaken recollection. The judge endorsed counsel’s approach to the identification issue and reminded them of the central features of the evidence of Halton and Temple which they should consider as weaknesses. The fact that the jury did not receive a more emphatic endorsement of weaknesses from the judge does not, in our view, undermine the safety of the jury’s verdict, since the question whether the identification evidence was contaminated was an issue for the jury to evaluate as the judge told them. If they concluded that there was a real risk of contamination, it was common ground that the jury should exercise extreme caution. 43. There was, upon the judge’s directions to the jury, only one aspect of the evidence which was capable of providing support for the identification by any one of the witnesses. That comprised draft texts recovered from the appellant’s mobile phone on his arrest. Among them were lyric verses making reference to killing, a MAC10 submachine gun and 9mm ammunition. An issue for the jury was whether these lyric verses represented the appellant’s statement of intent to commit a murder with such a weapon or a coincidental product of his imagination. There was evidence from Dr Quinn, for the appellant, that nothing sinister should be inferred from the texts which were recovered. It was a matter for the jury to evaluate the evidence and reach its own conclusion. After the judge had completed his summing up Mr Spens raised as an issue the judge’s failure explicitly to warn the jury that they should not treat the texts as any evidence capable of supporting the identification evidence unless they were sure that they could exclude the possibility that the texts were a statement of intent rather than of imagination. The judge declined to give the jury a further direction explaining that he regarded it as implicit in his summary of the evidence that only if they concluded the prosecution argument was correct could they treat the texts as supporting evidence. We have re-read the transcript of the judge’s summing up for 10 July 2008 and conclude that the judge was correct. At page 12 F he said: “You know that the Crown’s case is that disclosed in those messages which had clearly been saved on Mr Callum’s phone, and they say saved for a purpose, though it is not possible to say what date they were saved, that this describes killing someone and, say the prosecution, this is a statement of intent to do what in fact was done here, namely the killing of someone with the MAC machine gun using 9mm bullets.” 44. At page 13 E the judge proceeded to remind the jury of the evidence of Dr Quinn, the purpose of which was to justify the opinion that this was gangster rap which may have had nothing to do with an existing intention. She conceded that the obvious person to explain the preservation of the texts was the defendant himself who had not given evidence. 45. While we agree with Mr Spens that the judge could have been more explicit in his direction to the jury as to the relevance of their consideration of this evidence, we conclude that they can have been in no doubt as to its purpose and significance. Unless they were sure that the prosecution was right and Dr Quinn was wrong it was commonsense that the evidence could not amount to support of the evidence of identification. 46. In our view, for the reasons we have given, this verdict was safe and the appeal is dismissed.

```yaml citation: '[2010] EWCA Crim 1325' date: '2010-06-16' judges: - LORD JUSTICE PITCHFORD - MRS JUSTICE RAFFERTY - HIS HONOUR JUDGE GOLDSTONE 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: [2020] EWCA Crim 176 Case No: 201900428 A3 & 201901790 A1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WOOD GREEN CROWN COURT & CANTERBURY CROWN COURT HHJ J GREENBERG & HH CHRISTOPHER CRITCHLOW T20187289 & T20167265 Royal Courts of Justice Strand, London, WC2A 2LL Date: 19/02/2020 Before : THE VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) LORD JUSTICE FULFORD MRS JUSTICE CHEEMA-GRUBB DBE and MRS JUSTICE FOSTER DBE - - - - - - - - - - - - - - - - - - - - - Between : Robert Baker Michael Richards 1 st Appellant 2 nd Appellant - and – The Queen Respondent - - - - - - - - - - - - - - - - - - - - - Mr Hugh Southey QC (instructed by Registrar ) for the 1 st Appellant & 2 nd Appellant Mr Jake Rylatt for the 1st Appellant Mr Mark Dacey for the 2 nd Appellant Mr Duncan Atkinson QC (instructed by CPS Appeals & review Unit ) for the Respondent Hearing dates: 30 th January 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Fulford: Introduction 1. On 3 January 2017, Robert Baker pleaded guilty at Canterbury Crown Court to an offence of robbery, contrary to section 8(1) , Theft Act 1968 . On 30 May 2017, he was sentenced to an extended sentence, pursuant to section 226A, Criminal Justice Act 2003 (‘ CJA 2003 ’), of 10 years 4 months, comprising a sentence of 5 years and 4 months’ imprisonment with an extended licence period of 5 years. 2. At the time this sentence was imposed, the appellant had already been recalled to prison, following his release on licence from an indeterminate sentence – a sentence of imprisonment for public protection (an ‘IPP’) – which had been imposed at the Crown Court at Woolwich on 26 September 2011 for an offence of robbery, and from which he had been released on licence on 1 August 2016. The present offence of robbery was committed on 27 November 2016. 3. The Registrar referred the application by Baker (1 year 10 ½ months out of time) for leave to appeal his sentence to the full court. We have been provided with a detailed explanation for the delay, which addresses the circumstances in which the applicant sought advice on appeal from fresh representatives, along with the subsequent progression of the case. Given the real element of uncertainty that has existed in the jurisprudence on the issue summarised in [7] and considered in [36] – [39], we are satisfied with the explanation for the delay. Accordingly, we grant leave to Baker. 4. On 29 October 2018, Michael Richards pleaded guilty to an offence of robbery at Wood Green Crown Court. On 6 December 2018, he was sentenced to an extended sentence of 11 years, pursuant to section 226 A, CJA 2003 , comprising a sentence of 8 years’ imprisonment with an extended licence period of 3 years. 5. At the time that this sentence was imposed, the appellant had already been recalled to prison having been released on licence from a life sentence imposed at the Central Criminal Court on 15 November 2002 for an offence of murder, and from which he had been released on life licence on 14 June 2017. The present offence of robbery was committed on 27 September 2018. 6. The single judge granted leave to Richards to appeal his sentence. The Main Issue: outline 7. The central contention on behalf of both appellants is that it was wrong in principle or manifestly excessive to impose an extended sentence, pursuant to section 226 A CJA 2003 , when the appellants had already been recalled to prison on licence, because the future assessment of risk that would be undertaken by the Parole Board was sufficient to protect the public. The Facts Robert Baker 8. On the afternoon of 27 November 2016, the appellant entered a convenience store in Victoria Road in Deal and asked the shop assistant, Mohammed Harrou, if he could use the lavatory. He was refused and left the shop. He returned shortly thereafter, selected a can of beer and approached the counter. Instead of paying, he grabbed Mr Harrou by his scarf and other clothing and pushed him back into the staff area of the shop, telling him to shut up. Mr Harrou sustained small cuts to his forearms in the process. 9. The appellant dragged Mr Harrou upstairs to the kitchen area of the premises and produced a hammer with a large black head. He told Mr Harrou to sit down and demanded “where’s the money”. There was a till drawer from which Mr Harrou took notes and bags of coins, and he put them in the appellant’s pockets. The appellant demanded more money and argued with Mr Harrou as to where it might be located. Mr Harrou, however, was able to break free, and he summoned assistance. The appellant left the shop but was apprehended nearby. He said “I’ll take the money back, just let me go”. The appellant was found to be in possession of £108 in bags of coins. 10. In interview, the appellant admitted the offence, but denied that he had been carrying a hammer. Ultimately, the appellant pleaded guilty without a basis of plea, thereby accepting that he had carried and threatened Mr Harrou with this weapon. 11. Mr Harrou in an impact statement said that “I am in complete shock. I feel like I can’t really put it into words but I feel like it’s the worst thing that ever happened to me. I really thought at one point this guy is going to kill me”. 12. The appellant is now 40 years old. He was 37 years old at the time of sentence. He has been convicted on 12 occasions of a total of 24 offences. We note in particular: (a) On 5 June 2000, he was sentenced to 18 months’ imprisonment at the Crown Court at Maidstone for an offence of robbery, in which he punched a male in the street and demanded money from him. He walked off but then returned to demand more money, accompanied by further threats. (b) On 6 August 2003, he was sentenced for a number of offences of dishonesty and an offence of manslaughter at the Crown Court at Maidstone. The appellant with another individual confronted a 44-year-old male after he left a party at which the appellant had been present, and inflicted blunt force trauma to his mouth and nose, fracturing his skull and causing damage to his brain. The appellant was sentenced, after a trial, to 3 years’ imprisonment for the manslaughter. (c) On 27 February 2009, he was sentenced to 3 years’ imprisonment at the Crown Court of Maidstone for an offence of robbery, in which he pushed a 79-year-old man to the floor of his home, making off with a wallet and cards. (d) On 26 September 2011, he received an IPP, with a minimum term of 30 months’ custody, at the Crown Court at Woolwich for an offence of robbery in which he demanded money of a 75-year-old, pushing his victim to the ground and taking £1,600. Michael Richards 13. At 11.30am on 27 September 2018, Ashwin Peshavaria, aged 66 and employed as a cash-in-transit custodian for the Post Office, stopped to make a delivery to the post office on Tottenham High Road. The street was busy. The appellant got out of a black Ford Kuga car, dressed in black and wearing a motorcycle crash helmet, and approached Mr Peshavaria, who was carrying £26,000 in a cash box. The appellant pushed him to the floor and stole the cash box. Mr Peshavaria suffered from a grazed knee and pain to the left side of his face and ribs as a result. 14. Members of the public intervened and restrained the appellant in his car until the police arrived. He fought with them, biting one of those who had apprehended him on the hand and a second on the arm. The police found a screwdriver, balaclava, and gloves in the Ford Kuga, which had been stolen 3 weeks earlier and which bore false number plates. 15. After initial hesitation, the appellant admitted the offence in interview, saying he needed money to pay for cancer treatment. 16. The victim reported he had difficulty sleeping and continued to suffer physical discomfort. He said “I’ve been badly affected as a result of this incident.” He had given serious consideration to not returning to work. He had ceased going out alone, was nervous, jumpy and paranoid at work, but the financial repercussions for his family if he stopped working would be considerable. 17. The appellant is 52 years old, having been born on 21 July 1967. He was 51 years old at the time of sentence. He has been convicted on 9 occasions on a total of 18 offences. Of particular relevance: (a) On 8 October 1985, he received 36 hours in an attendance centre at the Waltham Forest Magistrates’ Court for the possession of an offensive weapon, which related to his possession of a knife. (b) On 24 January 1986, he was sentenced to 4 years detention in a Young Offenders’ Institution, at the Crown Court at Snaresbrook, with a concurrent sentence of 6 months’ detention for going equipped for burglary, in which a group of young people including the appellant robbed a petrol station, stabbing an employee. (c) On 15 November 2002, he received a sentence of life imprisonment at the Central Criminal Court for murder, and concurrent sentences of 12 years’ custody for two offences of wounding with intent to do grievous bodily harm and 4 years’ custody for two offences of assault occasioning actual bodily harm. The appellant went to an address in Hackney and demanded money from the occupants. He shot three of the occupants, one fatally, one to the chest and one to the shoulder. (d) On 10 April 2003, he received a sentence of 10 years’ imprisonment at the same court for an offence of robbery. This related to the robbery of a cash-intransit custodian of £25,000 by punching him to the upper body and grabbing the cash box. He received a consecutive term of 4 months’ imprisonment for taking a motor vehicle without authority, having taken the keys from a female driver by assaulting her. This sentence was ordered to run concurrently with the life sentence imposed on 15 November 2002. The Main Issue: detail 18. The central issue that arises on these conjoined appeals is whether it was lawful for the judges to pass extended sentences, given both men were serving indeterminate sentences in relation to unrelated criminal proceedings, having been recalled to prison (Baker under an IPP and Richards under a life sentence). Both men were subject to provisions prohibiting their release until the Parole Board is satisfied they pose no risk to the public. Mr Southey Q.C., on behalf of both appellants, argues that either the statutory test was not met for an extended sentence or it would have served no legitimate purpose. He contends, therefore, that there was either no power to impose an extended sentence or that it involved an impermissible exercise of discretion. In summary, he submits that the purpose of the extension period is to provide protection when the licence period that would result from a determinate sentence is inadequate, and given the appellants had been recalled to prison, it is difficult – indeed, impossible – to conjecture how the extension period would provide additional protection. 19. Section 226 A CJA 2003 , in so far as is relevant, sets out: (1) This section applies where— (a) a person aged 18 or over is convicted of a specified offence (whether the offence was committed before or after this section comes into force), (b) the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences, (c) the court is not required by section 224A or 225(2) to impose a sentence of imprisonment for life, and (d) condition A or B is met. (2) Condition A is that, at the time the offence was committed, the offender had been convicted of an offence listed in Schedule 15B. (3) Condition B is that, if the court were to impose an extended sentence of imprisonment, the term that it would specify as the appropriate custodial term would be at least 4 years. (4) The court may impose an extended sentence of imprisonment on the offender. (5) An extended sentence of imprisonment is a sentence of imprisonment the term of which is equal to the aggregate of—(a) the appropriate custodial term, and (b) a further period (the “extension period”) for which the offender is to be subject to a licence. (6) The appropriate custodial term is the term of imprisonment that would (apart from this section) be imposed in compliance with section 153(2). (7) The extension period must be a period of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by the offender of further specified offences, subject to [subsections (7A) to (9)] . (7A) The extension period must be at least 1 year. (8) The extension period must not exceed— (a) 5 years in the case of a specified violent offence… (9) The term of an extended sentence of imprisonment imposed under this section in respect of an offence must not exceed the term that, at the time the offence was committed, was the maximum term permitted for the offence. 20. Robbery is a serious specified offence ( section 226 A(1)(a)). Both murder and manslaughter are offences that qualify for condition A ( section 226 A(2)). For the purposes of section 226 A(1)(c), robbery without a firearm (real or imitation) is not an offence listed in Schedule 15B (para.7) and therefore does not come within the requirements of section 224A and the application of section 225(2) depends on whether “the seriousness of the offence […] is such to justify the imposition of a sentence of imprisonment for life” (section 225(2)(b)) which was not the position in either of these cases. Accordingly, save for the arguments raised by Mr Southey, the criteria for an extended sentence were met, depending in each case on the determination of the judge. Both sentencing judges concluded that the appellants satisfied the criteria for dangerousness, as set out in section 229 CJA 2003 . In the case of Baker, His Honour Christopher Critchlow (sitting as a deputy circuit judge) concluded “having read what I have about you, you are somebody who poses a significant risk to members of the public, in particular men who are alone, and this is something of an escalation, the fact that you produced the hammer in the course of this offence.” In the case of Richards, Judge Greenberg Q.C. concluded: “This robbery is a serious specified offence, and having considered the nature of the offence, and your criminal history of violent offending I am in no doubt that you present a significant risk of causing harm to members of the public by the commission of further specified offences. Your history of committing violent crimes, together with the speed with which you returned to committing a violent crime following your release from prison leaves me in no doubt that you fall squarely into the category of offender required to be sentenced under the dangerousness provisions for the protection of the public from serious harm”. Although certain subsidiary issues are argued by both appellants at [41] – [44], neither appellant challenges the finding of dangerousness. 21. Prisoners serving a life sentence remain on licence for life (section 31(1) Crime (Sentences) Act 1997 (“1997 Act”)). When a prisoner is serving an IPP, under section 31A(2) 1997 Act the Parole Board has a discretion to order that the licence shall no longer have effect after the prisoner has been at liberty for ten years. The Parole Board must not make such an order unless it is satisfied that it is no longer necessary for the protection of the public that the licence should remain in force (section 31A(4)(a) 1997 Act). 22. Section 32 1997 Act seemingly gives the Secretary of State a broad discretion to recall prisoners serving a sentence of life imprisonment and an IPP (by section 34 (2)(d) 1997 Act, references to life imprisonment in this context include an IPP). The section does not describe the test to be applied for recall, but this will lawfully occur when i) there are reasonable grounds for concluding that there has been a breach of the licence conditions and ii) in all the circumstances, recall is necessary for the protection of the public, because of the dangers posed by the prisoner when out on licence (see R v Parole Board ex parte Watson [1996] 1 WLR 906 and R (Jorgensen) v Secretary of State for Justice [2011] EWHC 977 Admin ) . The Parole Board will direct release of those recalled while on licence if it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined (section 28(6)(b) 1997 Act, but see also Article 5 of the European Convention on Human Rights and Stafford v UK (2002) 35 EHJRR 32 at [83]). As far as prisoners serving an IPP are concerned, the same release provisions apply (section 34(2)(d)1997 Act, as above, and R(Sturnham) v Parole Board (Nos 1 and 2) [2013] UKSC 23 ; [2013] 2 AC 254 , at page 334 [41]), save that once there has been a direction that an IPP licence should no longer remain in force, the recall provisions fall away. 23. Section 254 (1) CJA 2003 gives a similar broad discretion to the Secretary of State to recall prisoners serving an extended sentence (“[t]he Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison”). The Secretary of State must have concluded that that the safety of the public makes it necessary to recall the prisoner because the risk to the public cannot be contained in any other way ( R (Jorgensen) v Secretary of State for Justice at [47]). 24. It follows, therefore, that the recall provisions are essentially the same whether under an extended sentence, an IPP or a life sentence, and there is no greater power of recall in the case of prisoners serving an extended sentence, as compared with those under an IPP or a life sentence. In considering whether there is any purpose in imposing an extended sentence in these circumstances, it is emphasised that a prisoner serving a life sentence or an IPP can only be released if detention is no longer necessary for the protection of the public. As a result, such a prisoner will only be at liberty if it is concluded that the individual can be safely managed within the community. Mr Southey highlights that the sole circumstance when the licence following an indefinite sentence can end is when the Parole Board orders, after 10 years at liberty, that for an IPP prisoner the licence has ceased being necessary. Mr Southey contends that by that time an extended sentence in all, or nearly all, cases would have no utility. Accordingly, it is argued for the appellants that an extended sentence serves no useful purpose. 25. In contrast, by imposing an extended sentence in these circumstances, the release of the accused is potentially delayed to his or her disadvantage because of the two-thirds release provisions in section 266A(4) (see above). Although release on licence will always depend on the Parole Board making a decision that the offender can be safely managed in the community, an extended sentence in Mr Southey’s submission may have an unjustified consequence of delaying the offender’s release. 26. In order to succeed in these submissions, Mr Southey must, inter alia , seek to distinguish the present case from R v Smith [2011] UKSC 37 ; [2012] 1 Cr App R (S) 83 . In that case a defendant was released on licence from a life sentence but was recalled when suspected of committing eight robberies and eight firearms offences. Following his guilty plea to those offences, he was sentenced to an IPP, the judge having reached the opinion that “there was a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences” ( section 225(1) (b) CJA 2003 ). Strongly echoing the submissions in the present appeal, it was argued in that case that the sentencing judge could not properly have formed the opinion that there was a significant risk to the public because the appellant had been recalled to prison under the earlier life sentence and would not be released until the Parole Board was satisfied that it was no longer necessary for the protection of the public that he should be confined. Alternatively, it was submitted that the sentencing judge had erred in principle in imposing a sentence of imprisonment for public protection even though the statutory criteria for the imposition of such a sentence were satisfied. It was argued that when the defendant was already serving a life sentence, nothing was achieved by an additional sentence of imprisonment for public protection. 27. The Supreme Court rejected this submission. It held that the question in section 225(1) (b) “must be answered on the premise that the defendant is at large. It is at the moment that he imposes the sentence that the judge must decide whether, on that premise, the defendant poses a significant risk of causing serious harm to members of the public” [15]. Accordingly, the recall on licence did not and could not operate to invalidate the imposition of an IPP. As to the exercise of discretion, and whether an IPP would provide any benefit, Lord Phillips PSC observed “[…] (t)he Parole Board had released the appellant on licence having been persuaded that he did not pose a risk of serious harm to the public. The judge cannot be criticised for imposing a sentence that demonstrated that the contrary was the case” [19]. 28. The implications of this aspect of the decision in R v Smith were explained by Lord Judge in R v J(M) [2012] EWCA Crim 132 ; [2012] 2 Cr App R (S) 73 , as follows: “26. […] As a matter of principle and practice Smith underlines that the decision whether IPP should be ordered is made, and can only be made, at the date of the sentencing hearing. That is the date when the sentencing court is required to form its opinion whether, in the language of s.225(1) (b) , there is a significant risk to members of the public (who, we observe in passing, include police custody officers, prison officers, and fellow prisoners, […]) of serious harm occasioned by the offender committing any further specified offences. 27. On the issue of public safety, the decision made at the sentencing hearing is required to address the future. This involves an assessment of the risk to the public posed by the commission of further offences by the offender, that is, offences which the offender would or might commit subsequent to the current sentencing hearing. Lord Phillips’ observations underline that the judge must decide whether the defendant “poses” the risk envisaged by the statute, not on the basis that he is already in custody at the date of sentence (which was the foundation for the argument on behalf of Nicholas Smith rejected by this Court) but on the basis that he is not. Subject to that amplification, the observations are entirely consistent with the decision of the House of Lords in R. (on the application of James) v Secretary of State for Justice ; R. (on the application of Lee) v Secretary of State for Justice ; R. (on the application of Wells) v Parole Board [2009] UKHL 22 ; [2010] 1 A.C. 553 which was not cited in Smith ) which endorsed the principles established in this Court. These are conveniently summarised in Johnson . The question whether a discretionary indeterminate sentence is appropriate in an individual case is “predictive”.” 29. Smith and J(M) are binding on this court and the impact of those two authorities is that i) it is neither necessarily unlawful nor wrong in principle for an indeterminate sentence to be imposed on an offender who is already serving an earlier indeterminate sentence, and ii) the judge must decide whether the defendant poses the risk envisaged by the statute, not on the basis that he or she is already in custody at the date of the sentence but on the basis that the defendant is not. 30. Mr Southey’s argument distinguishing the present case from those two binding authorities is based on the following main factors. First, he suggests that the Supreme Court in Brown v Parole Board for Scotland and others [2017] UKSC 69 ; [2018] AC 1 when considering markedly similar provisions for extended sentences ( section 210 A Criminal Procedure (Scotland) Act 1995 ) signposted the approach for which he contends, namely that the court should assess whether any period of extension is necessary to protect the public when a separate recall on licence is already providing that protection. The sole passage from the judgment of Lord Reid on which he relies, with which the other members of the court agreed, is as follows: “53. The court which fixes the custodial term of an extended sentence is, of course, aware of the statutory provisions governing early release. But those provisions do not influence the length of the custodial term. The court does not, for example, impose a custodial term of six years because it judges four years to be the appropriate period in custody. The provisions governing early release are, however, relevant to the imposition of an extended sentence. As explained earlier, in terms of section 210 A(1)(b) of the 1995 Act it is only where “the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of protecting the public from serious harm from the offender” that an extended sentence can be imposed. The court therefore has to consider the period for which the offender would be on licence under early release provisions, and therefore subject to supervision with the possibility of being recalled to custody, if an ordinary sentence of imprisonment were imposed, and assess whether that period would be adequate to protect the public from serious harm. If not, the court can ensure that the offender is on licence for a further period, fixed as the extension period.” 31. In our view, Mr Southey is attempting to derive far more from this passage than analysis permits. Lord Reid did not undertake a review of the decisions in Smith or J(M) , and in particular he did not address the present issues, namely whether it was unlawful or wrong in principle for an indeterminate sentence to be imposed on an offender who is already serving an earlier indeterminate sentence or whether it was wrong for a judge to determine the risk posed by the defendant on the basis that he or she is not in custody at the date of sentence, even if the individual had been recalled on licence for other offending. Indeed, neither Smith or J(M) were referred to in argument or in the judgment. Instead, Lord Reid in [53] summarised the relevant statutory provisions, in the context of a case which was focussed on the requirement that an individual who received an extended sentence (or who had been recalled on licence during an extended sentence) should be given a real opportunity to achieve rehabilitation and whether immediate release should result if there were no available courses. The essential point made by Lord Reid in [53] was that the judge needed to assess whether the licence period under a determinate sentence was adequate to protect the public. Relevant to the issue addressed in [34] below, Lord Reid expressly emphasised that the statutory provisions governing early release should not influence the length of the custodial term. Notwithstanding Mr Southey’s able submissions, we do not consider that Brown provides any assistance on the questions that arise on this appeal. 32. Second, Mr Southey contends that an extended sentence is to be distinguished from other sentences because of the potential disadvantage to the defendant of the restriction on possible release until two-thirds of the custodial element of the extended sentence has been served ( section 246 A CJA 2003 ). This is in contrast to the entitlement to be released after serving half of a determinate sentence which does not have an extension period ( section 244(1) CJA 2003 ). Similarly, a prisoner serving a life sentence or an IPP is potentially eligible for release at the end of the minimum term, which for a discretionary life sentence or an IPP is usually set at a half of the determinate term that would otherwise have been imposed ( R v Szczerba [2002] EWCA Crim 440 ; [2002] 2 Cr App R (S) 86 at [33] and Smith at [15]). 33. In our judgment, this argument fails, not least because of a fundamental element of the decision in Smith (as endorsed in J(M)) , namely that the decision as to risk must be made on the basis that the defendant is “at large” and has not been recalled. Given this is the approach to be followed, any argument that the two-thirds release conditions may delay what would otherwise have constituted his first opportunity for consideration by the Parole Board for release would be an impermissible consideration. It is irrelevant for the exercise that the judge must conduct that the offender has been recalled on licence. 34. But the argument also contravenes an important principle of sentencing, namely that in fixing the appropriate sentence of imprisonment of a convicted person, the judge does not, save exceptionally, take account of the statutory provisions for early release (see R (Stott) v Justice Secretary [2018] UKSC 59 ; [2019] 1 Cr App R (S) 47 , per Lord Hodge at [188] generally and at [191] as regards discretionary life sentences). Parliament in implementing the provisions for extended sentences deliberately created a regime that was more onerous than the version originally created by the CJA 2003 , when release from the sentence was at the half-way point of the custodial term. In Stott , the Supreme Court held, looking at the extended sentencing regime as a whole, that the early release provisions were justified as a proportionate means of achieving the government’s legitimate aims. Mr Southey’s submissions would have the result that, in circumstances such as the present, a judge would never pass an extended sentence, even if the criteria are met, thereby avoiding the “delayed” early release provisions which Parliament intended should apply if the judge considered it appropriate to protect the public by increasing the usual licence period by passing an extended sentence. In focussing solely on the role of the Parole Board in determining whether continued detention is no longer necessary to protect the public, Mr Southey’s approach would impermissibly restrict a judge’s discretion. Contrary to Mr Southey’s submission that “there is no point” in imposing an extended sentence, by implementing the delayed early release provisions Parliament provided a discrete form of public protection by way of the enhanced period of time that must be served before the individual can be released (two-thirds rather than at the half-way stage). It will always be for the judge to decide whether an extended sentence is appropriate, given this option is discretionary ( Attorney General’s Reference No. 27 of 2013 (Burinskas) [2014] EWCA Crim 334 ). The judge will need to focus on the protection that can be provided to the public by way of an additional period for which the offender is to be on licence, whilst ignoring the consequences of the new early release regime as regards release from the custodial term ( Burinskas at [40]). 35. In summary, therefore, it is necessary in these circumstances for a judge to consider whether it is appropriate to impose an extended sentence, without taking into account the fact that the defendant has been recalled on licence and ignoring the delayed early release provisions. 36. Given their prominence in Mr Southey’s submissions, we need to address two other matters that were raised during the appeal. First, Lord Mance at [36] and [37] in R Sturnham) v Parole Board (Nos 1 and 2) , in certain obiter remarks, expressed reservations as to part of Lord Philips’s reasoning at [15] in Smith , which it is unnecessary to rehearse. His concerns were founded, certainly in the main, on his view that the assessment of risk should be “predictive”. This was resolved conclusively by Lord Judge in J(M) at [26] and [27] (as set out above), in a manner which reflected the approach favoured by Lord Mance and which was, on analysis, consistent with the approach of Lord Philips. In the result, there is no decision of the Supreme Court which is contrary to the approach that the assessment is predictive and the offender should be treated for this purpose as being at liberty. 37. Second, there have been individual sentencing decisions of the Court of Appeal which have addressed the lawfulness of an extended sentence which has been imposed during the currency of an indeterminate sentence. Without being in any sense critical, in those cases the court did not necessarily receive the kind of assistance which has been afforded on this appeal by way of detailed submissions, and the decisions are not entirely consistent. On one side of the line, in R v Ceolin [2014] EWCA Crim 526 this court, having considered Smith , observed that an extended sentence can be justified notwithstanding the recall of the appellant under the terms of an IPP “by the need to emphasise to the Parole Board both the risk that the appellant still presents and that he offended while subject to licence” [16]. In R v C [2019] EWCA Crim 643 an extended sentence was upheld notwithstanding the fact that the appellant was serving a life sentence. The court concluded that the Parole Board had been significantly misled in a way revealed by the offences then under consideration, and it was observed that: “21. […] In our judgment, the fact that he has served in excess of twelve years more than the tariff period under the life sentence cannot avail him. It does no more than reflect the fact that throughout this time the Parole Board have not regarded the risk that he continued to pose as capable of being safely managed in the community.” 38. On the other side of the line, in R v Turner and Stevenson [2019] EWCA Crim 1529 , the court concluded at [42]: “[…] We consider that although the judge was fully entitled to make a finding of dangerousness on the material before her, the decision to impose an extended sentence cannot be justified as necessary for the protection of the public. The judge had a discretion notwithstanding the finding of dangerousness as to what kind of sentence to impose. The critical factor here was that the second appellant was already serving, was still serving and was still subject to an IPP. We consider that the imposition of an extended sentence in these circumstances, could serve no sensible purpose as regards the protection of the public, and was wholly unnecessary.” 39. Lord Phillips observed in Smith that the IPP imposed in that case served to demonstrate to the Parole Board the risk the offender posed, contrary to their decision when releasing him on licence [19]. Insofar as the decisions in this court are in conflict, Smith is to be followed. 40. The conditions of section 226 A were met as regards the present appellants, and, in the result, applying Smith and J(M) it was neither manifestly excessive nor wrong in principle nor an inappropriate exercise of discretion to impose an extended sentence despite the recall on licence of both accused in relation to other offending. Two Subsidiary Issues 41. There are two subsidiary issues that fall for consideration, in that both appellants challenge the length of their extended sentences. There is no challenge to the finding of dangerousness in either case. 42. For Baker, it is argued that there was no sufficient basis for the judge’s conclusion that there had been psychological harm, and that in the circumstances the sentence should have been in a different category under the guideline (2B rather than 1B). Mr Southey argues that Mr Harrou’s assertion in his impact statement that “I am in complete shock. I feel like I can’t really put it into words but I feel like it’s the worst thing that ever happened to me. I really thought at one point this guy is going to kill me” was insufficient. The judge described what happened as “very frightening”. Under the guideline for offences of less sophisticated commercial robbery, the judge was entitled to conclude that this was an offence falling within category B, given the production by the appellant of the hammer to threaten the victim. There is no complaint as to that determination. The sole question raised by Mr Southey is whether there was sufficient evidence of serious psychological harm to the victim, given the evidence was limited to the short statement set out above. Whether more detail, evidence or expert assistance is required beyond the victim impact statement will depend on the particular facts of the case, and often significant detail, evidence or expert assistance will be wholly unnecessary. That said, we are of the view that although this must have been extremely frightening, it is impossible to say that the incident caused serious psychological harm on the basis of what is set out in the impact statement. However, there were notable aggravating features, not least the prolonged nature of the incident, the restraint of Mr Harrou, the terror and distress that the appellant caused him and the appellant’s highly notable criminal record for offences of violence. The difference in the starting point between category 1B and 2B is 1 year (5 years and 4 years, respectively) and in our judgment even if the requirement of serious psychological harm was insufficiently made out, the judge was entitled to go outside the category range for 2B (3 to 6 years) on account of the aggravating features just rehearsed, and to decide that prior to credit for plea, the sentence would have been eight years’ imprisonment. It follows that having given 1/3 credit for the appellant’s guilty plea, we do not accept that the sentence as regards the length of the determinate element of the extended sentence (5 years 4 months) was manifestly excessive. 43. For Richards, it is submitted that the judge, in identifying the correct sentencing bracket, should not have taken the violence shown to those who intervened into account. Mr Southey argues that for these purposes, it was only the violence shown to Mr Peshavaria that was relevant. Offences involving a professionally planned commercial robbery are divided into three categories of culpability and harm. An offence is to be treated as involving high culpability (category A) when very significant force is used in the commission of an offence or a bladed weapon is produced to threaten violence. An offence falls within the medium category of culpability (category B) where some other form of weapon is produced to threaten and where there is more than a minimal use of force (category C). An offence falls into category 1 of harm where there is serious physical or psychological harm to the victim, or a very high value of goods are obtained, and into category 2 where this is not the case but there is more than minimal harm. For an offence falling within category 1A, the starting point is 16 years’ custody, with a range of 12 to 20 years. For an offence falling within either category 1B or 2A, the starting point is 9 years’ custody, with a range of 7 to 14 years. For an offence falling within category 2B the starting point is 5 years’ custody, with a range of 4 to 8 years. 44. It is not disputed that the judge was entitled to conclude that this was a professionally planned commercial robbery because, inter alia , a car had been stolen for the purpose and false plates used; a Post Office cash in transit custodian carrying a large sum of money was targeted; reconnaissance had been undertaken; a motorcycle crash helmet was used to conceal the appellant’s identity; and there were other items in the vehicle for use in a robbery. Similarly, there is no dispute that the judge was entitled to conclude that this offence fell within category 1 as regards harm, given that a very high value of goods was targeted and the victim had suffered more than minimal psychological harm. The sole dispute was whether the judge was entitled to conclude that the culpability level fell between categories A and B, given the degree of violence used not only against Mr Peshavaria but also against the members of the public who sought to intervene. We note that although the appellant had brought a weapon to the scene it was not used. Mr Southey is correct to identify, as did the judge, that the violence utilised to carry out the robbery was not “very significant” for the purposes of establishing high culpability (the victim was pushed to the floor). However, there were a number of notable aggravating factors. Richards had a number of relevant previous convictions, including a previous robbery from a cash in transit custodian; the offence was committed in breach of licence; the offender attempted to conceal his identity by wearing a crash helmet; and (applying the Overarching Principles: Seriousness Guideline) the offence was committed against someone providing a public service and others were put at risk of harm by the offending, as demonstrated by the deliberate and gratuitous violence by Richards immediately afterwards once he was apprehended by members of the public. These factors undoubtedly positioned the offence between categories A and B, as identified by the judge. The judge’s starting point of 8 years’ imprisonment (one year less than the starting point for a category 1B offence), increased to 12 years’ imprisonment to reflect the aggravating factors and reduced to 8 years when full credit was given for the appellant’s plea was undoubtedly appropriate; indeed, the sentence could have been significantly higher. 45. For all of these reasons these appeals against sentence are dismissed.

```yaml citation: '[2020] EWCA Crim 176' date: '2020-02-19' judges: - HHJ J GREENBERG & HH CHRISTOPHER CRITCHLOW - LORD JUSTICE FULFORD - MRS JUSTICE CHEEMA - MRS JUSTICE FOSTER 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: 2007/3479/C3, 2007/4610/C3 & 2007/4262/C3 Neutral Citation Number: [2008] EWCA Crim 3206 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 16 December 2008 B e f o r e : LORD JUSTICE HUGHES MR JUSTICE DAVIS HIS HONOUR JUDGE SCOTT GALL (Sitting as a Judge of the CACD) - - - - - - - - - - - - R E G I N A v JOHN DRAPER MARTIN EASTABROOK GARY FROST - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - Mr R Kovalevsky QC appeared on behalf of Draper Mr B Mark appeared on behalf of Eastabrook Mr N Fitzgibbon appeared on behalf of Frost Mr J Black QC and Mr C Brown appeared on behalf of the Crown - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE HUGHES: We have before us a number of applications which arise from convictions on 14th June 2007 in the Crown Court at Ipswich on a count of conspiracy to smuggle cigarettes. In due course we shall need to consider applications for leave to appeal against sentence by Draper and Eastabrook and an appeal against sentence for which Frost has the leave of this court. 2. Before we come to that, the position as to applications in relation to conviction by Draper and Eastabrook is a little complicated. 3. Draper's original ground of appeal challenged the admission in evidence of events in 2000. Shortly before his renewed application for leave was to be heard on 7th November, and after changing counsel, he had a consultation with Mr Kovalevsky QC, who now appears for him and he decided to abandon that application relating to his conviction. Some form of communication was had with the Criminal Appeal Office on or about 29th October, thus about a week before what was expected to be the hearing before the full court. Very shortly after that, but still before 7th November, the Crown disclosed to all parties some additional material, some of it, but perhaps not all of it, post-trial material. It seems that the material had surfaced, to use a neutral expression, during the retrial of a co-accused called Marshall about whom the jury in the trial which we are concerned with had been unable to agree. When Mr Kovalevsky saw the new material he concluded that he would not have given the advice to abandon that he evidently had if he had had sight of the new file. 4. He now seeks to advance not the original ground but two related new grounds. They are, first, that the new material provides reason to think that Draper's conviction is unsafe and, coupled with that, secondly, a challenge to a ruling made by the judge in the course of the trial that exploratory questions could not be asked of surveillance officers about inter alia any observations beyond those already disclosed. 5. We think we should make it abundantly clear first that if Draper did give notice of abandonment there is simply no jurisdiction in this court to allow him to retract it. That was made clear by this court in R v Medway (1976) 62 Cr.App.R 85. It was a strong court convened expressly for the occasion, five judges presided over by the Lord Chief Justice, Lord Lane. The only jurisdiction which exists in relation to an application which has been abandoned arises if the notice of abandonment is truly a nullity - that is to say is one where the mind of the applicant or appellant did not go with his act. The reason for that is in effect that this court is a creature of statute; a notice of abandonment puts an end to either an application for leave or an appeal. A change of mind by the appellant or counsel provides no basis for avoiding that consequence. There is no inherent jurisdiction in this court to allow the revival of an abandoned appeal or application. 6. However, in the present case it appeared, when we embarked on the hearing, that there was some doubt as to whether notice of appeal in proper form or any form had actually been given. Since the issues which were raised by Draper were in substance very much the same as those raised by Eastabrook, who does not face the same potential difficulty of abandonment, we took the pragmatic view that we should hear argument about those issues and decide whether or not they were capable of disclosing arguable grounds. If they did it might be necessary to go on to see whether Draper had truly abandoned or not. If on the other hand they do not there is no occasion to spend time in that investigation. 7. The smuggling in question in this case was accomplished through Ipswich Docks. Three importations of containers from Latvia were made between 17th August and 27th October 2005. All three containers were stated in their manifests and other relevant documents to contain acrylic tow. The first container did. It was known that a new importer's container was likely to be checked, and this one was. In other words the first container was a dry run. The next two containers which arrived respectively on 8th September and 27th October 2005 contained not tow but cigarettes by the many million -- as a matter of fact they were also counterfeit cigarettes but what matters for the purposes of the present charge was that duty was unpaid. The duty plus the VAT evaded was something over £2 million. Each of the containers was taken from the docks to a place called Bateman's Farm for unloading. 8. It is important to record that there was no issue at the trial but that there was a conspiracy to smuggle these cigarettes. There scarcely could be; apart from the bare fact of the undeclared importation of millions of cigarettes a number of people pleaded guilty. They included Frost, whose application for sentence is before us, and they also included a man on the inside at the docks named Wilson. As things now stand it is also clear that a man called Turner was involved as one of the entrepreneurs in the importation. He was convicted and he has now abandoned his applications for leave to challenge either conviction or sentence. Although his sentence was the maximum (seven years) his abandonment of any application in relation to that is realistic. That is because he had a previous conviction for smuggling alcohol for which he had been sentenced to five-and-a-half years in 2001 and he committed the present offence when he was still on licence following provisional release from that sentence. If he had received any shorter a sentence he was at risk of having to serve the outstanding period of his licence also. 9. We will deal first with the 2000 material which although not now in issue in Draper's case remains in issue in the case of Eastabrook. The previous conviction of Turner, to which we have just referred, was the subject of a bad character application in the trial by the Crown. In fact the Crown tried to admit something else which the judge refused, but the judge admitted the previous conviction of Turner for smuggling alcohol, unsurprisingly when the issue in Turner's case was whether he was proved to be a part of the present conspiracy or whether his actions and various associations with others had some different explanation. The result of that was that counsel needed, as they correctly should, to agree the facts of the previous conviction for the purposes of the trial and to avoid the kind of satellite investigation which should be restrained. When they were attempting to agree that and looked at the evidence from 2000, it transpired that one of the meetings which was in evidence in that case had taken place on 29th February 2000 and had involved not only Turner but also Draper and indeed for that matter Marshall. Not only that, but in the course of that meeting amidst other arguably incriminating conversation about loads, Germany and Romania, Draper had, it was alleged, been heard to say: "I could start to divert fags." 10. The result of that discovery was that the evidence became not only bad character evidence of propensity against Turner but also similar evidence against Draper, though not (it needs to be remembered) against Eastabrook. What seems to have happened is that either for operational reasons or more likely through a lack of co-ordination of different arms of the 2000 investigation, the lead to Draper had never been followed up at the time. Turner and somebody else were prosecuted for the 2000 conspiracy; Draper never was. At the present trial objection was taken on behalf of Draper to the admission of this material on the ground that he was handicapped in dealing with it. In fact his presence was admitted in the face of a clear photograph. He was able to deny the incriminating remark and he was able to give his own contrary explanation of the reasons for the meeting. In those circumstances, as we have already said, Draper does not pursue any ground here relating to the admission of that evidence. Eastabrook, however, does. His complaint is largely the one which was made on behalf of Draper and, it may well be, by Eastabrook too at the time of the trial. But this evidence was no evidence against Eastabrook. It was no doubt powerful evidence that Turner had a propensity to smuggle and thus reinforcement for the Crown's case that he was guilty of the present conspiracy. The meeting would also appear to be significant evidence that Draper had declared a propensity to smuggle cigarettes and thus supported the Crown's case against him. But Eastabrook's case in this trial was not that there was no conspiracy to smuggle cigarettes; it was simply that he was not part of it. There is no arguable basis upon which proving that Turner or Draper or both were guilty meant that Eastabrook had to be guilty as well. Whether he was or not depended on whether there was some other explanation for what he had done. His ability to explain his association with the others and his actions was not diminished by the evidence that Turner and/or Draper were guilty. As we have said, it was always common ground that there was a conspiracy. No one could possibly suggest that there could be no meeting by anyone with someone who was a conspirator without that meeting necessarily involving the conspiracy. That would be a nonsense. There was in fact a significant amount of evidence that Eastabrook was party to this conspiracy. Among other things he was the link man to the essential man on the inside, Wilson. 11. There is a secondary associated complaint on behalf of Eastabrook that in the course of reviewing the 2000 evidence the judge said this: "The two arguments of the Crown and of the defence are these. For the Crown that just as Mr Turner and Mr Huffer were guilty in that conspiracy, the diversion of dutiable and taxable alcohol, so were Mr Draper and Mr Marshall, assisting in that. They were missed at the time and frankly, on the Crown's case, just got away with it, for whatever reason. And it's taken, as you'll have been aware, it's take the circumstances of this case to identify them. But on the Crown's case they were assisting on it and the evidence even shows, says the Crown, the germ of this conspiracy, the one you're dealing with. From Mr Draper's lips, 'I could start to divert fags.' For the defence, that you can't be sure of that. They weren't traced or identified at the time, although they almost certainly could have been, Mr Marshall perhaps even more than Mr Draper. They're doing their best, in this case seven years later [we think he meant five], to remember and tell you what the hire of Unit 10 and the subsequent meeting was all about." Attention is focused on the remark that the evidence even shows, according to the Crown, the germ of this conspiracy from Draper's lips. 12. It is perfectly clear that what the judge meant was that that was so far as Draper and Marshall were concerned the case against them. Here was Draper at least contemplating in 2000 what he was alleged to have been doing in 2005. The judge made it crystal clear to the jury that the evidence in question was only evidence against those people who were there at that meeting. That was sufficient to make it plain that it was not evidence in the case of Eastabrook, but sensibly he also said that specifically: "of course it does not apply to any other defendant at all, it cannot possibly. It only applies to these three." The supplemental submission is that the jury might have relied on this evidence against Eastabrook. It clearly did not persuade them against Marshall that the association was not innocent and there is simply no basis for saying that it must have been used against Eastabrook. The judge had told the jury they could not use it, this court proceeds on the basis that jurors honour the clear directions of law which they are given and there is every reason to think that this jury did. 13. For those reasons, there is no arguable complaint which can be made on behalf of Eastabrook about the admission of the 2000 evidence. 14. We turn to the combined issues of excluded questions and the newly disclosed material. In the course of the trial the judge ruled certain questions could not be asked of the surveillance officers. One of the categories was as to "(3) any observation other than that disclosed to the defence." It is clear that the reason for that was connected with a danger, which apparently existed, that enquiries might infringe upon territory attracting a public interest in non-disclosure. It is plain, in a case of continuing surveillance, that it could in principle do so. The judge however made it clear in giving his ruling that he had, and this must have been exceptional, reviewed the unused material in order to satisfy himself that the Crown had applied the correct test of disclosure, that is to say that anything which either undermined the Crown's case or could assist the defendants had been disclosed or, failing that, submitted to the judge for consideration of competing interests of public interest immunity. There was no relevant material. 15. With that background the evidence against both Draper and Eastabrook did consist in large part of association with others who were said to be engaged in this conspiracy. That was not the whole of the evidence. In the case, for example, of Draper there was also evidence of his possession of a contact number for Bateman's Farm which was on the other side of London from where he lived, and there was evidence of telephone traffic. But certainly the evidence of association with other alleged conspirators was a substantial part of the case. Draper asserted at the trial that the relatively few meetings between himself and other alleged conspirators on which the Crown relied were explicable on one or both of two bases. First, he said he was working albeit unofficially for a company called Polymore Limited. That was a company in which Frost was the sole director and the principals appeared on the evidence to be Turner and Marshall. Secondly, said Draper, there were discussions between all of the various people present at these meetings about a proposal that all or some of them should go into the timber trade. That was Draper's case. Eastabrook for his part had no connection with Polymore at all. His case was that the proposed timber business was the explanation for his presence at any relevant meetings and indeed that it was largely his idea as a business proposal. 16. Mr Kovalevsky and Mr Mark, for Draper and Eastabrook, submit that the effect of the judge's ruling was unduly to restrict the evidence which Draper and Eastabrook could adduce. They say that they wished to show either that they had had other similar meetings with other people in the case or, in the case of Eastabrook, that defendants other than him had had such meetings with each other. In each case, they say, they would have wished to show that such meetings had taken place on various occasions which were not relied upon by the Crown as showing furtherance of the conspiracy in question. That, they say, would advance their case by showing the meetings were not necessarily sinister. 17. We make, for the purpose of dealing with that argument, the assumption (which if the Crown and the judge were right is a false assumption) that there did exist such material. Supposing that it did, there is still, as it seems to us, a twofold flaw in the argument advanced. First, neither defendant was in the least inhibited in giving evidence of any number of other meetings that he had had with other defendants or for that matter anybody else which were devoted to non-cigarette matters. Second, even if some officer were able to confirm that a meeting had taken place between A and B on such and such an occasion, which might or might not have been unrelated to cigarettes, that is simply neutral both for A and B and even more so for D, E or F upon the significance of the meetings which were in question in this case and in relation to which the rival assertions were made. 18. That analysis is most clearly demonstrated by consideration of the same argument as it is now founded upon the newly disclosed material. Both Draper and Eastabrook say that two parts of this material would have been of assistance to their case. First, there is a witness statement from a lady called Miss Finnigan who works for one of the mobile phone network providers called "3". Her witness statement, which was made post-trial in 2007, shows that in 2005 she discovered that Polymore were ostensibly selling quite enormous quantities of top-up mobile phone vouchers. So enormous was the apparent through-put via a single outlet that it looked to her like a fraud and she referred the issue to investigators and cancelled Polymore's contract. 19. The second witness statement is from a solicitor called Mr Smith from a well-known London commercial firm. His witness statement, again post-trial, is to the effect that on 31st October 2005 he was visited by Turner and a man who called himself Peter White for advice in connection with Polymore Limited. It is now common ground that the man calling himself White was Draper using a false name and indeed carrying a printed business card in the same name. What Mr Kovalevsky says is that Draper could have adduced this evidence to show that Polymore had reality and activity. It appears that there may be other witness statements in similar kind speaking of "White" taking some kind of action on behalf of Polymore and unconnected with cigarettes. 20. We have not investigated whether either of these categories of witness statement was or ought to have been available at the time of the trial in 2007. Making the assumption in favour of the applicants that they either were available or ought to have been, still any failure in disclosure of documents that there may have been does not arguably render the conviction of either Draper or Eastabrook unsafe. We think it is extremely doubtful that Draper would have wished to adduce in evidence that Polymore, in which he claimed an active part, was fraudulent. But if he had wished to say it he could do so and not having Miss Finnigan's statement did not prevent him. He could certainly have called Mr Smith to say precisely what is now in his statement. It cannot have been unknown to Draper, nor is there any possibility that he could have forgotten the meeting because he was arrested very shortly after it outside in the neighbourhood of Mr Smith's office. Moreover, it is perfectly plain that there was no issue at all at the trial whether Polymore had any non-cigarette activity. On the face of it it must have done because the evidence at the trial was that Turner and Marshall were each drawing £100,000 a year from it and Frost was paid £25,000. The question which mattered was whether those three and Draper, or any of them, were simultaneously conducting the smuggling operation which was charged. The smuggling operation was done via a separate company called OCL. 21. It is true that Draper was challenged at the trial on his evidence that he worked regularly at the offices of Polymore in either Essex or Suffolk. The reason for that was because it emerged in cross-examination that he appeared to have real difficulty in explaining by what route he went from Chertsey to the office of Polymore even though, according to him, he did it habitually. Secondly, he did not seem to know one of the employees in the office who, if he had been going regularly, he must have met routinely. But the question of whether he worked there, as he said he did, was not the same question as whether Polymore had any activity and on the face of it on the evidence at the trial, never mind since, it did. So far as Eastabrook is concerned proving that Polymore had some activity, whether criminal or otherwise, was simply irrelevant. He had no connection with it. His case was that whatever others might be conspiring to do he was not. The submission which Mr Mark attempts to get off the ground is simply incapable of flight. 22. For Eastabrook, Mr Mark advances some separate complaints about the summing-up. In substance his contention is that the judge deserted judicial neutrality, entered the arena and demolished Eastabrook's case. On inspection that is found to be grounded upon two or three comments made by the judge in the course of dealing with the evidence of Eastabrook. First at one point he made a simple error of speaking of Eastabrook when he meant to say Wilson - that is the kind of thing that happens all the time; he was corrected and he made the correction to the jury with the necessary clarity and certainty and no complaint about that survives. The first area in which complaint is made relates to a comment which Mr Mark had made in closing to the jury about the part played in the conspiracy by a man called Franks who provided a lorry to move the container. Mr Mark had reminded the jury that Eastabrook had many connections within the docks, including many lorry drivers, and had made the submission that if Eastabrook had been involved in this conspiracy and recruited the driver he would not have recruited somebody who appeared to have been a mere dupe and not to know what he was doing. In summarising that submission, the judge set it out fully and clearly for the jury and added the observation that that would depend on whether it had been Eastabrook who had been doing the recruiting of the driver. Mr Mark took exception to that - quite why we are not sure, but he did. He invited the judge to correct it. The judge reviewed the situation and reminded the jury once again at Mr Mark's request of the rival contentions, namely Mr Marks (which we have just summarised) and the position in the evidence which was that no one had ever asserted that it had been Eastabrook who was responsible for recruiting Mr Franks. The judge's comment was perfectly legitimate and there is nothing whatever in the complaint about it. The same applies to a comment made about the likelihood of a sum of money which was seen to change hands being a short-term loan or "sub" from Eastabrook, given the relative means of him and the other party. Once again the judge set out the rival arguments perfectly clearly. The judge is not forbidden to make proper comments. Of course if he descends into the arena and assumes the mantel of Crown counsel the conviction may be unsafe, but what the judge did in this case was nowhere near that. 23. In all those circumstances it is plain to us that there are no arguable grounds for contending that the convictions of either Draper or Eastabrook are unsafe and their applications for leave are refused. In the case of Draper, it is therefore not necessary to investigate whether there was ever a notice of abandonment or not. 24. That means that we can turn to sentence. The sentences imposed were as follows. Draper was sentenced to seven years. So was Turner. That is the statutory maximum. Eastabrook was sentenced to six years. Frost, who had pleaded guilty right at the beginning of the trial but not earlier, was sentenced to five-and-a-half years. The inside man in the docks, Wilson, who pleaded guilty was sentenced to two years and there was a sentence midway of three years-odd on another defendant which has no bearing on the present question. 25. Draper was 51 at the time of sentence. He was not without previous conviction and had been convicted of deception offences in the early 1980s and then of conspiracy to steal and obtaining property by deception in 1990 for which latter offence he had been sent to prison for two years. That conviction meant that he was not a man of good character and indeed had been to prison, but it was of course 15 years or thereabouts before the commission of the present offence with nothing in between. 26. The substantive submission of Mr Kovalevsky in relation to Draper's sentence is anxiety that the judge has relied upon the 2000 evidence and treated Draper as if he had been convicted of the smuggling of which Turner had been convicted in that year. We agree that the judge would not be entitled to treat the evidence from 2000 as equivalent to a conviction of Draper in 2000. It does not look to us as if that is what the judge did. What it appears that he did was to use the 2000 evidence as reinforcing his conclusion that Draper fell to be sentenced on the basis of professional smuggling with a loss to the Revenue of £2 million or thereabouts and thus attracting a sentence at or close to the maximum provided by law. We have no doubt at all that the judge who saw Draper give evidence and lived with this case for six weeks or thereabouts was entitled to assess the role which Draper had had in it. He was quite satisfied that Draper was an entrepreneur in the transaction and there was ample material to justify that. The effect, however, of passing the sentence that he did, alongside the identical sentence on Turner, is that these two men have been treated the same whereas there was in fact a material distinction between them. Turner had the previous conviction and sentence in 2000. The five-and-a-half years which he had been ordered to serve had clearly not had upon him the deterrent effect which the sentencer who passed it no doubt intended. He had committed the present offence when on licence. It does seem to us that particularly when the maximum sentence was being imposed a distinction needed to be made between the punishment appropriate to these two men. For that reason and for that reason alone we quash the sentence of seven years in the case of Draper and we substitute a sentence of six years. 27. Eastabrook had a number of previous convictions and importantly for the purposes of the submissions that are made to us he had been sentenced to life imprisonment for murder some several years earlier. He had been released on licence some years before this offence and had been working in the docks and elsewhere, and apparently very hard, for a significant period up to and including the time of this conspiracy. The judge passed upon him a sentence of six years. Realistically Mr Mark does not complain that that is inappropriate to his role in the conspiracy. He invites us however to say that it is wrong for one or other of two reasons. The first is that because on arrest Eastabrook's life licence was revoked, the time that he spent in custody pending trial did not fall to be deducted from the sentence which was imposed. Secondly, says Mr Mark, a sentence of six years is too long because it does not afford sufficient recognition for the hard work en route to rehabilitation which Mr Eastabrook had done in the period since his original release upon licence. We are afraid that there is nothing in either of those arguments. The first is simply the inevitable concomitant of Mr Eastabrook's circumstances and to accede to it would effectively mean he was entitled to have the time that he spent pending trial counted twice. The second, in so far as it is founded upon steps taken towards rehabilitation, fails to recognise that at the same time as he was taking those steps he was also committing the present offence for which he has to be punished. The sentence is perfectly appropriate and in his case his application for leave to appeal is refused. 28. Frost has the leave of the full court to bring his appeal against sentence. That leave was given on the basis of his medical condition, to which we will come in just a moment. Before arriving at that, Mr Fitzgibbon submits that there are two reasons, apart from his medical condition, why his sentence is too long. The judge passed a sentence of five-and-a-half years, explicitly taking six years as the sentence that he would have imposed had there been a trial. First, says Mr Fitzgibbon, that is too long for the involvement which Frost had in this conspiracy. We do not agree. Whether or not Frost was present at the principal meetings (and in respect of two of them he was), he was critical to the conspiracy. He was a director at Polymore. He was the forger in the case and he was responsible for setting up most of the business and mechanical arrangements for the importation. It was he who dealt, for example, with the shipping agents. He used false names on various occasions and his part was properly assessed by the judge. Secondly, says Mr Fitzgibbon, he has not received sufficient reduction in sentence for his plea of guilty. The trouble with that is that he elected not to enter his plea of guilty until he had first attempted to persuade the judge to exclude certain evidence and thus improve his prospects of contesting a trial when he knew perfectly well that he was guilty. If a defendant chooses to do that and to enter his plea of guilty only after some days of legal argument and either immediately before the jury is sworn or immediately afterwards (it does not matter which) he cannot expect the same recognition as will be given to a man who enters his plea at an early stage. The judge effectively deducted 10 percent or something a little less. He was perfectly entitled to pitch the reduction at that level. 29. The real point in Frost's case relates to his medical condition. The medical condition of a defendant may not be relevant to sentence at all, but it may be, as Mr Fitzgibbon correctly submits, if it demonstrates that the imposition of imprisonment is for him a significantly greater punishment than it would be for other people. Frost is 53. He has very longstanding and serious rheumatoid arthritis of the seropositive variety. It is not a new condition and he must have got used (to some extent) to living with it. He certainly committed the present offence despite any disability that the condition imposed upon him. But he has this condition which is undoubtedly extremely painful and disabling to a serious extent. He has already had both knees, both hips and a shoulder replaced. 30. The judge had a much less full medical report available to him than we have. The evidence which we have does demonstrate that he is wholly dependent upon medication, that he is significantly handicapped and also that he is significantly vulnerable to any kind of infection, that is to say the effect of the medication is greatly to reduce his immunity. Inevitably a closed community such as a prison is a place where the risk of infection cannot be avoided. It is also the case that there is an element of reduced life expectancy, but that is some significant time in the future and does not by itself, as it seems to us, enter the equation in the present case. He has trouble dressing. He can manage because he has been doing it for years but he needs aids or help. He is unable to do most of the activities which would otherwise be available to prisoners and he is significantly handicapped in motion and in daily living. Within a short time of incarceration he lost no less than three stones in weight which is a very large amount. That appears to have stabilised but it is perhaps some indication of the pressure which imprisonment inevitably places upon him. 31. Now that we have the fuller picture, which the judge did not have, we think that justice is done if, starting from the judge's correct beginning point, the sentence is reduced to one of four-and-a-half years in recognition of the additional punishment which imprisonment will necessarily have for somebody in his condition. For those reasons in his case the appeal is allowed. We quash the sentence of five-and-a-half years and substitute one of four-and-a-half years. 32. In the result therefore the applications for leave to appeal against conviction of Draper and Eastabrook are refused. Eastabrook's application for leave to appeal against sentence is refused. Draper's is granted, the appeal is allowed and a sentence of six years substituted for one of seven years. In Frost's case his appeal is allowed against sentence and a sentence of four-and-a-half years is substituted for that of five-and-a-half years previously imposed. 33. MR KOVALEVSKY: Might I just ask your Lordships to consider whether it is appropriate to allow Mr Draper -- in fact in this case it would the family of Mr Draper in reality -- a proportion of the defence costs. The section that I am looking at is section 16 of the Prosecution of Offences Act 1985 , set out at 6-3 on page 989 of the current edition of Archbold. The relevant section for -- 34. LORD JUSTICE HUGHES: This is costs out of central funds. 35. MR KOVALEVSKY: Yes. 36. LORD JUSTICE HUGHES: The difficulty about that, Mr Kovalevsky, is this, is it not. He was legally aided at the trial, I take it? 37. MR KOVALEVSKY: He was. I think -- I do not want to go into it. There was a severe difference of view. 38. LORD JUSTICE HUGHES: Maybe, but his representation order would have covered his appeal. 39. MR KOVALEVSKY: Yes, it would, but what in fact I am asking you to consider are the very much cut down provisions in fact of subsection (7), you will see, which allows the court to make a partial order where it is appropriate and I make it absolutely clear that I would only be looking for recovery in relation to the matter of sentence alone given the findings. 40. LORD JUSTICE HUGHES: I follow that. 41. MR KOVALEVSKY: And also I take it that the court, if the court were with this application, would wish to go under subsection (9)(b) which is that they are taxed by the appropriate authority in which case it may be very a substantially smaller sum. 42. LORD JUSTICE HUGHES: I do not want to be thought to be giving any indication but the most you could decently ask for, if anything at all, would be junior counsel, I am afraid, on sentence only, would it not? 43. MR KOVALEVSKY: Those who funded this of course hear exactly what my Lord says, but there was some merit in the sentence matter at least and I would ask that the court at least consider exercising those powers under this section. 44. LORD JUSTICE HUGHES: Thank you very much indeed. (Pause) No, I am sorry, Mr Kovalevsky. 45. In each case the time in custody, where applicable, is to be deducted, as previously.

```yaml citation: '[2008] EWCA Crim 3206' date: '2008-12-16' judges: - LORD JUSTICE HUGHES - MR JUSTICE DAVIS - 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. 2002/04577/C3 2002/04860/C3 Neutral Citation Number: [2004] EWCA Crim 389 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 3 February 2004 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( The Lord Woolf of Barnes ) MR JUSTICE RICHARDS and MR JUSTICE HENRIQUES - - - - - - - - - - - R E G I N A - v - ATVAR HUNDAL KESAR SINGH DHALIWAL - - - - - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - - - - - MR J VINE and MR D JOHAL appeared on behalf of THE APPELLANT HUNDAL MR C SUTTON-MATTOCKS and MR P MYLVAGANAM appeared on behalf of THE APPELLANT DHALIWAL MR A JAFFERJEE and MR C W D AYLETT appeared on behalf of THE CROWN - - - - - - - - - - - J U D G M E N T Tuesday 3 February 2004 THE LORD CHIEF JUSTICE: 1. On 19 July 2002, in the Crown Court at Maidstone, before His Honour Judge Patience QC, the appellants were convicted of one count of Belonging to a Proscribed Organisation, contrary to section 11(1) of the Terrorism Act 2000 . They were each sentenced to 30 months' imprisonment. They now appeal either by leave given by the single judge or by leave given by this court against conviction and sentence. 2. The appeal has raised a number of issues before us, the most important of which are two in number. The first can be divided into two parts. The first relates to the legislation with which we are concerned, namely section 11 of the Terrorism Act 2000 : does a person commit an offence if he joins an organisation proscribed in this jurisdiction, that is not in any way proscribed in the jurisdiction in which that person was resident at the time he joined the organisation? 3. The second part of that first issue is whether it makes any difference if the organisation is not proscribed in this country at the time that the defendant joined it, but it was proscribed after he became involved with the organisation, his involvement taking place outside this jurisdiction, in a jurisdiction where the organisation is not proscribed. The organisation in question was the International Sikh Youth Federation (“ISYF”). 4. The second issue raises the question as to whether the Crown on a prosecution under section 11 of the Terrorism Act 2000 is entitled to rely on evidence obtained as a result of a search of a defendant under Schedule 7 of that Act , which search is carried out under statutory powers which require the defendant to co-operate with the search and which subject him to penalties if he does not co-operate. 5. The facts can be summarised shortly. On 13 January 2002 a German registered Mercedes was stopped in the Customs area at Dover Docks. The vehicle had entered the country on a ferry from Calais. It contained the two appellants and a third Asian male. The car belonged to, and was driven by, the appellant, Mr Dhaliwal. It was searched and a number of items were seized. The other appellant, Mr Hundal, was found to be in possession of various documents, including an International Sikh Youth Federation membership card, a rubber stamp, headed notepaper, a 1996 diary, and a newspaper article relating to the ISYF. He said that he was the president of the ISYF in Germany. No documentation was found on Mr Dhaliwal, but in interview he admitted that he was a member of the ISYF. It is not in dispute that in this country the ISYF is a proscribed organisation; it became become proscribed on 29 March 2001. 6. In his defence, supported by his evidence, the appellant, Mr Hundal, said that he was not a member of the ISYF on 13 January 2002. He had been a member since 1994 until he returned his membership card to the General Secretary in April 2001, following a year as President. He had not been a member since that time. After he returned from a trip to Pakistan in August 2001 to get married, his membership had been forwarded to him, renewed by the General Secretary. Upon receipt he placed it in his diary where it stayed until he was arrested. He contended, as did Mr Dhaliwal, that the organisation, so far as he was concerned, was not a terrorist organisation. He agreed that he had attended a meeting of the organisation in Cologne on 13 January 2003, before travelling to the United Kingdom, when he made his resignation clear. As far as he was concerned, after he had left the Temple in Cologne where the meeting took place his membership had ceased. 7. Mr Dhaliwal agreed that he had been at the meeting on 13 January when, after seeing certain newspaper articles in which he was named as a member, he made it clear that he had resigned his membership. He had not been a member of the ISYF since October 2000 when his subscription had expired. He had not renewed it as he had become ill and had other commitments. He was not a member on 13 January 2002 when he entered the United Kingdom. It was for business reasons that he travelled to the United Kingdom. He did not know that the organisation was proscribed. 8. When it came to sentencing the two appellants the judge indicated that he accepted that they had not appreciated that the organisation was proscribed in the United Kingdom. That was a most important matter with regard to sentence because it would indicate that they had not entered this country with a deliberate intent of committing a criminal offence. 9. It is convenient to turn to the relevant provisions of section 11 of the 2000 Act . Section 11(1) provides: “A person commits an offence if he belongs or professes to belong to a proscribed organisation.” The offence is created by that subsection. 10. Subsection (2) provides: “It is a defence for a person charged with an offence under subsection (1) to prove: (a) that the organisation was not proscribed on the last (or only) occasion on which he became a member or began to profess to be a member; and (b) that he has not taken part in the activities of the organisation at any time while it was proscribed.” 11. On the facts of this case it is difficult to see how subsection (2) of section 11 had any relevance. Indeed Mr Sutton-Mattocks, who appears on behalf of the second appellant and who appeared for part of the time at the trial, points out that Mr Dhaliwal has never put it forward that it is part of his case that he was entitled to rely upon the subsection (2) defence. On the other hand, as we understand it, the first appellant relied upon subsection (2). However, it seems difficult to apply that section to the facts because before it has any relevance its intent and its language requires that a person has been a member of the organisation prior to it being proscribed; it has then become proscribed but he has not taken part in its activities thereafter. On the evidence it would seem that undoubtedly there were activities by both appellants after the organisation became proscribed. The question that arises is: does the fact that the activities and their involvement in the organisation took place in Germany, where it was not proscribed, mean that they could not be guilty of the offence? 12. If the position was that because an organisation carries on its activities in more than one country this meant that by joining the organisation in a country which is outside the jurisdiction of these courts, then the Terrorism Act would not apply to that organisation, this would enable a coach and horses to be driven through the objects of the legislation. All that a person would have to do would be to apply to the German branch rather than the English branch and automatically he would not be a person to whom the legislation applied. If that was true in regard to section 11(1) then it would also be equally true with regard to subsection (2). It would have to be activities in the United Kingdom which would need to be considered to see whether a person had a defence under that subsection. Speaking for myself, I regard it (as did the judge) as obvious that one could take into count the joining of an organisation outside the jurisdiction and activities outside the jurisdiction to determine whether the person was a member of the proscribed organisation. 13. We are conscious of the argument that was advanced by Mr Sutton-Mattocks about the criminal law of this country normally having no application outside the jurisdiction of this country. However, properly understood, the provisions of section 11 do not have extra- territorial effect. Properly understood, what is required is for there to be someone who is in this country, and therefore subject to its jurisdiction (as both the appellants were), who at the time that he is in this country is a member of the proscribed organisation. In order to establish that the person concerned is a member of the proscribed organisation, evidence can be given that the person joined the organisation from abroad or when abroad. That would not in itself make that person guilty of an offence. He would only be guilty of an offence when he was in this country. Either he would have to travel to this country in order to commit an offence after he became a member or he would already have had to be in this country and joined the local foreign branch of the proscribed organisation while in this country. But in any event the criminal law would apply to his activities because if his presence in this jurisdiction: his coming here as a member or his being a member in this country of the proscribed organisation. 14. In our judgment the judge was absolutely right in rejecting the first argument which was advanced that the fact that the activities took place abroad meant they were not relevant in determining whether the appellants committed an offence. Furthermore, the same is true of the argument that in some way this approach made the appellants retrospectively guilty contrary to Article 7 of the European Convention on Human Rights. There was nothing retrospective about their guilt. Their guilt only occurred when they arrived in this country. Their membership had taken place earlier; but membership alone, as the court has already indicated, did not create guilt. We conclude, as did the judge, that there is nothing in these arguments. Nothing in the argument Mr Vine advanced on behalf of Mr Hundal based on Article 7 can assist his client's cases. 15. We turn to the next issue which relates to the inadmissibility of the documents and the other evidence which was found as a result of the search carried out of Mr Hundal when he was interviewed. There is no doubt that under Schedule 7 of the Terrorism Act the officers conducting the interviews had powers of search. Schedule 7 provides that an examining officer who questions a person under paragraph 2 may, for the purposes of determining whether he falls within a section, search that person. The appellants were not in a position to object to those searches being conducted. 16. The evidence which was obtained from the searches went to the issue as to whether the appellants were members of the proscribed organisation. It is submitted vigorously by Mr Vine (and his submissions are adopted by Mr Sutton-Mattocks on behalf of Mr Dhaliwal) that the fact of those searches contravenes Article 6 of the European Convention on Human Rights, notwithstanding the fact that they are clearly authorised by the Act . That being so, the judge should not have allowed evidence of those searches to have been given by the prosecution. The judge rejected that submission. In the course of his ruling he said: “In my judgment, the items found in the search were not evidence which Hundal had been forced to create by the use of compulsory powers. These items were clearly already in existence. The only effect of the use by DC Hall of compulsory powers to search under Schedule 7 of the 2000 Act was to bring the items to his attention, to that of the investigators who later interviewed Hundal under caution and ultimately to that of the court. Accordingly, the production and use of this independent evidence did not infringe Hundal's right to silence or his right not to incriminate himself. There was, accordingly, no infringement of Article 6 which rendered either the items found or the later interview under caution inadmissible.” In that short passage the judge explained the essence of his reasons for coming to the conclusion that the evidence was properly placed before the jury. 17. Article 6, as is well known, as part of his right to a fair trial, protects a defendant's right to silence. He cannot be compelled to admit his guilt. The argument advanced on behalf of the appellants here is that by carrying out a compulsory search, which a person cannot object to, he is to be taken to be in the same position as a person who is compelled to make an admission. 18. In our judgment he is not in the same position. There is a clear distinction between requiring someone to answer questions and requiring a person to produce either documents or other information to the prosecution and a case where what the person concerned is compelled to do is to allow the relevant authority to conduct a search. That distinction is one which we consider is well recognised by the authorities in this area. Fortunately for the purposes of the present appeal this court in R v Kearns [2002] 1 WLR 2815 examined not only the authorities in this jurisdiction but also the authorities in Strasbourg. In the course of giving the judgment of the court Aikens J, after referring to the different authorities, drew attention to the fact that in Saunders (1996) 23 EHRR 313 the Strasbourg Court had recognised a distinction between a statement of a defendant that had been made under compulsion and the production of pre-existing documents or other evidence under compulsory powers (paragraph 51). In the following paragraph he said: “.... if the evidence was already in existence and the only effect of the use of the compulsory powers was to bring such evidence to the attention of the court, then its production could not be so objectionable. That is because the existence and quality of such evidence are independent of any order to produce it that is made against the will of the accused person. Therefore the production of such pre-existing and 'independent' evidence could not render a trial unfair and so breach article 6.” It seems to us that those remarks in that judgment are applicable to the facts which exist here. 19. In addition, in paragraph 53 Aikens J indicates the matters which that court regarded as being clear. Under subparagraph (4) he said: “There is a distinction between the compulsory production of documents or other material which have an existence independent of the will of the suspect or accused person and statements that he has had to make under compulsion. In the former case there is no infringement of the right to silence and the right not to incriminate oneself. In the latter case there could be, depending on the circumstances.” In addition, in paragraph 54 Aikens J drew attention to the fact that the rights to silence and not to incriminate oneself that are implicit in article 6 are not absolute. They can be qualified or restricted if there is proper justification and if the restriction is proportionate. 20. For there to be a search in the sort of circumstances that exist here, where under the anti-terrorist legislation a person is examined in order to ascertain whether he is someone from overseas who should be allowed to remain in this country, it seems to us it is certainly well within the exceptions contemplated by Article 6. Such a search is proportionate and is justified because of the need in the interests of the security and safety of the public so as to protect them from terrorist activities. The interference is limited. It is similar to the general powers of search that exist under the criminal law. In our judgment a search is proportionate to the threat which terrorism creates. We therefore agree with the views expressed by the judge in rejecting that submission. 21. The third argument (raised by Mr Vine alone) relates to the refusal of an adjournment by the judge. Mr Vine on behalf of the appellant, Mr Hundal, had made an application for an adjournment because an expert witness in matters relating to terrorism was not available at the time of the trial. The adjournment would not have been necessary for a substantial period and he submits that he should have been allowed to have an adjournment for him to interview that witness. The judge indicated that he thought the application was “fanciful”. 22. Without intending to be in any way disrespectful to the argument Mr Vine advanced before us, we do not consider that the judge was in error in so categorising it. The expert could give no direct evidence whatsoever which was relevant to the issues which were going to be before the jury. Primarily the issue was whether in fact the appellants, who had been members of the organisation, were at the relevant time still members of the organisation. However, Mr Vine says that if the expert could have been brought to court then he or his solicitors on behalf of Mr Hundal would have been able to find out whether there was any substance in a statement made by the expert that the co-appellant, Mr Dhaliwal, was an agent of the Indian Government. This was indeed a fanciful contention. It is difficult to see that it had any relevance to the issues before the court. We regard the judge as being absolutely right in refusing an adjournment. 23. Accordingly, we would dismiss the appeals against conviction on the basis that there is no substance in any of grounds which have been advanced either on behalf of Mr Hundal or on behalf of Mr Dhaliwal. 24. The only matter that remains is the question of sentence. In regard to sentence, as we have indicated, the judge concluded that neither of the appellants was aware of the fact that what they were doing contravened the legislation in this jurisdiction. In those circumstances we consider that to impose 30 months' imprisonment in respect of the appellants' conduct was too severe a penalty. We would reduce those sentences to twelve months. Accordingly, we quash the sentences of 30 months' imprisonment and substitute sentences of twelve months. 25. We express our thanks to counsel for the assistance which they have given us.

```yaml citation: '[2004] EWCA Crim 389' date: '2004-02-03' judges: - MR JUSTICE RICHARDS - MR JUSTICE HENRIQUES ```

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

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 1263 No. 202200551 A1 Royal Courts of Justice Friday, 16 September 2022 Before: LORD JUSTICE SINGH MR JUSTICE FRASER MR JUSTICE HENSHAW REX V ANDREW WILLIAM JOHN VOWLES __________ Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] _________ MR O D P WILLIAMS appeared on behalf of the Appellant. MS R KNIGHT appeared on behalf of the Crown. _________ JUDGMENT MR JUSTICE FRASER: 1 This is an appeal against sentence following the grant of permission by the single Judge. The appeal has been argued before us this morning on the appellant’s behalf by Mr Williams, who was also counsel for him at the sentencing hearing below. We are grateful to him for his succinct and realistic submissions. We have also had the benefit of the attendance on behalf of the Crown from Miss Knight, although we did not find it necessary to call upon her for oral submissions. 2 On 16 February 2022 in the Crown Court at Cardiff, following an earlier guilty plea by the appellant, HHJ Richard Williams sentenced the appellant to a term of imprisonment of 7 years and 6 months for the offence of causing death by dangerous driving, contrary to section 1 of the Road Traffic Act 1988 . The appellant was also disqualified from driving for a total period of 8 years and 9 months, comprising an extension period to reflect the time that he would spend in custody of 45 months, and an operative disqualification period of 5 years, following his release. An order for an extended retest was also made. The appellant was also in breach of a suspended sentence order that had been imposed upon him only one month before this offence, and therefore he was re-sentenced, along with that index offence, on 16 February 2022. However, that particular sentence, which was activated, was made to run concurrently to the term of imprisonment on the more serious charge. Therefore, it had no effect upon the overall term of imprisonment which he was ordered to serve. 3 The person who died as a result of the appellant's dangerous driving was Danielle Andrews. She was at the time of the offence, which took place on 27 November 2020, 28 years old and she had four small children. We appreciate that in hearing an appeal of this nature, the victim's family and friends, and members of the public, may feel that a cold and dispassionate discussion has taken place in court that pays limited attention to the central fact that a person, loved by many and sorely missed, has died as a direct result of a criminal offence. We are anxious to dispel any such impression and wish to make it clear that the court is very much aware that offences such as these, directly involve the death of a real person much loved by family and friends. Nothing that the court can do will either bring her back, or reduce the distress which her family and friends have and will continue to suffer. 4 The facts of the appellant's offending are as follows. On the evening of 27 November 2020 Miss Andrews and the appellant, who were in a relationship together, checked into a hotel for the weekend in Cardiff city centre. The appellant had collected her in his Volkswagen Golf motor car and there is CCTV footage which shows them arriving and parking at the hotel. During the course of the night there was some sort of disturbance within their hotel room and complaints were made about the noise by other customers of the hotel. A fire alarm was activated within their room. Following a discussion with the hotel staff, the two of them decided to leave and at about 3.45 a.m. in the early morning of the next day they left together in the appellant's car. They drove together through the deserted city centre of Cardiff. Text messages on one of the appellant's phones showed that he had arranged to buy some more cocaine, cocaine having been consumed by them earlier in the evening. It was raining very heavily. Nobody knows exactly what took place in the hotel room between them, or the nature of relations between them when they left. The next morning the hotel staff found both a broken mirror, and blood, in the hotel room, but by then Miss Andrews was dead. 5 There is CCTV footage of their journey through the city centre and it is obvious to the court from viewing that footage that the appellant, who was driving the car, was doing so at some increasing speed, if not somewhat erratically. The roads were deserted, but the car can be seen driving in the middle of the road, partly on the opposite carriageway, and at what appears to be in excess of the speed limit. Regardless of the driving in the city centre itself, there can be no doubt about what then occurred. At around 4.06 a.m. the appellant was driving the car along a slip road which takes one off the A470. The slip road itself has a speed limit of 40 miles per hour or mph. The slip road is 250 metres long and rises upwards, where it then turns to the left at the end of the slip road. Here, there are traffic lights where the slip road meets the main gyratory or roundabout system. Those traffic lights had been showing a red signal for 14 seconds, and the appellant drove towards them, up the slip road at speeds of between 62 and 64 mph. This is, self-evidently, very much in excess of the 40 mph speed limit, and paying no attention to the red light. Rather than negotiate the bend, and come to a stop at the red light, the appellant continued to drive in a straight line making no attempt to navigate around the left hand bend. He made no attempt to brake either, and continued onwards in a straight direction, hitting the kerb where the road bends to the left. This caused the appellant's vehicle to cross a stretch of grass, before becoming airborne, narrowly missing an upright post. The car was, quite literally, launched into the air. The vehicle continued at speed, through the air, across two lanes perpendicular to its direction of travel, any traffic on those lanes having the benefit of a green traffic signal. Luckily, there were no cars on those two lanes of traffic. 6 The Volkswagen Golf continued through the air, and subsequently collided with the grass verge and heavy metal railings or crash barrier on the other side of the two lanes, this crash barrier being demolished in the process. The main impact to the car was on the front passenger side of the vehicle. The car then continued at around 43 miles an hour through the crash barrier and was now launched from the top of what is a very steep bank, of about seven metres in depth, into dense woodland on the other side of the road. It rotated forward clockwise, and collided with large trees until it came to rest on its roof upside down. Once again, the heaviest impact had been on the front passenger side of the vehicle. All of this is captured on CCTV, which the court has viewed. It is very shocking to watch – the car appears at speed, launches into the air, crosses the two lanes whilst airborne and crashes down the bank and into the trees. The photographs of the damaged vehicle show the effects of the very considerable impact and the extensive damage that was caused to the car. The total distance travelled by the car after it first hit the kerb, until it came to rest, was 65 metres. That distance clearly demonstrates the high speed with which the Golf drove along the slip road and drove straight on, which is what launched it into the air. The wheels were not in contact with the road after that, and so its subsequent course of crossing the other two lanes of traffic, going through the crash barrier and crashing down into the trees was all the effect of the momentum that the car had at the time it hit the kerb. 7 The appellant, who freed himself from the vehicle despite some injuries, managed to flag down a passing HGV driver about 20 minutes after the car landed. Miss Andrews was killed in the impact. Within a few minutes of the HGV being stopped, an off-duty local traffic police officer also passed the scene, stopped and called for assistance and shortly afterwards other police colleagues arrived and the vehicle was located. The vehicle was so badly crushed that it was difficult to remove Miss Andrews at the time even when her seatbelt was cut. She was pronounced deceased at the scene at around 5.10 a.m. 8 The appellant was subsequently conveyed to hospital to treat his injuries and blood samples were taken. Toxicology evidence showed that the appellant had recently taken cocaine and there was a reading of 254 micrograms of cocaine per litre of blood, 50 micrograms per litre being the legal limit. Although there was alcohol in his blood, he was within the legal limit for alcohol when driving. The car was examined and there was no evidence that there was any mechanical defect which could have been a contributory factor to the collision. 9 On 4 December 2020 he was released from hospital and was arrested by the police. In interview the appellant gave no explanation for the fatal collision and subsequently answered "no comment" to questions asked by the police. At a second interview the appellant also answered "no comment". The circumstances in which the appellant came to drive straight on, at a speed of over 60 mph on the slip road, ignoring both the speed limit of 40 mph, the red light and the approaching left-hand bend are entirely unclear both then and indeed now. There has been no explanation for this driving provided by the appellant and he has made no attempt to assist the crash investigation by answering the questions that were put to him by the police. 10 Turning to his previous convictions, he had three convictions for six unrelated offences, spanning from 20 May 2020 to 28 October 2020. His previous convictions included the offences for which he was in breach of a suspended sentence order, and he was re-sentenced for that along with the index offence on 16 February 2022. The suspended sentence order had been imposed upon him for harassment and breach of a restraining order in respect of his former partner, and for destroying and damaging her property. It was imposed by Gwent Magistrates, and in fact, during 2020, as we have observed, he had been before the courts on a number of occasions in May and August and also in October 2020. He also had nine penalty points on his licence, three of which were for speeding and six of which were for driving whilst uninsured. 11 The Pre-sentence Report noted that the appellant claimed not to be able to remember the incident and that he was working in the London area during the week as a water engineer, and he had a good work record prior to the events. His injuries from the accident had led to his work situation changing, and as a result, he was at that point in receipt of benefits. He admitted to substance abuse over a number of years but did not accept that his cocaine use that night would have affected his driving. 12 The sentencing judge also had the victim personal statement from Angela Morgan before him, which he considered. The sentencing judge explained that in his judgment this was an offence of level 1 culpability and that the manner in which the vehicle was driven in the place that it was driven, and in those circumstances, justified the finding that this was driving in flagrant disregard for the rules of the road. It was, in any event, agreed between the parties that this was driving within Category 1 of the definitive guideline. Before considering any additional aggravating or mitigating factors or credit for plea, the sentencing judge took the start point provided by the guideline of eight years' imprisonment and then included as aggravating factors that the appellant was subject to a recently imposed suspended sentence and that he had significant levels of cocaine breakdown products in his blood. The judge considered that these features required an increase in sentence to ten years. He then applied the discount for the plea of guilty which had not been tendered at the earliest opportunity but still justified a reduction of 25 per cent. 13 The grounds of appeal are twofold. Firstly, it is said by Mr Williams that the starting point taken by the judge, by which he means the ten years prior to discount for plea, was well in excess of the starting point for the level 1 offence of eight years. Secondly, it is said that the resulting seven years, six months' prison sentence is manifestly excessive. 14 The second ground is the test that will be applied by this court on an appeal against sentence. Essentially, what is said is that the sentencing judge double counted by reaching 10 years on the basis that the cocaine use was one of those features which categorised this offence as falling within level 1. It is sensibly accepted by Mr Williams that the figure for discount of 25 per cent cannot be challenged. 15 We are grateful to Mr Williams for his submissions, who sought to persuade us that the resulting sentence of seven years, six months is manifestly excessive and that the judge moved too high within the range for this category of offence. 16 We are, however, entirely unpersuaded by those submissions. This was, in our judgment, a dreadful piece of highly dangerous driving that was entirely correctly described by the judge as showing a flagrant disregard for the rules of the road, involving as it is did excessive speed and at night in very heavy rain. The failure even to attempt to turn to the left as the slip road moved round to the left to the red traffic light, and also ignoring the red traffic light completely, would of themselves as features of driving lead to that conclusion, a point which Mr Williams sensibly accepted. 17 Indeed, the guidelines themselves, when explaining the determinants of seriousness, state: "[...] a prolonged, persistent and deliberate course of very bad driving AND/OR consumption of substantial amounts of alcohol or drugs leading to gross impairment [...]" will be determinants that place the case in level 1. Here, in our judgment, the deliberate course of very bad driving puts this as a level 1 offence absent the drug use. 18 As correctly noted by the judge, there are two significant additional aggravating factors. Firstly, the appellant was in breach of the suspended sentence order that had been imposed upon him only one month before. Correctly, in terms of the consideration of totality, having ordered that to be served concurrently, the only way that aggravating factor could be reflected was by increasing the sentence on the count of causing death by dangerous driving. Secondly, not only had the appellant been using cocaine that evening, but when his blood was analysed at the hospital, the toxicology evidence showed that the amount of cocaine in his bloodstream was over five times higher than the legal limit. That is a separate significant aggravating factor, and in our judgment, was properly reflected with a further increase above the level 1 starting point. Both of these significant factors had to be taken into account by increasing the sentence. They could not sensibly, and should not have been, ignored. The sentencing judge needed to take them into account, and properly did so, explaining his reasoning, and applying the increase to the sentence that he considered they merited. 19 In our judgment, the sentencing judge carefully considered all the relevant circumstances of this tragic case and conducted a careful sentencing exercise that correctly reflected the aggravating factors. This resulted in a sentence which, in our judgment, cannot be faulted. It is not a sentence that we consider can be described as manifestly excessive and there is no basis for it to be disturbed by this appellate court. 20 It follows, therefore, that in those circumstances the appeal is dismissed. __________

```yaml citation: '[2022] EWCA Crim 1263' date: '2022-09-16' judges: - LORD JUSTICE SINGH - MR JUSTICE FRASER - MR JUSTICE HENSHAW ```

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202201617/B1 [2023] EWCA CRIM 315 Royal Courts of Justice Strand London WC2A 2LL Wednesday 1 March 2023 Before: LADY JUSTICE SIMLER DBE MR JUSTICE GOOSE HER HONOUR JUDGE DHIR KC (Sitting as a Judge of the CACD) REX V GARY CHRISTOPHER PIGGOTT __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ NON-COUNSEL APPLICATION _________ J U D G M E N T LADY JUSTICE SIMLER: Introduction 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. 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 likely to lead members of the public to identify that person as a victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act . 2. On 7 April 2022, following a trial in the Crown Court at Worcester before HHJ Cartwright and a jury, the applicant, Gary Piggott, was convicted of two counts of assault of a child under 13 by penetration (those were counts 1 and 2), three counts of sexual assault of a child under 13 and one count of causing a child under 13 to engage in sexual activity. The applicant was sentenced to concurrent sentences on each count with concurrent special custodial sentences of nine and a half years on counts 1 and 2, comprising terms of eight and a half years and an extension period of one year. 3. He was represented at trial by solicitors, Thomas Horton LLP, and counsel, Mr Naill Skinner, and now renews his applications for an extension of time of 19 days in which to seek leave to appeal against conviction and for leave following refusal by the single judge. He relies, in relation to the extension of time, on difficulties in adding his solicitor's telephone number to his contact list while at HMP Hewell; on the fact that his solicitors were, in his view, "very unhelpful" in providing him with assistance; and on the fact that he was moved in the course of that period to another prison. An application for leave to appeal against sentence was also refused by the single judge but that application has not been renewed. The Facts 4. The case concerned alleged sexual offending against a 12-year-old boy (to whom we shall refer as "C1") by the applicant at C1's home address on the nights of 29 and 30 May 2020. In short, having been invited to stay at a friend's house on the evening of 29 May 2020, the applicant entered C1's bedroom on numerous occasions and committed a series of sexual assaults on him. 5. The victim gave an ABE video recorded interview on 31 May 2020. In that interview he said that on the evening of 29 May 2020 he was in his bedroom which he shared with his younger brother. During the course of the evening the applicant entered the bedroom on a number of occasions. He said that the applicant had touched his bottom and inserted his finger into his anus on two separate occasions. The applicant touched his penis over his clothing and on one occasion got onto the bed, again touching his penis before pulling his trousers down and touching his penis skin to skin. He also said that the applicant put his penis into the applicant's mouth and that he had sucked it on two separate occasions and also that he kissed him on the lips. At one point he said that the applicant told him: "Don't tell anyone. Promise me". 6. On 31 May 2020 penile swabs were taken from C1 and examined for traces of DNA. At trial, an admission was made in relation to the DNA evidence in the following terms: "The summary of the forensic scientist’s findings is as follows: No saliva/DNA attributable to Gary Piggott was detected within the result obtained from the cellular fraction of [C1’s] penile swabs. This may be because Gary Piggott did not touch or suck [C1’s] penis. However, it is also possible that he did, but without the transfer of detectable levels of Gary Piggott’s DNA onto [C1’s] penis, or that any that may have been deposited has subsequently been removed from [C1’s] penis by actions such as washing or wiping. Therefore, overall in my view the scientific findings do not assist in addressing whether or not Gary Piggott touched/sucked [C1’s] penis, as alleged." 7. In his Defence case statement the applicant denied all counts on the indictment. He said that on the relevant date he attended a party and thereafter went to C1's mother address at her invitation. He stayed there for a while socialising and drinking. He was not drunk. She invited him to stay the night, which he did, sleeping on the sofa in the lounge and then leaving the following morning at around 5.30 am because he was unable to sleep comfortably. He said that during the night, at approximately 3.00 am, C1 came into the lounge. He was wearing pants and did not say anything. The applicant ushered him back to his bedroom, put a blanket over him and left him in his bedroom. The applicant denied that he had touched C1 inappropriately in any way. At trial the applicant gave evidence in his own defence and maintained those denials. 8. The judge gave a full good character direction to the jury in relation to the applicant. The jury were also told that the fact that the applicant had given evidence in his defence was a positive feature of the case and that they should take it into account when considering their verdicts. The Application for leave to appeal against conviction 9. The applicant's grounds of appeal against conviction are as follows: (i) grounds 1, 2 and 4 concern the information provided to the jury regarding the DNA evidence, which is said to have been misleading because the time and date of the swabs being taken was incorrect and an incorrect date was given in the summing-up. Further, the fact that there was no positive DNA evidence in the case, despite the copious samples taken, was an answer to the case. Had the crime been committed there would have been evidence of it. The fact that C1’s DNA was not found on the applicant’s own person was vital evidence but was not presented to the jury. Compounding this point, in interviews C1 stated that he ejaculated so there should have been DNA evidence matching his account. (ii) Ground 3 contends that the jury should have heard character evidence that the applicant baby-sat for other people and that he was a loving uncle with five nieces. In other words, his representation was inadequate because of the absence of character witness statements. (iii) Ground 5 is in summary a challenge to the fact that C1's mother did not report the allegations to the police. (iv) Ground 6 is that the victim incorrectly identified the applicant as his mother's boyfriend's brother. The applicant contends that his admissions that he took C1 back up to bed and co-operated with the police are both indicative of his innocence. The applicant also comments that C1 thought the attack might have been a dream. (v) Ground 7 is that there were inconsistencies between the original complaint made by C1's friend’s mother and C1's two interviews. In the original complaint he said that the applicant had an erection, but that was not mentioned by C1 in his ABE interview. (vi) Ground 8 is that during the trial C1 was represented as being autistic but this was never proved and that therefore misled the jury. (vii) Ground 9 is that C1 did not like his mother's boyfriend, and this may explain the allegation against the applicant. (viii) Ground 10 is that the police led C1 in his interview, inappropriately influencing his answers to questions. 10. In view of the criticisms made of trial counsel and solicitors the applicant was invited to and waived privilege. Detailed responses were provided by both. In his response, dated 8 July 2022, counsel refuted criticisms made of him by the applicant. We do not record all points made by him, but significantly, he dealt with the allegations relating to the DNA evidence. He explained that the DNA evidence was presented to the jury by way of pre-agreed facts and the summary of the forensic scientist's findings to which we have already referred. Counsel says that he submitted to the jury that the findings in fact supported the applicant's assertions that no sexual activity had taken place. However, he had also explained to the applicant in conference prior to the trial, and during the trial, that the absence of any DNA results did not mean that C1 was lying. Rather, it was just another feature of the case. Moreover, so far as the dating error is concerned, it was an error in the applicant's favour. He also explains that the jury were told that the applicant was a working man of good character and popular within his community. They were not told about baby-sitting because counsel was not aware of this and nor were his solicitors. In any event, counsel questioned whether this would have made any difference. The case was about what C1 said that the applicant had done to him on one occasion and there was no suggestion that the applicant had behaved inappropriately on any other occasion towards any other children. 11. So far as character witnesses are concerned, during the pre-trial conference on 1 April 2022, counsel says that the applicant told him there were no defence witnesses and that he did not think it necessary to call any character witnesses. He was well aware that the judge would give a full good character direction and that is indeed what happened. Consequently, no defence witnesses were required to attend trial and no statements were taken from anyone. The applicant agreed that the case was essentially one person's word against another. 12. So far as inconsistencies in C1's accounts are concerned, they were highlighted to the jury. All interviews were edited where appropriate and agreed with the applicant. Counsel has expressed his surprise at concerns raised by the applicant about the representation he received at trial because, during the course of the trial, the applicant and all others involved had agreed that the trial could not have gone any better. 13. The response from solicitors is dated 12 July 2022 and is to similar effect regarding the conduct of the trial and refuting criticisms made about the representation received. Solicitors also set out a chronology of their contact with the applicant and his family, making clear that there was no lack of communication with either the applicant or his family. 14. We have also been provided with and read the Respondent's Notice in this case, together with the applicant's comments on that document received on 12 September 2022. 15. Having read and considered all the material available in this case, we have concluded that there is no arguable merit in any of the proposed grounds of appeal and there is no arguable basis for concluding that any of the convictions are unsafe. We cannot improve on the reasons given by the single judge, who said the following: "1. Grounds 1, 2 and 4 (DNA evidence): You suggest that the information regarding DNA samples was not given to the jury correctly. It was: your barrister agreed 'admissions' with the prosecution which accurately reflected the DNA evidence, save for one error about the date on which the swabs were taken (on the Saturday evening rather than sometime on the Sunday) which the judge identified. However, the judge explained that this did not prejudice you: in fact, this operated to your advantage, because the absence of any DNA on the samples would have been more significant if the samples had been taken closer to the alleged crime. Crucially, the admissions explain that the DNA evidence was neutral or inconclusive. Your barrister advised you, correctly, that the absence of DNA evidence did not mean that the complainant was lying it was just one aspect of the evidence. However your barrister argued to the jury that they supported your case that no sexual activity had taken place. The judge carefully directed the jury that they should not speculate about this evidence as they were not experts. 2. Ground 3 (character evidence): You had plenty of opportunity to provide your legal team with the names of potential defence witnesses and your barrister says in terms that you said that there were none, accepting that it was the complainant's word against yours. He was not aware of any evidence of you babysitting. In any event, evidence that you had, for example, babysat for other children would be unlikely to have significantly influenced the jury, given the clear evidence that you had sexually abused this particular child. The judge also ensured that the jury was given a full direction about your good character. The jury was told that you were a SJ working man and popular with members of your community. 3. Grounds 5, 6, 7, 8, 9 and 10 (the complainant). You note that the complainant had said he had been alone a lot leading up to the date of the allegation and had said he had been unable to tell if he felt hungry, thirsty and sad. You also refer to the fact that he does not get on with his mother's boyfriend and matters of that nature. However these have little or no relevance to the nature of the complaints he made against you. The fact that he has autism was not relevant to the key issues for the jury to decide. He was asked few if any leading questions. He said the room was lit from the television. The complainant may have been incorrect when he said that you were his mother's boyfriend's brother, but again this is not significant. No other adults were said to be in the house other than you and the complainant's mother when the offences occurred. He was asked by the police whether he thought what he had described was a dream and he said "no". He also made this clear in his answers in cross-examination. Generally, the inconsistencies in the complainant's account were highlighted to the jury. It is correct that the initial complaint did not come from the complainant's mother but this was not a case of any delay in the reporting." 16. Ultimately, this was a case involving a stark conflict in the evidence. One person was not telling the truth. The jury heard all the evidence and concluded that person was the applicant. Their verdicts were unarguably safe. The applicant was professionally represented by an experienced defence team. The team has responded comprehensively to the criticisms made of them and we are satisfied that the conduct of this trial was not arguably inadequate. Indeed, it is of note that after seven and a half hours' deliberation the jury returned majority verdicts in this case indicating that two members of that jury were not satisfied by the Crown's case. 17. In the result, the application is refused for all these reasons. Since no purpose would therefore be served in extending time, it is unnecessary to consider that application. 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 315' date: '2023-03-01' judges: - LADY JUSTICE SIMLER 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} ======

Neutral Citation Number: [2008] EWCA Crim 1741 Case No: 200801597 C5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT SOUTHWARK HHJ Stone POCA No 90 of 2007 IN THE MATTER OF THE PROCEEDS OF CRIME ACT 2002 Royal Courts of Justice Strand, London, WC2A 2LL Date: 30/07/2008 Before: LORD JUSTICE TOULSON MR JUSTICE JACK and RECORDER OF HULL (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between: MESSRS IRWIN MITCHELL Appellants - and - THE REVENUE AND CUSTOMS PROSECUTIONS OFFICE -and- ABDULLAH ALLAD Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr Kennedy Talbot instructed for the Appellants Mr Jonathan Hall instructed for the Respondent Hearing dates: 22 July 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Toulson : Introduction 1. Solicitors are instructed by a client to advise and act for him in connection with a Revenue and Customs investigation. They are paid money on account of their fees. Subsequently a restraint order is made against the client under the Proceeds of Crime Act 2002 . By the time that the solicitors receive notice of the order their fees exceed the amount which they have been paid on account. May the funds held by these solicitors be applied in part satisfaction of their fees? That is the issue in this case. The facts 2. On 11 October 2007 Irwin Mitchell were instructed by Mr Abdullah Allad in connection with a Revenue and Customs investigation which he was facing. Mr Allad was and remains under suspicion of VAT evasion, cheating the revenue and money laundering. 3. On 22 October 2007 Mr Allad paid Irwin Mitchell £5000 on account of the firm’s legal costs. The funds were paid into the firm’s client account. 4. On 27 November 2007 the Revenue and Customs Prosecutions Office (RCPO) obtained a restraint order against Mr Allad under s 41 of the Act. It was in the usual form and provided, in particular, that Mr Allad must not “In any way dispose of or deal with or diminish the value of any of his assets whether they are in or outside England and Wales whether in his own name or not and whether solely or jointly owned.” 5. The order was served on Mr Allad on 6 December 2007 and came to the notice of his solicitors at the same time. By then the firm’s professional fees for work done under their retainer amounted to over £5000. 6. By rule 19(2) of the Solicitors Account Rules 1998 a solicitor who properly requires payment of his or her fees from money held for the client in a client account must first give or send a bill of costs to the client. Once that has been done, rule 19(3) provides that the money earmarked for costs becomes office money and must be transferred out of the client account within 14 days. 7. On 13 December 2007 Irwin Mitchell wrote to RCPO to inform it that the firm was about to issue a bill which would, as the letter put it, transfer the money from client account to the firm’s office account and sought RCPO’s confirmation that it had no objection. 8. RCPO did object. It contended that such a step was prohibited by the restraint order. So Irwin Mitchell applied to Southwark Crown Court for a variation of the order. Their application was dismissed by His Honour Judge Stone QC. He ruled, firstly, that Irwin Mitchell could not apply the funds in payment of their fees without a variation of the restraint order, and secondly, that the court had no power under the Act to make such a variation. 9. Irwin Mitchell appeal against his decision by leave of the single judge. Statutory provisions 10. Section 41 of the Act includes the following provisions: “(2). A restraint order may provide that it applies (a) to all realisable property held by the specified person whether or not the property is described in the order;… (3). A restraint order may be made subject to exceptions, and an exception may in particular (a) make provision for reasonable living expenses and reasonable legal expenses;… (4). But an exception to a restraint order must not make provision for any legal expenses which- (a) relate to any offence which falls within subsection (5)… 5. These offences fall within this subsection- (a) the offence mentioned in section 40(2) or (3), if the first or second condition (as the case may be) is satisfied; (b)…” 11. Section 40 empowers the Crown Court to make a restraint order under s 41 if any of 5 conditions is satisfied. Section 40 (2) provides: “(2) The first condition is that (a) a criminal investigation has been started in England and Wales with regard to an offence, and (b) there is reasonable cause to believe that the alleged defender has benefited from his criminal conduct.” 12. It is accepted that the Crown Court had jurisdiction to make the restraint order by virtue of s 40(2) and that Mr Allad instructed Irwin Mitchell in relation to the relevant criminal investigation. 13. Realisable property, referred to s 41(2), is defined in s 83 as including “any free property” held by the defendant. Property is “free” unless it is the subject of an order made under any of a number of statutes listed in s 82, none of which applies in the present case. 14. Property and the holding of property are defined in s 84. This provides: “(1). Property is all property wherever situated and includes (a) money; (b) all forms of real or personal property; (c) things in action and other intangible or incorporeal property. (2). The following rules apply in relation to property (a) property is held by a person if he holds an interest in it… (h) references to an interest, in relation to property other than land, include references to a right (including a right to possession).” 15. Sections 79 and 80 contain rules for determining the value of property. Section 79 provides: “(1). This section applies for the purpose of deciding the value at any time of property then held by a person. (2). Its value is the market value of the property at that time. (3). But if at that time another person holds an interest in the property its value, in relation to the person mentioned in subsection (1) is the market value of his interest at that time, ignoring any charging order under a provision listed in subsection (4).” Section 79(4) is not relevant in this case. 16. Section 69 provides: “(1). This section applies to- (a) the powers conferred on a court by sections 41 to 60… (2) The powers- (a) must be exercised with a view to the value for the time being of realisable property being made available (by the property’s realisation) for satisfying any confiscation order that has been made or may be made against the defendant; (b) must be exercised, in a case where a confiscation order has not been made, with a view to securing that there is no diminution in the value of realisable property; (c) must be exercised without taking account of any obligation of the defendant …if the obligation conflicts with the object of satisfying any confiscation order that has been made or may be made against the defendant; (d)… (3) Subsection (2) has effect subject to the following rules- (a) the powers must be exercised with a view to allowing a person other than the defendant or a recipient of a tainted gift to retain or recover the value of any interest held by him;…” The judge’s reasoning 17. In considering the nature of Mr Allad’s interest in the £5000 held in Irwin Mitchell’s client account the judge began with the general proposition that property held by a solicitor on account of his client is held in trust for the client, but is subject to a lien which entitles the solicitor to retain it until payment of his costs. He concluded that Mr Allad’s interest in the money was a beneficial interest and therefore constituted realisable property capable of being restrained by the restraint order. 18. He also concluded that s 41(4)(a) and (5) precluded the court from making an exception for the expenses in question in this case. He considered that s 69(3) provided no assistance to Irwin Mitchell, since that section merely regulated the way in which the court should exercise its powers under s 41 (and other provisions of the Act), whereas in the present case the court had no power under s 41 to make an exception in respect of the relevant funds. Irwin Mitchell’s submissions 19. Irwin Mitchell’s primary submission was that Mr Allad no longer had any beneficial interest in the relevant funds. As Lord Hoffmann put it in Twinsectra Limited v Yardley [2002] UKHL 12 , [2002] 2 AC 164 , at para 12, “Money in a solicitor’s client account is held on trust. The only question is the terms of that trust.” 20. It was submitted that the terms of the trust must depend on the purpose for which the money was paid, and that in this case it was paid for no other purpose than to meet Irwin Mitchell’s fees. As the remuneration to which they were entitled grew, so his beneficial interest in the fund diminished. Once their proper fees reached £5000, Mr Allad no longer had any beneficial interest in the fund. Procedurally they were prohibited from transferring the fund from client account to office account by rule 19 of the Solicitors Account Rules until they had provided him with a bill of costs, but that was in order that he should have an opportunity of challenging their entitlement to the money. It did not mean that he continued to have a beneficial interest in the money until that formal step had been taken. It would be absurd to regard him as beneficially entitled to £5000 (or any part of it) when the work which they had done entitled them to that amount and the fund had been created for the sole purpose of their payment in those circumstances. 21. Irwin Mitchell’s alternative submission was that, if the restraint order would otherwise prevent it from lawfully acting in the way that it proposed, the judge was wrong to hold that there was no power to vary the order so as to permit it to do so. RCPO’s submissions 22. RCPO submitted that the judge was right for the reasons which he gave. The solicitors had a lien over the monies in the client account in respect of their unpaid services ( Loescher v Dean [1950] Ch 491 ). A lien confers a right to possession, but not to ownership. The beneficial interest in the money in the account therefore belonged at all times to Mr Allad. That being so, it formed part of his realisable assets frozen by the restraint order and the judge was right to hold that s 41(4) prevented him from making an exception in the present case. The remedy for solicitors in the position of Irwin Mitchell was to render interim bills quickly and frequently so as to minimise the risk of being owed money at the time of a restraint order. The purpose of a restraint order 23. The purpose of a restraint order is to preserve the value and accessibility of assets held by the defendant which may be available to him for satisfying a confiscation order which may be made against him at the end of the criminal proceedings. This objective, which underlies the power of the court to make a restraint order, is affirmed in s 69(2)(a) concerning the exercise of the court’s powers under the sections of the Act which deal with restraint orders. 24. In the proceeding before the judge, there was no challenge to the evidence of the solicitors about having done work for which they are entitled to charge in excess of £5000. The argument was about matters of principle. 25. Assuming that the solicitors were properly entitled to charge £5000 for the work which they had done, it was accepted in argument by Mr Hall on behalf of RCPO (rightly in our view) that the money in the client account could not be used to satisfy any confiscation order which may in the future be made against Mr Allad. He conceded that the security of the solicitor’s lien would prevent any receiver appointed by the court from being able to obtain those funds in part payment of the order. (In the Serious Fraud Office v Lexi Holdings PLC [2008] EWCA Crim 144 the court considered the potential impact of a confiscation order on the rights of secured and unsecured creditors, but we are not concerned with the latter in this case). 26. The purpose of a criminal restraint order, as with a civil freezing order, is not to prevent third parties from enforcing civil rights against a defendant if those rights would be unaffected by any order which may be made against the defendant at the end of the proceedings. 27. Mr Hall argued that there was a good public purpose in preventing Irwin Mitchell from being paid now, even if their claim was a good one (which he was not questioning), in that a receiver subsequently appointed by the court would be able to look into the legitimacy of the claim. This would be valuable because there might well be other cases involving perhaps less reputable lawyers where it might suit the lawyers and their client to agree a figure of costs which the prosecution would at that stage have no means of investigating. However, an unscrupulous lawyer could easily do as Mr Hall suggested that Irwin Mitchell should have done, that is, render bills at frequent intervals. Moreover, if solicitors were to render what might appear a suspiciously large bill, whether before or after a restraint order had been made, it would always be open to the prosecution to ask the court to freeze the payment pending further investigation whether it was a proper payment or a payment for inadequate consideration (in which case it would fall within the tainted gift provisions of the Act). 28. The purpose of the restraint order is important, particularly since Irwin Mitchell are not the putative debtor against whom the order was made but are a third party. Restraint orders and third parties 29. The courts have had to consider on a number of occasions the effect of freezing orders on third parties who are given notice of the order. It is now established that such an order may have an effect upon third parties in two ways. First, it would be a contempt of court for a third party to aid and abet a breach of the order by the person against whom it was made (Mr Allad). Secondly, it would be an independent contempt of court for a third party to do an act which deliberately interfered with the course of justice by frustrating the purpose for which the order was made. See HM Commissioners of Customs and Excise v Barclays Bank PLC [2006] UKHL 28 para 29 (Lord Hoffmann) and paras 56-59 (Lord Rodger). Discussion and conclusion 30. Two questions must be asked. Would Mr Allad commit any breach of the restraint order made against him restraining him from dealing with or diminishing the value of his assets if Irwin Mitchell act as they propose? Would Irwin Mitchell’s conduct be a contempt of court because their proposed conduct would undermine the purpose of the order by diminishing the assets available to satisfy any confiscation order? In our judgment the answer in each case is no. 31. When Mr Allad instructed Irwin Mitchell they entered into a contract under which they would be entitled to proper payment for the work done by them. To secure performance of that obligation by Mr Allad they took the sum of £5000 on account. When they paid the money into their client account two sets of contractual relationships were involved. As between the bank and Irwin Mitchell, there was a relationship of debtor and creditor. As between Irwin Mitchell and Mr Allad, there was the contractual relationship already described. But the relationship between a solicitor and client is not merely contractual; it may involve fiduciary obligations. Equity regards funds placed by a client with a solicitor as subject to a trust; see Twinsectra cited above. So if Irwin Mitchell had become insolvent before doing any work for Mr Allad, the £5000 would not have gone to the firm’s general creditors. But in the case of a contractual fiduciary the terms of the contract are important in determining the scope of his equitable as well as his legal obligations. 32. In the present case the £5000 was paid and received for a single identified purpose, namely payment of Irwin Mitchell’s fees as and when they had earned them. If they had used the fund for any other purpose, without Mr Allad’s informed consent, they would have committed a breach of trust. And until they had earned that level of fees, they were bound to hold the money on Mr Allad’s behalf. Once they had earned that amount in fees, the value of Mr Allad’s interest in the fund was reduced to nil. In order to protect a client from a solicitor transferring funds from the solicitor’s client account to office account in payment of his fees when such fees have not been properly incurred, the Solicitors Account Rules prescribe the steps which the solicitor must take. Those provisions govern the means of exercise of the solicitors’ contractual right to payment from the fund, which arose from the agreement and the work done. The bill, if properly served, reflects the solicitors’ entitlement to payment by virtue of the work done. Once they were entitled to payment of that sum, Mr Allad’s “interest” in the relevant account became literally nominal; that is to say, the account bore his name, but he no longer had any interest of substance in it. It is important to distinguish between substance and form. 33. We accept that the relevant funds are held “for” Mr Allad within the meaning of rule 19(2) of the Solicitors Account Rules: “A solicitor who properly requires payment of his or her fees from money held for the client…in a client account must first give or send a bill of costs, or other written notification of the costs incurred, to the client…” 34. It falls within that provision because the receipt of the money will have been entered into the client account against Mr Allad’s name, and the object of the rule is to see that the money is not transferred without him knowing. We do not accept that it follows from the wording of this rule that he still has a substantial beneficial proprietary interest in the money. However, even if we are wrong about that, on the factual premise that the bill intended to be served properly reflects work done (which has not been questioned) and that Irwin Mitchell therefore have a contractual right to payment of those fees, for which the money on account was paid, we are unable to see that it would deplete the true value of Mr Allad’s assets or frustrate the purpose of the restraint order if Irwin Mitchell were now to do as they propose. 35. Looking at the matter as one of substance, the situation is analogous to that in Re K [1990] 2 QB 298 . K had a deposit account with the bank. A restraint order was made under the Drug Trafficking Offences Act 1986 prohibiting K from disposing of, diminishing or otherwise dealing with his assets within the jurisdiction including the deposit account. K also had an overdraft facility with the bank, which the bank agreed to advance against a lien over the funds in the deposit account. After the restraint order was made the bank proposed to set-off its rights under the overdraft facility against its liability in respect of the deposit account by consolidating the accounts. It was held that the bank was entitled to do so since the exercise of the set-off would not diminish the value of K’s assets. 36. It would be otherwise if the funds would be available to meet a confiscation order made against Mr Allad, but, as already explained, that is not the case (on the footing that the fees claimed are proper). 37. Mr Hall referred to text books and a number of authorities on the nature of a solicitor’s lien over money paid into their client account. For the purposes of considering his argument it is sufficient to refer to Loescher v Dean [1950] 1 Ch 491 . The purchaser in an action for specific performance obtained an order that the defendant vendor should convey the property to the plaintiff on the plaintiff paying a stated sum. The plaintiff paid that sum to the defendant’s solicitors, who paid it into their client account. The plaintiff then served on the defendant’s solicitors a garnishee order nisi in respect of the plaintiff’s costs against the defendant. The defendant’s solicitors, who had not rendered a bill of costs to their client, took out a summons for a charging order under s 69 of the Solicitors Act 1932 on the sum paid by the plaintiff. Harman J noted (at p 495) that the money was not entrusted to the solicitor for any specific purpose, but was paid to him in the ordinary course of his business as solicitor of the client. He received it as the client’s agent. The judge held (at p 496) that on receipt of the money the solicitor had a lien over it for his unpaid costs and that therefore a creditor could not attach it. 38. Mr Hall relied on the case as authority for the proposition that the only interest of a solicitor over money in his client account is that he holds a lien over it for his unpaid costs, and that this merely gives to the solicitor a right to retain possession. 39. In the present case we are not concerned with solicitors’ interest in money paid by a third party to the solicitors as agent for their client in connection with a transaction between the third party and the client. We are concerned with a different situation. We are concerned with a payment made by the client to the solicitors for the solicitors’ own benefit once they had done the work for which the money was to pay them. Those are the critical features of the present case. 40. It was submitted on behalf of RCPO that if Irwin Mitchell’s argument is correct, there would be nothing to stop a solicitor from taking a very large payment on account before a restraint order is made and using the money to pay for services provided after notice of the restraint order. That is not so. On Irwin Mitchell’s argument if at the time when the firm received notice of the restraint order it had taken £100,000 on account of fees and done £5000 worth of work, the client would have a substantial beneficial interest in the money paid to the solicitors, which at that moment would be potentially available to satisfy a future confiscation order. It would be a breach of the order for the client to incur further expenditure which would enable the solicitors to extinguish his beneficial interest in that money. The solicitors would aid and abet him in that breach if they agreed to continue to run up legal costs and to recoup themselves by recourse to the remaining £95,000 of the money in the account. 41. However, in the present case we conclude that Irwin Mitchell were and are entitled to take the course proposed without committing any contempt of court. It was right for them to notify RCPO in advance, in case there was any challenge to the size or propriety of their bill, but we do not consider that any variation to the restraint order was required in order to enable them to utilise the fund in payment of their fees. 42. It is therefore unnecessary for us to say anything more about Irwin Mitchell’s alterative argument that the court had jurisdiction to vary the terms of the restraint order.

```yaml citation: '[2008] EWCA Crim 1741' date: '2008-07-30' judges: - LORD JUSTICE TOULSON - MR JUSTICE JACK ```

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

Neutral Citation Number: [2007] EWCA Crim 2016 Case No: 2006/03431/B5 (1) 2007/01084 C1 (2) IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LEWES CROWN COURT (1) His Honour Judge Scott-Gall ON APPEAL FROM DERBY CROWN COURT (2) His Honour Judge Burgess Royal Courts of Justice Strand, London, WC2A 2LL Date: 31 st July 2007 Before : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION MR JUSTICE GOLDING and MR JUSTICE BEATSON - - - - - - - - - - - - - - - - - - - - - Between : R -v- Steven Cottrell (1) Michael Aspinall for the Applicant Sally Howes QC for the Crown R -v- Joseph Fletcher (2) Joel Bennathan QC for the Appellant Michael Auty for the Crown The Chairman of the Criminal Cases Commission D Wallbank for the Director of Revenue and Customs Prosecution Hearing dates: 25/26/27 April, 22 June, and 23 July 2007 - - - - - - - - - - - - - - - - - - - - - Approved Judgment President of the Queen's Bench Division : 1. Steven Cottrell was convicted at Lewes Crown Court on 8th August 2003 before His Honour Judge Scott-Gall and a jury of two counts of indecent assault with a female aged under 16 years. Joseph Fletcher was convicted at Derby Crown Court on 24 th October 2003 before His Honour Judge Burgess and a jury of seven counts of indecent assault on two females aged under 16 years. 2. Fletcher appeals against conviction (and sentence) following a Reference to the Court by the Criminal Cases Review Commission (the Commission). Cottrell seeks leave to appeal against conviction nearly three years out of time. Fletcher’s appeal and Cottrell’s application for an extension of time and leave to appeal are both consequent on the decision of the House of Lords in R v J [2005] 1 AC 562 . Factually the two cases are unconnected, but they raise difficult and troublesome common features of principle. Accordingly they were heard together, and judgment was reserved. 3. While the judgment was in the course of preparation it became apparent that our decision might impinge on the responsibilities and practice of the Commission. Our concern was with the decision in R(Director of Revenue and Customs Prosecution) v Criminal Cases Review Commission) [2007] 1 CAR 384. The Divisional Court held that the Commission “was under no obligation to have regard to, still less to implement” the practice of this court in applications to extend time in “change of law cases”. Paragraph 14 of the Commissions’ most recent policy memorandum reflected this judgment. The matter was listed for mention 22 June. The Commission was notified, but was not represented by counsel. Its chairman, Professor Graham Zellick, attended, and in response to an invitation by the court, made a number of observations. In the light of what he said, the court invited the parties to the appeal and the Commission to advance argument on the broad issue of concern to the court. The court made clear that, although the Commission was not formally a party to the appeal and the application, it considered it important for the Commission to be given an opportunity to make submissions. The Commission made written submissions, adding that it had decided not to instruct counsel, and repeating the submissions before the Divisional Court. When the matter came before us on 23 July, Professor Zellick again attended, briefly amplified the Commission’s written submissions, and responded to questions by members of the court. By that date we were also provided with written submission on behalf of the Director of Revenue and Customs, and Liberty, and further written submissions from counsel for Cottrell and Fletcher. We shall address what we shall summarise as the change of law issues later in the judgment. The Facts – Steven Cottrell 4. At all relevant times Steven Cottrell was a serving police officer. In late 1999, NB a girl born in February 1984, started a short period of work experience with the police force. She complained that on an occasion when she was alone with the applicant in his patrol car, he touched her breasts. Thereafter, between November 1999 and the end of the year, he had consensual sexual intercourse with her. She told him she was 15 years old. 5. During 2002 the applicant was arrested and charged with sexual allegations involving two other girls. In the course of their investigations, the police interviewed NB. 6. By the time the offences against NB had come to light, it was not possible for the applicant to be charged with offences of unlawful sexual intercourse. More than twelve months had elapsed since the last act of intercourse. Accordingly, in accordance with common practice, the applicant was charged with and faced trial for indecent assault. 7. At trial, the applicant admitted having sexual intercourse with NB. His case was that she told him that she was sixteen years old. In his evidence he described the development of the relationship between them. On occasions she sat in the back of his police car. He learned that she was still at school, and keen to join the police service. In answer to a direct question, she told him that she was 16 years old. 8. He described an occasion when she was in the front office learning about the system of instructions to police officers on the radio, and he passed her a note. He could not recall exactly what it said. He denied her allegation that it read, “can I lick you?” It was more likely to have been a comment on her inefficiency on the radio. He denied the complaint by NB, that when they were alone in the car, before a full sexual relationship began, he reached across and touched her breasts. He denied touching her in an intimate way at all before she was sixteen years old. 9. After her period of work experience was concluded, he told that she could contact him, or another officer, if she needed help with her application form. She found out his mobile telephone number, and indeed his home telephone number, and she invited him to her birthday party in early 2000, which he assumed was her seventeenth birthday. He told her that he would be unlikely to attend, but would like to take her out for a belated drink. Arrangements were made for him to do so. That evening they had a couple of drinks, kissed and he took her home. A matter of days later they entered into a more physical relationship and during a two week period they had sexual intercourse on three or four occasions at his home. 10. He was then thirty four years old. He became worried about the age difference between them. She wanted to move in with him, and was talking about marriage and children. She gave him a book with handwritten poems and a number of gifts. By then, however, he was already developing strong feelings for his future wife, and so he ended the relationship. NB did not take it very well. 11. The sexual relationship between NB and the applicant was not in dispute. His case was that she was, and that he honestly believed that she was, sixteen years old at the time. 12. After an impeccable summing up, the applicant was convicted on two counts of indecent assault based on the two occasions when NB reported that sexual intercourse had taken place. The jury was unable to agree on the separate count of indecent assault arising from the allegation that the applicant had touched NB’s breasts in the police car. The verdicts meant that the jury accepted that the sexual relationship occurred when NB was fifteen years old, and the applicant knew it. It was sensibly decided that no public purpose could be served in pursuing the count of indecent assault on which the jury were unable to agree. A not guilty verdict was entered under section 17 of the Criminal Justice Act 1967 . 13. The applicant was sentenced to six months imprisonment on each count. Appropriate notification and disqualification orders were made. 14. No application was made for leave to appeal either conviction or sentence. After the decision of the House of Lords in R v J , the case was referred to the Commission. After dealing with, and in effect rejecting a number of extraneous complaints, the Commission concluded that in view of the decision there was a “real possibility” that the convictions would be “overturned” if they were referred to the Court of Appeal. However there were no exceptional circumstances to cause the Commission to depart from the general practice that the case would not be referred to the court by the Commission while it remained open to the applicant to apply to the court for leave to appeal out of time. Hence the present application. The Facts – Joseph Fletcher 15. We can take the summary of the facts from the Reference itself. 16. The prosecution case was that between about May 2000 and May 2001, the appellant, then 65 years old, and living alone, encouraged teenage girls with whom he came acquainted through his granddaughter, to spend time at his home. The temptation or inducement was alcohol and cigarettes. During March 2001, one of the girls, SB, was raped. The appellant was charged in May 2001. Four other girls were indecently assaulted by inappropriate touching or participation in number of different sexual activities with the appellant. 17. The defence case was that all the allegations were fabricated. The appellant was no longer interested in sex. He had never had sexual contact with any of the girls. He allowed them to come to his house and he gave them cigarettes, but that was in return for housework they did for him. He did not give them alcohol, although at times they helped themselves to small amounts of alcohol from his fridge. 18. The original indictment included ten counts, count one alleging rape of SB. The first trial came to an end when the appellant dismissed his legal representatives after he had concluded his evidence. The second trial concluded during the course of the evidence for the prosecution when difficulties arose about the introduction of some diary evidence. The convictions were returned at the end of the third trial. Towards its end, on 21st October 2003, in order to deal with the possibility that the jury might consider that the Crown had failed to establish lack of consent, or knowledge of the absence of consent, count 11, alleging indecent assault, was added to the indictment as an alternative to the allegation of rape in count one. It was, of course, open to the judge to leave the issue of indecent assault as an alternative to rape without the addition of the count. Having heard submissions, Judge Burgess ordered the appropriate amendments. 19. In due course, the jury acquitted the appellant of rape, but convicted him on count 11. The appellant was also convicted of six additional counts of indecent assault on young women, and acquitted of three further counts of indecent assault, one on the basis of the judge’s direction. The details of these different indecent assaults, and the different girls who were victims of them need no recital, but the feature which distinguished them from the indecent assault alleged in count 11 was that whereas count 11 related to an allegation of indecent assault based on a full act of sexual intercourse, the remaining indecent assaults did not involve penile penetration. 20. On 12 th December 2003, the appellant was sentenced to ten years imprisonment, comprising a custodial term of six years imprisonment and an extension period of four years on count 11, three years imprisonment concurrent on counts 3, 4 and 7, and twelve months imprisonment concurrent on counts 2, 5 and 8. Appropriate notification and disqualification orders were made. 21. Leave to appeal against conviction was granted. Two grounds were argued, first, that the case should have been withdrawn from the jury at the close of the prosecution evidence, and, second, that the conviction was unsafe in the light of numerous contradictions and inconsistencies in the evidence given by the complainants. On 28 th October 2005, just after the judgment in R v J had been delivered, the appeal against conviction was dismissed. No point based on R v J was taken, and the court was not invited to consider any issues relating to sentence. 22. On 25 th November 2005 the appellant applied to the Commission for his convictions to be referred back to the court on a variety of grounds. The application did not refer to the decision in R v J . However on 22 nd February 2007, in the light of the decision, the Commission decided to refer the conviction on count 11, indecent assault, as well as the sentence imposed for the offence to the court. Discussion 23. Before the decision of the House of Lords in R v J it was well understood that a prosecution for unlawful sexual intercourse with a girl under the age of sixteen years more than twelve months after the commission of the alleged offence was prohibited. (Section 37(2) and paragraph 10(a) to Schedule 2 to the Sexual Offences Act 1956) . In law underage girls were unable to consent to sexual activity which amounted to indecent assault, and indecent assault was free from the same restriction. As a result, the practice of charging indecent assault after the expiry of the twelve month time limit where sexual activity with an underage girl included sexual intercourse was commonplace. Calvert-Smith J described in R v Timmins [2006] 1CAR 18 how: “Until recently it had been the practice for many years for prosecutors to prosecute defendants under s14 in cases in which the time limit for a prosecution under s6 (1) had been exceeded and in which the prosecutor believed that the public interest would be served by a prosecution”. To exemplify the point, Calvert-Smith J drew attention to the decision of the court, presided over by Lord Taylor CJ, considering the appeal against sentence by R v Hinton [1995] 16 CAR (S) 523 when the issue under consideration arose in the direct context of the time bar, which appeared at least, to give the practice its “implied approval”. Indeed it was typical that in Fletcher itself it does not appear to have crossed the minds either of counsel or the court, as then constituted, that the legitimacy of the practice was doubtful. The principled basis for it was powerfully articulated by Baroness Hale of Richmond in her dissenting speech in R v J , when the practice was dispatched to oblivion. 24. It is impossible to calculate the precise number of defendants who were prosecuted to conviction on the basis of the practice. The numbers will be large. Many defendants who had sexual intercourse with an underage girl will have pleaded guilty to indecently assaulting them, and many others will have been convicted on specific counts of indecent assault on the basis of full sexual intercourse, notwithstanding what would now, following R v J , be recognised as a sound point arising from the time limit provisions. In the same circumstances, others will have been convicted following the addition of a specific count of indecent assault as an alternative to another charge, such as rape. Yet others will have been convicted of indecent assault, when the count was left as an alternative to rape but without, in the exercise of the judge’s discretion, a specific count being added. There will therefore have been a long established pattern of convictions for indecent assault where a jury was sure that sexual intercourse with an underage girl occurred after the expiry of the twelve month time limit. 25. In R v J the House of Lords concluded that as a matter of statutory construction the long-standing practice had the impermissible effect of dispensing with or suspending an unequivocal statutory provision. This correction reversed the law relating to sexual activity with under age girls as it had operated for virtually fifty years. It is artificial to pretend that the law was not changed, or to dress its impact in the jurisprudential disguise that the law had, in Blackstone’s word, been “discovered”. If the law had not been corrected, Fletcher’s conviction would not have been referred to this court by the Commission, and Cottrell would not, on the advice of the Commission, have been seeking leave to appeal out of time. 26. As it happens, when R v J was argued in the House of Lords, the statutory time limit was abolished with effect from 1st May 2004. R v J was therefore concerned with the pre-existing law, and it will have no impact on cases of sexual intercourse with underage girls taking place after that date. 27. R v J directly focussed attention on the narrow question whether the time limit applied to a charge of indecent assault based exclusively on an act of intercourse. Lord Bingham of Cornhill explained that there would be very many cases where the twelve month time limit had passed where there would be “other acts independent of the sexual intercourse itself, or conduct inherent in or forming part of it, on which a prosecution properly be founded. It is only where the time limit has expired and when only evidence of sexual intercourse is relied on, that the defendant may not be prosecuted”. Lord Clyde observed that “there was nothing in the defendant’s behaviour other than the act of intercourse which was of such significance or importance as to justify the framing of a charge of indecent assault in place of one of unlawful sexual intercourse”. He considered that the problem with the former practice arose “where the facts disclosed nothing more in the way of assault than the act of sexual intercourse”. Lord Rodger made the same point, concluding that a charge of indecent assault was not permitted “where the act in question was simply sexual intercourse with an underage girl”. On this analysis the operation of the time bar in the context of indecent assault should be of limited application. 28. The consideration which informed the previous practice was that, on any view, sexual intercourse usually represents the culmination of one form or other of sexual contact or touching. If a sexual relationship involving an underage girl extended to intercourse, but, for whatever reason, a prosecution was not commenced within the time limits, sexual activity which preceded intercourse, whether on the occasion in question, or on earlier occasions by way of grooming, or seduction, or simply a gradually developing and increasingly intimate physical relationship eventually which culminated in sexual intercourse was not normally charged as a separate count of indecent assault. Unless, possibly, the defendant was challenging the fact of intercourse, separate counts alleging indecent assault, one directed to sexual activity leading to intercourse, and a second based on intercourse itself, would have been and were regarded as wholly artificial. In R v J itself, other than a separate incident of oral sex which for well understood but technical grounds fell outside the ambit of indecent assault and was therefore charged as gross indecency with a child, the sexual grooming to which the complainant was undoubtedly subjected before she consented to intercourse was not the subject of any separate charge. If it had, it seems clear that on elementary principles, J would rightly have been convicted of indecent assault. In reality, all his sexual activity with the complainant was criminal, and the time limit did not reduce that criminality by one jot. (It provided a barrier to prosecution, and conviction, in very limited circumstances. Perhaps also, we can now add that, in the event of historic cases coming to light from much earlier times, we can see nothing in the language used in the speeches of the majority in R v J which would preclude a proper conviction for indecent assault on the basis of sexual activity which took place prior to or on a separate occasion from full intercourse. Post R v J 29. Despite the decision in R v J , but perhaps no more than a continuing reflection of the “mess” identified by Baroness Hale, there is still a disturbing inconsistency about the way these problems are approached. Thus in Fletcher’s appeal, we are required to address the question whether R v J applies when the count of indecent assault was added to the indictment by amendment as an alternative to an allegation of rape in order to allow for the possibility that the jury might not be sure that the complainant did not actually consent to intercourse. We note that in R v J Lord Bingham was inclined to the view that an alternative verdict would not be time barred, and that Lord Clyde observed that in R v J the court was not concerned with problems of alternative verdicts. 30. In R v WR [2005] EWCA Crim 1907 , the indictment alleged both rape and indecent assault on the same underage girl. The indecent assault count was included as an alternative to rape, to allow for a possible insufficiency of evidence to establish the absence of consent. WR was convicted of indecent assault. The conviction was quashed on the basis that “the legitimacy or otherwise of including a conviction for indecent assault cannot depend on whether the prosecuting authorities included a primary and more serious charge of rape, or had good grounds for doing so on the indictment”. In argument attention was not drawn to section 6(3) of the Criminal Law Act 1967 . The Commission has identified R v Manister [2005] EWCA Crim 2866 , a case considered with a group of appeals against conviction in the context of the then new “bad character” provisions in the 2003 Act, as another case in which the reasoning in R v WR was applied. 31. R v Timmins [2006] 1 CAR 18 produced a different result. Timmins was charged with rape of an under age girl. He agreed that he had had intercourse with her, asserting that she had consented. Consideration was given to the possibility of adding a count of indecent assault to cover the appellant’s admitted behaviour, but at that stage, the Crown conceded that in view of R v J such a count would be impermissible because the time bar would apply to the act of intercourse. Subsequently the judge ruled that it was permissible to leave indecent assault to the jury as an alternative verdict under section 6 (3) of the Criminal Law Act 1967 , without any amendment to the indictment. The appellant was acquitted of rape, but convicted of indecent assault. His appeal against conviction was dismissed. 32. The question directly addressed in R v Timmins was whether a decision by the judge to leave a lesser offence to the jury for its consideration amounted to “the commencement of proceedings for the particular offence”? Two possibilities were considered. The proceedings either “commenced” when the more serious offence was charged, or when the trial judge decided that the lesser offence should be left to the jury for its consideration and the defendant became liable to be convicted of it, or on appeal when the Court of Appeal decided to substitute a verdict of the lesser offence. The court distinguished between the addition of a count and the taking of the plea to it, when it could “clearly be said” that the proceedings for the offence alleged in that count “commenced”, but concluded that that approach could not realistically apply to leaving an alternative verdict without the inclusion of an appropriate count, adding that it would be “somewhat fanciful to suggest that the substitution of a verdict by the Court of Appeal (Criminal Division) amounts to the “commencement of proceedings”. The operation of section 6(3) of the 1967 Act made it permissible for the jury to consider indecent assault as an alternative to a count of rape. The prohibition in R v J related to the institution of proceedings rather than alternative verdicts. Therefore neither R v J, nor R v WR applied. The court certified that a point of law of general public importance, that is, whether in the light of R v J it was permissible “for a court to allow a jury to consider, as an alternative to rape, a verdict in relation to indecent assault, where the indecent assault consists of an act of unlawful sexual intercourse, a count for which could not be lawfully indicted, it being out of time”. 33. R v Timmins was followed in R v Phillips . R v J and R v WR were distinguished on the basis that they did not address the situation where the prosecution, on proper evidence, alleged rape, and the alternative verdict of indecent assault was left to the jury in the summing up. In R v Phillips the court regarded Timmins as “correctly decided”, and indeed, on the basis that the House of Lords refused leave to appeal the question certified in R v Timmins , concluded that the House of Lords took the same view. Another possibility, of course, is that the House may have considered that the number of cases in which the distinction might be of significance would be relatively small, and in inevitable decline because the time bar will have no application where intercourse occurred after May 2004. 34. The Commission, understandably seeking for some clarification of the principles, has drawn attention to a number of earlier decisions, which were not cited in either R v WR or R v Timmins . They include R v West [1898] 1 QB 174 and R v Hodgson [1973] 57 CAR 502. In R v West [1898] 1QB 174 the Court was concerned with a statutory time limit of three months in which to commence proceedings for an offence contrary to section 5 of the Criminal Law Amendment Act 1885 , an offence known to us as unlawful sexual intercourse with a girl between thirteen and sixteen years. The alleged offence was committed on 19 th July. The defendant was charged with rape, and committed for trial on 27 th July. The depositions suggested that the allegation of rape could not be sustained. The bill of indictment laid before the grand jury on 22 nd November alleged unlawful carnal knowledge of the girl. The trial took place on 25 th November. The defendant was convicted. It was accepted that proceedings for his contravention of section 5 of the 1885 Act were not “commenced” within the statutory three month period. A case was stated for the opinion of the Court of Crown Cases Reserved. The Court concluded that the prosecution was not barred by the time limit. The proceedings were commenced within the necessary three month period. The basis of the decision was succinctly expressed by Lord Russell CJ “ … a prosecution for rape is in fact in substance a prosecution for any offence of which on an indictment for rape, the prisoner could have been found guilty.” 35. This approach was confirmed in R v Wakeley [1920] 1KB 688 . The Earl of Reading CJ addressed a problem in relation to the six month time limit which then applied to the prosecution of an offence under section 5 of the 1885 Act , as amended by section 27 of the Prevention of Cruelty to Children Act 1904 . He observed, with approval: “To put the case that was suggested during the argument by Sankey J: suppose the court had exercised its power of amendment during the course of the trial, and had altered the dates when the offence was alleged to have been committed in the same way as they were altered in the information it would be impossible to say that this was the initiation of the proceedings: it would be only a step taken during the proceedings”. 36. R v West was not cited in R v WR . Equally the court’s attention was not drawn to R v Hodgson [1973] 57 CAR 502 where it was held that on a charge of rape, it is open to the jury to convict on indecent assault just because the girl in question was under sixteen and therefore “incapable” of consent. On the other hand, R v Timmins , where R v Hodgson was considered, accepted the reasoning in R v WR as applied to the addition of a count of indecent assault based on an act of intercourse. But, like the court in R v WR , it did so without reference to R v West . 37. Both R v West and R v Wakely were considered in R v Richards [1995] CLR 894. The appellant was charged with unlawful sexual intercourse with a girl under sixteen on an occasion between 1 st and 14 th September 1992. He was charged on 15 th January 1993, and committed for trial on 18 th May. On 28 th June he was arraigned and pleaded not guilty. The trial began on 20 th October. Two new counts were added. The original count was amended so that, as count five, it alleged unlawful sexual intercourse between 31 st May 1992 and 14 th September 1992. On re-arraignment the defendant pleaded not guilty to all five counts. He was convicted on count five. He appealed against conviction on the basis that the proceedings to which count five related were commenced more than twelve months after the offence charged. The conviction was quashed on the basis that count five may in fact have alleged a different offence to that with which the appellant was charged on 15 th January 1993. This was because intercourse was occurring at fortnightly intervals and the appellant may have been convicted in respect of a criminal offence which had not been the subject of the original charge, and which fell outside the time limit. The court observed that one way of avoiding this problem would have been for the Crown to refrain from amending the indictment in the way they had. R v Wakeley was applied, and distinguished on the basis that the permissible amendment related to the original offence. 38. These decisions since R v J have created, or identified, a distinction between cases where a count of indecent assault is added to the indictment as an alternative to the more serious charge of rape, and those where rape is alleged, and the judge simply leaves indecent assault as an alternative without the addition of a specific count. The distinction creates a disturbing tension to the principle that the criminal justice system should, so far as possible, be certain, and that its operation as between all complainants and all defendants should not be fortuitous. The temptation to seek to establish a logical, consistent position is considerable, and an examination of all the relevant authorities might reveal whether, and if so which of them, was decided per incuriam. Nevertheless it would be foolish for us now to rush in where the House of Lords in R v Timmins has declined to tread. In short, given the shambles resulting from the protracted legislative process, we should avoid taking any step which, in the purported interest of consistency might add to the confusion. Rather we must ensure that the law applicable to old cases will, so far as possible, be approached as if the principles were established and consistent. In cases where the conviction for indecent assault followed an allegation of rape, R v WR (the added count) and R v Timmins (the alternative count) as they apply to the individual case, should be followed. Fletcher 39. The Commission observes that the complaint against Fletcher was made promptly, and that the charge of rape was brought well within the twelve month limit which would have applied to unlawful sexual intercourse, adding further, that the Judge’s decision that it would have been helpful to the jury to add indecent assault to the indictment rather than leave it as an alternative count was understandable. We wholeheartedly agree. Nevertheless we regard ourselves as bound by R v WR to allow Fletcher’s appeal against his conviction on count eleven. He is extremely fortunate that for the sake of “clarity”, Judge Burgess decided that count eleven should be added to the indictment. If indecent assault had been left as an alternative to rape, following R v Timmins and R v Phillips, the appeal would have been dismissed. Extension of Time 40. In Fletcher’s case, because the case comes directly to us as a reference by the Commission, we are not required to address any question of time extensions. Indeed we are not entitled to do so. The resulting problem arises for direct consideration in Cottrell’s application and will be addressed shortly. In Fletcher’s case, however, it is important to emphasise that his first appeal against conviction was decided after the decision in R v J. In other words, on 14 th October 2005, for the reasons we have given, the applicable law changed. Although no point was in fact taken on 28 th October, when Fletcher’s appeal was before this court, if it had been, it is difficult to imagine that an application to amend his grounds of appeal to rely on R v J would have been refused. Subject to any questions arising under section 6(3) of the 1967 Act, and assuming the law as developed in R v WR was held to apply, it would have been decisive. 41. Fletcher appealed in time. The changed law took place before his appeal was concluded. Cottrell is a very different case. As we have explained, the Commission accepted that Cottrell’s case was effectively indistinguishable from R v J, which however was not decided until at least a year after the conclusion of his trial. The Commission’s decision not to refer the case reflected the absence of any previous unsuccessful application for leave or an unsuccessful appeal. As there were no exceptional circumstances to justify a reference before Cottrell himself sought leave to appeal out of time, he was informed that he should take the first appropriate steps himself. This followed the important statutory pre-condition to any reference, prescribed in section 13(1) of the Criminal Appeal Act 1995 . Change of Law Cases 42. These cases present issues of great sensitivity and latent tension. Those convicted on the basis of the old law assert that their convictions were based on an erroneous understanding of the criminal law and that they have therefore suffered an injustice. At the same time there is a continuing public imperative that so far as possible there should be finality and certainty in the administration of criminal justice. In reality, society can only operate on the basis that the courts administering the criminal justice system apply the law as it is. The law as it may later be declared or perceived to be is irrelevant. Change of law appeals create quite different problems to those which arise in the normal case where an individual was wrongly convicted on the basis of the law which applied at the date of conviction. These tensions are not confined to England and Wales. 43. The issue presented itself to the Supreme Court of Ireland in A v Governor of Arbour Hill Prison [2006] IEFC 45. The facts were simple. In June 2004 A pleaded guilty and was convicted of unlawful carnal knowledge contrary to section 1.1 of the Criminal Law Act 1935. In May 2006, in CC v Ireland and others the Supreme Court declared that section 1.1 was inconsistent with provisions of the Constitution of Ireland. A appealed against his conviction. The argument was simple. His conviction was null. It depended on a law which, because it was inconsistent with the Constitution, did not exist. The High Court agreed. The prosecution appealed. Murray CJ, and the remaining members of the Court, conducted a comprehensive analysis of both common law and civil justice systems, which demonstrated the effective universality of the problem. He observed: “Absolute retro activity based solely on the notion of an Act being void ab initio so as to render any previous final judicial decision null would lead the Constitution to have dysfunctional effects in the administration of justice…the application (such) a principle …in the field of criminal law would render null and of no effect final verdicts or decisions affected by an Act which at the time had been presumed or acknowledged to be constitutional and otherwise had been fairly tried. Such unqualified retro activity would be a denial of justice to the victims of crime and offend against fundamental and just interests of society” Addressing the general principle he observed: “In a criminal prosecution where the State replies in good faith on a statute in force at the time and the accused does not seek to impugn the bringing or conduct of the prosecution, on any ground that may in law be open to him or her, including the constitutionality of the statute, before the case reaches finality on appeal or otherwise, then the final decision in the case must be deemed to be and to remain lawful notwithstanding any subsequent ruling that the statute, or a provision, is unconstitutional. That is the general principle. I do not exclude…some extreme feature of an individual case, (which) might require, for wholly exceptional reasons related to some fundamental unfairness amounting to a denial of justice…” The prosecution’s appeal against the ruling of the High Court was allowed. 44. This decision of the Supreme Court was based on the constitutional arrangements which apply in Ireland. Accordingly, the analogy with change of law cases in this country is not complete. That said, the decision provides valuable illumination of the need to emphasise that appeals against conviction in change of law cases involve significant social and public considerations which go well beyond a narrow focus of an individual conviction. 45. These considerations informed the principles applied by this Court, when deciding whether to grant leave to appeal against conviction out of time. The general rule is simple. Without special or particular reasons an application for leave to appeal out of time on such change of law grounds will not be granted. Given the importance of the principle to this judgment, we must refer to passages in the judgments of a number of previous Lords Chief Justice. In R v Mitchell [1977] 65 CAR 185 at 189 Lane LJ (as he then was) commented: “It should be clearly understood, and this court wants to make it even more abundantly clear, that the fact there has been an apparent change in the law or, to put it more precisely, the previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction”. In R v Campbell [1997] 1 CAR 234, this court considered a reference by the Home Secretary under section 17(1)(a) of the Criminal Appeal Act 1968 . At p206, Lord Bingham of Cornhill observed: “On the hearing of this appeal, Mr Fitzgerald (counsel for the appellant) sought to challenge the direction given by the trial judge on provocation. He accepted that that direction faithfully reflected the law as it was understood at the time of the trial. But he submitted that the law had, over the intervening decade, so developed that there were then excluded from the jury’s consideration matters which they would now be invited to consider. We would be very slow indeed to allow an appeal on these grounds. Although the appellant at one point proposed to challenge the trial judge’s direction on provocation on appeal to this court, he did not in the event do so. Any such challenge at that time would necessarily have failed. It would be quite contrary to the general practice of this court to permit convictions to be re-opened because the law has changed since the date of conviction”. In R v Benjafield [2003] 1 AC 1099 at 1117 Lord Woolf commented that: “It is not usual to grant leave to appeal out of time where the grounds of appeal are based on post-trial changes in the law. This practice has been reaffirmed in relation to applications based on the coming into force of the Human Rights Act 1998 ; see R v Lambert [2001] 2WLR 211. The court would not wish in this case to do other than confirm the existing practice”. 46. We have already burdened this judgment with what may otherwise appear to be an unnecessary citation of authority in order to establish that it has for very many years, and still is, as Hughes LJ described it in R v Ramzan and others [2007] 1 CAR 150, the “very well established practice of this court, in a case where the conviction was entirely proper under the law as it stood at the time of trial, to grant leave to appeal against conviction out of time only where substantial injustice would otherwise be done to the defendant”. In short, the principle is that the defendant seeking leave to appeal out of time is generally expected to point to something more than the mere fact that the criminal law has changed, or been corrected, or developed. If the appeal is effectively based on a change of law, and nothing else, but the conviction was properly returned at the time, after a fair trial, it is unlikely that a substantial injustice occurred. 47. We do not doubt that there have been occasions when the practice has not been followed, but they do not undermine the essential policy reasons on which the principle is based. As applied in this Court, it is inherent that the policy permits of exceptions. We are not impressed with the submission that the court has not criticised the Commission for referring a change of law case. No one has suggested that the Commission is subject to a statutory prohibition against making a reference in such cases. In any event, even if not unknown, it would be rare for the court to criticise the Commission for referring a case which resulted in the quashing of a conviction, whatever its views about the decision to refer. That does not constitute approval. Thus, for example, we pause to consider the decisions in R v Cayley-Knowles and R v Iorwerth Jones [2006] EWCA Crim 1611 , which were referred to the court following a decision in the House of Lords in R v Wang [2005] UKHL 9 which held that a judge should never direct a jury to convict. Cayley-Knowles was convicted in 1972, on the judge’s direction of assault occasioning actual bodily harm. The evidence of the complainant was unchallenged. Addressing the jury, the appellant admitted that he had punched the victim twice in the fact causing actual bodily harm, and that he had not acted in self-defence and that the attack was not an accident. The judge directed the jury to convict in circumstances which, in 1972, would have attracted “no possible criticism”. Iowerth Jones was convicted more recently, but still, as long ago as 1994 of criminal damage. He admitted the damage alleged, caused as a protest against an incident which had happened in 1983. There was no defence. The judge directed the jury to convict. They did so. His conduct in 1994 was not open to criticism. As the cases were referred directly to the court by the Commission time was abridged. Leave to appeal out of time was not required. On the basis of the judgment which we have read, we have very grave doubts whether, if invited to do so, the court would have extended time in either case. 48. Cases like these are very different from R v Bentley [2001] 1CAR 307 where this court applied modern standards of fairness to a notorious conviction. Bentley’s conviction would not have been regarded as unsafe if the summing up had been fair and the directions of law adequate. It was quashed because by standards in 1952 as well as modern standards, the summing up, in particular in the context of the burden of standard of proof, and the lack of overall balance, deprived the appellant of his “birthright” of a fair trial. The decision did not depend on a legal view of the principles governing joint enterprise, and in particular the then recent decision developments in the House of Lords in R v Powell and R v English [1998] 1 CAR 261 of these principles. In relation to criticisms of the judge’s directions of law, the only ground which succeeded was based on the later court’s view that the first court had simply failed to grapple with the point. In other words, the defect arose at the time of trial. It was not based on any post-trial change of law. 49. After this discussion of the principles applied by this court in change of law cases, we must identify our concerns about the decision in R (DRCP) v Criminal Cases Review Commission [2007] 1CAR 395. The Divisional Court, presided over by Maurice Kay LJ was invited to consider whether the Commission, exercising its statutory function, should have regard to the practice adopted by this court in change of law cases. The court reached the clear conclusion: “ That the independent Commission was under no obligation to have regard to, still less to implement, a practice of the CACD which operates at a stage with which the Commission is not concerned. We resolve the point of principle in favour of the Commission”. As a result the Commission drew up the Seventh Version (Issued on 26 March 2007) of its formal memorandum describing the way in which it would exercise its responsibilities in “a change of law” cases. Paragraph 14 asserts, among other considerations, that “regard will not be had to.... the Court of Appeal’s practice in relation to applications for an extension of time in which to appeal change-of-law cases”. The more we considered this new policy, the more questionable in principle it appeared to be. 50. The problem was not addressed in the Royal Commission on Criminal Justice, chaired by Viscount Runciman, nor indeed in the legislation which followed that Commission and by Part II of the 1995 Act established the Criminal Cases Review Commission itself. The failure to anticipate the problem is unsurprising. At that time, the focus of the Runciman Commission was indeed “old” or historic cases, where the appeal process had been exhausted and the Home Office represented the only, and a hazardous route, to remedy miscarriages of justice in accordance with section 17(1) of the Criminal Appeal Act 1968 . Just because so many of the troublesome cases were old and well out of time for any appeal, or further appeal, the normal time limits were disapplied. The Commission may refer a conviction “at any time”. With historic cases understandably occupying so much attention, the problem of change of law cases was not directly addressed. At the time, the normal approach of the court to such cases was straightforward and well understood: save exceptionally, any necessary extensions of time would be refused. In short, in relation to these cases, neither the Runciman Commission, nor indeed the legislation, were required to address what was a non-problem. 51. The potential consequences of the omission have taken some time to become apparent. However the latest policy adopted by the Commission following the decision in R (DRCP) means that the arrangements for dealing with historic cases and change of law cases have been elided. Cottrell typifies the potential difficulties. For reasons which will appear we shall refuse leave to Cottrell to appeal out of time. If however the case had been referred directly by the Commission following the decision in R v J , or even if, notwithstanding our decision, the Commission subsequently decides to refer the case back to the court, Cottrell would not have needed, or would not then need any extension of time. The reference always bridges the time gap. By making it, whenever it is made, the Commission in effect grants any necessary extension of time and the Court cannot refuse to deal with the case on the basis that it is stale, even if, left to itself, the court would not have granted an extension. ( R v Kansal (No 2) [2001] EWCA Crim 1260 .) The immediate objective of the post Runciman reforms, to enable the Commission to refer historic or old miscarriage of justice cases in accordance with its judgment, and subject to the relevant statutory criteria, has been extended to change of law cases which were not then in direct contemplation. 52. Like the Court, the Commission is a creature of statute, and again like the court it is an independent body, which subject only to possible, and very rarely successful judicial review proceedings, is independent of the Court. Its independence, both when it is exercising its responsibilities, and in the public perception of the way in which those responsibilities are exercised, is one of its most valuable characteristics. However, although rightly vested with considerable authority, for the sound constitutional reasons appreciated by the Runciman Commission, the Commission was not vested with jurisdiction to quash criminal convictions. It is fundamental to the relationship between the court and the Commission, and the proper working of the constitutional arrangements, that the decision whether to quash a conviction continues to be the exclusive responsibility in the court. In relation to change of law cases however, if the Court is obliged to quash old convictions, returned in ignorance of subsequently “discovered” law, simply because the convictions are referred to it by the Commission, these principles are threatened. For the time being the court is bound by what we shall identify as the declaratory principle of the common law. In change of law case, the Court may therefore find itself obliged to quash a conviction simply because it is referred by the Commission. That infringes the constitutional proprieties. 53. In his illuminating commentary on this decision at [2007] CLR 384, Professor David Ormerod begins by observing that: “The decision was difficult to fault in terms of literalist statutory construction of the CCRC’s powers under s13 of the Criminal Appeal Act 1995 , and the CACD’s obligations under s9 of that Act…” He then went on to observe: “… because the CACD must also deal with appeals referred by the CCRC. The CCRC is not statutorily precluded from referring a case out of time. Having regard to its statutory powers, there is no obligation of the CCRC to have regard to the CACD’s finality policy in change of law cases….moreover, once the CCRC refers a conviction to the CACD, the CACD has no opportunity to apply its policy to filter appeals out of time: By s9 (2) of the 1995 Act the CACD must proceed to hear and determine the appeal as referred. The CACD had, in Kansal (No: 2) [2001] 2Cr.App R30 at (24) and Ramzan, encouraged the CCRC to have regard to its finality policy to avoid the obvious conflict whereby an appellant approaching the CACD on an appeal based on change of law would be likely to be refused leave, whilst an identical case which might be referred by the CCRC would have to be heard. There is much pragmatic sense in that – for the system to work, any CCRC decision “must be informed by the Court of Appeal’s working practices”: Ashworth and Redmain, Criminal Process [2005], P.359”. Professor Ormerod continues his analysis by suggesting that the decision itself means that: “The CCRC is not obliged to have regard to the CACD’s policy when deciding whether to refer. Nor is the CCRC obliged to have regard to that policy when evaluating whether there is a real possibility of a conviction being quashed, because as the CCRC knows, once the reference is made the CACD will have no opportunity to apply that finality filter”. If this is indeed what the decision means, and we agree with Professor Ormerod that it does, we are in highly unusual territory. 54. We have examined the arguments before the Divisional Court in R (DRCP) , and we cannot discern that this constitutional question was closely addressed. The omission was significant. If it were intended that the Commission should ignore any aspect of the law and practice of the court, in particular for present purposes, in relation to “change of law” cases, its authority to do so would have been expressly provided in the legislative structure which created it. The legislation was clearly not intended to have this effect. On the contrary, it is a pre-condition to a reference that save in exceptional cases unless the defendant has unsuccessfully appealed against or made an unsuccessful application for leave to appeal against conviction, so that any remedy arising from his normal appeal rights is exhausted, he should first apply to the court. If he has not previously applied for leave to appeal, the court may refuse leave to appeal just because the application is out of time, and in change of law cases it will normally do so. If it does so, the legislative arrangements suggest again, that save in exceptional circumstances, the Commission should not refer cases on which this issue has already been addressed and decided adversely to the proposed appellant. Moreover the Commission, when considering whether to make a reference, may “refer any point on which they desire the assistance of the Court of Appeal to that Court, for the Court’s opinion on it; and on a reference under this sub-section the Court of Appeal shall consider the point “and furnish its opinions”. As these provisions of section 14 demonstrate the legislative framework clearly links the reference process to the law and practice of the court. In reality we cannot conceive of any circumstances in which the law and practice laid down in this Court can be ignored by the Commission when it is exercising its judgment whether to refer a conviction to the court. They are “so obviously material” to the decision to be made by the Commission that it would be contrary to the intention of Parliament for them to be disregarded. ( In re Findlay [1985] AC318 ) 55. The Divisional Court’s decision would have the effect of defeating, and certainly undermining, the “symmetry” identified by Professor Zellick in this penetrating observation to the Home Affairs Select Committee in June 2004: “Whatever statutory test Parliament …imposed it has to be one that articulates with the test that the Court of Appeal itself has to apply. If you break that link and you establish an asymmetry between the two tests, you will be creating an absurd situation. It would create tension between the Court of Appeal and the Commission, it would raise expectations, it would cause confusion, and it is difficult to see what possible public interest could be served by referring cases on a basis that had no relation to the test employed by the court itself.” 56. It would indeed be disturbing, and we believe productive of public disquiet, if the Commission were to adopt an approach to change of law cases which conflicted with the approach of the court. We would not see this as a “healthy” tension. Indeed we see no reason for tension. The Court and the Commission are equally concerned about possible miscarriages of justice, and unsafe convictions. Convictions referred by the Commission to the Court are frequently quashed, but not always. The differences reflect the conditions which govern the exercise of their respective functions. The Commission refers cases where there is a “real possibility” that the conviction “would not be upheld”: the court quashes convictions which are unsafe. This should not be productive of tension. Both bodies are independently exercising their constitutional responsibilities, and they do so applying different tests. In short, in our judgment, the mutual independences of the Commission and the Court are not damaged by the application of comity and coherence in relation to change of law cases. 57. The present cases illustrate two facets of the problem, but do not address a third. Cottrell has never appealed. The change of law in his case came long after the time for appealing had expired. Fletcher appealed, and his appeal was heard and decided after the change of law had taken place. If we may say so, the decisions of the Commission in both cases were entirely correct. However neither case involved an application to the Commission on the basis of the change of law following R v J, in the context of a conviction returned at the same time as, or earlier than Cottrell, in which there had been an unsuccessful appeal on different grounds. For cases in this third category, when the opportunity for a further application is no longer available, it would be productive of discord and uncertainty if the Commission were to ignore the policy of the Court, as illustrated by the decision in the Cottrell application. 58. At the hearing, without making any formal concessions, Professor Zellick appeared inclined to accept that the Commission might be prepared to revert to its earlier guidance that it would have regard to the practice of the court in change of law cases. We must go further. In our judgment, in these cases, it is not open to the Commission lawfully to apply a policy based on the conclusion of the Divisional Court that it was “under no obligation to have regard to, still less to implement” the practice of the court. The practice must be addressed and evaluated in every case. Just as the court will not normally extend time, a conviction should not normally be referred on the basis of a change of law. We repeat paragraph 46 of this judgment. In the final analysis, however, provided the Commission addresses and gives proper weight to the law and practice of the court, it must exercise its own independent and fact specific judgment whether to refer a case. Cottrell 59. We can now return to Cottrell’s application, which is well out of time. The complainant was groomed by the applicant and she fell in love with him. He was in fact guilty of indecent assault on her, not only because full intercourse took place, but because he had touched and handled her indecently. Her seduced consent to sexual activity provided no defence. But for the practice now deemed impermissible Cottrell could have been indicted for indecent assault in relation to underage sexual activity, and from the jury verdict it is clear that he would have been convicted. It would be a manifest injustice to the complainant if he were able to take advantage of that part of the change of law which suited him, without having to accept the inevitable consequences of the process which would have applied to this case if the erroneous practice had been recognised earlier, and the necessary adaptations to it adopted. This case falls well within the long established principles which this court has applied to extensions of time in change of law cases. The only possible ground of appeal is based on the change of law. The refusal of this application will produce no injustice. Therefore it is refused. Final Thoughts 60. Under the present legislation a conviction must be quashed if it is unsafe. The declaratory theory of the common law appears remote from the practical realities which should underpin the administration of criminal justice. . Nevertheless the common law is not fossilised and one of its strengths is that it is indeed flexible and capable of development, and misconceptions and misunderstandings of legal principles can and should where necessary be corrected and elucidated. This judgment has sought to underline that there is a broad public interest about the way in which change of law appeals should be addressed. We share the views of the Divisional Court in R (DRCP) that these issues merit the attention of Parliament.

```yaml citation: '[2007] EWCA Crim 2016' date: '2007-07-31' judges: - MR JUSTICE BEATSON ```

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

Neutral Citation Number: [2022] EWCA Crim 463 Case No: 202102226 B2 and 202103504 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NORTHAMPTON His Honour Judge Mayo T20200351 & T20200404 Royal Courts of Justice Strand, London, WC2A 2LL Date: 7 April 2022 Before: THE LORD BURNETT OF MALDON LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE SWEENEY and MRS JUSTICE HEATHER WILLIAMS - - - - - - - - - - - - - - - - - - - - - Between: REGINA Appellant - and - MICHAEL CHANG Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - John Lyons (instructed by Hunt and Coombs ) for the Appellant Andrew Peet (instructed by The Crown Prosecution Service ) for the Respondent Hearing date: 10 February 2022 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely by circulation to the parties’ representatives by email and release to BAILII. The date and time for hand-down is deemed to be 10:00am on 7 April 2022. Lord Burnett of Maldon CJ: 1. O n 18 June 2021 in the Crown Court at Northampton before His Honour Judge Mayo the appellant, a police officer in the service of Cambridgeshire Constabulary, changed his plea to guilty to possession of a prohibited weapon contrary to section 5(1)(b) of the Firearms Act 1968 (“the 1968 Act"). That followed a ruling by the judge that the provision applied to the circumstances of the appellant’s admitted possession of a PAVA incapacitant spray at the time in question. PAVA stands for pelargonic acid vanillylamide. It is an incapacitant spray which affects the eyes. It had been issued to the appellant as a police officer, but he kept it with him in the boot of his car when he finished his duties, contrary to instruction. His defence was that section 5 of the 1968 Act has no application at any time to Crown servants and thus police officers because by section 54 of the 1968 Act they are deemed to be Crown servants. 2. On 7 October 2021, the appellant was convicted of dangerous driving contrary to section 2 of the Road Traffic Act 1998 when he changed his plea to guilty during his trial. The incident of dangerous driving was unconnected with the firearms offence. 3. He was sentenced to a suspended sentence of ten months’ imprisonment suspended for two years together with a fine of £1,000 for the firearms offence and a consecutive suspended sentence of six months’ imprisonment suspended for two years for the dangerous driving. He was also disqualified from driving for 14 months and ordered to pay £4,300 prosecution costs. 4. The appellant appeals against the firearms conviction with leave. His application for leave to appeal against the total sentence of 16 months’ imprisonment suspended for two years has been referred to the full court by the Registrar. The Facts Dangerous driving 5. On 30 March 2020 the appellant was driving an unmarked police car along the A1 motorway on his way to Peterborough Magistrates’ Court for a bail hearing. He was due to arrive at 09.00 but did not leave the police station until 09.05. He was late and consequently drove at speeds of up to 114mph. He drove with sirens sounding and blue lights flashing despite the absence of an emergency to justify this. He twice called his supervising officer on his hands-free mobile phone whilst driving. 6. At 09.23, three seconds after a call connected, the appellant attempted to leave the motorway at junction 17 but left it too late and lost control. He hit the inside barrier at 100mph, crossed the carriageway in front of another vehicle and came to a halt after hitting the outside and inside barriers. There were no injuries, but the car sustained significant damage. The driver of the car he had crossed in front of made a 999 call. While she was doing so the appellant took it over saying he was a police officer. He called his supervising officer, pretending simply to have pulled over to the side of the road, to request the name of the Crown Prosecution Lawyer he was due to meet. He then called again at 09.50 when he arrived at court. He made no reference to the accident. His supervising officer discovered what had happened when the other driver reported the matter. The appellant was brought back to the police station and accepted that he should not have been using the lights and sirens, that he “put his foot down” because he was late and had not thought about telling his supervising officer about what had happened. Possession of a prohibited weapon 7. The appellant was a plain clothes police officer. He left Huntingdon Police Station at the end of his shift on 15 April 2020 and on his way home he stopped at a Tesco supermarket in Kettering. He had previously been issued with a PAVA incapacitant spray which he should have left in an assigned PAVA locker when he left work. 8. The appellant intended to do some shopping, He had put on some police uniform, despite being a plain clothes officer, because on a previous occasion the store had not allowed him to go to the head of a queue as a “keyworker”. This was shortly after the first Covid-related lockdown when many retailers were allowing “keyworkers” to take precedence when shopping. He then went to buy some petrol at the store’s petrol station. The appellant observed a dispute between a staff member and a Mr Davies. The appellant believed, quite wrongly, that Mr Davies was attempting to make off without paying for petrol. The appellant approached his car, stood in front of it and tried to speak to Mr Davies by pointing and shouting. When Mr Davies refused to engage with him, the appellant retrieved from his own car the belt to which the police-issue PAVA spray holster and baton were attached. Mr Davies got out of his car and began to use his mobile phone. His partner and a 14 year old nephew were passengers in the car. She got out and recorded on her phone what was going on. The appellant chased Mr Davies and sprayed him with PAVA spray, some of which blew into his partner’s face. In the meantime, the Northamptonshire police had been called. A police officer observed the appellant chasing Mr Davies with his police-issue baton and PAVA spray, before operating the spray. The incident was also captured on CCTV. Appeal against conviction 9. Section 5(1) of the 1968 Act provides that a person commits an offence if, without authority, he has in his possession, or he purchases or acquires, a weapon of the kind listed in the subsection. This list includes “any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing” at subsection (1)(b). The appellant accepts that he had a police-issued PAVA incapacitant spray in his possession without authority and that it fell within this definition. Accordingly, the ingredients of the offence charged were established, subject to the effect of section 54 of the 1968 Act. 10. Section 54 is headed “Application of Parts I and II to Crown servants”. The current amended version, which also applied in April 2020, provides: “(1) Sections 1, 2, 7 to 13 and 26A to 32 of this Act apply, subject to the modifications specified in subsection (2) of this section, to persons in the service of Her Majesty in their capacity as such so far as those provisions relate to the purchase and acquisition, but not so far as they relate to the possession, of firearms. (2) The modifications referred to above are the following (a) a person in the service of Her Majesty duly authorised in writing in that behalf may purchase or acquire firearms and ammunition for the public service without holding a certificate under this Act; (b) a person in the naval, military or air service of Her Majesty shall, if he satisfies the chief officer of police on an application under section 26A of the Act that he is required to purchase a firearm or ammunition for his own use in his capacity as such, be entitled without payment of any fee to the grant of a firearm certificate authorising the purchase or acquisition or, as the case may be, to the grant of a shot gun certificate. (3) For the purposes of this section and of any rule of law whereby any provisions of this Act does not bind the Crown, a person shall be deemed to be in the service of Her Majesty if he is – (a) a member of a police force, or (b) a civilian officer, or (ba) a community support volunteer or a policing support volunteer designated under section 38 of the Police Reform Ac 2002 by the chief constable of a police force in England and Wales. (e) a member of the British Transport Police Force, or (f) a person employed by the British Transport Authority who is under the direction and control of the Chief Constable of the British Transport Police, or (g) a community support volunteer or a policing support volunteer designated under section 38 of the Police Reform Act 2002 (as it applies by virtue of section 238 of the Railways and Transport Safety Act 2003) by the Chief Constable of the British Transport Police Force.” 11. On behalf of the appellant, Mr Lyons submits that there is a well-established rule of statutory interpretation that the Crown is not bound by legislation absent express words or necessary implication to the contrary. That rule applies to the 1968 Act. The Crown’s exemption is extended by section 54(3)(a) to members of a police force without any limitation placed upon the circumstances in which it applies to them. Section 54(1) applies only some provisions of the 1968 Act to Crown servants; that application is limited to purchase and acquisition (not possession) and is then subject to modified arrangements for authorisation. Section 5 of the 1968 Act is not within the provisions applied by section 54(1). It therefore follows that, as a police officer, the appellant was exempt from the offence of possessing a prohibited weapon irrespective of the capacity that he was acting in at the time and irrespective of where it came from. 12. The breadth of the submission needs to be understood. Section 5 provides that “a person commits an offence if, without authority, he has in his possession, or purchases or acquires” a range of different weapons and not only something capable of discharging noxious liquids or gas: machine guns, pump action shotguns, rocket launchers, mortars, firearms disguised as something else, missiles and much else. The authority referred to is, by subsection (3), the Secretary of State (for England and Wales) and the Scottish Ministers. The appellant submits that all Crown servants and those deemed to be so by section 54(3) are not subject to these penal provisions, even when they are not acting as Crown servants or as one of those identified in section 54(3) of the 1968 Act. The same argument would apply to other parts of the statute not mentioned in section 54(1) including section 3 (manufacturing and selling weapons), section 4 (shortening shotguns and converting things into weapons), section 4A (possession of articles for converting weapons), section 16 (possession of firearm with intent to injure), section 16A (possession of firearm with intent to cause fear of violence), section 17 (use of firearm to resist arrest), section 18 (carrying a firearm with criminal intent), section 19 (carrying a firearm in a public place), section 20 (trespassing with firearm) and much else. 13. It follows that if the submission were correct not only would, for example, all servicemen and Ministers of the Crown be at liberty always to carry arms (as would all those identified in subsection (3)) but they could with impunity do the other things with weapons criminalised by the 1968 Act. The judge was unable to accept that submission and so are we. 14. In Lord Advocate v. Dumbarton District Council [1990] 2 AC 580 at 597E-H, Lord Keith of Kinkel expressed agreement with the observation of Diplock LJ (as he then was) at pp. 78 to 79 in British Broadcasting Corporation v. Johns [1965] Ch. 32 made in the context of considering whether the BBC was exempt from taxation as an instrument of government: “Since laws are made by rules for subjects, a general expression in a statute such as ‘any person’, descriptive of those upon whom the statute imposes obligations or restraints is not to be read as including the ruler himself. Under our more sophisticated constitution the concept of sovereignty has in the course of history come to be treated as comprising three distinct functions of a ruler: executive, legislative and judicial, though the distinction between these functions in the case, for instance, of prerogative powers and administrative tribunals is somewhat blurred. The modern rule of construction of statutes is that the Crown, which today personifies the executive government of the country and is also a party to all legislation, is not bound by a statute which imposes obligations or restraints on persons or in respect of property unless the statute says so expressly or by necessary implication.” 15. In Regina (Black) v. Secretary of State for Justice [2017] UKSC 81; [2018] AC Baroness Hale of Richmond PSC explained that the rule did not confer an immunity from liability, but rather was a rule of statutory interpretation requiring the court to ascertain the intention of the legislation from the words used by Parliament, considering their context and purpose (para 36). 16. Acts of “the Crown” for these purposes encompasses the acts of Crown servants, most obviously those of Her Majesty’s government, as explained, for example, by Lord Diplock in Town Investments Ltd v. Department of the Environment [1978] ACA 359 at 380F-H. However, the acts of Crown servants that fall within this rule of statutory interpretation are those undertaken in their capacity as Crown servants. There would be no sensible rationale for the exemption to extend to the activities of Crown servants in their personal lives. In Cooper v. Hawkins [1904] 2 KB 164, in the context of legislation making it an offence for locomotives to exceed a prescribed speed limit, Wills J drew this distinction at p.173: “…although it might perfectly well be that the Crown is not bound by it [the enactment], yet the circumstances might have been such that a man driving an engine which belongs to the Crown might be liable because the act of over-driving might be his own personal act. For instance, if the man were drunk, or under circumstances in which he was not performing a public duty, and was not acting in accordance with superior orders, he would be liable, although driving an engine belonging to the Crown…” After noting that on the facts of the case there was no question of the driver doing other than performing his duty as a servant of the Crown, Lord Alverstone CJ said at 171: “I think that, in a case which has solely reference to the use of a Crown locomotive by a Crown servant in the performance of military duties, we ought to hold that the section does not prohibit that act, and does not bind the Crown in that sense .” (Emphasis added) 17. Similarly, in Bank Voor Handel en Scheepvaart v. Administrator of Hungarian Property [1954] AC 584 in the context of the principle that the Crown is exempt from taxation statutes, Lord Tucker said at p.627 that the immunity extended at least to include those officers of State and their subordinates who performed, pursuant to statutory authority, functions of public government which were formerly the prerogatives of the Crown, but “the immunity extends to such persons only so long as they are acting in the capacity described above”. Lord Keith of Avonholm (dissenting, but not on the essential nature of the exemption) said at p.635: “The Minister performs the traditional functions of the Sovereign. It is not in his official but in his representative capacity that he claims Crown immunity. The coachman drives the Sovereign’s coach. Unlike the Sovereign, the Minister or the coachman have not complete immunity. They have immunity only in their capacity of Crown servants.” 18. On behalf of the prosecution, Mr Peet did not pursue the submission he made before the judge that the purpose of section 54(1) is to disapply the 1968 Act in relation to the provisions it specifies and that it otherwise binds the Crown and its servants. He was right not to do so. He submits that the appellant was not acting as a deemed Crown servant for the purposes of section 54(3) when he committed the offence with the consequence that the section 5 applied to him. 19. In our judgment, the effect of section 54 of the 1968 Act is to bring persons in the service of Her Majesty acting “in their capacity as such” within the scope of the specified provisions of the 1968 Act (modified as identified in subsection (2)) in circumstances where that would not otherwise be the case. We note the use of the word “apply” in the subsection, indicating a positive extension of the reach of the 1968 Act, rather than a disapplication. Moreover, the wording of subsection (3) provides that “for the purposes of this section and of any rule of law whereby any provisions of this Act does not bind the Crown ” police officers and others are deemed to be Crown servants. That demonstrates that there are provisions of the Act which do not bind Crown servants when acting as such. 20. The decision of the Divisional Court on a Case Stated by justices in Tarttelin v. Bowen [1947] 2 All ER 837 in respect of section 5 of the Firearms Act 1937 supports this conclusion. The 1968 Act was intended to consolidate the 1937 Act and other specified enactments: see the preamble. Section 5 of the 1937 Act said: “Notwithstanding any rule of law whereunder the provisions of this Act do not bind the Crown, so much of the foregoing provisions of this Act as relates to the purchase and acquisition, but not so much thereof as relates to the possession, of firearms and ammunition to which this part of this Act applies shall apply to persons in the service of His Majesty in their capacity as such…” The Divisional Court held that the justices erred in treating this provision as exempting a flight lieutenant in the Royal Air Force from the offence of unlawfully possessing a firearm, in respect of a firearm that he had purchased privately. Lord Goddard CJ explained that outside the specific circumstances of purchase and acquisition referred to in section 5: “It is just as much an offence for a member of the armed forces to be in possession of a firearm without a certificate as it is for any other subject of the Crown…unless he is carrying his arms in the way in which an armed soldier ordinarily does carry them.” 21. Section 54(3)(a) of the 1968 Act extends the scope of who is to be considered as a Crown servant for the purposes of the Crown’s exemption from statutory provisions. It does not modify the rule of statutory interpretation itself. That rule only extends to Crown servants acting in that capacity . Accordingly, there was no need for Parliament to specify in relation to those listed in (a) to (g) that the rule only applied to them when acting as such. The rule itself provides for that. Furthermore, the modifications elsewhere in section 54 apply to Crown servants only when acting as such. It follows that a Crown servant not acting as such would be subject to the full rigour of the otherwise modified statutory provisions. It would be extraordinary if police officers acting in their official capacity could commit an offence under the 1968 Act if they failed to follow the modified provisions within section 54 but would be exempt from the modified provisions of the 1968 Act when acting in their personal capacity. That would be the effect of the appellant’s submissions. Accordingly, we do not accept Mr Lyons’ submission that the absence of an express limitation in subsection (3)(a) means that police officers, civilian officers, community support volunteers etc are not subject to the criminal provisions of the 1968 Act at all. 22. We conclude that section 54(3)(a) exempts a police officer from the provisions of section 5 of the 1968 Act only if the officer is acting officially as such at the relevant time. That would be a question of fact. It would not necessarily be coincident with the concept of being “on duty”. Mr Lyons raised as an example armed officers at the Palace of Westminster who might retain their firearms during meal breaks. They might technically be off duty (the issue was not fully explored) but would still be acting as police officers. 23. The appellant accepted that he was not given permission to take his PAVA spray from the police station and store it in his own private car; and he did not suggest that its presence there was in any way connected to his duties as a police officer. Paragraph 2.2 of the ACPO Guidelines relating to CS and PAVA sprays indicates that individual Chief Constables will wish to establish policy and guidelines on the extent and appropriateness of issue and carriage by officers under their command. (Paragraph 2.5 having noted that the sprays are classified as prohibited weapons by virtue of section 5(1)(b) of the 1968 Act and that police officers, whilst acting in their capacity as such, are exempt from the requirements of the legislation and do not need an additional authority to possess them.) The Cambridgeshire Constabulary policy at the material time on the “Procedure for the Storage, Allocation and Disposal of PAVA” included the following at para 3.1.1: “All officers allocated with PAVA will be allocated their own locker within which they must store their PAVA canister when not on duty”. 24. In the circumstances there can be no doubt that the appellant was acting outside his official capacity in having a police-issued PAVA spray in the boot of his personal motor vehicle on 15 April 2020. Section 54 of the 1968 Act provides him with no assistance in those circumstances. He was properly convicted on his guilty plea of the offence of possession of a prohibited weapon contrary to section 5(1)(b). Application for leave to appeal against sentence 25. In our view the application for leave to appeal against sentence must be viewed as one against the totality of the overall sentence, that is 16 months’ imprisonment suspended for two years. The ancillary orders are, on any view, unexceptional. 26. Both these offences display the appellant’s attitude that the ordinary rules have no application to him. The dangerous driving was aggravated by what amounted to an abuse of power in seeking to take advantage of a necessary ability to drive at very high speed in an emergency to make up for a personal failing: being late. It was aggravated by the appellant’s conduct in trying to cover up what had happened. The driving itself was appalling and exposed not only the appellant but others to significant risk. 27. So far as the dangerous driving was concerned, the plea of guilty came after the driver of the other vehicle had given her evidence and during the appellant’s own evidence, when under cross-examination he effectively admitted all the ingredients of the offence. The judge indicated that after trial the sentence would have been one of seven months’ imprisonment. He reduced that to six months to reflect the mid-trial guilty plea. That was generous. 28. In sentencing the firearms offence, the judge applied the relevant guidelines as best he could, given the unusual circumstances of the offending. He concluded that after trial the sentence would have been one of 14 months’ imprisonment. In his sentencing remarks, the judge said he would allow a 25% discount for the plea. That would have delivered a sentence of 10½ months, rather than 10. The judge concluded that it was appropriate to suspend the sentence given the appellant’s good character and his family circumstances. 29. Despite Mr Lyons’ best endeavours, we are unable to accept that the overall sentence is arguably manifestly excessive. Conclusion 30. Both the appeal against conviction and application for leave to appeal against sentence are dismissed.

```yaml citation: '[2022] EWCA Crim 463' date: '2022-04-07' judges: - MRS JUSTICE HEATHER 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: 200402495/A0 Neutral Citation Number: [2004] EWCA Crim 1952 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday, 12th July 2004 B E F O R E: LORD JUSTICE KEENE MR JUSTICE MOSES MR JUSTICE MITTING - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 49 OF 2004 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR J LAIDLAW appeared on behalf of the ATTORNEY GENERAL MR J SMITH 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 HM 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 this as being the hearing of the reference. 2. On 12th December 2003 at Liverpool Crown Court this offender pleaded guilty to manslaughter on an indictment charging him with murder. That plea was accepted on the basis that he did not intend to kill or to cause grievous bodily harm. On 7th April 2004 he was sentenced by His Honour Judge Roberts to six years' imprisonment. The offence had been committed during the unexpired part of an earlier custodial sentence and the offender was ordered to serve the outstanding part of that sentence, 137 days, consecutively to the above term. 3. The offender had provided a written basis of plea which was not accepted by the Crown. There consequently had to be a Newton hearing to resolve a number of factual matters which were in dispute. We set out the facts of the case as determined after that Newton hearing. 4. The victim, Kelly Reid, was 22 years old at the time. She began a relationship with the offender late in 2002 and shortly afterwards he moved into her home. On 6th July 2003 the two of them attended a barbeque and then went on in the evening to a public house. They were seen there arguing. Both of them were evidently drunk. They left separately with the victim going to her sister's for a time. There was evidence that she was upset and crying. Her sister suggested to her that she left the offender, but the victim said that she could not end the relationship because he would kill her. 5. Eventually the victim left and went home. There, it seems, there was a drunken fight in which the offender lost his temper and punched her in the face before applying considerable pressure to her chest from which she died. She was found lying almost naked in the living room with nothing but socks below the waist and a bra and T-shirt above the waist, the T-shirt having been pulled up so as to expose the bra. 6. Paramedics, who eventually came, saw that she was bleeding from the nose and there was bruising to the eyes. They also saw faeces and blood on the floor and around the patient. The house was in disarray with broken pieces of furniture scattered over the room. Kelly Reid was not breathing and it proved impossible to resuscitate her. 7. During the post-mortem examination the pathologist found bruising and a laceration to the left eye, further areas of bruising to the nose, to the muscles deep to the right shoulder blade, to the right side of the vertebral column and to the tissues above and below the heart. Death had occurred as a result of blunt trauma to the chest, most likely the result of compression such as might occur in a forceful bear hug. There were also fresh tears to the skin around the anus, oozing blood. The rectal lining was reddened and there was damage to the underlining muscle fibres of the anus. There was evidence at the Newton hearing that the cause of those injuries was the introduction with considerable force of an object such as a penis, a finger, a hand, or an inanimate object, tearing the sphincter muscle. 8. In interview the offender spoke of an argument during which he had punched the victim in the face and she had slumped to the ground. He said that he had sought to resuscitate her by pressing on her chest and had then noticed she had defecated. He said he had tried to clear that up. 9. In court he provided a written basis of plea in which he claimed that the fatal injury had been as a result of a single blow to the chest because he could not hear her breathing. He denied responsibility for the anal injuries suffered by the victim. His case on that was that she must have had anal sex with someone else before arriving home. 10. Having heard evidence at the Newton hearing from the paramedic who attended the scene, Two pathologists and the offender, the judge found that the trauma to the chest was as a result of compression and that non-consensual injuries to the anus had been inflicted by the offender. The judge also observed that the victim had been a young woman of 22 and that the offender was a much heavier man. 11. The Attorney General draws attention to the record of the offender for violence. The offender is now aged 38 and he has a total of 27 previous convictions. Those include repeated offences of violence. He was convicted of section 20 wounding in 1985 and again of the same offence in 1988, together with an assault occasioning actual bodily harm. The following year he was convicted of grievous bodily harm under section 20, of which offence he was again convicted in 1991. In 1992 he was convicted of a further offence of assault occasioning actual bodily harm. In 1992 he was also sentenced to 30 months' imprisonment for aggravated burglary. There was another conviction for occasioning actual bodily harm in 1997, as there was in 1998 along with one for common assault. In 2002 he was again convicted of assault occasioning actual bodily harm, as well as a public order offence. We add for completeness that he also has convictions for criminal damage. 12. In those circumstances the Attorney General makes two submissions. First, it is contended that, as a commensurate sentence, six years' imprisonment was unduly lenient for this offence. It failed, it is said, to reflect adequately the aggravating features present in this case and, in particular, the sexual aspect of the attack and the offender's appalling criminal record for committing offences of violence. It is also said on behalf of the Attorney General that that sentence fails adequately to punish this offender sufficiently, or to deter others from committing similar offences, or to reflect public concern about such cases. 13. On behalf of the Attorney General Mr Laidlaw argues that the sentence here imposed would be appropriate for an ordinary case of no intent manslaughter, but simply does not properly take account of the very serious sexual assault, the very bad record of this offender for violence and the fact that this offence occurred soon after his release from prison for an offence of violence. 14. Secondly, the Attorney General submits that the judge should have passed here a longer than commensurate term of imprisonment pursuant to the provisions of section 80(2) (b) of the Powers of Criminal Courts (Sentencing) Act 2000 (" the 2000 Act ") in order to protect the public from serious harm from this offender. Mr Laidlaw particularly emphasises the fact that this manslaughter was the latest in a long series of violent offences, and it is contended that this was clearly an appropriate case where the need to protect the public required a longer sentence than a commensurate one. 15. As aggravating features Mr Laidlaw relies upon the following matters. First, the fact that this was a deliberate and drunken attack carried out by a physically superior offender upon a victim who would have been unable to defend herself. Secondly, that whilst the offender's plea of guilty was on the basis that he had not intended to cause really serious harm, the nature of the act that led to the victim's death demonstrates the offender to have been indifferent to the consequences of what was obviously a very dangerous act. Thirdly, emphasis is placed upon the subjecting of the victim to a gratuitous extremely serious and degrading sexual attack, so that she suffered the indignity and pain of penetration and damage to anus and rectum. Fourthly, reference is, of course, made to this offender's bad record and his record, in particular, for violent offending. Finally, emphasis is placed on the fact that this offence occurred after his release from prison in respect of an offence of violence while there was still an unexpired part of that term. 16. The Attorney accepts that some discount had to be given for the plea of guilty, but it is argued that the degree of credit had to be reduced by the disputing by the offender of some of the factual features of the offence. Reliance is placed by the Attorney General on three authorities, Silver 15 Cr App R(S) 836, Tzambazles [1997] 1 Cr App R(S) 87, and Attorney General's References Nos 74, 95 and 115 of 2002 [2003] 2 Cr App R(S) 42. 17. For the offender Mr Smith emphasises that this was not a case of premeditated violence. It was violence occurring in the course of a short fight which seems to have been initiated by the victim. He also stresses the fact that the offender here showed remorse immediately after the killing and did indeed seek to obtain an ambulance through a neighbour. The point is made that there was a plea here at the earliest opportunity. Mr Smith draws attention also to the fact that the offender has no record for domestic violence, or for violence against women. His offences in the past of violence have all been ones against men, either through his work as a doorman, or taking place in public houses. In the light of those factors, it is argued that this was not a lenient sentence imposed by the judge below, or, if it was, it was not unduly so. 18. Mr Smith submits that a sentence of five years is one which should have been the starting point as indicated in Silver as an appropriate sentence unless there are aggravating circumstances present. It is accepted that the sexual assault on the victim is an aggravating feature of the present case which had to be reflected in the sentence. But it is argued that the judge below did properly reflect that by increasing what otherwise would have been the appropriate term of imprisonment to one of six years. That, it is said, reflects all the aggravating circumstances pointed to on behalf of the Attorney General. Mr Smith accepts that section 80(2) (b) could apply here, but he contends that that provision does not need to be applied. In essence his argument is that the public would be adequately protected by the sentence imposed by the judge below. 19. We bear in mind that the authorities relied on by the Attorney General are inevitably of limited assistance because the facts of manslaughter cases vary so much and the range of sentences has to reflect that. Cases like Silver do indicate that on a plea of guilty to manslaughter because of the absence of the intent necessary for murder, even where great violence was used on the victim, a sentence of five years will often be appropriate where there is no weapon employed. That is, in our view, consistent with the decision in Tzambazles , where six years' imprisonment was upheld by this Court. There, there was no plea of guilty and it seems to us that that is consistent with the decision in Silver . 20. A term of five years' imprisonment may seem surprisingly low to some observers in cases such as this, but it reflects two factors. First, where a plea is accepted on such a basis to manslaughter the sentencing judge has to proceed on the footing that there was no intent to kill, or even to cause serious injury to the victim. That is a very important consideration and it is something always to be borne in mind by prosecutors and judges before such a plea on a murder indictment is accepted in the first place. 21. Secondly, a sentence of the order we have indicated also reflects the credit to be given for a plea of guilty on the normal principles. However, it is to be noted that, as was said in Silver , aggravating circumstances can and normally should lead to a longer sentence than five years. In addition, where important factual matters are put in issue by the defence, the credit for a plea of guilty may well have to be reduced and normally will be reduced. 22. Approaching this matter, first, as a commensurate sentence, it seems to us that with no Newton hearing, but simply a straightforward plea of guilty demonstrating remorse, a term of around five years' imprisonment could have been appropriate as a starting point, despite the offender's record. But the offender here did contest the manner of the victim's death, seeking to reduce his blameworthiness. Of even greater significance is the violent sexual assault by the offender on this victim. Any sentence in this case had to take into account the extent of the violence used by the offender, including that which was not causally connected to her death. The forceful penetration of her anus by some object, which must have caused her great pain and humiliation, is an aggravating feature which needed to be reflected in the length of the term of imprisonment. In our judgment, it was not adequately reflected in the term imposed in the court below. This was a case, which, at first instance, called for a sentence as a commensurate sentence of between seven and eight years. 23. But the matter does not stop there. All the evidence from his record of previous convictions indicates that this offender is a man who cannot control his violent instincts, especially when he has been drinking. There have been regular convictions for offences of violence against the person as we have already pointed out: four under section 20 of the Offences Against the Person Act for wounding or grievous bodily harm, five of assault occasioning actual bodily harm, plus a common assault and an aggravated burglary. Section 80(2) (b) of the Act of 2001 requires the court as a duty, where the offence is a violent or sexual offence, to impose a longer than commensurate term where that is necessary to protect the public from serious harm from the offender. The term is to be of a length as is, in the court's opinion, necessary to protect the public from such harm. The present offence of manslaughter qualifies as a violent offence under the Act . 24. We have asked ourselves whether a longer than commensurate term was necessary in this case to protect the public from serious harm from this offender. We are not impressed by the argument that his victims in the past have all been male, sometimes injured in public houses when the offender has been drinking, whereas the present victim was female. They are, all of them, members of the public put at risk of violent attack by this man, who, it seems to us, readily resorts to violence. In our opinion a longer sentence than the commensurate one earlier indicated was and is necessary to protect the public from such harm. Such a sentence should have been imposed here and at first instance it should have been of the order of ten years. 25. We have to allow for double jeopardy, because this is a reference by the Attorney General and this man is now being sentenced for a second time. Making such allowance, we quash the sentence of six years and in its place we put one of nine years' imprisonment. As that is passed as being of an appropriate length to protect the public, we quash the order under section 116 of the Act of 2000 ordering his return to prison for 137 days. That means that the total sentence we have substituted is one of nine years' imprisonment.

```yaml citation: '[2004] EWCA Crim 1952' date: '2004-07-12' judges: - LORD JUSTICE KEENE - MR JUSTICE MOSES - MR JUSTICE MITTING ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical 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: 201003302 D5 Neutral Citation Number: [2010] EWCA Crim 2243 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 17 September 2010 B e f o r e : LORD JUSTICE HOOPER MR JUSTICE FLAUX MR JUSTICE SPENCER - - - - - - - - - - - - - - Prosecution application for leave to appeal against a terminating ruling under s.58 Criminal Justice Act 2003 R E G I N A v F - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 0207 404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr S Uttley appeared on behalf of the Prosecution/Applicant Mr R Frieze appeared on behalf of the Defendant/Respondent - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE HOOPER: Flaux J will give the judgment of the court. 2. MR JUSTICE FLAUX: The respondent, F, faced trial at Leeds Crown Court before HHJ Grant on an indictment containing one count of outraging public decency contrary to common law. Before the trial commenced, it was agreed between the prosecution and the defence that the judge would be invited to make a ruling in relation to the application of the so-called two-person rule in cases of outraging public decency. The rationale for this was that there was no merit in calling evidence and having a submission of no case to answer at the end of the prosecution case if the merits of that submission were unlikely to be affected by the evidence called at trial. 3. On 16 June 2010 the matter came before HHJ Grant for determination of the question whether, on the basis that the evidence of Mrs Margaret Howard (the prosecution witness) stood in the form of her witness statement, the case would get past the end of the prosecution case on the current state of the law. 4. It is important to emphasise that, as was accepted by counsel on behalf of the defendant before us, Mr Frieze, and Mr Uttley of counsel, who appeared on behalf of the prosecution in this court although he did not appear before the learned judge, the case therefore proceeded before the learned judge on the basis that Mrs Howard's statement was effectively the agreed facts in the case and that there were no more facts. On that basis, having considered the statement and heard the argument, the learned judge then ruled that the two-person rule was not satisfied on that evidence and that the trial should not proceed. 5. The prosecution seek leave to appeal that ruling under section 58 of the Criminal Justice Act 2003 on the basis that it was a terminating ruling. The application was referred to the full court by the Registrar on the understanding that if the application were granted, the court would proceed to hear the appeal. We will grant leave to make this application and we have heard the appeal. 6. The circumstances of the incident which led to the indictment as described in Mrs Howard's witness statement are as follows. Mrs Howard's house is in a street with local playing fields on the other side of the road. The fields are used by local football teams of young boys aged about 6 to 8. On 1 July 2009 at about 6.15pm she was at home and could see that there was a football team of young boys training on the fields. She noticed a car pulling up and parking outside her house. She thought it was a parent who had arrived early to collect one of the boys, as the training session finishes at about 6.45. 10 or 15 minutes later she looked out of her bedroom window and saw the same blue car outside her house. 7. A man, later identified as the respondent F, was inside masturbating with his right hand and feeling his chest with his left hand. She says in her statement that while doing this people were driving down the road or had come out from their houses. At these points the male would turn to the passenger seat, picking up a sheet of paper that was the size of A3 folded in half, and opening the paper up to cover himself. When there was no more movement in the street he would continue to masturbate. During this whole incident the male, while masturbating, was watching the children playing football. 8. Later in her statement she says this: "This whole incident from me noticing what he was doing lasted about 10 minutes; from my bedroom window when I could see clearly what he was doing it was a distance of 18/20 feet. When observing the male I had a clear unobstructed view. I do not know this male. I think I would recognise this male again." 9. This was the only evidence the court had of the respondent masturbating and ceasing to masturbate was during the period that Mrs Howard was observing him - that is to say that ten-minute period. 10. In making his ruling that the two-person rule was not satisfied in this case, the learned judge referred to and applied the law on this point as most recently expounded by Thomas LJ in the judgment of this court in R v Hamilton [2007] EWCA Crim 2062 . After a detailed and careful analysis of all the cases, particularly the 19th century cases as elucidated by the more modern cases, Thomas LJ identified the two elements of the offence of outraging public decency. The first element concerns the nature of the Act and the need for proof that it was of such a lewd, obscene or disgusting character as to outrage public decency. It was not in dispute in the present case that this element was satisfied. The debate centred on the second element, the so-called public element, in relation to which Thomas LJ said this at paragraph 31 of the judgment: "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 being 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." 11. Later in his judgment at paragraph 39, Thomas LJ expanded on that point, having dealt with the further argument in the subsequent cases, by saying this: "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." 12. In applying the second part of this public element, the so-called two-person rule, the learned judge in the present case concluded that it was not satisfied in these terms at pages 19 to 20 of the transcript: "... it is perfectly plain from the evidence of ... Margaret Howard, which is the only evidence which the Crown have, that when people other than herself were seen to be present by her, on each occasion that that occurred the defendant stopped indulging in the act and covered himself with a sheet of paper that was clearly placed on the seat next to him for that purpose. And it seems plain to me that although these people were present, they were not capable of seeing the act in which he was indulging because on each of the occasions that they were observed to be present by ... Mrs Howard, he ceased the act in which he was engaged and covered himself up. So ... the evidence available, therefore, does not in my view satisfy the requirement that at least two people are present and capable of seeing the nature of the act and being affected by it." 13. In our judgment, given that there is no question of the learned judge having failed to apply the law correctly as set out in Hamilton , the only basis upon which we could reverse this ruling would be if we were of the view that that conclusion was a conclusion that no reasonable judge could reach. 14. It seems to us that, although we ourselves would not, in the particular circumstances of this case, have necessarily gone down this route given that the question of whether or not people passing by might have seen what the defendant was doing was quintessentially a question for the jury, the fact is that here, for better or worse, both parties agreed to proceed on the basis of what were, in effect, agreed facts. 15. It seems to us that, on the basis of those agreed facts as set out in Mrs Howard's witness statement, and although if one were standing back and looking at this generally one might say that there was an element of unreality to the suggestion that nobody else could have seen the defendant masturbating, the fact is that Mrs Howard's evidence is that whenever there was anybody else hoving into view, the defendant covered himself. Therefore, for us to seek to go behind those agreed facts and to say that there must have been a possibility of people seeing the defendant masturbating would amount to impermissible speculation. 16. It follows that, on the basis on which both parties proceeded, there are no grounds for overturning the learned judge's ruling and we dismiss this appeal. 17. MR UTTLEY: My Lords, in relation to the matter, section 61(3) of the Criminal Justice Act 2003 states that where the Court of Appeal confirms the ruling, it must in respect of the offence or each offence which is subject of the appeal order that the defendant in relation to the offence be acquitted of that offence. 18. LORD JUSTICE HOOPER: We so order. 19. MR UTTLEY: I am grateful, my Lords. 20. LORD JUSTICE HOOPER: Anything more, Mr Frieze? 21. MR FRIEZE: No, thank you. I believe that the defendant's representation is covered by the Crown Court order because it is still part of the trial. 22. MR JUSTICE FLAUX: If it is necessary to have a representation order, we will make one. 23. MR FRIEZE: Thank you.

```yaml citation: '[2010] EWCA Crim 2243' date: '2010-09-17' judges: - LORD JUSTICE HOOPER - MR JUSTICE FLAUX - 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} ======

No: 2005/4221/A2 Neutral Citation Number: [2006] EWCA Crim 1826 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 7 July 2006 B E F O R E: MR JUSTICE McCOMBE MR JUSTICE GROSS - - - - - - - R E G I N A -v- AGRON AHMATI - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR H KEITH appeared on behalf of the HOME OFFICE MR N METHOLD appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. MR JUSTICE MCCOMBE: This court has heard today submissions made by Mr Keith of counsel on behalf of the Home Office following a direction by this court, at the hearing of an appeal in March of this year, that the Secretary of State for the Home Department should show cause as to why the Department should not be liable for the costs incurred or thrown away, however one characterises them, on the appeal heard by the court on that occasion. 2. The circumstances of appeal itself are set out in a judgment of this court delivered by my Lord, Gross J, on 24th March 2006. On that occasion the court allowed an appeal by the defendant against an order of recommendation for deportation which had been made in the Crown Court following the conviction of the appellant in respect of charges of deception for which he was given a sentence of nine months' imprisonment. 3. The problem that arose at an early stage in the appeal proceedings was as to the appropriateness of the making of a recommendation for deportation because of the asserted marriage by the appellant, Mr Ahmati, to a Portuguese lady. This would have made him a spouse of a citizen of the European Union and giving rise to an immigration status different from that that might have been thought at the Crown court. 4. The events thereafter were described by my Lord in giving judgment on the appeal as lamentable. The problem that arose was that this court was endeavouring to find out from the Home Office what the true nationality and immigration status of the appellant was. Those attempts most regrettably drew a blank. The events of the months from September 2005 have been most helpfully investigated by Miss Mandie Campbell, the Director of the Criminal Casework Team at the Immigration and Nationality Directorate of the Home Office, and this court is grateful to her for having taken the trouble to investigate what she realistically and understandably recognises was a failure of administration on the part of the Department concerned. We acknowledge with gratitude Miss Campbell's work and if nothing else has occurred in this case it has enabled both this court and no doubt the Department to consider how requests for information from the criminal courts to government departments may be dealt with in the future. Whatever else may occur hereafter we would urge the Department to be in touch with the Registrar of Criminal Appeals to consider making appropriate liaison arrangements between it and the court for any such similar problems that arise hereafter. The court is heavily reliant on government departments of all characters to provide information when requested. 5. It is now sufficient by way of background to quote the helpful witness statement of Miss Campbell, in paragraphs 11 and following, in relation to the attempt by the court to obtain information: "11. It appears that the first letter from the Criminal Appeal Office, dated 7th September 2005, was received by the IND [that is the Immigration and Nationality Directorate] and acted upon. As the letter did not state the Home Office reference number for Mr Ahmati (it naturally stated only the CA number), an Administrative Officer ('AO') wrote to the Criminal Appeal Office, and the Norwich Combined Court Centre seeking further details of the case. Further details, including the Home Office reference number, were received from Norwich and the Criminal Appeal Office on 12th September and 19th September respectively [a period of 5 and 12 days since the request]. 12. On 4th October, the Criminal Appeal Office sent a further letter. On 7th October 2005 another AO [administrative officer] placed a note in the Home Office asking that the file be reviewed by a CCT caseworker (an Executive Officer ('EO')). 13. The caseworker to whom the file was automatically assigned on 10th October had, however, been away on scheduled sick leave from 21st September. Because no arrangements were in place for the file to be examined in her absence, the AO's minute was not acted upon. 14. By the time the caseworker had returned to her duties on 27th October, a further letter had been sent to the IND by the CAO (that of 19th October). However, neither the letter of 4th October nor that of 19th October had yet been tracked to the correct file. 15. On her return the caseworker had sifted the file in accordance with instructions on establishing a new system of case allocation. This process requires EO caseworkers to sift their files into a general 'EO Allocation Queue' from where they would be allocated to caseworkers according to release dates. However, in sifting her cases she had simply failed to notice the original letter from the Criminal Appeal Office dated 7th September or the file entry from the AO. 16. In addition, it appears the caseworker failed to act upon a file entry which recorded that a telephone call had been received from the Royal Courts of Justice on 7th November. 17. In interview, the caseworker stated that she was unable to recall the specific file and could only assume that she had missed the file note from the AO and the correspondence from the Criminal Appeal Office due to pressure of work. She told the investigating officer that she had had over 100 live cases at the time, and the overriding priority had been to concentrate on release dates. 18. On 24th November the file was passed to a different caseworker, who was responsible for the file until 22nd March. By this time, the letters of 4th October and 19th October had been placed on the file. In addition, further letters from the Criminal Appeal Office were received on 11th and 15th November. Regrettably, none of them were acted upon. 19. When interviewed on 18th April 2006, the caseworker stated that she could not recall the particular file, and had no memory of any correspondence from the Courts service. Although the correspondence on the file showed that she had responded to urgent requests from HMP Norwich on 24th November and 1st December in relation to Mr Ahmati's release date on 5th December, she stated the sheer pressure of her caseload had left her with no time to read the file thoroughly, and that the priority of dealing with deportation and the necessary accompanying notices had meant that all other issues were treated as secondary. 20. As a result, no action was taken to contact the Court of Appeal until 23rd March when the Court itself contacted a more senior officer in the IND directly." 6. It is in those circumstances that we have had to consider whether it is appropriate to make a costs order against the Department. 7. We have received a most helpful skeleton argument from Mr Keith of counsel, setting out the relevant statutory provisions which are to be found in section 19B of the Prosecution of Offences Act 1985 , empowering the Court of Appeal to make such an order if: "(a) there has been serious misconduct (whether or not constituting a contempt of court) by the third party, and (b) the court considers it appropriate, having regard to that misconduct, to make a third party costs order against him." There is no statutory definition of the term "serious misconduct". 8. In his submissions in writing and orally this morning, Mr Keith has argued that serious misconduct denotes conduct that is not merely wrongful according to the consensus of administrative or judicial opinion, but conduct that amounts to grave impropriety, whether deliberate or reckless. 9. In the context of those submissions, Mr Keith has addressed to us various passages appearing in the cases of the Director of Public Prosecutions v Denning [1991] 2 QB 532 ; Ridehalgh v Horsefield [1994] Ch. 205; and Attorney General's Reference No 3 of 2003 [2004] EWCA Crim. 868 . Mr Keith, rightly in our view, invites us to consider the contrast between the phrase "serious misconduct" as it appears in section 19B of the 1985 Act , with the phrase "improper, unreasonable or negligent" conduct that appears in sections 19A(3)(a) of the same Act concerning wasted legal costs orders against legal representatives. Mr Keith submits to us that clearly Parliament intended a higher threshold of liability in such cases than in the cases of wasted costs orders against legal representatives in delaying or otherwise protracting appeal proceedings. 10. That submission we accept. However, Mr Keith was nonetheless constrained to concede, as we think also rightly, that misconduct in this context would include deliberate or negligent failure to attend to one's duties or falling below a proper standard in that regard. As we say, we consider that concession was rightly made. 11. Given that as being the litmus test of what is "misconduct", we think that it must be entirely clear that this case was "misconduct" and indeed it was "serious". We were referred to the Attorney General's Reference (to which we have already referred) which involved a case of misconduct in a public office. Mr Keith sought to gain comfort from the description of the tort of misconduct in a public office in this context, which of course he accepts involves a degree of wilful or intentional misconduct. However, we do consider it important, in considering the question of misconduct, to refer to the Hong Kong decision in Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 (quoted by the Court of Appeal) where in the judgment of the court, referring to English and Australian authorities on misfeasance in a public office, Sir Anthony Mason considered what was or was not "serious misconduct". At paragraph 86 he said this: "The second qualification which I attach to the elements of the offence stated in the previous paragraph is that the misconduct complained of must be serious misconduct. Whether it is serious misconduct in this context is to be determined having regard to the responsibilities of the office and the office holder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities." We consider that similar questions will obviously arise in relation to this legislation and we have to bear in mind the nature of the person whose misconduct is in question. Here it is a major government department and we need not dwell upon the importance which all courts place on receiving prompt and reliable information where it is required from government departments. 12. For those reasons we consider that the conduct in this case was "serious misconduct" within the statutory definition. 13. Two other points have arisen for argument. Mr Keith asks us to consider, even if we were against him, as we are, on the first point, to what extent the conduct in question caused the parties to the proceedings to incur costs. He rightly points out to us that an appeal hearing was in all probability inevitable in this case because the matter could not be dealt with administratively, either under section 20 or section 31A of the Criminal Appeal Act 1968 , or in any other manner, and accordingly attendance in a court was inevitable. He equally, however, recognises that the preparation of the appeal was rendered more extensive, and the enquiry into the matter when the matter was called on was more extensive because of the inability of either court or the parties to obtain, prior to the hearing, any accurate information from the Department. 14. In the circumstances we are confident that some costs were indeed thrown away or wasted by the failure of the Home Office to respond to the queries made. The total costs of the appeal for the Crown and defence are in a figure of some £1,500. In argument the question was ventilated of how much cost was in fact thrown away and this court is prepared to accept Mr Keith's submission that the costs thrown away in all probability amounted to a sum in the region of £750. If, in our discretion, we make an order for payment of costs, it would be that the Department is to pay the sum of £500 to the Crown solicitors (no doubt the CPS relevant department) and £250 to the solicitors for the defendants for appropriate application in discharge of the liabilities incurred. 15. The question finally arises whether in our discretion we should make the order that we were inclined to require the Home Office to show cause against when we heard the appeal. In his written argument, Mr Keith has submitted that there are six factors that we should bear in mind in that regard. They are these. First, the fact that the failings were not deliberate. Secondly, there was no intention to prejudice the interests of justice. Thirdly, the mitigating factors advanced by the two case workers concerned, namely the overwhelming pressure of their case loads. Fourthly, this was a case concerning unnecessary delay to the hearing of an appeal rather than one in which the absence of the impugned conduct could have allowed the entire appeal process to be obviated (we have dealt with that under the causation head). Fifthly, the sincere and open apology. Sixthly, the fact that concrete measures have been put in place to reduce the risk of recurrence. 16. We think that those matters are entirely right to be put before the court for our consideration. In our view, however, even noting those matters, they do not persuade us that it is wrong to make an order for costs of the nature that we indicate. 17. We would therefore make an order for payment by the Home Office of a total sum of £750 by way of a third party costs order under section 19B of the 1985 Act to be apportioned in the manner we have indicated and to be paid within 14 days. 18. We repeat our gratitude to the official who attended before this court in March in a very difficult situation, having picked up a file at short notice and helpfully tried to guide this court as to a proper way to proceed. Secondly, we repeat our thanks to Miss Campbell for her full investigation. Thirdly, we thank Mr Keith for his helpful and succinct submissions. We hope that Miss Campbell will take back to her office the suggestion, which we shall certainly pass on to the relevant quarter here, that there be liaison between this court and the Home Office for identifying a suitable officer to whom requests of this nature may be directed in the future. We would also wish to thank Mr Methold for the Crown who has also attended and addressed short succinct submissions on the material matters.

```yaml citation: '[2006] EWCA Crim 1826' date: '2006-07-07' judges: - MR JUSTICE McCOMBE - MR JUSTICE GROSS ```

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

Case No: 2011/07118 Neutral Citation Number: [2013] EWCA Crim 158 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT MR. RECORDER LEWIS QC T2011/0017 Royal Courts of Justice Strand, London, WC2A 2LL Date: 22/02/2013 Before : LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE WYN WILLIAMS and MR JUSTICE GLOBE - - - - - - - - - - - - - - - - - - - - - Between : RAMIN POULADIAN-KARI Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss Clare Montgomery QC and Miss Fiona Jackson for the Appellant Mr Andrew Marshall for the Respondent Hearing date: Thursday 24 th January 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Globe: 1. On 18 th November 2011, in the Central Criminal Court before Mr Recorder Lewis QC the appellant was convicted of being knowingly concerned in an attempt to export prohibited or restricted goods, namely, electrical switchgear, contrary to s 68(2) of the Customs and Excise Management Act 1979. On 12 th December 2011, he was sentenced to 12 months imprisonment suspended for 2 years with a 200 hour unpaid work requirement. A co-accused, Arbrene Hussain, who pleaded guilty, was sentenced to 6 months imprisonment suspended for 2 years with a 100 hour unpaid work requirement. 2. The appellant’s applications for leave to appeal against conviction were referred to the Full Court by the Registrar. At the oral hearing, we gave leave to appeal. Summary 3. The case concerns an attempt in November 2009 by the appellant, as managing director of GTC Associates Limited (“GTC”), to export electrical switchgear under an invoice numbered 7342 from the United Kingdom to a company in Iran called Iran Tablo Company (“ITC”). Electrical switchgear are “dual-use items” in that they can be used for either civilian or military purposes. An export licence was required for the items listed in 7342 if, prior to export, the exporter had been informed by the authorities that the goods were “dual-use items” which are or may be intended for prohibited purposes. It was the Respondent’s case that two letters sent by the authorities to the appellant on the 9 th October 2009 and 15 th October 2009, in relation to an export licence being required for electrical switchgear in an invoice numbered 7280, had informed the appellant that an export licence was required for like goods in 7342. On 24 th November 2009, the goods in 7342 were presented for export at Dover without an export licence having been obtained. The goods were seized and the appellant was prosecuted under Section S.68(2) of the Act. 4. There are three grounds of appeal. i) The first relates to the Recorder’s refusal to rule as a matter of law that the October letters were incapable of amounting to the relevant notification. ii) The second relates to alleged inappropriate and prejudicial comments by prosecution counsel in his final speech. iii) The third relates to the Recorder’s refusal to discharge the jury after a juror sent a note to the Recorder asking for guidance as to whether he should remain on the jury. Statute and Regulations 5. S.68 of the Customs and Excise Management Act 1979 states as follows: (1) If any goods are- a. exported or shipped as stores; or b. brought to any place in the United Kingdom for the purpose of being exported or shipped as stores, and the exportation or shipment is or would be contrary to any prohibition or restriction for the time being in force with respect to those goods under or by virtue of any enactment, the goods shall be liable to forfeiture and the exporter or intending exporter of the goods and any agent of his concerned in the exportation or shipment or intended exportation or shipment shall each be liable on summary conviction to a penalty of three times the value of the goods or [level 3 on the standard scale], whichever is the greater. (2) Any person knowingly concerned in the exportation or shipment as stores, or in the attempted exportation or shipment as stores, of any goods with intent to evade any such prohibition or restriction as is mentioned in subsection (1) above shall be guilty of an offence under this subsection and may be detained. 6. The definition of “dual-use items” and the relevant enactment which imposed a restriction on the exportation of such items in November 2009 was the Council Regulation (EC) 428/2009 (“the Regulation”). It came into force on 27 th August 2009. It had direct effect in the United Kingdom. It replaced similar provisions in the Council Regulation EC 1334/2000 (“the 2000 Regulation”). Paragraph (1) of the recital to the Regulation stated that the 2000 Regulation had been significantly amended on several occasions and, since further amendments were to be made, it should be recast in the interests of clarity. 7. The relevant provisions of the Regulation are as follows: Article 2 “1. “Dual-use items” shall mean items, including software and technology, which can be used for both civil and military purposes and shall include all goods that can be used for both non-explosive uses and assisting in any way in the manufacture of nuclear weapons or other nuclear explosive devices.” Article 3 “1. An authorisation shall be required for the export of the dual-use items listed in Annex 1.” “2. Pursuant to Article 4 or Article 8, an authorisation may also be required for the export to all or certain destinations of certain dual-use items not listed in Annex 1.” Annex 1 implements internationally agreed dual-use controls and is a 240 page list of “dual-use items” for which authorisation is required for export by Article 3.1. Each item is particularised in generic form. The goods listed in the invoices in this case are not on that list. Article 4 “1. An authorisation shall be required for the export of dual-use items not listed in Annex 1 if the exporter has been informed by the competent authorities of the Member State in which he is established that the items in question are or may be intended, in their entirety or in part, for use in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological, or nuclear weapons or other nuclear explosive devices or the development, production, maintenance or storage of missiles capable of delivering such weapons.” “2. An authorisation shall be required for the export of dual-use items not listed in Annex 1 if the purchasing country or country of destination is subject to an arms embargo………..and if the exporter has been informed by the authorities referred to in paragraph 1 that the items in question are or may be intended, in their entirety or in part, for a military end-use…….. ” “3. An authorisation shall also be required for the export of dual-use items not listed in Annex 1 if the exporter has been informed by the authorities referred to in paragraph 1 that the items in question are or may be intended, in their entirety or in part, for use as parts or components of military items listed in the national military list that have been exported from the territory of that Member State without authorisation or in violation of an authorisation prescribed by national legislation of that Member State.” “4. If an exporter is aware that dual-use items which he proposes to export, not listed in Annex 1, are intended, in their entirety or in part, for any of the uses referred to in paragraphs 1, 2 and 3, he must notify the authorities referred to in paragraph 1, which will decide whether or not it is expedient to make the export concerned subject to authorisation.” “5. A Member State may adopt or maintain national legislation imposing an authorisation requirement on the export of dual-use items not listed in Annex 1 if the exporter has grounds for suspecting that those items are or may be intended, in their entirety or in part, for any of the uses referred to in paragraph 1.” “6. A Member State which imposes an authorisation requirement, in application of paragraphs 1 to 5, on the export of a dual-use item not listed in Annex 1, shall, where appropriate, inform the other Member States and the Commission. The other Member States shall give all due consideration to this information and shall inform their customs administration and other relevant national authorities.” “7. The provisions of Article 13(1), (2) and (5) to (7) shall apply to cases concerning dual-use items not listed in Annex 1.” Article 13 “1. The competent authorities of the Member States, acting in accordance with this Regulation, may refuse to grant an export authorisation and may annul, suspend, modify or revoke an export authorisation which they have already granted. Where they refuse, annul, suspend, substantially limit or revoke an export authorisation or when they have determined that the intended export is not to be authorised, they shall notify the competent authorities of the other Member States and the Commission thereof and share the relevant information with them. ……” 8. The Regulation is supplemented by the provisions of the Export Control Order 2008 (SI 2008/3231) (“the Order”) which sets out the United Kingdom export licence regime for what is described in the Regulation as an export “authorisation”. Facts 9. The appellant grew up in Iran. He was educated in England and obtained an electrical engineering degree and a doctorate in Pulsed Powered Technology at Cardiff University. In 1992, he returned to Iran to help his father who had founded ITC. In time, he became managing director of ITC with about 300 people working for the company. Eventually, he returned to England and became involved with GTC which was incorporated in 2003 with a registered address in Guilford. He became managing director. His commercial operations manager was his co-defendant Arbrene Hussain. The company began as a procurement handling company for ITC supplying electrical switchgear for use in industry. The electrical switchgear were procured from multi-national companies, one of which was Schneider Electric who manufactured the goods in England and elsewhere in Europe. Invoice 7280 10. Prior to June 2009, GTC were sourcing electrical switchgear from Schneider UK to process the 7280 order for ITC. In early June 2009, a freight forwarding company informed GTC that the items might require an export licence because they were dual-use items. This prompted the appellant to open an online account with the Department for Business Innovation and Skills Export Control Organisation (“BIS”). BIS is the competent authority for the United Kingdom within the meaning of Article 4.1 of the Regulation. Opening an online account enabled the appellant to make export licensing enquiries and applications online. 11. On 9 th July 2009, the appellant submitted an online application on behalf of GTC for an export licence for the electrical switchgear listed in 7280 to be consigned to ITC in Tehran. There were nine different types itemised. Each type was identified by its generic part number. Specific quantities of each type were to be supplied. A total of 79 items were ordered. The total value of the order was £38,156. The form included various questions in relation to “End-Use Details”. One such question related to “WMD End Use Control”. It asked whether the appellant had been informed by the Export Control Organisation (“ECO”) that the items were or might be intended, in their entirety or in part, for use in connection with chemical, biological or nuclear weapons or the missiles capable of delivering such weapons and, if “yes”, to enter the ECO reference. The applicant answered “no”. It was common ground that as at 9 th July, “no” was the correct answer. 12. On 17 th July 2009, the appellant sent an e-mail to Hussain, Schneider and ITC, which referred to delay being caused by the latest restrictions towards shipments to Iran which required that all cargo had to go through an export licence process. 13. In the weeks that followed, ITC became impatient about the delay and queried whether it was possible to ship the goods without an export licence. This culminated in GTC contacting a different freight forwarding company, sending them the invoice and packing list and giving them the go ahead to export the goods before a response to the export licence application had been received. At the beginning of September, the goods were collected and taken to Dover with a view to them being taken to Germany and then on to Iran. 14. When the goods were presented for export at Dover at the beginning of September 2009, the BIS website was down for maintenance purposes. With no means of being able to check the BIS records, an executive decision was taken by an authorised official to allow the export without any check having been made with BIS about the goods referred to in the invoice. 15. On 9 th October 2009, after the goods in 7280 had already been exported, BIS sent a letter to the appellant in relation to 7280. The letter said as follows: “Thank you for your export licence application of 9 th July 2009 ………I write to inform you that, under the Weapons of Mass Destruction end-use control, an export licence is required for this particular export. This is because there are grounds for believing that the export is or maybe intended, wholly or in part, to be used in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or the development, production, maintenance or storage of missiles capable of delivering such weapons. Further details on this control can be found on our website. This assessment has been made taking into account the information given in your application. We will continue to process your application. However, if there is a clear risk that the goods would be used in connection with activities relating to the proliferation of weapons of mass destruction or missiles capable of delivering such weapons then the application is likely to be refused. We shall inform you of the outcome of your application in due course.” 16. On 15 th October 2009, BIS sent a second letter to the appellant with a refusal schedule attached to it. The letter said as follows: “Having carefully considered your application, an export licence has been refused for the goods listed in the attached schedule. You may appeal against this decision, but you must do so in writing within 28 calendar days of the date of this refusal letter. In doing so you must provide argument or information that was not available to us at the time of refusal and which could materially affect the decision to refuse. Appeal letters should be addressed to………..If your goods have been refused under one of the Consolidated EU and National Arms Export Licensing Criteria a full copy of the criteria can be found at www.berr.gov.uk/..............” 17. The internet or web address/link provided by BIS in the letter was an address for the Department for Business, Enterprise and Regulatory Reform (“BERR”) website where guidance was able to be found in relation to current strategic export control legislation in relation to when export licences were required under the regulations. 18. The refusal schedule listed the generic part numbers of all nine items in 7280. In relation to each item, the following reason was given for refusal: “Unacceptable risk of diversion to a Weapons of Mass Destruction (WMD) programme of concern.” 19. The appellant was not prosecuted for the exportation of the goods in 7280 without an export licence because he had not been “informed” prior to September 2009 of what was required prior to exportation. However, it was the Respondent’s case that, the two October 2009 letters “informed” the appellant (the exporter) in compliance with, and satisfaction of, Article 4.1 of the Regulations and therefore the restriction on export was established. Additionally, and for future purposes, the letters informed the Appellant of what was required in relation to exporting any other goods that were generically specified in 7280. It was the defence case that the letters only applied to invoice 7280 and not to any other invoice. Invoice 7342 20. On 24 th July 2009, Hussain emailed Schneider, with a copy to the appellant, attaching a list of goods that were required for invoice 7342. The list included six types of electrical switchgear which were generically referred to in 7280 but the quantities were different. The email was sent fifteen days after the appellant had made the application for the export licence for 7280 and one week after the appellant had sent the email of 17 th July 2009. 21. Agreement was reached in relation to the quantity and prices of the goods in 7342. The invoice was dated 29 th October 2009 and was for GTC to supply to ITC in Tehran 14 separate types of electrical switchgear in specified quantities for a total invoice price of £135,250 of which the six types of goods which were identical to those in 7280 amounted to £78,300. There were 508 items in all of which there were 361 items of the six identical types in 7280. 22. On 24 th November 2009, the goods were presented for export. The customs declaration form and the copy of 7342 stated that GTC were exporting the items to ITC in Tehran. A copy of the GTC packing list dated 18 th November 2009 stated that the freight was travelling from the United Kingdom to the United Arab Emirates and its destination was stated to be for temporary importation and transit to ITC in Tehran and re-export to Pars Special Economic Zone. A customs officer looked at the goods and copies of the documents. On the copy of 7342, he marked the six items on the invoice which matched those on the refusal schedule attached to the letter of 15 th October 2009 in relation to 7280. Better copies of the documents were requested. 23. On 25 th November 2009, various documents were emailed by GTC to Dover. They were different to the copies that had been produced at Dover. One document was another copy of 7342 which listed the same details of the electrical switchgear but was stamped with the word “original” and was for GTC to supply the goods to GTC Associates International FZE in the United Arab Emirates. A second document was a copy of the packing list of 18 th November 2009 which was also stamped with the word “original”. The destination on that document was stated to be Abu Dhabi in Dubai and not ITC in Tehran before re-export to Pars Special Economic Zone. The goods were detained pending further investigation including further queries about the destination of the goods. 24. On 27 th November 2009, the appellant signed a letter “to whom it may concern” saying that the correct recipient of the goods was GTC Associates International FZC in the United Arab Emirates and not ITC in Iran. 25. On 3 rd December 2009, BIS wrote to GTC in the following terms. “…………..I am writing to inform you under the Weapons of Mass Destruction (WMD) end-use control referred to in the enclosed Note on Current Strategic Export Control Legislation, an export licence is required for this particular export. This is because there are grounds for believing that the export is or may be intended, wholly or in part, to be used in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or the development, production, maintenance or storage of missiles capable of delivering such weapons. Further details on the operation of the WMD End-User Control that you may find helpful can be found at http://www.berr.gov.uk/...............If you decide to apply for a licence for the items referred to in this letter, you should note that receipt of this letter constitutes “being informed” and you are required to answer “yes” in response to this question in the export licence application. If there is a clear risk that the goods would be used in connection with activities to the proliferation of weapons of mass destruction or missiles capable of delivering such weapons then the application is likely to be refused……..” 26. The attached note on current strategic export control legislation referred in particular to the Order and the Regulation. In relation to “End Use Controls” it stated as follows: “ Weapons of Mass Destruction (WMD): Provision is made in Article 4 of “the Regulation” and Articles 6, 7 and 8 of “the Main Order” to prohibit in certain circumstances the export and transit, without a licence, of dual-use items not listed in Annex 1 of “the Regulation” to a final destination other than an EU Member State and goods other than dual-use items to any destination if the exporter: i. has been informed by a competent authority of the Member State where he is established that they are or may be intended, in their entirety or in part, to be used in connection with chemical, biological or nuclear weapons or other nuclear explosive devices, or missiles capable of delivering such weapons; or ii. ………………….” 27. The internet or web address/link provided by BIS in the letter was a like email address as had been given to the applicant in the letter of 15 th October. 28. It was, and still is, the appellant’s case that the letter of 3 rd December 2009 was the first notice he had had that an export licence was required for the particular goods listed in 7342. He believed that every export was dealt with separately and had not thought that the goods in 7280 were relevant to the goods in 7342. The letter was received on 7 th December 2009. The appellant rang BIS and asked if an export licence would be granted and he was told probably not. On 21 st December 2009, the goods were formally seized and the case was referred to Customs and Excise for investigation. 29. After the goods were seized, the appellant made an online rating enquiry on 20 th January 2010 asking if an export licence was required for the items listed in 7342. An end-user certificate for 7342 dated 10 th January 2010 was attached with the application stating that the end-user was a company in Algeria. There was no reference to ITC in Iran in that document. However, another document recovered in the course of the proceedings was an end-user certificate for 7342 dated 18 th October 2009 which stated that the goods in 7342 were to be used in electrical distribution panels being manufactured by ITC in Iran with a final destination being the company in Algeria. 30. In the course of giving evidence, the appellant stated that he did not know that the goods in 7342 were subject to a restriction. He said he had been told by Schneider in France that they had been exporting similar goods to Iran without any restriction and that there were documents which established that fact. No documents were produced confirming his evidence. First Ground of Appeal 31. The first ground of appeal is that the Recorder was wrong to rule that the BIS letters of 9 th October 2009 and 15 th October 2009 were capable of amounting to notification under Article 4.1 and that the issue of whether they did so was a matter of fact for the jury. He should have ruled as a matter of law that they were not capable of amounting to notification and should have ruled them as inadmissible. 32. Miss Montgomery QC and Miss Jackson, neither of who appeared for the appellant below, contend that the BIS letters in relation to invoice 7280 covered the issue of specific authorisation and not general authorisation. 33. In relation to 7280, the application dated 9 th July 2009 for an export licence related to the specifically identified dual-item goods in the invoice. There were 79 items in total costing £38,156. The BIS letter of 9 th October 2009 referred to the application of 9 th July 2009 and stated that an export licence was required “for this particular export”. The BIS letter of 15 th October 2009 stated that an export licence had been refused for “the goods listed in the attached schedule”. The attached schedule listed the goods specified in the invoice. Neither letter stated that the contents meant that the appellant had thereby been “informed” under the 2000 Regulation, which was the predecessor to Article 4.1. On 30 th October 2009, the United Kingdom issued a “Denial Notification” under Article 13 of the Regulation, due to there being an unacceptable risk of diversion to a WMD programme of concern. There was no reference to the invoice number of 7280 but the “Denial Notification” clearly related to the invoice because it stated that it related to 79 items of electrical switchgear equipment valued at £38,156 to be supplied to ITC in Iran. It is therefore another indication of it relating to the specific export of the goods in 7280 and nothing more than that. 34. In relation to 7342, the BIS letter of 3 rd December 2009 did state that the receipt of the letter constituted being “informed” under Article 4.1 if the appellant decided to apply for an export licence. However, it went on to state that it related to “the items referred to in this letter”. That, too, therefore supports the contention that it related to the specific export of the goods in 7342 and nothing more than that. 35. Miss Montgomery contends that the interpretation is consistent with the language of the Regulation. Article 3.1 refers to Annex 1 which lists specific prohibited items. Article 4.1 states an authorisation shall be required to export dual-use items not listed in Annex 1 if the exporter has been “informed” that “the items in question” are or may be intended for prohibited purposes. The language is consistent with a case by case consideration of specific items only and not those of some generic description. 36. The Regulation is the successor to the 2000 Regulation under which 7280 was given consideration. Miss Montgomery relies upon the contents of the Guidance note provided by BERR dated April 2009 on the WMD End-Use Control. The Guidance refers to circumstances where the ECO will and will not require an export licence. If an export requires an export licence, the ECO will give it what is known as “LR End”, which means “licence required, end use, rating”. If it does not require an export licence, the ECO will give it what is known as “NLR”, which means “no licence required”. The Guidance states as follows: “If you have previously had your goods rated by us as “NLR” under the WMD end-use control, please note that this rating only applies for that specific export, and to that specific end-user, and only at the time of the application. A more detailed description of the mechanics of processing end-use ratings enquiries and licence applications is included at Annex B.” 37. Paragraph 5 of Annex B states: “If in a future case for the same or similar goods to the same end-user the exporter does not apply for a rating, but applies directly for an export licence (as he may) and, if advisors continue to take the view that there are no WMD concerns, then the end-use control will not be invoked and the goods will be assessed as being NLR (because they are not on the Control List and the exporter has not been informed). Thus, almost identical applications can result in different ratings (NLR/LR-End – licence approved), though the substantive outcomes are the same (export can proceed). This is a feature of the way the law works rather than any inconsistency on the part of ECO.” 38. Miss Montgomery submits that the Guidance refers to specific exports, specific end-users and specific applications. It is therefore consistent with the interpretation for which she contends. 39. In that Article 4.1 and the letters required interpretation, Miss Montgomery submits that, under both European and English law, it was for the judge to have interpreted them as a matter of law. Particular reliance is placed on the cases of R v Goldstein [1983] 1 WLR 151 and R v Spens (1991) 93 Cr.App.R.194 . 40. In Goldstein , the House of Lords held that the question of the meaning and effect of Articles 30 and 36 of the EEC Treaty was a question of law within the meaning of section 3(1) of the European Communities Act 1972, and that, accordingly, in a criminal trial it was a question for the judge and not for the jury. In the words of Lord Diplock at page 156E, “nothing could in my view be plainer.” 41. In Spens , this court held that the construction of documents is generally a matter of fact for determination by the jury, with the exception of binding agreements between one party and another and all forms of parliamentary and local government legislation, which are for the judge to construe as a matter of law. The City Code on Take-overs and Mergers resembles legislation, and is a form of consensual agreement between affected parties, with penal consequences. Accordingly, its construction was a matter of law for the trial judge. 42. Applying the above principles, Miss Montgomery argues that, by analogy, the notification letters of 9 th and 15 th October required a decision – based on interpretation of the contents – by the trial Judge as to whether they complied with Article 4.1 and as to whether they applied only to the export in question or whether they had a wider effect. In a criminal trial, that was a question of law for the judge and not for the jury. The Recorder should have ruled that the letters were not capable of amounting to evidence of notification under Article 4.1 and he should have ruled them inadmissible, the consequence of which would have led to an immediate acquittal of the appellant. 43. Mr Marshall, who appears for the respondent in this court but who did not appear in the court below, agrees that the Regulation is a European Instrument and that, either by S.3(1) of the European Communities Act, or by general principles of English Law, any question as to the meaning or effect of it should be treated as a question of law. He does not disagree with the principles in Goldstein or Spens . However, he contends that there is nothing about the meaning or effect of the Regulation that requires any such treatment. The language of Article 4.1 is not obscure and does not require any interpretation. The word “informed” is a word which can be given its natural meaning. The phrase “items in question” can also be easily understood. Annex 1 lists a large number of goods, all of which are referred to in generic form. The natural meaning of “items in question” is to follow a similar generic terminology and there is nothing in the documentation to suggest the contrary. 44. Mr Marshall made the point that the appellant is actually contending for is that there should be a judicial determination on whether the letter(s) not only accord with Article 4.1 but whether their contents are export specific. Mr Marshall contends that such a determination is a matter for the jury as part of their fact-finding function. 45. In support of the proposition that the letters were not export specific, Mr Marshall agrees that the letter of 9 th October made reference to “this particular export” but did so by reference to the goods listed in 7280. The letter of 15 th October also listed the goods in the invoice. They were particular goods, but were goods which were identified by their generic part numbers and not by the serial numbers of unique items. If the appellant’s argument is correct, it would mean that the exporter could simply redraw an invoice listing the same goods and not be required to obtain an export licence. Similarly, an exporter who had a number of invoices pending in relation to like goods would not require an export licence for the pending invoices. Such results would produce absurd results and would defeat the aim of the Regulation. 46. He submits that the Article 13 “Denial Notification” would not have been seen by the appellant because it was a notice to other Member States and was not sent to the appellant. In any event, it also does not provide support for the appellant’s case. The items referred to in the Notification were still the generic part numbers of certain electrical switchgear goods and not the serial numbers of unique items. 47. He says that the extracts from the Guidance document need to be read in context. The document refers to the importance of the Government ensuring that UK exporters should not contribute knowingly or unwittingly to WMD programmes of concern, whilst also minimising the burden on legitimate trade. It provides a detailed explanation of when the ECO invokes the end-use control in relation to dual-use items which do not automatically require an export licence. It refers to the fact that many exporters prefer to submit a “rating enquiry” to ECO asking for an indication of whether the export requires an export licence. It is in that “rating enquiry” context that there is reference to a “NLR” which can only ever relate to a specific export, to a specific end-user and only at the time of the application. In other words, it is not possible to make an enquiry in relation to specific goods to be sent to a specific end-user at a particular time and then use a positive response to export like goods as part of a subsequent export. The reason is that, by the time of any subsequent export, circumstances may have changed in relation to information relevant to the goods, to the end-user or to other international issues. The “NLR” rating is therefore a specific rating only. It is a cautious and safe approach to such enquiries. Mr Marshall contends that this case is not concerned with a rating enquiry. It is the converse situation and there is nothing in the Guidance to support the contention that notification of goods requiring an export licence is to be considered on a case by case basis. Indeed, the whole rationale of the Guidance would suggest the opposite. 48. For all of these reasons, Mr Marshall submits that the approach and ruling of the Recorder was correct. 49. There is no issue in dispute between the parties as to the law applicable to the contentions on both sides. The principles in Goldstein and Spens are accurately stated. Each case, though, was fact specific and neither case was factually similar to the facts to the appellant’s case. 50. In Goldstein the appellant was prosecuted for importing radio sets into the United Kingdom of a type prohibited by a 1968 United Kingdom statutory instrument. An issue arose as to whether the 1968 prohibition was contrary to Articles 30 and 36 of the Treaty of Rome and was of no effect by virtue of S.2 of the European Communities Act 1972. That depended on whether in English law Articles 30 and 36, upon their true construction, repealed the Statutory Instrument or made it ultra vires. The House of Lords decided that it was the determination of that question which was “incontestably a question as to the meaning and effect of one of the Treaties” which fell fairly and squarely within the meaning of S.3(1) of the 1972 Act and was a matter of law for the judge and not a question for the jury. No analogous issues of construction arise in this case. 51. Spens was an appeal from a legal ruling at a preparatory hearing in the Guinness trial. The ruling of the trial judge was that the proper construction of the City Code on Take-overs and Mergers was a matter of law for the judge alone and was not a matter of evidence. It was then for the jury to decide whether or not the Code covered or applied to the facts as they found them to be. In so ruling, the trial judge stated that he was confident that his ruling was in no way inconsistent with the House of Lords decision of Brutus v Cozens (1972) 56 Cr.App.R.799 . Watkins LJ, in giving the judgment of this court and affirming the trial judge’s ruling, stated: “In that case the House of Lords held that the word ‘insulting’ in section 7 of the Race Relations Act 1965 must be given its ordinary meaning and is not a question of law. Conduct which affronts other people and evidences a disrespect for their rights so that it is likely to cause their resentment and give rise to protest from them is not necessarily insulting behaviour within the meaning of the section. It can be noted from that and from the judgment of Lord Reid that what the House was concerned with was the meaning of the single word ‘insulting’ and not the construction of a phrase or phrases such as are found in the provisions of the Code. We can well understand how the judge came to observe that he did not consider ruling, as he did, that he was being in any way inconsistent with that decision.” 52. The word “informed” and the expression “items in question” in Article 4.1 are also straightforward words which can be given their ordinary meaning. There are no complex phrases such as those in a Take-over Code to be interpreted. We are satisfied that there is nothing within Article 4.1 that required any interpretation as to its meaning or effect. 53. The Recorder had to make a preliminary ruling as to whether the letters were capable of amounting to notification within the ordinary and straightforward meaning of the words of Article 4(1) of the Regulation. He was satisfied that they were so capable. They would only not have been so capable if Miss Montgomery’s narrow interpretation of the meaning of the words “items in question” is correct. The Recorder was satisfied that no such narrow interpretation should be given to the words. We agree. Article 3.1 refers to an authorisation being required for the dual-use items listed in Annex 1. When looked at in detail, Annex 1 does not list specific prohibited items. Annex 1 contains over 200 pages of long lists of items which are all particularised in generic form. Article 3.2 refers to authorisation also being required for the export of certain items not listed in Annex 1. When taken together with the reference to Annex 1, this too means items in the general sense. Throughout Article 4, there is continual reference to Annex 1 and to “dual-use items”. In the overall context of what is being described, the terminology is in favour of general and not specific particularisation of the “items in question”. The Guidance note adds nothing to contradict this conclusion. It was issued in relation to the 2000 Regulation and as a practical guide only to assist exporters as to practice and procedure. It explains what on the face of it might appear to be, but are not, anomalies. It has little or no bearing on the interpretation of either Regulation. In any event, for the reasons advanced by Mr Marshall, its contents do not contradict the finding of the Recorder about the capability of the letters. As such, the Recorder was correct to rule that the letters were capable of amounting to the requisite notification. Whether they did amount to the notification of the appellant was a matter for the jury. 54. We add the following. Even if we had decided that it was for the judge to have made a full ruling in law, in our judgment and for the reasons advanced by Mr Marshall, we are satisfied that the October 2009 letters did amount to the relevant notification of authorisation for the goods in 7342. For both reasons, the safety of the conviction is not impugned. The first ground of appeal fails. Second ground of appeal – inappropriate and prejudicial comments by the prosecution 55. Miss Montgomery complains about two aspects of the prosecution final speech of Mr Green QC CB. 56. The first complaint relates to comments Mr Green made about the appellant’s evidence that he didn’t know he needed an export licence. The appellant relied in part on the fact that there were records or documents that would demonstrate that the relevant electrical switchgear were available for export to Iran from other European Union member states including Schneider Electric in France. No documents were produced in support of the oral evidence. There was no specific cross examination by Mr Green about whether such documents existed. However, in his final speech, he made a comment about the non production of the documents. His exact words were “We have of course no evidence of this at all. We only have his assertion, his declaration that he has a file full of documents in support of this, a file which seems to have remained closed”. Reliance is placed on Browne v Dunn (1893) 6 R 67 and Fenlon & Neal (1980) 71 Cr.App.R.307 at page 313. The essence of those decisions is that, if in the course of a case it is intended to suggest that a witness is not telling the truth about a particular point, then he should be cross examined about it so that he may have an opportunity of explaining what has been said and of advancing further facts in confirmation of the evidence that has been given. That was not done here. By the time the comment was made in the final speech, it was too late to introduce the documents into evidence. Accordingly, Miss Montgomery argued, the comment should not have been made and it was highly prejudicial to the appellant’s case. 57. Mr Marshall refers to an exchange that took place just before speeches commenced. The Recorder sought clarification from Mr Rimmer, who was then representing the appellant, that, although there had been reference to documents from Schneider Electric, nothing had been put in evidence. Mr Rimmer confirmed that no documents had been put in evidence. It is in this context that Mr Green’s comment needs to be considered. The appellant said the documents existed. They backed up his evidence. He chose not to produce them. The comment that was made was factually correct. It reflected the evidence that had been given. No part of the comment invited speculation. It was not improper to have made the comment. It was not suggested that there were no other supplies or that the existence of the files was a fabrication. There are passages in the cross examination by Mr Green that included the general proposition that the appellant was lying in relation to not having knowledge of the restriction. Further, no complaint was made about the comment at the time or immediately after it had been made such that the Recorder could have addressed any such complaint in the summing-up. In such circumstances, there is no credible basis for any suggestion that the comment was unfair or prevented the appellant from having a fair trial 58. Miss Montgomery’s second complaint relates to what Mr Green said about the end user certificates. During cross examination, Mr Green had questioned the authenticity of the end user certificates which suggested that the goods would be shipped to Algeria. The appellant was asked about grammatical errors in the documents. In his closing speech, Mr Green invited the jury to consider the authenticity of the documents. It is contended on behalf of the appellant that it was inappropriate to have done so. There was no evidence that BIS had expressed any concern about their authenticity and no questions had been asked about them when the BIS witnesses had given evidence. No expert witness with specialist knowledge of such certificates had been called to give evidence about them. The originals had not been shown to the jury. There had been no evidence given as to the mechanics of issuing an end user certificate. The jury should therefore not have been invited to consider the authenticity of the certificates. 59. In response, Mr Marshall draws our attention to the similarities and dissimilarities on the face the documentation about which no expert evidence was required. The appellant had been cross examined about all such matters. In the course of cross examination he was asked whether they were genuine documents and from where he had got them. At various parts of the cross examination, it had been suggested to the appellant that he had been lying. The appellant was relying on the end user certificates to support his case that he knew where the goods were going to and that they were not going to Iran to support Weapons of Mass Destruction. The comment made in the closing speech about their authenticity was therefore justified. Further, no complaint was made about this comment at the time and before the judge summed up the case. 60. In relation to the documents, we are satisfied the appellant was relying on other companies trading with Iran in support of his case that he didn’t have knowledge of any restriction on exportation. In that it was part of his case, it was open to him to have introduced the documents into evidence as part of his evidence in chief. He knew that it was being alleged that he had knowledge. He was cross examined on the basis that he was lying when he said he didn’t have knowledge. It was open to him to have introduced the documents in re-examination. He did not do so. In such circumstances, the comment that was made was not unfair. It was factually correct. 61. In relation to the end-user certificates, we are satisfied that the appellant was relying on them to support his case that he did not intend to evade the restriction on exportation. He was cross examined about what appeared on the face of them. The direct questions about them and the general attack on his credibility were sufficient to put the authenticity of the documents in issue. In the context of what was being alleged, expert evidence about the certificates was unnecessary. 62. In both cases, the defence had the opportunity to reply and to make complaint to the Recorder. No complaint was made. Nothing was suggested to be included in the summing-up. The jury were directed to try the case on the evidence before them and not to speculate about evidence not before them. In the course of this appeal we have not been invited to consider any documents or other material which might have served to demonstrate that the cross examination was unfair or based on a false premise. For all of these reasons, we are satisfied that neither comment was unjustified. We are equally satisfied that neither comment impugns the safety of the conviction. The second ground of appeal fails. Third ground of appeal – wrong decision to dismiss the application to discharge the juror or jury 63. The trial started and the case was opened on Tuesday 8 th November 2011. By lunchtime on Wednesday 9 th November, there had been an extensive opening and the court had heard material evidence from two freight forwarding agents. 64. During the short adjournment a note was passed to the judge from one of the jurors which said as follows: “His Lordship, The reason for this note is that I am afraid my professional endeavours may have an effect in my view of this case. In my current role as “Europe, Middle East and Africa Head of Structured Trade Finance” at “…”, I am confronted more often than not with the supervision of similar transactions to the one covered in this process. Through the prosecution explanation provided during the past day and a half, there are several details that will entail automatic rejection of the transaction in compliance grounds at my institution. I am aware it is my duty to judge the case based on the information provided during the court proceedings. Saying that, I found it difficult to forget about specific details of the case that at least in my professional environment are definite red signals. My second worry is that I may drive the discussions and conclusions of my fellow jury members in my own conclusions right or wrong. If his Lordship considers that this is of no effect to the fairness of the process for the defendant, I am more than happy to continue engaged in the case as a member of the jury, though it is my belief that the above information should be disclosed in favour of a fair process. Sincerely yours Signed (name of juror)” 65. The Recorder raised the matter with counsel. 66. Mr Green, for the prosecution, submitted that the situation was no different to having a barrister on the jury. The juror was entitled to apply his own common sense to the evidence. What he was not allowed to do was to import his own specialist knowledge to other jurors. The note showed he was plainly not biased and had no particular animus against the defendant. It was the reverse. He wanted his information to be known. Any difficulty could be cured by a direction befitting the circumstances. 67. Mr Rimmer, for the defence, took a different view. He submitted that whilst the juror should be given credit for bringing his concerns to the attention of the court, he had knowledge outside the experience of the court and there was strong indication of bias based on his own experience of international trade finance work. He had a particular view with regard to the practices identified in the trial. He had said that he would find it difficult to divorce himself from his professional training. He was concerned that he might impart or seek to impart his reasoning from his own professional knowledge on other jurors. There was a danger of some contamination with other jurors having already occurred. For all of these reasons, the situation could not be cured by a robust direction to the jury to consider the evidence and to divorce themselves from anyone’s professional calling. It was a situation where the whole jury had to be discharged. 68. In the course of his ruling, the Recorder indicated that he had considered the issue of apparent bias and referred to what he called the line of cases from Porter v Magill onwards. He reminded himself that the test of apparent bias was whether or not a fair-minded observer would have a reasonable suspicion that the tribunal of fact would be biased. In his judgment, the fact that the juror had brought the information to the court’s attention in the most careful and fair-minded way dispelled any possibility that he was biased against the appellant. It was true that he might well have more in-depth knowledge of the workings of freight forwarding than other jurors but that was no reason for him being excluded from jury service. The jury were obliged to follow directions which would be given to them by a judge. He intended to give a careful direction to them that they must only determine the case on the evidence in the courtroom. In such circumstances, there was no good reason to discharge the juror. There was also therefore no issue about contamination of the rest of the jury. The application for their discharge was refused. 69. The Recorder then asked for the jury to return and gave them his direction. He referred to the fact that one member of the jury had sent him a note explaining that the juror had some professional knowledge of the freight forwarding position about which evidence had been adduced during the last two days. He stated that every juror brought his or her own experience of life and common sense to the jury system which was one of the strengths of the system. As a result, there was no impediment in sitting on a case in which a juror might have some professional understanding. Indeed, it might be of some benefit. However, the case was to be tried on the evidence given in the courtroom and not on any other evidence. That didn’t mean that jurors could not bring their own commonsense to bear on the evidence adduced in the trial upon which the case was to be decided. He thanked the juror who had written the note. He told the juror it was the right thing to have done. He concluded by saying that, in the circumstances, the case could carry on. 70. In summing-up, the Recorder further reminded the jury that they had to decide the case only on the evidence that had been placed before them. 71. Miss Montgomery contends that the Recorder was wrong not to have discharged the jury. She raises a number of issues. 72. First, she raises concern about the impact of the specialist knowledge of the juror on the rest of the jury. The juror had some specialist knowledge about freight forwarding. The issue of freight forwarding and export procedure involved expert evidence. If the juror was going to express expert views of his own to other jurors, the appellant was not in a position to challenge what they were. Reliance is placed on various analogous observations in Lawrence v The General Medical Council [2012] EWHC 464 (Admin) to the effect that a decision made on the basis of an expert view that had not been the subject of evidence and argument should be avoided. She relies on R (on the application of Kaur) v Institute of Legal Executives Appeal Tribunal [2011]] EWCA Civ 1168 to the effect that a disqualifying feature may be external knowledge such that a person on a Tribunal may rely on a subjective appreciation of facts and will express them to the rest of the jury in a way that cannot be challenged. 73. Secondly, she raises concern about the juror’s impartiality which she claims is apparent from the text of the note. There was a real fear that any opinion expressed by him would be adverse to the appellant. In the note, he referred to finding it difficult to forget what he regarded in his professional environment were “definite red signals”. 74. Thirdly, she submits that the Recorder failed to conduct a proper process to decide the issue as to whether there was apparent bias. He didn’t conduct any investigation as the nature and extent of the juror’s specialist knowledge. In addition to making enquiries about the juror’s expert knowledge, the Recorder should also have made enquiries of the juror and jury so as to find out what, if anything, the juror had said to other jurors and to satisfy himself that there was no danger of the jury reaching a conclusion on the basis of facts or expert opinions already expressed by the juror. Further, having decided to continue, the Recorder failed to give the jury a sufficient direction to deal with the problem. If anything, the direction given to the jury compounded the danger by indicating that a juror’s professional understanding of the case might be of benefit to other jurors. The Recorder’s direction for the jury to try the case on the evidence in the case did nothing to protect against such risks. In accordance with the judgement in Hanif v Khan [2011] ECHR 2247 , the directions of the Recorder failed to provide sufficient guarantees to exclude the objectively justified doubts as to the juror’s impartiality. 75. In conclusion, she submits that, in accordance with the judgment of Lord Bingham in R v Abdroikov, Green and Williamson [2007] 1 WLR 2679 at 15, the fair minded and informed observer must adopt a balanced approach and is to be taken as a reasonable member of the public, neither unduly complacent or naïve nor unduly cynical or suspicious. In the circumstances of the juror’s note and what happened in relation to it, such an observer would conclude that there was a real possibility that the juror was biased. 76. Mr Marshall disagrees. In relation to Miss Montgomery’s first point, even if the juror had expertise in the relevant area, he shouldn’t have been prevented from sitting on the jury. The fact that a juror has expertise doesn’t automatically mean that person cannot serve on a juror. By way of example, there would be no automatic bar to an accountant sitting on a fraud case. However, the juror did not have expertise. He had special knowledge obtained in relation to compliance issues in a merchant banker environment. The juror didn’t have expert or special knowledge in relation to the export licences which were the subject matter of the indictment. Further, none of the questions for the jury involved conclusions about expert evidence or the special knowledge of the juror. The questions to be decided were all straightforward questions of fact. The juror didn’t have any expertise or special knowledge to answer any of those questions. There was therefore no secret unchallengeable evidence that the juror could give to assist other jurors in answering the questions. 77. In relation to Miss Montgomery’s second point, the juror’s own behaviour of informing the court of his concerns rebuts any suggestion of bias. The note came at an early stage of the trial and the observation about “definite red signals” could therefore only have been a provisional view. It was expressed before any direction in answer to his query, before further evidence had been called, before submissions had been made in final speeches and before directions had been given about the law and how to approach the evidence. 78. In relation to Miss Montgomery’s third point, there was no need to conduct an enquiry of either the juror or jury. The juror’s note provided sufficient detail upon which to base a decision. The Recorder’s direction to the jury was clear and concise. They were all directed to concentrate on the evidence in the case and nothing else. 79. In conclusion, Mr Marshall submits that the resolution of the issue was a matter of discretion for the Recorder as to whether he discharged the juror or jury. He directed himself properly as to the test to be applied. There is nothing to suggest he exercised his discretion wrongly. There is nothing to suggest the juror and jury didn’t carry out their functions with fairness and in accordance with the Recorder’s directions. In this regard, it is of significance that no complaint was made about the juror by any other juror. 80. With these submissions in mind, we address the facts. The juror who wrote the note was openly concerned that his “professional endeavours” might have an effect in his view of the case in that he had special knowledge of an aspect of the case derived from his role as “Europe, Middle East and Africa Head of Structured Trade Finance at …” and the fact that he was “confronted more often than not with the supervision of similar transactions to the one covered in this process”. The note was detailed and contained more information than might ordinarily have been obtained from a juror sending a note to a judge. This is not one of those cases where more information was essential before a decision could be made. We are unconvinced that the Recorder would have obtained any information of further significance about the juror’s professional knowledge, expertise or experience by conducting a more detailed enquiry into the juror’s background. The Recorder had sufficient information in the note from which to make an informed decision. The issue is whether the Recorder made the correct decision to permit the juror to remain on the jury and whether his direction to the remaining jurors was sufficient to address the matters that had arisen. 81. The juror was the person who had drawn his concerns to the attention of the court. The diligence of the juror in sending the note and the way he articulated his concerns were indications of him seeking help and guidance. We are entirely satisfied from the actions of the juror and the contents of the note that he was taking his duties very responsibly and that, personally, and to the best of his ability, he was deeply committed to returning a true verdict according to the evidence which would be presented at court. As such, he was not biased against the defendant. However, the fact that we are satisfied that the juror was not biased against the defendant does not resolve the question of whether a fair minded and informed observer would have concluded that there was a real possibility of unconscious bias. 82. The note speaks in unequivocal terms of “automatic rejection of the transaction in compliance grounds at my institution”. “Automatic” is a very strong word. It is much stronger than “possible” or even “likely”. The juror recognised that, although he would proceed in accordance with the evidence, he would find it “difficult to forget” that some of the specific matters asserted by the prosecution would amount to “definite red signals”. In other words, in his world, these transactions would be prohibited. 83. It is also relevant that, whilst his last paragraph underlines the juror’s determination to be fair, it also asks for the rest of the jury to be made aware of his knowledge and experience. He was asking for the others to be warned about the matters he had raised so that, in their discussions, the remaining jurors should take into account and make allowances for any views that he might express which were adverse to the defendant, notwithstanding his determination to be fair. 84. In his direction to the jury, the Recorder stated that he had received a note from a juror explaining that he had some professional knowledge of freight forwarding, but he did so in terms that it was no impediment to sitting on the jury and that the knowledge and experience that he had might be of benefit to their discussions. That direction did not alert the jury as a whole to the caution they should exercise in relation to any views being expressed by the juror who had written the note. If anything, it did the reverse. The direction that the case was to be tried on the evidence given in the courtroom and not on other evidence was correct, but was insufficient in the context of a full understanding of the contents of the note and the underlying possible risk of unconscious bias inherent within it. The juror’s special knowledge and experience was directly related to the issue which arose for decision in the trial. The jury had to decide whether, in the circumstances, the defendant was entitled to act as he did or whether his actions were prohibited. In the juror’s professional knowledge and experience, his unconscious prejudice was that there were “definite red signals” and there would be “automatic rejection” of the transaction such that the defendant’s actions would have been prohibited. That issue was not addressed in either the decision to permit the juror to remain on the jury or in the direction to the whole jury once a decision had been taken to permit the juror to remain on the jury. 85. For these reasons, we are driven to the conclusion that, on the particular facts of the case, a fair minded and informed observer would have concluded that there was a real possibility of unconscious jury bias such that a fair trial was not possible. Accordingly, justice has neither been seen to be done nor, in such circumstances, can the safety of the conviction be sustained. The conviction must be quashed.

```yaml citation: '[2013] EWCA Crim 158' date: '2013-02-22' judges: - MR JUSTICE WYN WILLIAMS - MR JUSTICE GLOBE ```

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

Case No: 201207008D4 (1) 201106475D4 (2) 201204187D2 (3) Neutral Citation Number: [2013] EWCA Crim 223 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WOLVERHAMPTON CROWN COURT (1) HIS HONOUR JUDGE ONIONS T20110752 ON APPEAL FROM BLACFRIARS CROWN COURT (2) HIS HONOUR JUDGE MAURICE-COOLE T20117025 ON APPEAL FROM CARDIFF CROWN COURT (3) HIS HONOUR CHRISTOPHER LLEWLLYN JONES QC T20117741 Royal Courts of Justice Strand, London, WC2A 2LL Date: 12/03/2013 Before : LORD JUSTICE HUGHES MR JUSTICE HICKINBOTTOM and MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - - - Between : SCOTT COLEY (1) Appellant - and - THE QUEEN Respondent COLIN MCGHEE (2) Appellant - and - THE QUEEN Respondent DARREN HARRIS (3) Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - ANDREW FISHER QC and GURDEEP GARCHA (instructed by Registrar of Criminal Appeals ) for the Appellant JOHN PRICE QC and CHRISTOPHER HEHIR (instructed by CPS ) for the Respondent (1) JULIAN WINSHIP (instructed by Registrar of Criminal Appeals) for the Appellant JOHN PRICE QC and JULIAN JONES (instructed by CPS ) for the Respondent (2) ANDREW FISHER QC and SIMON GOODMAN (instructed by Registrar of Criminal Appeals for the Appellant JOHN PRICE QC and MATTHEW COBBE (instructed by CPS ) for the Respondent (3) Hearing dates: 30 January 2013 (1) 31 January 2013 (2) 31 January 2013 (3) - - - - - - - - - - - - - - - - - - Judgment Lord Justice Hughes: 1. We have heard these three cases in succession because they have some features in common. Each raises a (different) question connected with the interplay between the law relating to voluntary intoxication and the law relating to insanity or (non-insane) automatism. Each calls, however, for consideration of its very particular facts. Neither individually nor collectively do they provide an occasion for any wide-ranging general statement of the law of insanity, still less of loss of capacity generally. We know that this area of the law is under active consideration by the Law Commission, which work will, we think, be of value. Although there have historically been very few cases which raise insanity, that has been because the statutory provisions governing the disposal orders which must be made if there is a verdict of insanity have historically inhibited attempts to rely on it. More recent changes in those disposal provisions may well lead to an increase in numbers. Any review must, critically, address both the law of loss of capacity and the means of disposal in such cases, so as to pay proper regard both to the interests of the individual defendant and to the public risk which he represents. Coley 2. The defendant, Scott Coley, was convicted of attempted murder. He was 17 at the material time. He had no previous conviction of any significance, nor any history of violence to anyone or anything. He lived at home with his parents and worked with his father. He was described by neighbours as a quiet and pleasant young man. He was a regular and quite heavy user of strong cannabis. He liked knives, of which he had a collection in his bedroom, and which he sharpened from time to time. 3. He and his family were on excellent terms with the woman who lived next door. She was a single lady living with two teenage daughters and she had a partner who visited frequently. The partner was a cousin of the father of the defendant. The two households shared some interests, including the online playing of video games, of which a frequently used one was called Battlefield: Bad Company 2. It involved assuming the role of a combatant and scoring points according to (among other things) the number of opponents killed, particularly by close-quarters engagement and with knives. 4. On a Sunday in the summer of 2011, the defendant’s parents went to bed early, as was their habit owing to the need for an early start next day. He watched an action film called “Triple X”. According to his own account, which was not questioned, he went to bed at about 2330. At just after midnight he arrived on the upstairs landing of the house next door and pushed open the door of the main bedroom, inside which the lady neighbour and her partner were asleep. He was dressed in dark clothing with a balaclava over his head and he was carrying a large and sharp hunting-type knife (referred to as a “Rambo” knife). The lady neighbour woke, saw him, got up from the bed and screamed very loudly. Her partner leaped out of bed and confronted the defendant. The defendant stabbed him repeatedly with his knife, chiefly to the chest, arm, back and head. The partner nevertheless wrestled with him and in effect threw him downstairs. The defendant ran out of the house and into the garden of another neighbour who lived on the other side of his own house, where he went into some bushes at the bottom of the garden. 5. The neighbour’s partner had been very seriously injured and nearly died. His life was saved by the prompt action of a neighbour skilled in first aid and by the paramedics who were quickly on the scene. 6. When the alarm was raised, the defendant emerged from the next-door garden, carrying the knife and his balaclava. He was heard to say that he wanted his mother. He was also heard to say that he was not going to go down for this but would rather kill himself. And he was heard to say that he thought he had done something really wrong. After some coaxing, his father managed to persuade him to hand over the knife and balaclava, and the defendant went into his own kitchen. There he removed his top and waited quietly. 7. The dark clothes in which the defendant was dressed were different from what he had been wearing that day. On his own account to the police, which was not questioned, he had gone to bed in his boxer shorts. It follows that he had got up, selected dark clothing and an identity-concealing balaclava, armed himself with the knife, entered his neighbour’s house, advanced to her bedroom door and pushed it open. He had been able to enter the house because there was a spare set of keys to it kept in his kitchen; it was an example of the close friendship between the two households that his family looked after the next door house if the occupants were away. When he went into the kitchen after the event, he put the keys on the top of the refrigerator, not in their usual place, and tucked under some clothing which happened to be there. 8. When he was interviewed next day by the police, the defendant made no bones about having been responsible for the terrible injuries to his neighbour’s partner. He asserted that he had ‘blacked out’ and woken up standing outside the bedroom door and pushing it open. He had heard the scream, but had then ‘blacked out’ again and he said he had no further memory until he was in the bushes in the garden of the house on the other side of his own. Thus he said that he had no memory at all of the attack on the neighbour’s partner. His account to the police was the same as that to the court of trial, except that in the former interview he gave some unsatisfactory, and arguably untruthful, answers to the effect that he had not known of any keys and did not know how he had got in. His evidence was that he had no idea why he had done what he did. 9. The defendant had consumed a good deal of cannabis that day. His last cannabis cigarette had been at around 2200 that evening. He was a regular heavy user and his use worried his parents. He told the court that he had been using it since he was 13, and had on previous occasions found that it made him ‘paranoid’ and had caused him to black out. Three psychiatrists gave evidence. All were clear that the defendant suffered from no underlying or abiding mental illness or disorder, nor from a personality disorder. They each said, however, that it was a real possibility, if not most likely, that the defendant had been in the course of a “brief psychotic episode” induced or triggered by the cannabis, when he had done what he did. If so, they all thought that it was an unusually brief episode, but they were unable to offer any other psychiatric explanation for what he did. They also said that it was possible that he had been acting out the role of a character in the video game. One of them said that this may have taken (and in his view probably did take) the form of a delusion that he was such a character. 10. The defendant asked the judge to leave to the jury the issues of (a) insanity and (b) automatism. After argument, the judge declined to do so. The issue before the jury was, accordingly, whether the defendant had formed the intention to kill. After a long retirement, it concluded that he had. In this court, Mr Fisher QC renews his submission that the defendant was entitled to have the issues of insanity and automatism left for decision by the jury. 11. The argument for the availability of insanity runs as follows: i) A defendant is insane in law when he suffers from a defect of reason attributable to a disease of the mind, such that he does not know the nature and quality of his act, or does not know that it is wrong: M’Naghten’s case (1843) 8 ER 718 . ii) The psychiatrists gave evidence that if he was in the course of a brief psychotic episode this defendant would lose touch with reality; at some points in their evidence some of them said either that he might not have known the nature and quality of his act or that he might not have known that it was wrong. iii) A psychotic episode is a defect of reason attributable to a disease of the mind. iv) It does not matter whether the defect of reason attributable to the disease of the mind is long-lasting or transient. v) Accordingly, insanity was in question. 12. We should make it clear that in this appeal the question for us is not whether there really was a psychotic episode, as the doctors hypothesised, or not. That would be a question which could only be determined by a jury, if the evidence gave rise to possible insanity in law. The issue for us, as it was for the trial judge, is whether if the doctors were right, it would or might have been a case of insanity. 13. The judge ruled that insanity was not available on the evidence. He held that this was a case of voluntary intoxication, rather than insanity. The possible abnormality of mind could not be classified as insanity in law because it arose from an external and not an internal cause and was self induced. It was a temporary malfunctioning of the mind caused by the application to the body of illegal drugs, and that did not constitute insanity within the M’Naghten rules. He relied upon the principled limitation imposed by the law on the extent to which voluntary intoxication can be a defence to criminal charges. He also relied on the decision of this court in R v Quick [1973] QB 910. 14. Mr Fisher contends that this was not a case of intoxication but rather had passed to a recognised condition of mental illness, namely a psychotic episode, no matter how transient. He contends that insofar as Quick holds otherwise, it is wrong and inconsistent with the law’s recognition of the difference between intoxication or drunkenness simpliciter , on the one hand, and a disease of the mind induced by drunkenness on the other. 15. We agree that the law has long recognised the distinction which Mr Fisher identifies between intoxication and a disease of the mind induced by intoxicants. That distinction can be found in many cases. Mr Fisher rightly identifies one of the earliest in the direction of Stephen J to the jury in R v Davis (1881) 14 Cox CC 563, which was approved by Lord Birkenhead LC giving the sole speech in the famous intoxication case of Beard (1920) 14 Cr App R 160 at 194: “But drunkenness is one thing and the diseases to which drunkenness leads are different things, and if a man by drunkenness brings on a state of disease which causes such a degree of madness, even for a time, as would have relieved him from responsibility if it had been caused in any other way, then he would not be criminally responsible”. We also agree that, as Lord Birkenhead also made clear, insanity which is temporary is as much insanity as that which is long-lasting or permanent. Davis was a case of a defendant suffering (temporarily) from delirium tremens . That, self evidently, is not intoxication. It is, if anything, the opposite. It is a condition brought about by the protest of the brain and nerve receptors against the removal of intoxicants to which the body has become accustomed. 16. We do not doubt that the possible state of mind in which this defendant stabbed the man next door can properly be called a mental abnormality (or, in the nineteenth century language of M’Naghten , a defect of reason) which is recognised medically by psychiatrists. As a matter of fact, some care may need to be exercised in discovering exactly how the expressions “psychosis” or “psychotic” are used, which was not much explored in the evidence in this case, save to explain that the doctors were speaking of a state in which the mind becomes detached, to a greater or lesser extent, from reality. Generally, as we understand it, these expressions are more often encountered as descriptions of symptoms than as constituting a mental illness in their own right. The underlying cause of such symptoms may vary. Well understood ones certainly include schizophrenia and bi-polar disorder, which are no doubt mental disorders or illnesses. Another well known possible cause of psychotic symptoms is drug abuse, which is not a mental disorder. But with that caveat, we agree that to speak of a psychotic episode is no doubt to speak of a temporary abnormality of the brain or mind and thus of a defect of reason for the purposes of the M’Naghten rules. 17. However, the key thing to understand is that whether there is or is not a “disease of the mind” for the purpose of the M’Naghten rules is, and has to be, a question of law and not of medical usage. It makes excellent sense for medical people to classify a great variety of conditions as recognised medically. It enables statistics to be gathered, resources allocated, diagnoses understood with reasonable consistency and treatment to be advised: see the discussion in the slightly different context of diminished responsibility in R v Dowds [2012] EWCA Crim 281 . But the law has to cope with the synthesising of the law of insanity with the law of voluntary intoxication. The first calls for a special verdict of acquittal and very particular means of disposal. The latter is generally no defence at all, but may be relevant to whether the defendant formed a specific intention, if the offence in question is one which requires such: DPP v Majewski [1977] AC 443 . In most, but not all, intoxication cases, the intoxication will be possibly relevant to a serious offence allegedly committed but will afford no defence to a lesser offence constituted by the same facts: for example causing grievous bodily harm with intent (s 18) and causing grievous bodily harm without such intent (s20), or of course murder and manslaughter. In the development of the common law, intoxication was historically regarded chiefly as an aggravation of offending, rather than as an excuse for it. For all the reasons explained in Majewski , the law refuses as a matter of policy to afford a general defence to an offender on the basis of his own voluntary intoxication. The pressing social reasons for maintaining this general policy of the law are certainly no less present in modern conditions of substance abuse than they were in the past. 18. The precise line between the law of voluntary intoxication and the law of insanity may, we do not doubt, be difficult to identify in some borderline cases. But the present case falls comfortably on the side of the line covered by voluntary intoxication. It matters not that the condition of the defendant as observed in the aftermath of his attack on the neighbour was not that of conventional intoxication, in the sense that he was not, for example, staggering or unable to speak clearly. If the doctors were right about his state of mind, his mind was to an extent detached from reality by the direct and acute effects on it of the ingestion of cannabis. Every intoxicated person has his mind affected, and to an extent disordered, by the direct and acute effects of the ingestion of intoxicants; all intoxication operates through the brain. Not infrequently it would be perfectly legitimate to say of a very drunken man that his mind had become detached from reality by the intoxication; that is obviously true, for example, of the drunken man who suffers delusions as a result of the drink, but the proposition is not limited to that case. In order to engage the law of insanity, it is not enough that there is an effect on the mind, or, in the language of the M’Naghten rules, a ‘defect of reason’. There must also be what the law classifies as a disease of the mind. Direct acute effects on the mind of intoxicants, voluntarily taken, are not so classified. That is the distinction drawn by Stephen J in Davis and maintained ever since. In the slightly different legal context of diminished responsibility a similar distinction is recognised: see R v Wood [2008] EWCA Crim 1305 . Mr Fisher’s superficially simple argument amounts to treating every ‘defect of reason’ as a ‘disease of the mind’, but that is not the law. 19. Quick was not a case of intoxication. The defendant was a nurse at a mental hospital accused of assaulting a patient. He was a diabetic. He claimed that he had done what he did involuntarily when in a hypoglycaemic state, that is to say when his blood sugar fell to the point that he lost any control of his actions. The fall in blood sugar was, if it had occurred, attributable to the insulin which he had taken for his condition, coupled with some alcohol and without enough food to keep the level correct. He claimed that the defence of automatism was available to him, that is to say complete loss of voluntary control of his actions. The trial judge ruled that if his case was truthful it was insanity in law rather than automatism, and withdrew automatism. The defendant was not prepared, in the then state of the law as to disposal after a special verdict of not guilty by reason of insanity, to advance the defence of insanity. Instead, he appealed on the grounds that the different defence of automatism which, if it succeeded, would result in outright acquittal, ought not to have been taken away by the judge. Thus he contended, in effect, that he was not insane if his case was true. This court agreed. Lawton LJ said this: “Our task has been to decide what the law means now by the words ‘disease of the mind’. In our judgment the fundamental concept is of a malfunctioning of the mind caused by disease. A malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease. Such malfunctioning, unlike that caused by a defect of reason from disease of the mind, will not always relieve an accused from criminal responsibility. A self-induced incapacity will not excuse – see R v Lipman [1970] 1 QB 152, nor will one which could have been reasonably foreseen as a result of either doing, or omitting to do something, as, for example, taking alcohol against medical advice after using certain prescribed drugs or failing to have regular meals while taking insulin. From time to time difficult borderline cases are likely to arise. When they do, the test suggested by the New Zealand Court of Appeal in Reg v Cottle [1958] NZLR 999 , 1011, is likely to give the correct result, viz: can this mental condition be fairly regarded as amounting to or producing a defence of reason from a disease of the mind ?” It will be seen that there are two stages to this decision. Lawton LJ held that since the cause of the defendant’s condition was the application of an external factor, this was not insanity. Secondly, he held that whilst it might be automatism, that condition did not amount to a defence if it was voluntarily self-induced or caused by doing, or omitting to do, something which the defendant ought to have foreseen might lead to the condition. Later in another hypoglycaemia case, R v Bailey (1983) 77 Cr App R 76, also a case of claimed automatism, this court applied that approach and observed (at 80) that mere failure to take food after an insulin injection may not necessarily involve the criticism that the consequences should have been foreseen. The appeal, however, failed because automatism was inconceivable on the facts. However, in saying what it did, the court drew a sharp distinction from voluntary intoxication. That is because voluntary intoxication with alcohol or illegal drugs is an a fortiori case. No further enquiry is needed into whether the consequences ought to have been foreseen. All of this is thus entirely consistent with the voluntary intoxication rule to which we have referred. Drugs or alcohol are an external factor. When voluntarily taken their acute effects are not treated by the law as a disease of the mind for the purposes of the M’Naghten rules. Such a case is governed by the law of voluntary intoxication. 20. It is well known that the distinction drawn in Quick between external factors inducing a condition of the mind and internal factors which can properly be described as a disease can give rise to apparently strange results at the margin. An often quoted example is illustrated by R v Hennessy (1989) Cr App R 10, where the diabetic claimed not low blood sugar but high blood sugar (not hyp o glycaemia but hyp er glycaemia) and the court concluded that the latter did arise internally and thus could give rise to what the law classifies as a disease of the mind. We observe however, three things. First, Hennessy approved and applied Quick , which represents the law binding on us. More importantly, second, the arguably unsatisfactory distinction between the two conditions which a diabetic may experience has nothing to do with the case of voluntary intoxication, which is a plain one because of the clear law as expounded in Majewski and elsewhere. Third, any future rationalisation of the law of insanity must take into account the rules for disposal, which concerned the court in Hennessy as they do in practice in many cases in the Crown Court. 21. We conclude that the judge was right to rule that the defence of insanity did not arise in Coley’s case. 22. Mr Fisher also submitted that the judge ought to have left automatism to the jury. Automatism, if it occurs, results in a complete acquittal on the grounds that the act was not that of the defendant at all. It has been variously described The essence of it is that the movements or actions of the defendant at the material time were wholly involuntary. The better expression is complete destruction of voluntary control: Watmore v Jenkins [1962] 2 QB 572 and Attorney-General’s Reference (No 2 of 1992) [1994] QB 91. Examples which have been given in the past include the driver attacked by a swarm of bees or the man under hypnosis. ‘Involuntary’ is not the same as ‘irrational’; indeed it needs sharply to be distinguished from it. 23. In the present case the doctors were asked several times whether the defendant was acting “consciously” when he did what he did. We understand the difficulties of selecting appropriate adverbs, but this one carries some risk of difficulty. He was plainly not un conscious, in the sense of comatose. But automatism does not require that, and if it did it would be even more exceptional than it undoubtedly is. On the other hand, his mind may well, if the doctors were right, have been affected by delusions or hallucinations and in that sense his detachment from reality might be described by some as an absence of conscious action. Such condition, however, clearly falls short of involuntary, as distinct from irrational, action. In the present case, however, the use of the word does not now obscure what the medical evidence amounted to. Here the doctors were at some pains to explain that the defendant would, despite their hypothesis of psychotic episode, have been capable of complex organised behaviour. It is plain that a person acting under a delusion may act in such a way, and clearly this defendant did. He must have made the decision to dress specifically for his intrusion next door, and to arm himself with his knife. He made the decision to find the keys and let himself in. That was not, as it seems to us, capable of being described as involuntary action, whether or not it was driven by delusion or other psychotic detachment from reality. That was, moreover, the plain tenor of the medical evidence. Dr Maganti said that if he was in a psychotic state, as he hypothesised, he was “conscious” and “in control of his body”. Dr Kennedy said that such a person would be “in voluntary control of his limbs and conscious in the sense that they are aware of what they do physically.” Dr Nimagadda came closest to asserting the possibility of lack of voluntary control when he expressed the view at one point that the defendant had assumed the role of the video game character and “it was not him acting…It was the person in character.” But a later answer clarified this. The doctor said “He is conscious in a way but it is conscious in the belief that he is a character. He does not have an awareness of what he is doing.” That is a description of irrational behaviour, with a deluded or disordered mind, but it is not a description of wholly involuntary action. 24. Quite apart from the fact that the evidence was of voluntary, if irrational action, the defence of automatism is not available to a defendant who has induced an acute state of involuntary behaviour by his own fault. This court so held in Quick , and approved the decision in Bailey and Hennessy . Whilst concluding in Quick that the question of automatism ought to have been left to the jury, the court held that it would be necessary for the jury to scrutinise the extent to which the defendant had brought upon himself whatever condition he may have been in. That was in the context of taking some alcohol, or insufficient food, when also taking insulin, which is an area where there is plainly scope for debate as to the responsibility of the defendant. But the voluntary consumption of intoxicants leading to an acute condition is the prime example of self-induced behaviour. 25. Furthermore, the judge in the present case held that since the jury must have before it the question whether the defendant had formed the intent to kill, or had not done so because of his state of mind, the possibility of automatism ran with that question and a separate direction upon automatism was simply an unnecessary complication. It would not have been so, of course, if there had been before the jury an alternative charge which was not of specific intent, such as causing grievous bodily harm contrary to section 20 Offences Against the Person Act 1861. But there was not. We are satisfied that automatism simply did not run in this case for the reasons already explained: (a) the defendant was clearly not acting wholly involuntarily and (b) he had induced his condition by voluntary intoxication. On the further part of the judge’s reasoning, like him we find it difficult to envisage a case of an involuntary intent. On the facts of this case we agree that the verdict of guilty involves a clear finding that despite his state of mind, the defendant intended to kill and thus that he acted voluntarily. We do not, however, think it safe to say that in every case in which automatism is indeed a possible and legitimate conclusion, it should be removed from the jury if they have a decision to make about specific intent. That may particularly be so if the jury is invited to infer intent from the action, which may be a very short-lived action; if the action might indeed have been involuntary, such inference would not be safe and the jury ought in such a case to confront the issue of involuntary automatism before it goes on to intent. 26. We should add that for the Crown Mr Price QC advanced as a supplementary argument a similar contention in the event that insanity was a viable defence which should have been left to the jury. The argument runs as follows. If the defendant did not know the nature and quality of his act, he cannot have intended to kill. Thus the decision that he did intend to kill resolves the issue of insanity against him in any event. We do not agree. We think it is possible to conceive of cases of an insane intention to kill. It is certainly possible to imagine cases, as Mr Price properly recognised, of an insane belief that one’s act is not wrong. But in any event, if there is a genuine possibility of a verdict of not guilty by reason of insanity, it is our view that this should not be withdrawn from the jury simply on the basis that its answer on the issue of specific intent may be closely related to its answer on insanity. Quite apart from anything else, to withdraw from the jury an issue of insanity which it has heard debated is capable of colouring its decision on intent. 27. For these reasons Coley’s appeal against conviction must be dismissed. Sentence: Coley 28. The judge passed a determinate sentence of 18 years’ custody. His reasons for doing so demonstrate that he had approached the task with considerable care and in a sequential and logical manner. We agree with him that this was a grave example of attempted murder. It was in no sense a spontaneous attack, but was planned, albeit not before that night. It was characterised by wearing a disguise, taking a fearsome knife, and invading the home of the neighbour in the middle of the night when everyone was asleep. The injuries caused were very serious, and the judge could see that the injured man was painfully continuing to live the dreadful experience. Against that were to be set the judge’s finding that the defendant did not represent a continuing danger, that he was of otherwise entirely good character and that any violence or aggression at all was wholly out of character. It was, the judge concluded, an isolated, motiveless and inexplicable crime, apparently triggered by the use of drugs and influenced by the very violent video game. 29. The judge was rightly guided by the SGC guidelines relating to attempted murder. He referred to the fact that they pre-dated the addition to Schedule 21 of the Criminal Justice Act 2003 of paragraph 5A dealing with knife murders. As the guidelines demonstrate, the sentence for attempted murder must bear sensible relation to the gradations of the full offence as established in statute by that schedule (although those sentences are of course a great deal longer) and will normally then vary according to the gravity of injury inflicted. There can be no complaint about the judge’s conclusion that for an adult this offence would have fallen into the general range between 17 and 25 years, probably towards the upper part of it because of the taking of the knife, which for the full offence, in the case of an adult, now attracts its own starting point under paragraph 5A. The judge’s reasoning appears to have taken the adult range, lifted it for the knife factor, and then reduced it for age. However, if the very broad relationship to the much longer sentences for the completed offence of murder is, correctly, to be a factor of significance, it needs to be noted that Schedule 21 provides for a starting point for a defendant under 18 of a 12 year minimum term, and that that is not altered by paragraph 5A. As this court has made clear on many occasions, the right sentence for an offence does not suddenly leap from one point to another on the defendant’s eighteenth birthday. The adjustment for age is necessarily flexible. We are however persuaded that a term of 18 years did not in the end make sufficient adjustment for the youth and otherwise impeccable character of the defendant, or for what would have been the statutory starting point at his age for the completed offence. A sentence approaching twenty years custody is a very long one indeed for a young man of 17-18 and will find him a much different person by the time it is over. We think that the appropriate sentence for this young man for the appalling offence he committed is one of 15 years youth custody, and we substitute that sentence. To that limited extent, the appeal against sentence is allowed. McGhee 30. McGhee was convicted of wounding with intent. He had sought to advance automatism at trial but the judge had ruled that it was not available. His appeal challenges that ruling. Insanity was not in question. Voluntary intoxication was, but of course the offence was one of specific intent so that he was able to ask the jury to say that his intoxication meant that he had not formed the necessary intent. 31. The defendant’s medical background, although not his violence on the night in question, can only inspire sympathy. He has the misfortune to suffer from a grave form of tinnitus. Tinnitus is a medical condition caused by damage to the auditory pathway which results in persistent and permanent internal ringing in the ears. There is no cure for this disease, the debilitating effect of which is frequently compounded by the inability to sleep. Therapy is confined to palliatives, designed to alleviate the symptoms and in particular to assist with sleep. Since 2006, the defendant has suffered from profound hearing loss, and a particularly gross form of tinnitus, medically described as “severe-catastrophic”. To assist with his sleep, in 2009 he was prescribed the benzodiazepine tranquilliser temazepam for use at night. Because of his tendency to take more than prescribed, his girlfriend supervised his dose. However, the defendant frequently found that he still could not sleep, and, although temazepam is accompanied by a warning not to drink, he resorted to using alcohol as well. In his distress, he also sometimes physically hit his head on the wall with a view to rendering himself unconscious. 32. On the evening of 29 October 2010, he took his prescribed nightly dose of temazepam, supervised by his girlfriend. Although it is not clear precisely when, he also drank a good deal. 33. Just before 4am the following morning, he went to a 24-hour off-licence in Finsbury Park, which was manned by the manager (Mr Shah) and his assistant (Mr Jabarkhel). The events inside that shop were captured on closed circuit television: the footage was available in the Crown Court, and we too have viewed it. It is clear from that that the defendant was intoxicated and, indeed, he has always accepted that he was. 34. He entered the shop, and purchased soft drinks and a bottle of spirits. He selected the soft drinks from a shelf, and put them on the counter. The alcohol was behind the counter, and he selected both the type (whisky) and the brand, which he specifically identified to the shop assistant who served him. Initially, the defendant was polite, and made amiable small talk with Mr Jabarkhel, whilst Mr Shah served other customers, although Mr Jabarkehel did not really want to engage with him because of his obvious intoxication. The footage shows the defendant slouching over the counter, and talking for many minutes. He took a chocolate bar, which he ate and for which he did not pay - but Mr Jabarkhel did not seek to challenge him about that, probably because of his condition. 35. After some minutes, the defendant started to make abusive comments to Mr Jabarkhel, particularly about his ethnic background and religion. To avoid confrontation, the shop assistant went to smoke a cigarette outside. The defendant also left the shop with his purchases; and, when Mr Jabarkhel tried to go back in, he was prevented by the defendant who stood in the doorway and elbowed him. The defendant invited him to fight, and started to shadow box towards Mr Jabarkhel’s face. No charges arose from that early part of the events. 36. However, another customer, Towan Williams, arrived at the shop and saw the defendant swearing and pushing Mr Jabarkhel. When Mr Williams tried to enter the shop, the defendant became aggressive and pushed him against the wall. Mr Williams tried to back away, and punched the defendant in self-defence. An altercation then took place, with the defendant and Mr Williams wrestling each other on the floor, out of the camera’s eye. However, the defendant accepted that, at one stage whilst on the floor, he pressed his fingers into Mr Williams’ eye, causing him pain and blurred vision for two days, which required medical treatment. 37. The incident with Mr Williams over, the defendant then walked off; but returned to the shop about 10-15 minutes later armed with a large kitchen knife and with a t-shirt attached to his head like a bizarre head-dress. The CCTV footage shows him entering the shop, and immediately trying to attack both Mr Jabarkhel and Mr Shah, who are seen trying to escape. Mr Shah jumped over the counter, and ran to the exit and away, pursued briefly by the defendant. Mr Jabarkhel was not so fortunate: the defendant caught him and stabbed him in the arm with the knife, causing a wound through his clothes, before running from the shop leaving the knife on the counter. The defendant is then seen entering and leaving the shop once or twice more, before leaving the scene altogether. 38. The defendant could not remember any of those events. They resulted in him being charged with assault occasioning actual bodily harm to Mr Williams, and wounding Mr Jabarkhel with intent to cause grievous bodily harm. 39. At the initial hearing, on 12 April 2011 the defendant pleaded guilty to the assault on Mr Williams, and indicated that, in respect of Mr Jabarkhel, he would be willing to plead guilty to causing grievous bodily harm contrary to section 20. However, he said that he was unwilling to plead to the section 18 offence, because, at the relevant time, he was in a state of automatism such that he was unable to form the required specific intent to cause grievous bodily harm. The Crown indicated that those pleas would be unacceptable. The court giving him permission to do so, the defendant then formally withdrew his guilty plea to the assault on Mr Williams, and the matter was set down for trial before Mr Recorder Morris-Cole on 21 October 2011. 40. The Recorder made two rulings that day. First, he rejected the defence submission that the defendant had no choice but to take alcohol to alleviate the symptoms of his medical condition: he ruled that his intoxication was voluntary. He also ruled that the defence had not satisfied the evidential burden upon them necessary to leave automatism to the jury. He found that, in all of the circumstances, there was no evidence that, at the time he stabbed Mr Jabarkhel, the defendant was suffering from automatism in the sense of a “total destruction of voluntary control”. 41. Following those rulings, the trial proceeded on the basis of a three count indictment. The Defendant accepted that he was guilty of both the section 47 offence against Mr Williams and the section 20 offence against Mr Jabarkhel. With regard to the section 18 offence, the Recorder directed the jury that, although the defence of automatism was not open to the Defendant and that an intoxicated intent was still an intent, nevertheless they could only convict the Defendant if they were sure that, at the time of the stabbing, he intended to cause Mr Jabarkhel grievous bodily harm. The jury found the Defendant guilty of all three offences. 42. Mr Winship’s careful submissions on behalf of McGhee, for which we are grateful, are these. i) Insanity was not and is not in issue. ii) There is no challenge to the ruling that the intoxication was voluntary. iii) There is no suggestion, now, that McGhee might have been in a state of automatism at the time of the first assault, on Mr Williams. iv) But the recorder was wrong to withdraw automatism on counts 2/3. 43. We need not repeat what is said above at [22] in the case of Coley. Automatism involves wholly involuntary action as distinct from irrational action. That is how, correctly, the question was approached in McGhee’s case by counsel on both sides and by the recorder. There were two experts called. Dr Falkowski, a consultant psychiatrist, gave evidence that in his view the defendant was clearly aware of his actions and in control of them, even if his judgment was impaired. If that was right, no question of automatism arose. The possibility that automatism ought to have been left to the jury arose from the evidence of Professor Birch, who is not a medical doctor but a consultant pharmacologist and a senior professor of biomedical science specialising in psychopharmacology and with a particular expertise in the action of drugs on the brain. 44. Professor Birch gave evidence on a number of topics. One part of his evidence explained that the temazepam and alcohol might produce what he described as “paradoxical effects”. By that he meant that although temazepam is designed to inhibit anxiety and thus to keep the taker calm, because it acts as an inhibitor of the processes of the brain, it may also inhibit the control which would otherwise restrain the taker from anti-social action and thus end up having the opposite (“paradoxical”) effect. In his words, the drug, especially if potentiated by alcohol, can reduce social self-restraint and lead to disinhibited behaviour, such as aggression or over-reaction to trivial provocation. He used the analogy of the drug peeling away the layers of an onion which consisted of the taker’s normal social self-restraint and exposing the core of aggressive reaction. He gave evidence that serious violence can occur in this way as a result of the combination of alcohol and benzodiazepines. 45. Professor Birch was additionally asked whether it was possible that, in the later part of this incident (ie in the attack on Mr Jabarkhel), or for that matter earlier, the defendant might have been acting “without any form of conscious control”. His answer was: “I do not think it was organised conscious control. It may be a small amount of conscious control. I suspect probably not.” A little later came this exchange: “Q: You said that conscious control may not be what we are seeing here ? A: No that is right…. Yes, I mean, bits of it look as though it could be a sort of automatic kind of behaviour.” Mr Winship focuses on those answers as providing an evidential base requiring the question of automatism to be left to the jury. 46. Once, however, these answers are put in the context of Professor Birch’s evidence it is completely clear that he was speaking of disinhibited behaviour rather than of behaviour over which the defendant had no voluntary control whatever. The first answer cited above was followed immediately by this amplification: “I think he was probably reacting spontaneously to something which…I was talking about, the core of the onion, the aggressive behaviour which came out as the result of being disinhibited. I do not feel that conscious control is really the way of describing it. I mean, conscious control means that you have actually thought about it and you have decided that this is the course of action to take.” The second passage cited above was followed immediately by this: “Q: So parts of it look as though they could be automatic….Which parts of what you see look as though they could be ? A: Well, his response to whatever was the provocation in the fight, and perhaps coming back again.” There were further questions and answers to like effect. Thus the evidence made it clear that what Professor Birch was speaking about were the paradoxically disinhibiting effects of temazepam plus alcohol and the manner in which that can lead to a person behaving in an aggressive fashion from which he would normally be restrained in the absence of the substances taken. Disinhibition is exactly not automatism. Moreover, one has only to look at the camera footage and the defendant’s clearly voluntary behaviour in the shop and outside it over quite an extended period for it to be apparent that automatism was simply not in question. Intention was, on the count laid under section 18, but not automatism. The recorder was quite right. 47. Additionally, as we have explained above at [24], it is very likely that even if the defendant had been in a state of automatism, the defence would have failed on the grounds that he induced it through his voluntary fault. He had voluntarily drunk himself into what was agreed on all sides to be a state of current intoxication. To the extent that his intoxication was worsened by the combination of temazepam with alcohol, he was well aware of the dangers of taking them together. That he was in distress at the very unpleasant tinnitus would not alter that. This, however, did not arise. 48. In those circumstances, this appeal against conviction must be dismissed. Harris 49. The charge in this case was the aggravated form of arson, contrary to section 1(2) of the Criminal Damage Act 1971. Specifically, the defendant was charged with starting a fire, being reckless as to whether the life of another would be endangered. He had started a fire in his own house. The persons whose lives were potentially in danger were his neighbours in the next door semi-detached house. 50. The defendant was born on the 5 th July 1968, and so was 42 years old at the material time. He owned and occupied a semi-detached house in Newport, South Wales. He was employed by the local council, a steady job which he had held for about 25 years without complaint about him. 51. From about 2005, and probably for reasons related to the illness and death of his mother, the defendant suffered from clinical depression. From about the same time he began to abuse alcohol. He appears to have developed a pattern of drinking heavily during a period of leave, and then abruptly ceasing to drink prior to returning to work. The sudden cessation of his excessive drinking had in the past resulted in episodes of alcohol psychosis or alcohol-induced hallucinosis. In October 2005, December 2005, and again in December 2010, he had to be admitted to hospital following such episodes; on the last of those occasions he was detained under section 2 of the Mental Health Act. A report from a consultant forensic psychiatrist described him as ordinarily shy and amenable, but displaying uncharacteristic outbursts of aggression and paranoia when affected by such conditions. 52. It was common ground in the Crown Court that the defendant was suffering such an episode on the Friday 29 th April 2011. As before, it had been brought about by heavy binge drinking throughout most of the days of the preceding week’s Easter leave, and then by stopping suddenly on Saturday 23 rd or Sunday 24 th with a view to going back to work on Monday 25 th . He did return to work, but felt ill on Tuesday 26 th and could not continue. Over the next two days, his family had become concerned about his mental health and had sought medical assistance. He was complaining of hearing voices and his brother described him as ‘talking into space’. On the morning of Friday 29 th April 2011, he was seen to be apparently cutting the grass in his garden using an electric lawnmower which was not plugged in. At some stage, the Defendant removed from his house, and stored in his garden shed, a box containing his passport and important documents relating to his mortgage, house insurance and pension. At about 1130 he was seen taking a petrol can into the house: he was later to say that he did so because voices in his head were telling him to burn the house down. Thereafter, in what was admittedly a deliberate act, he poured petrol from the can onto the carpet in at least two places in his living room. Vapour from the petrol was ignited, and a fire began. The Defendant later told his brother: “I turned the gas cooker and fire on, threw the petrol, went to light the fire, it blew me against the wall”. It seems he then panicked and went upstairs. 53. By good fortune, neighbours saw the fire and intervened before much damage had been caused. They alerted the family who occupied the adjoining semi-detached house. The Defendant was seen at an upstairs window, and a ladder was used to bring him down. He was treated at the local hospital for the effects of smoke inhalation, and was then transferred to a psychiatric hospital. No one else was injured, and the only damage was to the Defendant’s own home. 54. It was accepted by the Defendant that he had set the fire. It was further accepted that he knew the nature and quality of his act, and that what he did was wrong. But for the fact that the only damage was to his own property, he would have pleaded guilty to simple arson. However, he contended that he had given no thought at all as to any risk which his actions might pose to others, and on that basis denied that he was guilty of arson being reckless as to whether the life of another was endangered. 55. The facts were largely agreed. The judge ruled that the circumstances of the case brought it within the principle in DPP v Majewski [1977] AC 443 . He held that the mental disorder from which the Defendant was suffering when he started the fire was a direct result of his voluntary consumption of alcohol. Since the offence was one involving recklessness, he would direct the jury that in considering whether the Defendant was reckless as to the risk to the neighbours, they “would have to look at this defendant as if he had not been drinking”. Following that ruling, the Defendant pleaded guilty. He accepted and accepts that but for the condition which he was in, he would have foreseen the risk to the neighbours. 56. Insanity does not arise in this case. The defendant was affected by a mental disorder, but he knew what he was doing and he knew that it was wrong. What he challenged was the assertion that he was reckless as to the endangering of the lives of the neighbours. He said that because of his mental condition, a risk to them had simply not occurred to him. 57. Since R v G [2004] 1 AC 1034 ; [2003] UKHL 50 a man is reckless as to a possible result where he is himself actually aware of the risk that it may occur: see Lord Bingham at [41]. That was not a case of voluntary intoxication; it was a case of 11- and 12-year old defendants who had not applied their minds to the risk. The former rule, set out by the House of Lords in DPP v Caldwell [1982] AC 341 , was overruled in R v G . Caldwell had been a case of voluntary intoxication. In R v G the House of Lords did not have to decide how its new (“subjective”) test of recklessness fell to be applied to a case of voluntary intoxication. Lord Bingham, however, adverted at [36] to the fact that it was unfortunate that the meaning of recklessness had arisen in Caldwell in the context of intoxication, and added that “…one instinctively recoils from the notion that a defendant can escape the criminal consequences of his injurious conduct by drinking himself into a state where he is blind to the risk he is causing to others. In R v Caldwell it seems to have been assumed…that the risk would have been obvious to the defendant had he been sober.” Lord Steyn, at [60], associated himself with those remarks. Lord Rodger, in the only other substantial speech, did not attempt to answer the question of voluntary intoxication, but drew attention to the view of Lord Lane CJ (obiter) in the earlier case of R v Stephenson [1979] QB 695 that intoxication represented an exception to the generally subjective test of recklessness. There remains some room for doubt as to whether the aggravated offence of reckless arson, charged in the present case, is governed by this principle or should be regarded as an offence of specific intent – see for example the (dissenting) opinion of Lord Edmund-Davies in Caldwell at 361D and the passing obiter reference in R v Heard [2008] QB 43 at [31], where, however, the offence under consideration (sexual assault) was one requiring not recklessness but (basic) intent. We see some force in the argument that voluntary intoxication ought not to be a defence to an offence involving recklessness, even subjective recklessness; it may fall for decision in a later case whether Lord Lane’s view in Stephenson correctly represents the law now that Caldwell recklessness has passed away. 58. It is, however, not necessary to resolve that issue in the present case. The crux of the judge’s decision was that this was a case of voluntary intoxication. We agree that it was a condition which was caused by past voluntary intoxication, but the defendant was not in any sense intoxicated at the time of the offence. He had stopped drinking some five or six days earlier. As in the old case of Davis (see [15] above), he was not suffering from a direct or acute reaction to the voluntary taking of intoxicants. His condition at the time of the offence was one of mental disorder with psychotic symptoms which included the hearing of voices and hallucinations. One of the doctors described the condition as follows: “Alcoholic psychosis describes a cluster of different psychotic conditions relating to alcohol misuse. It includes delirium tremens and alcoholic hallucinosis… The occurrence of agitation paranoia, auditory and visual hallucinations and confusion following sudden withdrawal of alcohol would point towards a diagnosis of delirium tremens. In certain circumstances there might be seizure associated with it. I note that Mr Harris has a history of seizures in the past….The complete resolution of symptoms is usually within a few days of stopping alcohol, with or without medication.” The defendant’s condition was also complicated by clinical depression. He was in fact continuing to take both anti-depressant and anti-psychotic medication. 59. The argument for the Crown in this case is that the mental illness from which the defendant was suffering was brought on by his past voluntary drinking. Therefore, it is contended, it should be treated in the same way as if he were still drunk. We agree that there is scope for the argument that an illness caused by his own fault ought as a matter of policy to be treated in the same way as is drunkenness at the time of the offence. This would, however, represent a significant extension of DPP v Majewski and of the similar principle expounded in Quick , which likewise concerned a case where what was asserted was an acute condition (there of automatism) induced arguably by the defendant’s fault. A great many mental illnesses have their roots in culpable past misconduct of the sufferer: those attributable to many years of past drug or alcohol abuse are perhaps the most obvious, but there could be many other examples, such as perhaps a culpable failure to follow a recommended medical regime, or maybe the consequences of traumatic brain injury caused by one’s own drunken driving. Whether the Majewski approach ought to be extended to such cases may be a topic which might be addressed in the forthcoming work of the Law Commission on loss of capacity, and it should, no doubt, be the subject of proper public debate. But in the present state of the law, Majewski applies to offences committed by persons who are then voluntarily intoxicated but not to those who are suffering mental illness. This defendant was, it is clear, suffering from a condition of mental illness when he set fire to his own house. That it was not long-lasting does not mean that it was not a true illness. In our view he was entitled to have tried the question of whether, in the condition in which he was, he was actually aware of the risk which he created for his neighbours. 60. It follows that we grant Harris leave to appeal against conviction, allow the appeal and quash his conviction. We were helpfully addressed on the question of whether it is in the public interest to order a re-trial. The defendant had been receiving treatment voluntarily for some time before his trial and was making real progress. He had reduced his drinking to modest proportions and was taking the anti-depressant and anti-psychotic medicine prescribed. The judge made, entirely appropriately, a community order with a condition of mental health treatment designed to ensure that the same regime continued. The offence is now a little short of two years ago and he has behaved without complaint ever since. Since the facts are undisputed and will remain on record in the event of any further misbehaviour, we do not consider that the public interest calls for a re-trial. Postscript 61. We return to the point of departure at [1] above. These cases do not provide an occasion for a general review of the law of insanity, automatism or intoxication, but are illustrations of its application. A general review by the Law Commission into these related areas, such as is currently in train, will be welcome. It is we think essential that any such review addresses also the vital question of disposal following the differing verdicts which may ensue.

```yaml citation: '[2013] EWCA Crim 223' date: '2013-03-12' judges: - LORD JUSTICE HUGHES - MR JUSTICE HICKINBOTTOM - MR JUSTICE HOLROYDE ```

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

Neutral Citation Number: [2017] EWCA Crim 139 No: 201700001 A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 14 February 2017 B e f o r e : LORD JUSTICE DAVIS MR JUSTICE SPENCER HER HONOUR JUDGE MUNRO QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v WAYNE EVANS - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr S Parry appeared on behalf of the Appellant Ms T Loftus appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (As Approved by the Court) 1. LORD JUSTICE DAVIS : This is an appeal against sentence, the matter having been referred by the Registrar and for which we grant leave. It raises questions of the proper level of sentence appropriate to offences of distribution of articles which infringe copyright; the offending charged being by reference to section 107(1)(e) of the Copyright, Designs and Patent Act 1988. It has to be said that the offending in this particular case occurred in rather unusual circumstances. 2. The appellant is a man now aged 39 who had no previous convictions of any kind. He pleaded guilty, at what was accepted to be the first practical moment, on 7 October 2016 in the Crown Court at Liverpool to two offences of distributing an article infringing copyright contrary to section 107(1)(e) of the 1988 Act and also to a further offence of possessing an article for use in fraud contrary to section 6(1) of the Fraud Act 2006. On the first count he was sentenced by HHJ Trevor Jones to 12 months' imprisonment. On the second count he was sentenced to 6 months' imprisonment. On the third count, the count of possessing an article for use in fraud, he was sentenced to 10 months' imprisonment. All sentences were stated to run concurrently. Consequently the total sentence was one of 12 months' immediate imprisonment. 3. The background facts are these. Putting it broadly, any person who wishes to provide online distribution, streaming services or downloading services for copyrighted music normally requires a licence from the Performing Rights Society. The appellant did not have such a licence. However, he operated a number of websites which were responsible for the illegal distribution of licensed and copyrighted material. He did not himself have the material on his own websites; but he facilitated internet users by operating websites which permitted them to go elsewhere in order to find digital material via what are called "torrent" websites which permitted such downloading. The appellant himself had three websites which he administered. They were hosted through a proxy server, a computer system or application which facilitated access to material on the internet and which also provided a degree of anonymity to those who were supplying or accessing it and which bypassed other sites which might have been blocked by UK internet service providers. The three website also shared an internet protocol address. They were set up using the same email account registered to the appellant. 4. In due course, cease and desist notices, as they are called, were served on the website administrator (the appellant) and they were served on more than one occasion. We have not ourselves been shown copies of such notices but it is common ground that they would, amongst others things, have made it quite clear that the recipient was at risk of prosecution if he continued with his activities. But continue with his activities is what the appellant did. 5. Thereafter, investigations were undertaken. A number of test purchases were made in order to establish the identity of the website administrator. The first of those test purchases took place on 22 May 2015, which was a test purchase of a cappella music and it was from the appellant's website www.deejayportal.com. That test purchase enabled investigators to establish that the website had over 168,000 users. Further test purchases were made on 16 June 2015 and 15 July 2015. It became evident at that stage that some improvements had been made to the website, including the production of a password system for access to it; and there was evidence of day-to-day maintenance of the sites which he was using to facilitate the torrent downloads. 6. Further forensic inquiries conducted by the various agencies responsible for investigation revealed that a cappella tracks had been available via www.deejayportal.com amounting to over 135,000 downloads from the beginning of January 2014 to the end of June 2015: that is to say, a period of around 18 months. Those matters related to what became count 2 on the indictment. 7. So far as count 1 is concerned, that related to the significantly more popular UK Top 40 singles charts. Those had been downloaded over 523,000 times via a website operated by the applicant and there were downloads of 40 tracks at a time. 8. Following test purchases further inquiries were made in respect of the IP address being used for the websites. As a consequence, a search warrant was executed at the appellant's home address in Liverpool on 3 September 2015. What was discovered there is reflected in count 3 on the indictment. Officers seized a computer and a large number of external hard drives. That, in fact, had been the equipment used to commit the offending under counts 1 and 2. These materials were submitted for forensic examination. Inquiries revealed that he had maintained accessible social media profiles on Facebook, Twitter and LinkedIn and that he had also referred those who visited those social networking sites to his websites. His profile on LinkedIn stated that he was the administrator of the websites and had been since January 2008. 9. There was no evidence to suggest that the appellant had made any significant sums of money out of these activities. His website did have a facility whereby users could make online "donations" via PayPal but there was very limited evidence of any such donations. 10. As appeared from the evidence, a payment of five pence per download was due to the Performing Rights Society had they been downloaded via legitimate means. Accordingly, over 130,000 downloads of a cappella tracks at five pence per download would create a notional royalty value of about £6,790. However, that is perhaps more theory than practice: because it was accepted that by no means everybody who downloaded tracks via the appellant's website would have downloaded those tracks via legitimate means had they not been obtainable through him. Similarly, for the UK Top 40 single chart tracks the number of downloads, each comprising 40 tracks at five pence per track, meant a royalty value lost notionally to the Performing Rights Society of over £1,040,000. But again it was common ground that that was more notional than real because by no means all of those accessing these websites for this purpose would have used otherwise a legitimate source and furthermore the 40 tracks did not necessarily change from week to week. 11. When interviewed, the appellant accepted his involvement. He initially denied having received any cease and desist notices and maintained that he thought at the time that his actions were lawful. However, a search of his home revealed a diary with references to his having received such notices; and at a subsequent interview he did fully admit having received them. 12. Before the sentencing judge there was a detailed witness statement from the Head of Litigation, Enforcement and Anti-Piracy for PRS Music Limited in London. That individual set out in detail the significance and implications of offending of this particular kind and the losses, both actual and prospective, which such activities caused or might cause. 13. A basis of plea was submitted by the appellant. He was to say that he had for many years collaborated with other internet users in the creation of electronic music. He had then begun to upload to the internet, initially via Facebook, rare dance tracks difficult to obtain so that they could be shared by other enthusiasts. He was to say that his business dealt with developing and the sale of user interfaces for DJ software, which he operated through the website deejayportal, albeit unsuccessfully. That website also made available free downloads of a cappella music tracks for which there was no charge and it was said they were not tracks widely downloaded and not likely to be listened to by consumers, since they were limited to vocals only and were not commercial music tracks. It was said that they were types of tracks readily made available for free by the artist and at all events the appellant himself made no money from them. 14. He accepted in his basis of plea that he had made available on his website a link to a "torrent" website making available downloads of the Top 40 singles and he accepted that they would be commercially available. He did not, however, charge for the downloads and such donations as there were would simply be used to pay for the costs of the server. It was further stated in the basis of plea, and not disputed, that he a history of, and diagnosis of, depression. 15. At some stage the prosecution had put in an estimation of the potential loss to the industry resulting from the appellant's activities which was nevertheless accepted as being entirely notional in terms of actual quantified loss. 16. There is no Definitive Guideline issued by the Sentencing Council in respect of offences contrary to section 107 of the 1988 Act. However, the Definitive Guideline issued by the Sentencing Council with regard to fraud, bribery and money laundering offences did apply to count 3 on this particular indictment: that is to say, possessing an article for use in fraud. By reference to that guideline, it was common ground before the judge on this count that this was a case of high culpability and greater harm and that the relevant starting point was one of 18 months' custody for such an offence: with a category range of 36 weeks' custody to 3 years' custody. 17. In the course of his excellent submissions on behalf of the appellant Mr Parry said that a total sentence of 12 months' imprisonment was excessive in the circumstances of this particular case. In particular, it was said that such a sentence failed sufficiently to acknowledge that the appellant was not motivated by financial gain and scarcely did gain. It is said also that he had mental health issues and related personal mitigation. He was of previous good character and was most unlikely to re-offend. In that regard, emphasis was put on the pre-sentence report which contained views precisely to that effect and also explained the difficult personal background of the appellant. 18. In all the circumstances, it was submitted, and whilst this offending did cross the custody threshold, the resulting sentence could and should have been suspended and, further or alternatively, could and should have been a shorter sentence in terms of length. 19. Having considered the matter, our conclusion is that we cannot agree. The appellant may not have been motivated by gain for himself. But there was undoubtedly a real loss to the owners of the relevant copyrights and related performers. Further, quite apart from such loss as could be identified and quantified, such offending always has a wider detrimental impact on the music industry and its profitability: and the music industry is an important economic contributor to society. That detriment is none the less real for being difficult to quantify. As has, in fact, long been established in the context of intellectual property offending, an element of deterrent sentencing is justified in this context; not least also because of the difficulty in tracking down and investigating such offending. Most certainly here the appellant had strong personal mitigation. But his conduct was sustained and he persisted in it even after receiving the cease and desist notices. He carried on his activities for a lengthy period of time and he used sophisticated equipment for the purpose. 20. In our view, the judge in his careful and thorough sentencing remarks addressed all relevant points. He correctly appraised the position. He had due regard to the plea and all other matters available to the appellant in terms of mitigation. We consider that overall the sentence of 12 months' immediate imprisonment was a well-judged sentence; and at all events cannot be said to be excessive. 21. Ms Loftus, appearing for the Crown, has suggested that given there is no definitive guideline relating to such offences under the 1988 Act it may be of some assistance if some guidance is given by this court. 22. The position must be that in offending of this kind the sentencing court must retain flexibility and gear a sentence to the circumstances of the particular offence or offences and to the circumstances of the particular offender. Nevertheless, we would suggest that the following (non-exhaustive) considerations are likely to be relevant in sentencing cases of this particular kind, involving the unlawful distribution of infringing copyright articles: (1) First, illegal downloading and distribution is very often difficult to investigate and detect. It can give rise to serious problems and losses (none the less real for not being readily quantifiable) to the music and entertainment industry. Deterrent sentencing in such a context is appropriate. (2) Second, the length of time (and including also any continuation after service of cease and desist notices) of the unlawful activity will always be highly relevant. (3) Third, the profit accruing to the defendant as a result of the unlawful activity will always be relevant. (4) Fourth, and whether or not a significant profit is made by the defendant, the loss accruing to the copyright owners so far as it can accurately be calculated will also be relevant: as will be the wider impact upon the music industry even if difficult to quantify in precise financial terms: because wider impact there always is. (5) Fifth, even though this particular type of offending is not the subject of any Definitive Guideline there may be cases where it will be helpful to a judge to have regard to the Definitive Guidelines on fraud, bribery and money laundering offences. In some cases, such as the present, that will positively be required because one or more of the counts on the indictment, as here, will be a count which comes within the ambit of the guideline itself. But even where that is not the position there may be some cases where a judge, at least if only as a check, may wish to refer to the Definitive Guideline to get a feel, as it were, for the appropriate sentence. However, there will be other cases where the Definitive Guideline may be of marginal, and perhaps no, assistance at all. That will be a matter for the assessment of the judge in the individual case. Where the Definitive Guideline is required to be taken into account because one of the counts on the indictment is within the ambit of the guideline, that of itself will no doubt lend assistance in deciding what the appropriate overall sentence will be. (6) Sixth, personal mitigation, assistance to the authorities and bases and pleas of guilt are to be taken into account in the usual way. (7) Seventh, unless the unlawful activity of this kind is very amateur, minor or short-lived, or in the absence of particularly compelling mitigation or other exceptional circumstances, an immediate custodial sentence is likely to be appropriate in cases of illegal distribution of copyright infringing articles.

```yaml citation: '[2017] EWCA Crim 139' date: '2017-02-14' judges: - LORD JUSTICE DAVIS - MR JUSTICE SPENCER ```

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Neutral Citation Number: [2010] EWCA Crim 2250 Case No: 200805957 C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 3rd August 2010 B e f o r e : LORD JUSTICE LAWS MR JUSTICE MCCOMBE MR JUSTICE KING - - - - - - - - - - - - - - - - - - - - - R E G I N A v KAMAHL FORD - - - - - - - - - - - - - - - - - - - - - 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 F Dunkley (Solicitor Advocate) appeared on behalf of the Applicant Mr J C Dawes appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE LAWS: In September and October 2008 before Her Honour Judge Karu at the Inner London Crown Court this applicant faced a re-trial on an indictment containing 14 counts. On 8th October 2008 he was convicted by the jury of three offences of making a threat to kill (counts 1-3), two of possessing a firearm with intent to endanger life (counts 4 and 8), one of possessing a prohibited firearm (count 6), one of possessing ammunition without a firearms certificate (Count 7), three of doing acts tending and intended to pervert the course of public justice (counts 10, 11 and 12), one of conspiracy to possess a firearm with intent to endanger life (count 13), and one of conspiracy to pervert the course of public justice (count 14). On 10th December 2008 he was sentenced to concurrent terms of detention for public protection with an overall minimum term of seven years' detention in a young offenders institution less 463 days spent on remand. 2. There were two co-defendants. Nacoli Bravo was acquitted on the counts he faced: they were 6, 7 and 8. Shafan Kerr pleaded guilty to possessing a prohibited firearm, count 5. This was the only count which did not charge the applicant with an offence. As against Kerr it was put as an alternative to count 4. 3. On 13th January 2010 the full court (Maurice Kay LJ, Christopher Clarke and Sharpe JJ) adjourned the applicant's renewed application for leave to appeal against conviction and directed that the appeal should follow if leave were granted. They also directed that the applicant's counsel should re-cast the grounds of appeal and lodge a skeleton argument and that the Crown should lodge a skeleton in response. All those steps have been taken and so the matter comes before us today. 4. The facts may be outlined quite shortly, though it will be necessary to consider in a little more detail certain particular aspects of the evidence in addressing the reformulated grounds of appeal. In November 2006 the applicant had just been released from custody. He got in touch with a young woman called Cardine Wignall, who lived with her father, Leonard Wignall, at 26 Camplin Street in London. He wanted her to hire a car for him. She refused. She stopped replying to his messages and his text messages. Thereafter, referring to himself by the nickname "Killa", he sent a series of abusive and vitriolic text messages, three of which (sent respectively on 10th November 2006, 2nd January and 5th January 2007) formed the subject of the first three counts on the indictment charging offences of making threats to kill. There were quite a number of other messages also, no less nasty. The message of 2nd January 2007, count 2, gives the flavour: "oi you dick head your goner here two bangs and think yourself why did I not take him seriously watch". 5. On the day of the last threat to kill, 5th January 2007, at about 2.45 in the afternoon two gun shots were fired through the front window of the Wignalls' home at 26 Camplin Street. That was represented by count 4 in the indictment. A few minutes later the applicant sent Cardine another text message, "Ring me back if you want". A witness to the shooting, or part of it, was a woman called Asiatu Charm who knew the applicant. She dialled 999 and told the police what she had seen. She made a statement later that day. Another witness was a young woman called Emma Leaburn. 6. On 18th January 2007 a woman called April Maddix, of whom more hereafter, was bought a Ford Focus car by her father. She was a friend or associate of the applicant. On 4th February 2007 the Ford Focus was stopped by armed police near Blackfriars Bridge with the applicant at the wheel. There were three other occupants, including the co-defendant Bravo. The police found a loaded semi-automatic Browning pistol in the glove compartment and a holster which fitted the gun in the driver's side door. These facts gave rise to counts 6, 7 and 8. The applicant gave his address as April Maddix's address. 7. The applicant was charged and remanded in custody on 5th February 2007. Cell site analysis and billing records show that while he was in custody he used a mobile phone to make calls to April Maddix 205 times, Asiatu Charm seven times and Cardine Wignall once. The Crown said that these calls were made in order to intimidate the women so that they would not give evidence for the Crown. They formed the substance of counts 10, 11 and 12. 8. On 12th September 2007, while the applicant was still in custody, there was a second shooting at 26 Camplin Street. Two gun shots were fired through the front window at about 11.30 at night. Leonard Wignall was hit by broken glass. When the police arrived at the scene an unknown female handed one of the officers a piece of paper bearing a vehicle registration number, T921 RJK, and a note which said that the woman had "heard gun shots and saw them getting into this car but I don't want to get involved". 9. On 18th September 2007, six days after the shooting, police came upon a car with the registration plate T921 RJK. The four male occupants were apprehended. Telephone evidence showed that they had been in contact with each other at various times and their mobile phones had been in the vicinity of Camplin Street at about the time of the second shooting. The applicant had made contact with two of them, one called Junior Salokun, on 6th September 2007 and Troy Hudson-Davies on 13th September 2007. Salokun had tried to phone April Maddix, it was said, on 8th September 2007 and had arranged to visit the applicant in custody the following week. The Crown case was that the applicant was the controlling mind behind the second shooting: hence counts 13 and 14. 10. The applicant made no comment in his police interview and did not give evidence at his trial. 11. The reformulated grounds of appeal fall into two parts. It is first said that certain evidence admitted by the judge should have been excluded. It is said secondly that the summing-up was defective in various respects. 12. We turn to the first head of appeal, the evidence which it is said should have been excluded. There are six separate items here. Statements made by April Maddix, Emma Leaburn and Asiatu Charm were read to the jury. These are the first three items involved. The applicant says the judge should not have allowed that course of action to be taken. The fourth item is the anonymous hearsay evidence of the woman who produced the car registration number and the note in the context of the second shooting. The applicant says that should not have been allowed in. The fifth item was the evidence of an officer, PC Crossley, to the effect that on 3rd January 2008 a woman called Tameika Dixon had been stopped and searched, her telephone directory recorded the name "Killa" against a phone number ending 169 which was the number of a phone used by the applicant. The sixth and last item was the evidence relating to the four males in the car T921 RJK. They have been referred to in the proceedings as "the four boys". The evidence in question is the anonymous hearsay note, item 4 above, the number plate and the telephone evidence. 13. When the matter was before the full court on 13th January 2010 the court was most interested, if we may put it that way, in item 4, the anonymous hearsay evidence. This was a new point not pleaded in the original grounds. The court said this: "6. At its broadest, the point sought to be made by Miss Dunkley in relation to that is that in the light of some observations of this court in the case of R v Mayers and Others [2008] EWCA Crim 2989 at paragraph 113, and in the light of an endorsement of that in the Supreme Court per Lord Judge in R v Horncastle and Another [2009] UKSC 14 , paragraph 13 of his contribution, anonymous hearsay is inadmissible in all circumstances." 14. We will deal with item 4 first. The judge let in this evidence by a ruling given on 16th September 2008, in which she set out arguments which had been advanced before her but gave no clear reasons of her own. By section 114(1) of the Criminal Justice Act 2003 hearsay evidence is admissible in criminal proceedings if, but only if, any one or more of four conditions listed at section 114(1)(a) to (d) applies. The Crown relied on section 114(1)(d) : "The Court is satisfied that it is in the interests of justice for it to be admissible". 15. The force of the evidence of the anonymous witness from the Crown's point of view is very plain. The registration number and the statement that the woman had seen them "getting into the car" enabled the police, once the car was found, to connect the applicant with the scene of the second shooting. It is true that the four boys were arrested on suspicion of involvement with the shooting but were never charged, and in fact the allegations of conspiracy in counts 13 and 14 were that the applicant had conspired "with others unknown". But whatever the truth about the four boys may be, the evidence of the car number and the note linked the applicant with the 12th September shooting, and the anonymous woman cannot have known on 12th September, when she spoke to the officer, what was to happen six days later when the police came upon the car. That may be thought to be of some importance because it means that the anonymous hearsay evidence is untainted; that is to say it cannot have been motivated by any animus against the applicant, and its accuracy is vouchsafed by the fact that the very number plate turns up six days later on a car containing associates of the applicant. 16. In our judgment if the trial judge had power to let in this evidence there were very strong reasons for her to do so. But the applicant, by Miss Dunkley, who has put forward the point with great economy and clarity, says there is no legal power to admit this piece of evidence. She relies on Mayers [2008] EWCA Crim 2989 and Horncastle in the Court of Appeal EWCA Crim 964, but particularly in the Supreme Court at 2009 UKSC 14 . It is most convenient simply to cite a short passage from her skeleton which introduces this material. She quotes paragraph 113 of this court's decision in Mayers : "... we are being invited to re-write the 2008 Act by extending anonymous witness orders to permit anonymous hearsay evidence to be read to the jury. We cannot do so. Neither the common law, nor the 2003 Act , nor the 2008 Act permits it." The 2008 Act is of course the Criminal Evidence (Witness Anonymity) Act 2008 , which governs the admissibility of anonymous witness evidence for the purposes of a trial. Miss Dunkley's skeleton continues: "The Court of Appeal in R v Horncastle and Others [2009] EWCA Crim 964 , para 48 upheld this decision: 'The CJA 2003 is concerned with identified but absent witnesses. It does not permit the admission of the evidence of anonymous witnesses'. Then she says this: "The United Kingdom Supreme Court upheld this position in its judgment in R v Horncastle [2009] UKSC 14 . Annexe 4 prepared by Lord Judge specifically approved the decision in Mayers and stated at paragraph 13 'the relaxation of some of the rules against the use of anonymous witnesses under the Criminal Evidence (Witness Anonymity) Act 2008 does not extend to witnesses who are not only anonymous but also absent ... In short, such evidence is inadmissible." That reasoning is relied on in a series of different contexts to be found in Lord Judge's Annexe 4 at paragraphs 16, 24, 38, 46, 54, 73, 80, 89 and 96. 17. On the face of it these materials appear to demonstrate that it is inescapable that anonymous hearsay evidence cannot be admitted under the present statutory regime. Hearsay evidence of course is admissible under the 2003 Act , but if anonymous evidence, whether hearsay or not, is to be admitted that can only be done by reference to the provisions of the Act of 2008. Quite plainly the statement of the unknown woman giving the car registration number is or would be anonymous hearsay evidence. 18. We have considered whether the reasoning of this court and that of Lord Judge necessarily applies in a case where the statement is made not by a known witness whose identity is sought to be withheld, but by a person whose identity is not known at all. In those circumstances it might be said that the 2008 Act is simply not in the picture. That being so the reasoning in Mayers at paragraph 113, cited by Lord Judge at paragraph 13 of Annexe 4 in Horncastle , may be said not to apply. But we cannot see that such an argument could prevail. As we have already indicated, and we repeat it for convenience, the Court of Appeal in Mayers at paragraph 113 said: "No surviving common law power to allow for witness anonymity survives the 2008 Act . The 2008 Act addresses and allows for the anonymity of witnesses who testify in court. This jurisdiction is governed by statute, and any steps to extend it must be taken by Parliament." 19. The reality is then that a statement which is sought to be adduced in evidence in circumstances where the anonymity of its maker is sought to be preserved can only be so adduced if it falls within any of the provisions of the Act of 2008 which permit that to be done. The statement of this unknown lady does not fall within any such provision and it has not been contended that it does. In those circumstances it seems to us inescapable that the evidence was not admissible, the judge should not have let it in. Miss Dunkley's argument is correct. On this ground of appeal we grant leave. We will consider shortly what the consequences of this position may be for the full appeal. 20. It is right we should deal with Miss Dunkley's other points and we turn to the first three items, the statements of April Maddix, Emma Leaburn and Asiatu Charm. First, Asiatu Charm. She had been walking towards Camplin Street at about 2.30 pm on 5th January 2007, the day of the first shooting. She had seen the applicant, who was known to her, and attempted to engage him in conversation. He was with another man. She continued walking with her back to the two of them. She heard two shots. She turned and saw the two men running from the scene. As we have said, she made a 999 call and later a statement. On 17th September 2008 (transcript volume IV) the judge admitted Miss Charm's witness statement, an edited version of her 999 call and evidence from DC Hunter reporting a much later conversation in which she had corrected certain details in the statement. The evidence was admitted under section 116(2)(d) of the Criminal Justice Act 2003 on the footing that the witness cannot be found and (2)(e), the witness does not give oral evidence through fear. 21. The applicant concedes that these two gateways were open on the facts relating to Miss Charm's statement, but it is submitted that the statement was not demonstrably reliable having regard to discrepancies about the name of the road, the route she took, the circumstances in which she had come to know the applicant, a want of detail about the applicant, a question whether on her statement the applicant could have been the shooter and alleged inconsistencies with the statement of Emma Leaburn. 22. Now, there was a wealth of evidence that Asiatu Charm was terrified to testify. She had been served with a witness summons for the first trial and vomited when she received it. However after her statement was read at the second trial she attended court voluntarily and was examined and cross-examined. There was no unfairness to the applicant here. His objections to the admission of her statement are entirely insubstantial. 23. Emma Leaburn. On 24th September 2008 the judge expressed herself as satisfied that Emma Leaburn would not give evidence out of fear for her safety. In fact she attended court and testified on a voir dire from behind a screen. She begged not to have to give evidence before the jury given the threats, that she or a member of her family would be shot, which she had received. In her statement she gave an eye witness account of the first shooting. Her account differed in some ways, it is true, from that of Asiatu Charm. She failed to pick out the applicant at an identification procedure. Asiatu Charm, we should say, did not attend such a procedure. She, Emma Leaburn, had given a description of the shooter. She also had some information about the second shooting. Such differences and discrepancies as there were here, given that there was an identification issue, can presumably only have assisted the applicant. The judge's decision to let in Emma Leaburn's witness statement cannot be faulted. 24. April Maddix. On 17th September 2008 the judge admitted her statement under section 116(2)(d) of the 2003 Act . She made herself unavailable during the trial despite the Crown's reasonable efforts to find her. Her evidence was important from the Crown's point of view because the applicant claimed that when the Ford Focus was stopped by the police on 4th February 2007 with himself in the driver's seat he had only just got into the car. Maddix's statement of 19th February 2007 showed, however, that he had been in possession of it for a number of weeks. In fact she wrote a retraction of her statement and the judge allowed that in along with the original statement. Again, the applicant says there are inconsistencies in her account: thus belongings of hers were found in the car which seemingly had been put there after she said she was last in the vehicle, and reliance is placed on the fact that there was a suggestion at trial of a phone call between Miss Maddix and some of the four boys could be evidence that Miss Maddix was a co-conspirator for the purpose of counts 13 and 14. Miss Dunkley submits that that circumstance is to be taken into account in considering overall whether her evidence should have been admitted in the form in which it was. The applicant says that Miss Maddix's statement must be shown to be demonstrably reliable before it could be admitted. Miss Dunkley refers to the decision of this court in the Horncastle case [2009] EWCA Crim 964 . But Horncastle does not decide that a witness statement must be demonstrably reliable in every case before it can be admitted. Thomas LJ said this at paragraph 57: "Where the evidence before the court is that of an identified but absent witness, we can see no reason for a further absolute rule that no counterbalancing measures can be sufficient where the statement of the absent witness is the sole or decisive evidence against the defendant. That would include cases where the hearsay evidence was demonstrably reliable, or its reliability was capable of proper testing and assessment, thus protecting the rights of the defence and providing sufficient counterbalancing measures." It is evident to our mind that decisions as to the admissibility of hearsay evidence under the Act of 2003 are always going to be case sensitive and nothing, with respect, in Horncastle contradicts that. Miss Maddix's statements were, in our judgment, rightly admitted. 25. In relation to these three witnesses we would add this. Where application is made in evidence to adduce a statement because its author has been frightened or intimidated so that he is unwilling to give oral evidence, and that has been done by or on behalf of the defendant in the case, the defendant in opposing the statement's admission should not generally be allowed to rely on weaknesses or inconsistencies in the statement to show that it would be unfair to admit the statement. To accede to arguments of that kind would allow the defendant the benefit of his own wrongdoing or that of his associates in having intimidated the witness. It is his fault, not the witness's, that the weaknesses in the statement cannot be explored in cross-examination. Such weaknesses accordingly cannot be said to give rise to a want of fair procedures for the purposes of Article 6 of the European Convention on Human Rights. At paragraph 41 in Horncastle in this court this was said: "... what is important for the present case is a further proposition adopted in Al-Khawaja that if the evidence is the sole or decisive evidence there will necessarily be a breach of Article 6 and Article 6(3)(d) if the defendant is denied the right to confront the witness, at least unless the case is one of fear." We understand that the Strasbourg court also has acknowledged such a position. 26. We turn to item 6, Tameika Dixon's telephone directory. On 17th September 2008 (transcript volume II) the judge admitted PC Crossley's evidence that on 3rd January 2008 Tameika Dixon had been stopped and searched and her phone book had the name "Killa" against a phone number ending 169. This evidence was admitted under section 114(1)(d) . The witness could not be found. The applicant's use of the nickname "Killa" was obviously important for the Crown's case. The applicant was associated with a phone number 169. This evidence was rightly admitted as giving material objective support to a part of the Crown's case. 27. Lastly item 6, the four boys. Given that the evidence of the unknown lady who produced the car registration number should, in our judgment, not have been admitted for the reasons we have given, the other evidence relating to the four boys likewise should have been excluded because without the anonymous lady's evidence there is nothing to connect them or the motorcar with the scene of the shooting on 12th September. 28. That leaves the second area in which Miss Dunkley seeks leave to appeal, her criticisms of the summing-up. We have considered these with some care. We do not think it necessary to go through each and every one of them. We do not consider that what is said in relation to the summing-up affects the fairness of the trial. 29. The result of our judgment is that leave to appeal will be given on the one ground relating to the anonymous unknown lady. Leave to appeal will be refused on all other grounds. We will hear counsel briefly as to where that leaves the substantive appeal, by which I mean, Miss Dunkley, Mr Dawes, whether our ruling in relation to the note and the car registration number is fatal to the conviction on every count or not. It is clearly fatal to the conviction on the last two counts relating to the shooting on 12th September. (Submissions followed) 30. LORD JUSTICE LAWS: We have given very anxious consideration to the question what is the consequence of our having allowed this appeal on the ground only that the unknown witness's evidence should not have been admitted. It is, in our judgment, first clear that the convictions on the last two counts (which were counts 13 and 14 in the indictment as originally drawn but may have been re-numbered 12 and 13) cannot stand. Those were the counts of conspiracy and they related only to the second shooting on 12th September to which the anonymous witness's evidence was directly related. 31. We have considered very carefully, however, what is the effect on the balance of the case. In the end we have concluded that the convictions on the remaining counts are safe. First, it is clear that there was extremely powerful evidence to support each and every one of those counts. Secondly, if one asks, so to speak, the notional question, what would have been the jury's thought process if they were going to acquit on those counts not having heard the evidence of the anonymous witness, it is very difficult to see how they could have set aside the obvious force of the many matters relied on by the Crown on those earlier counts. Having looked at the evidence and the facts of the case very carefully, and of course considered the judge's summing-up, we consider that the convictions on those counts are safe. Accordingly, this appeal will be allowed only to the extent that the convictions on the last two counts, originally 13 and 14, are quashed. 32. LORD JUSTICE LAWS: Miss Dunkley, it occurs to us that in the light of that decision you may wish to say something about sentence. I am not necessarily encouraging you to, but this was an IPP with a fixed term of seven years. I am not suggesting it is realistic that that could come down, but as he is no longer to be held guilty of the last two counts I think we probably should give you an opportunity, however briefly, by way of a late application for leave to appeal against sentence to say anything if you want to. I am not particularly encouraging you to. (Submissions regarding sentence followed) 33. LORD JUSTICE LAWS: In light of our judgment on conviction we have permitted Miss Dunkley to make short submissions on sentence by way of a late application for leave to appeal against sentence. We do not repeat the facts of the case which are described in our judgment on conviction. We are grateful to Miss Dunkley for her short submissions and, as we should have said earlier, especially so for her treatment of the point on which she has been successful in this court, a point which, so far as we can see, occurred to her before it occurred to anyone else. 34. In light of the fact that the appellant, as he now is, no longer stands convicted of the two conspiracy counts, it seems to us that some alteration to the minimum term of seven years' detention in a young offenders institution imposed on counts 4 and 7 on the indictment should be made. Such a minimum term was also fixed for count 12, conspiracy to possess a firearm, and it is reasonably clear that the judge considered that the notional determinate sentence represented by that minimum term, namely a sentence of 14 years, was the total sentence justified given all the offences of which this appellant has been convicted, and it may be said not least the two conspiracy offences. In the circumstances we propose to quash the minimum term of seven years fixed on counts 4 and 7 and in each case substitute a minimum term of six years' detention in a young offenders institution. All other sentences remain untouched. The sentences run concurrent with each other, as the judge ordered them to do. 35. We grant leave to appeal against sentence, treat this hearing as the hearing of the appeal and allow it to that extent.

```yaml citation: '[2010] EWCA Crim 2250' date: '2010-08-03' judges: - LORD JUSTICE LAWS - MR JUSTICE MCCOMBE - MR JUSTICE KING ```

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Neutral Citation Number: [2015] EWCA Crim 1630 Case No. 201501985 B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 22nd September 2015 B e f o r e : LORD JUSTICE LLOYD JONES MR JUSTICE BLAKE MR JUSTICE HADDON-CAVE - - - - - - - - - - - - - - - R E G I N A v J VG - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph notes of WordWave International Ltd trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Mr J Arsenio appeared on behalf of the Appellant Mr J Gadsden appeared on behalf of the Crown - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE LLOYD JONES: On 27th March 2015, in the Crown Court at Kingston before Recorder Featherby, the appellant was convicted of two counts of assault of a child under the age of 13 by penetration (counts 3 and 7) and two counts of causing or inciting a child under the age of 13 to engage in sexual activity (counts 4 and 8). On 1st May 2015, before the same judge, he was sentenced as follows: on count 3, a term of four years' imprisonment; on count 4, a term of two years' imprisonment concurrent; on count 7, a term of five years' imprisonment, that sentence to be consecutive to the other terms; and on count 8, a sentence of three and a half years concurrent to the other terms. So the total sentence was one of nine years' imprisonment. 2. Having been convicted of an offence listed in schedule 3 to the Sexual Offences Act 2003, the appellant is required to comply with the provisions of Part 2 of that Act indefinitely. 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 is included in the relevant list by the Independent Safeguarding Authority. In addition, the judge made a Sexual Offences Prevention Order. 3. Counts 5, 6, 12, 13, 14 and 15 were ordered to lie on the file against him on the usual terms. 4. He now appeals against conviction by leave of the single judge, who limited leave to grounds 1 and 2. We have been assisted by the submissions of Mr Arsenio, who has also renewed his application for leave to appeal against conviction on ground 3. 5. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. Where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless it is waived or lifted under section 3 of the Act. We have invited submissions today and no submissions have been made to us. 6. The appellant originally faced an indictment of 15 counts. He was tried in October 2013 and was acquitted of the three counts of rape and two counts of sexual assault. The jury were unable to agree in respect of the other counts. At the re-trial the prosecution proceeded with four counts only. The remaining counts were left on the file on the usual terms. 7. All of the counts were based on allegations of the same complainant. I shall refer to her as AB". 8. Counts 1 and 2 of the trial indictment covered the first incident, which she stated occurred in 2005 or 2006, when the complainant had been five to six years old. Counts 3 and 4 mirrored the allegations but covered the period when the complainant was aged six to 12 years old, that is 2005 to 2011. She essentially reported that the appellant had over those periods of time repeatedly digitally penetrated her vagina and had repeatedly made her masturbate him. 9. Her first report was made to a general practitioner in January 2013, when she was then 13 years old. She had attended the police station and was interviewed on 17th January 2013 and on a second occasion on 2nd March. After the first interview, and after the tape machine had been turned off, she informed the officer that there was a stain of blood on the appellant's mattress from when she had been menstruating on one occasion. 10. The appellant was arrested and interviewed. He made no comment. 11. The prosecution case was that the complainant was telling the truth and that what she said had happened. The defence case was that the complainant was lying and that nothing remotely improper had ever occurred as claimed. 12. On behalf of the prosecution, AB gave her evidence in chief via her Achieving Best Evidence Interview and she was cross-examined in the usual way over a video link. At the date of her evidence she was 15 years of age. 13. Her evidence was that when she visited the appellant from an early age they would sleep naked in the same bed. On every Saturday night in bed, and on Sunday morning in front of the fire, the appellant would insert his fingers into her vagina, touch her breasts and play with her nipples. He also guided her hand to rub his penis and masturbate him. On approximately five occasions this led to ejaculation. She said that he used words such as "bitch", "cunt" and "fuck" when this was happening. This happened repeatedly from when she was aged six to when the appellant had heart surgery in 2012, when she was 13 years old. 14. On one occasion when they had been naked in bed she had been menstruating and blood had stained the appellant's mattress. She said that she had on occasion helped him change his sheets and turn the mattress. She said that he had been unable to do it on his own because of his age. 15. She said that she did find the appellant controlling but that this was not a motive to lie and she denied that she was lying. 16. She accepted that she had sent affectionate Christmas and birthday cards to the appellant, but she said that her mother had made her write what she had written. When she had refused to sign the Christmas card at Christmas 2012, her mother had forged her signature. 17. The complainant's mother gave evidence that she had asked the appellant to have the children of a weekend. She agreed that her children did argue and bicker between themselves. She remembered a conversation with the appellant when he had told her that the complainant had not wanted to sleep in the bedroom on her own and she told the complainant that she must. The complainant, she said, had refused to sign the Christmas card for the appellant in 2012. The complainant would not say why. She had signed the card herself on behalf of her daughter, fearing that otherwise the appellant would be very upset. 18. A statement of Dr Chill was read. The complainant had attended on Dr Chill, a general practitioner, with her mother on 2nd January 2013, reporting low mood and sadness. She reported avoiding the appellant after an incident a year previously which had not been sexual. 19. There was then read a statement from Dr Rayman, who attended the complainant and her mother on 9th January. He asked the mother to leave and the complainant then reported that the appellant had been sexually abusing her since she had been aged about four years old. She reported that the appellant had digitally penetrated her and had her touch his penis when she stayed with him on a Saturday night. It had stopped a year previously following an operation which had meant that the appellant could no longer look after her. As a result of this report the police and social services were notified. 20. There was evidence of the examination of the mattress on the appellant's bed, which bore two blue stains which tested positive for blood. The area of the mattress had been cut and was submitted for laboratory examination. There was evidence from a forensic scientist who had conducted tests on the mattress sections and had compared the blood found to the DNA of the complainant, with which it matched. 21. The appellant gave evidence in his defence that initially AB and her brother had stayed with him on Saturday nights to give their mother a break. It had been at their mother's request. AB had then been six years old. However, the siblings had constantly argued and he had found it too much. He had suggested that he have them separately, and as a result the complainant visited every three weeks initially, but that had then decreased over the years. The complainant's mother would telephone to make arrangements and the complainant had never seemed reluctant to come. 22. There had been two occasions when he had shared a bed with the complainant and they were when she was maybe six years old. Her father had left and had just started visiting. She had been nervous and had been scared of the dark and of the room. They had worn pyjamas on both occasions. He had spoken to his daughter, who had told the complainant that she must stay in her own bed. 23. He said that he had never seen the complainant naked, nor had she seen him naked. He had supplied the complainant with a taste of wine once when she was eight or nine years old and she had not liked it. She had not consumed half a bottle and had never been intoxicated. He had never digitally penetrated the complainant's vagina or touched her sexually. She had never masturbated him. He said that he did not swear. His evidence was that these things which were alleged against him had never happened. 24. He confirmed that on occasion when she visited, her mother had said that she was menstruating. He was surprised because she was only ten years old. He had left the complainant at his address, and when he had come back at about 6.30 to 7 that evening she was asleep, fully clothed, on his bed. There had been laundry on one of the beds in her usual room. He tried to rouse her, but she told him to leave her alone and he had returned downstairs to eat. When he retired to bed, he had gone to the other bedroom. 25. On the Sunday he had noticed that there was blood on the mattress. He thought it looked unsightly and unhygienic and tried to clean it, but it had remained and so he put ink over it and flipped the mattress over. The complainant had been wearing the same clothes on the following day but he had not seen any blood on them. He had not told the complainant that she had bled on to his bed. On her next visit, some weeks later, he had shown her the ink and told her that she had stained the mattress. 26. He could not explain why he had not answered questions at the police interview. He said he had been advised not to do so by his solicitor. He said he was shocked and appalled at the allegations being made. He had not wanted to be misunderstood. He also said that he had been sexually dysfunctional for some years, since the last two years of his marriage. He had no sexual desire or feelings. He had had no relationships and he could not attain an erection. 27. His evidence was that the Christmas and birthday cards from the complainant showed entirely appropriate affection from the complainant towards him. 28. He could give no reason for the complainant to tell lies. He said he had never been horrid to her and they had never had any arguments. He wondered whether she missed her father or a father figure. 29. There was character evidence called in his support from his son and his former wife. 30. The single judge gave leave to appeal on two grounds. 31. The first ground is that the judge erred when he gave a defective and diluted good character direction regarding the appellant. 32. Here, Mr Arsenio says that although the judge initially gave an adequate direction, he later diluted it, rendering it defective. The initial direction was entirely conventional: the judge reminded the jury of the appellant's good character, that he had no convictions and that witnesses had given evidence of his positive qualities. He directed the jury that they should take this into account in relation to his credibility and in relation to the likelihood that he had committed these offences. The judge gave both limbs of the direction. If it had ended there, it seems to us, and indeed Mr Arsenio accepts, no objection could be made to the direction. However, first, objection is taken to the further statement by the judge: i. "You should bear in mind however that the prosecution's case is that these alleged crimes took place over a number of years and were concealed." 33. It is said that this provides an explanation as to why the apparent good character existed, and by doing so undermines the direction. 34. In our view, this additional statement was unfortunate. However, the sentence complained of comes immediately after this sentence: i. "You are entitled to take into account everything you have heard about the defendant, including his age and what his son and former wife have said about him." 35. When the sentence to which objection is made is read in that context, it simply makes the point that those witnesses would have been unaware of what the complainant says was taking place at a time when they considered his character to be a good character. 36. Furthermore, it seems to us, a measure of balance is restored by the words which immediately follow: i. "Having said that, considering what you know about the defendant you may think he is entitled to ask you to give weight to his previous good character when you are deciding whether the prosecution have satisfied you that he is guilty." 37. However, objection is made to those words on other grounds. The judge used the words "you may think that he is entitled to ask you to give weight to his previous good character", and it is said that the inclusion of the word "previous" is "deplorable, wrong and misleading". 38. On the face of it, it may appear that the use of the word "previous" inappropriately qualifies the direction. However, we do not understand the judge to be suggesting by the use of the word "previous" that the appellant committed the offences with which he is charged. The word "previous" is used three times in the direction and it is only of the last appearance that complaint is made. The fact that the last reference is consistent with the previous usage dilutes any potential adverse effect of the direction. In our view, the word is used to distinguish the fact of his earlier good character from the allegations which he now faced and was, and would have been understood to be, neutral. 39. Then it is said that the direction gives the impression that it is open to the jury not to consider the evidence at all. The purpose of the direction is to convey to the jury that they ought to take account of relevant evidence of good character. The specimen direction is not a mantra that has to be repeated word for word; the question is whether the direction, taken as a whole, conveyed the need to take character appropriately into account. 40. Here the appellant relies on Moustakim [2008] EWCA Crim 3096 . There the words "she is entitled to have it argued on her behalf" were held to be inadequate. However, we consider that Moustakim is distinguishable. There this court concluded that the direction was inadequate for a number of reasons. First, there was no explicit positive direction that the jury should take the appellant's good character into account in her favour. Secondly, 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 of whether the jury believed her account. Thirdly, 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, and the use of the word "perhaps" is a significant dilution of the required direction. Fourthly, in the judge's direction each limb was expressed as what the defendant was entitled to say or argue, not, as it should have been, a direction from the judge himself. 41. In the present case the form of words was "you may think". The use of these words was unfortunate. The jury were required to take account of this evidence. What weight they gave it was a matter for them. However, none of the vices identified in Moustakim was present in this case. Here the jury can have been in no doubt that the evidence of good character was evidence which they should take into account in the appellant's favour. They had been told so in terms by the judge. 42. Ground 2 43. It is said that the judge made improper comments in the summing-up and that he was biased towards the prosecution. Here the appellant relies on a number of matters to which I shall refer in turn. (i) Evidence of a child's perception 44. The judge said this: i. "There is an important point to bear in mind about [AB]. When a child is six she may well not be able to see clearly or understand that sexual activity is wrong or inappropriate, especially with an adult. She will already have been conditioned, quite properly, to trust an adult relation. She might even be flattered by the attention. But when the child is 12 or 13 however, knowing much more about the world and having learned more about what makes sexual activity appropriate or inappropriate, feelings that things are wrong may well come to dominate and allegations may explode forth where there was previously silence and no suspicion of them. These are considerations that you should bear in mind." 45. Mr Arsenio objects to these statements on the ground that while this may be so in many cases, the judge should not have stated this as a general rule. He says that this was directly linked to the question of not having any inhibitions in undressing before her grandfather, a matter which was explored in cross-examination. He says that there was no evidence to support those comments and that they consequently empowered and assisted the prosecution case, lending undue credibility to the complainant's account that she did not have any inhibition or problems undressing in front of her grandfather. 46. However, as Mr Gadsden for the Crown points out, there was in fact an evidential basis for the judge's comments. The complainant had given evidence that she loved her grandfather when she was young and had thought that his sexual behaviour towards her was a normal way for that love to be reciprocated, but that by the time she turned 12 she had come to realise that such behaviour was abnormal and improper. 47. Furthermore, we agree with Mr Gadsden's submission that the fact that a six-year-old child may think that there is nothing wrong with getting undressed in the presence of her grandfather is very difficult from a six-year-old child thinking that there is nothing wrong in engaging in sexual behaviour with her grandfather, and would be understood by the jury as such. 48. In any event, we consider that the judge was entitled to remind the jury that a child of 13 may have a different perspective of sexual impropriety with a grandfather than a child of six. 49. (ii) Swearing 50. The complainant gave evidence that her grandfather swore during the alleged sexual activities. However, it was the evidence of the complainant and others, his ex-wife and his son, that he never swore, and Mr Arsenio complains of the judge's observation in relation to this. The judge said this: i. "She said he would use sexual words while this was happening, bitch, cunt and fuck. This has been described at various stages [as] swearing. ii. ... when a person hits their thumb with the end of the hammer you might swear, use one of those words, but using those words in a sexual context is quite different you might think. Some people might use them for stimulation or to heighten the experience, and that is effectively what [AB] is saying took place. It's not swearing as such, it is the use of words which we associate as swear words in a sexual context." 51. Mr Arsenio submits that the judge sought to neutralise the defence evidence on this point by distinguishing the use of such words for sexual stimulation and the same words used in other contexts, implying that it was possible that the appellant did not swear in general but would say such words in a sexual context. This is said to be particularly grave because it undermined an important point for the defence, which also called into question the complainant's credibility as a witness. Offering an alternative explanation for the complainant's account would have had the effect of augmenting her credibility. 52. In our view, the judge's observations were not unfair to the appellant. The judge was right to draw a distinction between abusive language directed at a child or other person that was out of context and the use of obscene language as part of a sexual experience. It was not the prosecution case that the appellant swore at the complainant; rather, that he used these words to increase his sexual gratification. The latter was obviously a matter on which his son could not comment. In these circumstances, the judge was entitled to draw attention to the difference. 53. (iii) Day clothes worn at the time of the menstrual leakage 54. The appellant complains that the judge gave great emphasis to the fact that, according to the appellant, the complainant was wearing her day clothes at the time of the menstrual leakage and was still in her day clothes the next day but he had seen no blood on them. The judge, in his directions to the jury, said this: i. "Well there are several things for you to think about this, to consider about this. Firstly, how can [AB] have been fully clothed and yet leak menstrual blood onto the bed without staining her clothes and/or making them damp? ii. The defendant said in evidence there was no blood on her trousers 'If there had been blood on her trousers I would have seen it. She was still in her day clothes the next day'. iii. Well, if that is right, how did the blood pass from [AB's] body to the bed without staining or dampening her clothes? Defence counsel suggested that AB might have changed her clothes between the leak of menstrual blood and the defendant seeing her fully clothed. iv. Well, that was not put to [AB] so she has not been able to deal with that point and it is not supported by the evidence and there is no evidence that [AB] had a spare set of clothes with her into which she could change. v. Is the truth of the matter, so that you can be sure, that what [AB] says, namely that she was naked on the bed and with the defendant and leaked? Well that is a question for you." 55. Mr Arsenio accepts that the judge was correct in stating that there was no evidence of a spare set of clothes, but makes the point that there was no evidence to the contrary and that this point had been made in his closing speech. In fact, there was no evidential basis for the suggestion that AB may have had a spare set of clothes to change into. Neither the complainant, nor the appellant, had suggested that. 56. Furthermore, we are told by Mr Gadsden on behalf of the Crown that at the conclusion of the defence speech the judge, in the absence of the jury, had informed Mr Arsenio that there was no evidence on this point and that he proposed to sum up to the jury in the manner in which he in fact did. He invited submissions on the point and none was forthcoming. 57. It seems to us that this was a good point for the Crown. It was put to the appellant in cross-examination. It was an important point going to whether AB was telling the truth when she said that he was naked when she menstruated. 58. (iv) The turning of the mattress 59. It was the appellant's evidence that he had turned the stained mattress alone. Mr Arsenio criticses the judge for casting doubt on this part of the appellant's evidence. The judge said this: i. "Next: how was it that [AB] knew to tell the police after the end of the first recorded interview, after the machine had been switched off, that there was a stain of blood on the bed ... Remember, there is no doubt whatever that the blood was [AB's] menstrual blood, any other suggestion would be quite wrong. ii. The defendant said yesterday: 'On Sunday I saw the stain. [AB] didn't even know. I never told her she had leaked on the bed'. Well, never was the word he used. iii. Mr Gadsden, prosecuting counsel, then put it to [her] how then did she know about the blood to tell the police and the defendant said this ... 'Later on I said to her: "Look at the mattress, that's what you've done to the bed". When she came on the next visit I pointed it out to her, that was two or three weeks later. I turned the mattress back and showed her the blue stain'. iv. Well none of this was put to [AB] so she has had no opportunity to deal with it. What [AB] did say, and I quote, 'Sometimes I helped him change the sheets ... we would flip the mattress to keep it fresh. The defendant couldn't flip the mattress himself because he was old'. v. Well, you are entitled to ask yourself whether the defendant, as he says, turned the mattress over himself. Also, did the defendant find himself fatally caught out by this point and then invented a story about showing [AB] her blood some time later to try and get himself out of the trap that prosecution counsel sprang. Well, these are matters for you but they are examples of issues that mean that this case may not just be a matter of one person's word against another." 60. Mr Arsenio criticises the judge's comment that this might be more than just one person's word against another, and he says that this resulted in an unbalanced summing-up. 61. It was the prosecution case that the appellant had been caught out on a lie and had tried to escape by inventing a story about showing the complainant the stain on a later occasion. In the circumstances, we consider that the judge was entitled to sum up on this issue in the way in which he did. 62. (v) Sexual dysfunction 63. Mr Arsenio objects to the judge's statement that there was no independent evidence that the appellant had sexual dysfunction and that it would not have been difficult to obtain such evidence. The judge said this: i. "The defendant must know if this were true it would demolish the prosecution case. Although the defendant does not have to prove anything, it is for the prosecution to prove the facts so that you are sure, you are entitled to take into account the fact that ... there is no independent evidence to back this up, which you might think it is not difficult to obtain but has not been part of the evidence." 64. This, the appellant says, casts doubt on the appellant's evidence and that, in any event, any such evidence would have related to the time after the appellant's heart operation and not to the period of time encompassing the allegations. 65. In our view, the judge was entitled to draw attention to this matter. Moreover, the point made by the prosecution was that in the light of the appellant's positive assertion that he had been sexually dysfunctional for the last two years of his married life, it was surprising that there was no reference to this in his statement taken by his solicitors from his former wife which was read to the jury. 66. (vi) Birthday and Christmas cards 67. The appellant relied on cards from the complainant as evidencing an entirely normal relationship. The complainant's mother gave evidence that the complainant had written on the cards willingly, with the exception of the 2012 Christmas card which she refused to sign. The complainant gave evidence in relation to one birthday card that "my mother would make me write what's there". 68. The judge said this in his summing-up about this matter: i. "The defendant relies on these. He says they indicate that all was well and that [AB] was affectionate towards him, not regarding him as her abuser. 'Look', he says, 'they're messages of affection entirely appropriate for a granddaughter to her grandfather'. Well indeed they are, but what is important is what was really going on in [AB's] head at the time. Were her messages really what she thought or was she writing them, as it were, between gritted teeth to appease the rest of her family perhaps so as not to ... arouse suspicion." 69. Mr Arsenio complains that the judge offered an explanation to assist the complainant's evidence and support her credibility, in circumstances where her mother had contradicted her evidence. He complains that the judge failed to remind the jury of her mother's evidence. 70. It seems to us that the jury would have been well aware of the differing accounts of the complainant and her mother. It seems to us that there is no substance in this complaint. 71. (vii) Mr Arsenio submits that the judge suggested to the jury that the complainant was not lying 72. The judge said this: i. "Well, the central issue in this case then is that [AB] and the prosecution say that she is telling the truth and you can be sure of that. The defendant says it is a pack of lies. He is not saying there was some misunderstanding or that [AB] is too mentally ill to give a reliable account, or is hallucinating or something of that sort. No, the defendant accuses her of lying and that she knows she is lying, it is as simple as that. ii. Well, if [AB] has been lying, she's been lying now for two years to people in authority and has done so on several occasions. Her lies, if lies they are, would have split an otherwise apparently perfectly healthy, happy family, it would have been a very wicked thing to do. There is no suggestion that [AB] might be lying, for example, because the family was already unhappy and sides were being taken in some family split, or because she had some malicious but false motive for taking revenge on the defendant. There is no suggestion that [AB] is a fantasist habitually, or a habitual liar, or that she has lied on some other occasion." 73. Mr Arsenio submits that this strongly suggests to the jury that the complainant could not have been lying. 74. It seems to us that the judge is here identifying the central issue for the jury's decision and then goes on to deal with possible motivation. No motive had been suggested by the appellant at the trial for malicious fabrication other than the suggestion that she might be missing a father figure. Mr Arsenio referred to this in his closing submissions but it was not put to the complainant. The judge was right to refer to this. 75. We do not consider that the judge exceeded his proper function in addressing the matter in these terms. 76. (viii) The discussion of the jury note 77. Here it is submitted on behalf of the appellant that the judge's comments in relation to possible verdicts revealed an approach to the case which was biased in favour of the prosecution. 78. We should make clear that we are unable to find any support for this submission. Moreover, the discussion in the absence of the jury is irrelevant to the safety of the conviction. 79. To conclude then in relation to ground 2, the judge, in our view, went some way in commenting on the evidence in the case. However, we do not consider that he did so in a biased or unfair way. Moreover, he had directed the jury at the start of his summing-up that if he appeared to have a view of the case, the jury was not bound to accept it. In our view, there is no basis here to doubt the safety of the conviction. 80. Finally, I turn to the renewed application for leave to appeal against conviction. Here, the appellant submits that the guilty verdicts at the re-trial were inconsistent with the not guilty verdicts at the first trial. 81. Leave to appeal has been refused on this ground by the single judge, who in his written observations said: i. "This [ground] is in my view misconceived. This is not a case of a single jury, in a single trial, returning verdicts which could be regarded as inconsistent. The first jury reached verdicts on some counts, but not on others. Counsel has confirmed that no submission was made that a retrial would be an abuse of the process, and I do not see how such an argument could have been advanced. The second jury were entitled to reach their own verdicts as to the counts which were before them." 82. Accordingly, Holroyde J refused leave on that ground. 83. We agree with the single judge. The fact that one jury had a doubt does not mean that a second jury acted irrationally in not having a doubt. 84. Accordingly, the appeal will be dismissed and the renewed application will be refused.

```yaml citation: '[2015] EWCA Crim 1630' date: '2015-09-22' judges: - LORD JUSTICE LLOYD JONES - MR JUSTICE BLAKE - MR JUSTICE HADDON-CAVE ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical 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: 201402061 C2 Neutral Citation Number: [2015] EWCA Crim 43 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT His Honour Judge Bishop T20127498 Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/02/2015 Before: LADY JUSTICE RAFFERTY MR JUSTICE FOSKETT and HIS HONOUR JUDGE CAREY DL (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION - - - - - - - - - - - - - - - - - - - - - Between: REGINA Appellant - and - NAZAKAT ALI Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Matthew Ryder QC and Michelle Butler for the Appellant John McGuinness QC and Catherine Rabaiotti for the Respondent Hearing date: 11 th December 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lady Justice Rafferty: 1. Nazakat Ali (38) on 28 March 2014 at the Crown Court sitting at Inner London was convicted of and on 22 April 2014 sentenced in respect of Counts 3 and 4, assisting unlawful immigration to a member state, contrary to section 25 of the Immigration Act 1971 to six years imprisonment, and for Count 6, encouraging or assisting an offence contrary to section 45 of the Serious Crime Act 2007 , to 18 months imprisonment to run concurrently. 2. He appeals against conviction by leave of the single judge. 3. The appellant was a sole practitioner and principal of Ali Sinclair Solicitors in Forest Gate, East London, specialising in immigration law. He had clients of Indian and Pakistani nationality who had limited leave to enter and remain in the UK. The Crown’s case concerned his assisting clients to secure immigration status in the UK by ‘sham marriages’ to European nationals. By marrying a national from a country within the European Economic Area (“EEA”) settled in the UK, foreign nationals would acquire the same rights to live, work and study in the UK as their spouse, and secure their own immigration status. 4. The procedure was: i) The client applied for and obtained a Certificate of Approval (“COA”) from the UK Border Agency (“UKBA”); ii) A 3 month period followed during which notice of marriage could be given; iii) Once married the foreign national acquired rights to remain and could apply to the UKBA for a Residence Card which would confirm right of residence for 5 years; iv) After 5 years, the foreign national acquired the right of permanent residence. 5. The rights could only be acquired if the marriage were not a sham. A sham marriage is undertaken solely for immigration purposes, with no intention from the outset of living together as man and wife in a settled and genuine relationship. 6. Counts 3 and 4 pleaded that the Appellant did acts which facilitated the commission of a breach of immigration law by an individual who was not a citizen of the European Union, namely Danish Ali (“DA” count 3) and Muhammed Mughal (“MM” count 4) knowing or having reasonable cause for believing that the acts facilitated the commission of a breach of immigration law by the individual who was not an EU citizen. 7. The breach said to have been facilitated was the commission by DA and MM of an offence contrary to s24 A(1) Immigration Act 1971 , which provides: “(1) A person who is not a British Citizen is guilty of an offence if, by means which include deception by him- (a) he obtains or seeks to obtain leave to enter or remain in the United Kingdom; or (b) he secures or seeks to secure the avoidance, postponement or revocation of enforcement action against him. (2) “Enforcement action” in relation to a person, means (a) the giving of directions for his removal from the United Kingdom (“directions”) under Schedule 2 to the Act or section 10 of the Immigration and Asylum Act 1999 ; (b) the making of a deportation order against him under section 5 of this Act ; or (c) his removal from the United Kingdom in consequence of directions or a deportation order.” 8. The Crown’s case on counts 3 and 4 was that the Appellant helped DA and MM, two clients of Pakistani nationality, to submit bogus applications for COAs in respect of intended sham marriages to Anna Cancela, a Portuguese national, and Svetlana Balogova, a Czech national. In each case the Crown alleged that false declarations were made and false documents submitted in support, to the effect that the clients and their intended brides were living together. Both applications were refused. 9. On Count 6, alleging acts capable of encouraging or assisting in securing or seeking to secure avoidance of enforcement action by means which included deception, in contravention of section 24 A of the Immigration Act 1971 , believing the offence would be committed and that his acts would assist its commission, the Crown relied on covert recordings by a journalist posing as the uncle of a young man whose student visa was about to expire, but who wished to remain in the UK and was prepared to do so by undertaking a sham marriage. The Crown invited the inference that the Appellant encouraged and assisted a section 24 A offence by arranging an application for a COA of what would have been a sham marriage. 10. The defence to count 3 was that DA’s account implicating the Appellant was false, designed to divert attention from his own wrongdoing. On count 4 the Appellant denied impropriety in relation to MM’s file and suggested that it was not he but his colleagues who had dealt with MM’s case. On count 6 he claimed he sought instructions in conformity with his professional duties and that at no time did he know or have reasonable cause to believe he was facilitating breaches of immigration law. 11. The issues on counts 3 and 4 were whether the Appellant did the acts, whether they facilitated DA’s/MM’s breach of immigration law by entering a sham marriage, whether he knew or had reasonable cause to believe his acts facilitated the breach of immigration law and whether at the time he did the acts, DA / MM intended to enter a sham marriage so as to obtain permission to remain. 12. The issues on count 6 were whether the Appellant did the acts, whether they were capable of encouraging or assisting the securing or seeking to secure the avoidance of enforcement action by means which include deception (a sham marriage), whether when he did those acts he believed the offence would be committed and that his acts would encourage or assist its commission, and whether it were more probable than not, given the circumstances he knew existed, that it was reasonable he should act as he did. 13. DA, in the UK on a visitor’s visa, told the jury he went to Ali Sinclair Solicitors for advice upon whether he could extend it. The Appellant advised nothing could be done. He returned and the Appellant said the same, but that a man called Parvez could arrange for DA to marry an European. The Appellant rang Parvez who came to the office. The Appellant told the two to make a deal and in a restaurant downstairs Parvez said he had a Portuguese female’s passport and for £10,000 could arrange that DA should marry her. Back in the Appellant’s office Parvez gave the Portuguese passport and DA’s passport to the Appellant. DA paid £2,000 to Parvez in front of the Appellant and paid £300 as the Appellant’s fees. The Appellant signed what he said were legal papers but, said DA, he could not read them. 14. The Appellant’s staff helped him fill out a form applying for a COA. Ali Sinclair solicitors submitted supporting documents suggesting, falsely, that DA and Ms Cancela were living together at his address. DA did not know of them or instruct Ali Sinclair solicitors to submit them. He did not meet Ms Cancela or tell the solicitors he was living with anyone. He believed what he was doing was permissible. He intended and was willing to stay with her in a genuine marriage, if she converted to Islam, so as to live in the UK. 15. Formal Admissions included his submission of false documents in his application / appeal for his visitor’s visa in 2008, though to the jury DA denied knowing they were false. 16. As to count 4, Ali Sinclair solicitors prepared and submitted a 9 March 2010 application by MM for a COA to marry Svetlana Balogova. There was no evidence from MM before the jury 17. Through a woman known as Lida, Miss Balogova arrived in the UK on 26 February 2010, and began work as a prostitute controlled by Lida and her associates. Miss Balogova’s evidence was as follows: Lida said Miss Balogova would be getting married to someone unnamed to her. At a restaurant near the Appellant’s office Lida said Miss Balogova should have sex with “Ali”, whom Miss Balogova later formally identified as the Appellant. Lida and the Appellant were on familiar terms. Two Slovak girls were in the restaurant and Lida told them that they were to be married. In the office she met a man who said he had paid Lida for Miss Balogova’s favours and the two had sex next door to the waiting room. Downstairs, another man giving his name as Ali explained a like arrangement and once again she obliged, this time in the lavatory. Ali’s office was concerned with weddings. A wedding car was outside. She visited MM at his house. She did not intend to be in a genuine marriage to MM. She disavowed knowledge of a COA. 18. The Crown relied on false documents in support of a COA application of 10 March 2010 suggesting MM was living with Miss Balogova and on texts between the Appellant and an associate of Lida, Iveta Viragova. The texts were led as evidence that the Appellant was seeking from Lida and Miss Viragova female partners for his clients and relied upon as establishing his bad character. 19. As to count 6 Paul Samrai an undercover reporter made a film about sham marriages. At Ali Sinclair, wearing covert equipment Samrai posed as the uncle of a young man whose visa would expire on 31 December 2010. There was an urgent need for an extension. His exchanges with the Appellant were broadcast as part of a BBC Panorama programme in March 2011. 20. The Crown invited the inference that the Appellant encouraged and assisted an offence contrary to section 24 A by arranging an application for a COA of what would have been a sham marriage. In interview he made no comment to the majority of questions. 21. In a submission of no case to answer on counts 3 and 4 counsel argued that when considering ‘facilitating’ the commission of a breach of immigration law by non-EU nationals the first thing the jury had to decide was whether there had been any dishonesty on their part such as to constitute a breach or would-be breach of immigration law: Kaile [2009] EWCA Crim 2868 . Since DA’s evidence was that he intended a genuine relationship with Ms Cancela, albeit in the hope that she would convert, the Crown had not proved he intended to enter into a sham marriage and was party to a breach or would-be breach of immigration law. As to MM there was no evidence of his state of mind. 22. The Crown submitted that it need not prove mens rea, that is deception or intention on the part of the person whose alleged breach of immigration law the Appellant had facilitated. Kaile was distinguishable on its facts. 23. The Judge ruled that the jury must be sure of an intent by each client to deceive the authorities by entering a sham marriage with an EU national and so remain in the UK before or at the time of the facilitation by the Appellant under s25 . On count 3 it could find DA intended to deceive the authorities about the true nature of his marriage. There was sufficient evidence of the Appellant’s facilitation of the proposed marriage. On Count 4 the jury could infer from the evidence of Miss Balogova whether MM were intending a genuine and settled relationship. There was evidence on the documents of the Appellant’s facilitation of the COA application and the jury could convict on the evidence. The defence. 24. On count 3 the Appellant told the jury that Parvez Akhtar occasionally referred work though his was not a significant presence in the office and the Appellant had no idea of his involvement with DA. The Appellant did not discuss with Parvez “women for clients”. He could not remember dealing personally with DA nor recall his face when he saw it in court. What DA said was consistent with the advice the Appellant would have given but he did not remember it and did not contact Parvez on his behalf.. 25. DA’s account was false, designed to divert attention from his own wrongdoing. Ali Sinclair Solicitors had not knowingly submitted false or any documents as part of DA’s application without informing him. Any documents sent in support would have been provided by DA. 26. As to count 4 he had never met Miss Balogova . It was possible she attended his office to give instructions and had seen him. He denied sexual activity with her, impossible in the office, packed with clients 9.30 a.m. to 5.30 p.m, caseworkers staying until 8.30 p.m. to 9.00 p.m. Iveta Viragova referred cases including marriage cases. Their relationship was professional. That he had seen her after business hours was neither wrong nor sinister. She introduced him to Lida who also referred work. He did not pay for referrals. He did not know of their unlawful activity (agreed at trial) involving sham marriages. Had he been on notice he would have stopped dealing with them immediately. He did not ask them to supply women for clients. The texts had been taken out of context. 27. He denied impropriety in relation to MM’s file. He did not recall dealing personally with MM and the file suggested that it was his colleagues. He would not have suggested supply of a woman to any client or that false documents be submitted as part of an application. He relied on the undercover video footage where he was explicit: he would not supply women as part of an application. It was not necessary to demonstrate that the couple was living together, merely that it intended so to do. 28. Javaid Lukmani, solicitor, gave expert evidence as to professional conduct. Caseworkers at Ali Sinclair gave evidence of office practices. Couples who obtained advice and assistance gave evidence. The Appellant relied on character witnesses. 29. Prior to speeches the Judge invited discussion on the law. The Appellant submitted that no jury could be sure that his help for DA or MM facilitated either’s participation in sham marriages. The marriages never took place nor were close to taking place, the chain of causation was broken very early. There was also insufficient proximity between his actions and any future sham marriage. If the Judge were against him on that the summing up would require a detailed direction on ‘facilitates”. 30. The Judge rejected the submissions, allowed counts 3 and 4 to go to the jury and did not give a detailed direction on ‘facilitates’. 31. In Grounds of Appeal as to counts 3 and 4, well-described as the primary ground, the submission is that the acts alleged were not capable in law of constituting acts which facilitated a breach of immigration law. The secondary ground is that there was insufficient evidence that DA and MM intended a breach of immigration law by entering into sham marriages. 32. As to count 6, conceded as parasitic on those going to counts 3 and 4, the Judge is not criticised for having directed the jury that evidence on one could be used in support of the others. However, the Appellant submits that, for that reason, if the convictions on counts 3 and 4 are unsafe, then it follows that the conviction on count 6 is also unsafe. 33. Developing those arguments Mr Matthew Ryder QC submits that the alleged breaches of immigration law were the other persons entering into a sham marriage. None occurred, no dates had been set, and no arrangements made. It was not even clear the marriages would take place, not least as both brides had applied to marry others. The preliminary step the Appellant took – putting others into a position to enter into a sham marriage - was of no effect: It was too remote from the alleged possible breach of immigration law by others to be capable in law of facilitating them. 34. The secondary issue is whether, in relation to the two counts contrary to section 25 IA 1971 , there were sufficient evidence that the others intended to enter into sham marriages. 35. The Appellant submits that DA’s evidence was that he intended to enter into a genuine marriage assuming the bride’s conversion to Islam. It was agreed at trial that he had submitted false documents as part of his application for his visitor’s visa in 2008. Though DA denied knowing they were false Mr Ryder was obliged to concede that he had accepted a caution. 36. Since MM did not give evidence the submission is that there was no direct evidence of his state of mind or intentions had the marriage occurred. It was unclear whether he hoped to live with his bride after the marriage. No jury properly directed could have been sure he intended to enter into a sham marriage. Discussion and conclusion 37. Three questions arise as to Ground 1: i) Was it necessary for the Crown to prove that sham marriages took place? ii) If it were not, were the acts the jury was entitled to find the Appellant had committed capable as a matter of law of being acts of facilitation? iii) If they were, was the Judge required to give a detailed direction on ‘facilitates’? 38. The first issue, (i), was not in dispute in this appeal. The Appellant accepts that it was not necessary for the Crown to prove that the sham marriages actually took place. But the Appellant submits that the Crown was required to prove that the Appellant’s acts actually made it easier for other persons to enter into sham marriages, even if never actually did so. That issue is dealt with below. 39. The language of section 24 A(1) in our view provides for the commission of an offence by (at its lowest) seeking to secure the avoidance of enforcement action. To be guilty the person need not complete the sham marriage ceremony, indeed if prevented ‘at the altar’ he would still commit the offence. 40. Alternatively, the language of section 25(1) , that a person commits an offence if he does an act which facilitates the commission of a breach of immigration law by an individual who is not a citizen of the European Union permits commission of the facilitating offence absent commission of the s 24 A(1) offence facilitated. 41. In R v Jayaherifard & Miller [2006] Imm AR 185 at § 37 the Court said: “We put “facilitates” in the present tense as used in the statute even though the facilitating act itself must have been done for the substantive s 25 offence to have been committed. This is because it is not necessary to prove that the breach of immigration law has actually been committed. It is sufficient to prove that a future breach has been facilitated by what the defendant has done: see R v Eyck & Hadakoglu [2000] 2 Cr. App. R. 50.” 42. Other authorities support our view that an offence can be facilitated whether or not committed. In R v Adams [1996] Crim. L. R. 593 , being knowingly concerned in making or carrying out arrangements for securing or facilitating the entry into the UK of anyone a defendant knew or had reasonable cause for believing to be an illegal entrant, the Court held that entry was not a condition precedent. It was sufficient that the defendant made or carried out the arrangements for securing or facilitating entry “of somebody he knows or has reasonable cause to believe would be an illegal entrant were entry to be made.” 43. Adams was approved in Eyck which held that it was for the jury to decide whether 15 Afghan nationals hidden on a ferry into Dover intended to enter or seek to enter illegally, and whether the defendant were knowingly concerned in carrying out arrangements for facilitating such. The question was “whether the charge…can relate to a would-be or an intending illegal entrant . The Court held it was the former. 44. A construction of s25 restricting its ambit to completion of the ‘marriage’ ceremony would render the section impotent. If, after the Appellant provided the alleged service, the client or bride at the altar declined to go through with the ceremony, no offence would have been committed. 45. That cannot be right. It is therefore not in dispute that a sham marriage need not have taken place for the offence to be proved. However, the Crown must still prove that the Appellant’s acts ‘facilitated’ other persons entering into sham marriages. Therefore, the key issue in this appeal is whether the acts the Crown proved the Appellant committed were capable of being such facilitation. We could, without more, so have disposed of this appeal. However, in deference to the submissions of Mr Ryder we consider, albeit in less detail than we otherwise might, the balance of the Grounds. Were his acts capable of being acts of facilitation? 46. The Judge’s directions on Counts 3 and 4 that the Crown need not prove the sham marriages had occurred were plainly right. Having rehearsed the acts on which the Crown relied as acts of facilitation, he told the jury it must agree the Appellant had committed at least one such and unanimously agree on which it or they was or were, and it had to be sure the act or acts facilitated a breach of immigration law by DA or MM. 47. The acts relied upon were broadly similar. The Appellant provided a bride. DA was advised to see Akhtar, and in the presence of the Appellant DA gave Akhtar £2000. The Appellant’s associate Lida brought Miss Balogova to meet the Appellant at his office then took her on to meet MM. He advised DA and MM to make a false application for a COA which he took steps to ensure was submitted to the UKBA. 48. This simple rehearsal of the acts demonstrates, without more, the strength of the Crown’s position at trial. These were acts capable of facilitating a breach of immigration law by the clients. A sham bride was essential for a sham marriage and the Appellant was instrumental in finding her. A condition precedent for a sham marriage was an application for a COA, a document the Crown proved the Appellant was instrumental in creating and submitting. 49. The Appellant relies on the OED definition of ‘facilitates’: “to render easier the performance of an action, the attainment of a result; to afford facilities for, promote, help forward an action or process.” He submits that an act which facilitates causes that activity to be made easier and that an act which does not does not facilitate. 50. In our view that definition confronts him with a difficulty. The acts relied upon made it easier for the clients to commit the s24 A offence. It was for the jury once satisfied the Appellant committed the acts to decide as an issue of fact whether they facilitated a breach of immigration law. 51. We were taken to Dare v CPS [2012] EWHC 2074 (Admin) an appeal by case stated on facts without similarity to these. We derived no assistance from Dare. Was the Judge required to direct the jury on the meaning of ‘facilitates’? 52. Parliament did not find it necessary to provide a statutory definition and nothing before us persuaded us that the Judge should. There is nothing in this aspect of Ground 1. Ground 2 53. The Judge directed the jury that though the Crown could succeed without proving that DA or MM had committed an offence under s24 A it did have to prove that by intending to enter a sham marriage that each intended to commit the offence. 54. The Judge was right to reject submissions. It was for the jury to assess DA’s state of mind, looking at all the evidence. A condition that Miss Cancela should convert was not recorded on the application. Miss Balogova told the jury she was not entering a genuine marriage, she had made another application, and it was open to the jury to infer that MM was not intending to enter a genuine and settled relationship with her. The jury thus had direct evidence that she had no intention of living in a settled and genuine relationship with MM and it was open to it to infer that his intention was the same. 55. There is nothing in Ground 2. Ground 3 56. The Appellant accepts that if his appeals in respect of Counts 3 and 4 fail, there is no independent challenge to his conviction on Count 6. Count 6 specifically concerned five meetings between undercover journalists and the Appellant, all recorded. The actus reus was doing acts capable of encouraging or assisting the commission of an offence under section 24 A. Given the reliable contemporaneous record of these meetings, the evidence was strong. 57. There is no challenge to the Judge’s exemplary directions on the use of evidence of one count in support of another. There is nothing in this Ground. 58. For the reasons given this appeal is dismissed.

```yaml citation: '[2015] EWCA Crim 43' date: '2015-02-03' judges: - LADY JUSTICE RAFFERTY - MR JUSTICE FOSKETT - HIS HONOUR JUDGE CAREY DL (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION ```

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

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. [2023] EWCA Crim 1575 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO: 2022/02733/B2 Royal Courts of Justice Strand London WC2A 2LL Thursday 5 October 2023 Before: THE VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) LORD JUSTICE HOLROYDE MRS JUSTICE MAY DBE MRS JUSTICE ELLENBOGEN DBE REX v THOMAS MICHAEL NUTT __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ Non-counsel application _________ J U D G M E N T MRS JUSTICE ELLENBOGEN: 1. The applicant renews his application for leave to appeal against his conviction by a jury, on 10 August 2022, at the Crown Court at Snaresbrook, for the murder of his wife, an offence for which he was later sentenced to imprisonment for life with a minimum term of 21 years, less 289 days spent on remand. Having entered a plea of guilty to (unlawful act) manslaughter on his arraignment in April 2022, the sole issue at trial was whether he had intended to kill, or to cause really serious harm to, the deceased. The Background Facts 2. The applicant and his wife married on 27 October 2021. A reception followed at a public house. Separate CCTV footage later obtained by the police showed the couple (1) arriving at the reception at 3.03 pm and leaving at 10.20 pm, and (2) arriving home at 10.26 pm. 3. On the evening of 28 October 2021, the applicant travelled by car to the Skegness area, towing a caravan. He returned home at approximately 5.30 pm on 30 October 2021. At 12.22 pm on 31 October 2021, the applicant telephoned the Police to report that his wife was missing. He said that she had left home at around 9.30 that morning, to meet her daughter at a local shop, but had not arrived. That afternoon, at 1.20 pm, a police officer attended the applicant's home address to take a report, and, at 4.38 pm, the Police received an anonymous telephone call reporting that a body had been found in a suitcase in a field in Lightcliffe. The field was located very close to the applicant's home address. The body was that of his wife. At 5.13 pm, the applicant presented himself at Halifax Police Station. He was arrested on suspicion of murder and cautioned, in response to which he made the following significant comment: "We got married on the 27th and went to Skegness in a lay-by for 2 days. We came back and she has got bipolar and is depressed, said she wanted to get divorced. She put me in jail before, said I had tried raping her and assaulting her, said she was going to do it again. She started screaming and I have hit her in the face and put my arm around her neck." 4. In the course of the police interviews which followed, the applicant variously described the wedding and his arrival home with his wife. He went on to give detailed accounts of their journeys to and from Skegness and of his activities on their return. He asserted that his wife had "flipped", for no reason, and had demanded a divorce, threatening falsely to claim, and not for the first time, that he had raped her. He said that his wife had suffered from ‘Bipolar’ and that she had attacked him around his neck. He had struck her, once, to the face, with an open palm; to her nose and, possibly, her eye area. This had made her more aggressive and she had screamed, so he had been obliged to grab her around the neck (demonstrating a choke hold), he believed for a short time, and had begged her to stop screaming. The applicant said that he had not meant to kill his wife and that he had just wanted to shut her up. He said that, after what had felt like a few seconds, her body had gone limp and she had fallen to the floor. That, he said, had happened at the back door in the kitchen on the Saturday, 30 October, 30 to 40 minutes after they had arrived home. He had checked for a pulse and, in its absence, had put his wife’s body in the kitchen storage area. Detailed accounts were given of his activities thereafter. 5. Following the post-mortem on 1 November 2021, the Home Office pathologist concluded that the deceased had suffered blunt force trauma to her face, sustaining injuries compatible with more than one blow, which could have been caused by a punch, or by her head having struck an unyielding surface. In the pathologist's opinion, certain neck injuries had been caused by application of forceful pressure to the neck; "... the account provided by [the applicant] of using a choke hold around [the deceased's] neck readily accommodates the postmortem findings" . Nothing in the pathologist's report assisted with determination of the time of death. 6. The particulars of the offence set out in the indictment alleged that the deceased had been killed between 27 and 31 October 2021. At trial, the Crown's case was that she had been killed at around midnight on 28 October. Reliance was placed upon the neighbour's evidence of 'banging' sounds, when the applicant and his wife had arrived home on 27 October; CCTV footage which had not shown the deceased having left their home thereafter; and ANPR images, said to indicate that the front passenger seat of the applicant's car had been empty during his journeys to and from Skegness. It was said that the diffuse and substantial injuries sustained by the deceased pointed to a sustained attack, consistent with, at least, an intent to cause her really serious harm. The applicant did not give evidence at trial, nor was any other witness called on his behalf. Jury Note 7. A little over two hours after the jury had retired to consider its verdict, the court received a note in the following terms: "If someone is drunk or under the influence of alcohol or drugs and unlawfully causes death, is there a difference in terms of the law compared to someone who is not drunk/under the influence?" In the usual way, that note was discussed with counsel for the Crown and with counsel standing in for those who had appeared at trial for the Defence, who had then been unavailable. We have been shown and have considered with care a transcript of the relevant exchanges. The judge then answered the jury's question as follows: "… Let me deal with this as best I can with you. In the first place there is no evidence whatsoever that the defendant was at any time during the period that you're concerned with under the influence of drugs. So, the reference to drugs in this note, put that completely out of your mind. There is no evidence of him taking or being under the influence of any drugs at all. What about alcohol? In a sense, ladies and gentlemen, there is a question for you to consider before you get to the issue of alcohol because that issue is when the killing of Dawn Walker took place. It is the prosecution case that it took place on the night of the wedding, that is the 27th to the 28th of October. The burden of proof being on them, you have to be sure that it took place on that night before you can move on to the next stage. The defence case, on the other hand, is that the killing took place on the night of Saturday the 30th, into Sunday, the 31st. If you think that Dawn Walker was killed or that she may have been killed on the night of Saturday, the 30th to the 31st, that is the defendant's version of events, there is no evidence whatsoever that he took any alcohol at all on the 30th or the 31st. So, the question would not arise if you think that Mrs Walker died on the Saturday Night or the very early hours of the Sunday morning. Do you follow me? Yes? Good. It is only if you are sure, as the Prosecution assert, that her life was taken on the night of the wedding, which is the 27th to the 28th, that the issue of alcohol arises at all and it arises because, of course, they had been to a wedding reception and as Mr Nutt said in his interview -- you will remember the directions I've given you about his interview as opposed to him giving evidence -- but, in his interview, he did say that he had had a drink, he'd had a few shots of Pernod and Black, and that was the reason that he gave for not driving until he had got that alcohol out of his system. So, the two factual scenarios are relevant; when it happened. If, on the defendant's account, on the Saturday night/Sunday morning, forget alcohol because there is no suggestion he drank. If on the Wednesday night into the Thursday, there is evidence that he had taken alcohol but there is no evidence that he was drunk and you have to consider all of the evidence. So, you have to consider the CCTV footage that you have of him inside the public house where the wedding took place and the evidence from CCTV of him walking to his car -- sorry, to the taxi -- as they leave; the evidence of him seen on CCTV coming into his house; the evidence of him going out later on and, importantly -- how important is a matter for you -- the evidence of him leaving the house at shortly after half past 12, arriving at the cashpoint at 00.44, where he withdraws money and you've got CCTV footage of that, and you will assess that as indicators of whether this is a man in drink or not. It is important, however, that I tell you the following. The defendant, who hasn't given evidence but gave an account in interview, at no point has said that he did what he did because of the effect of drugs. He has not claimed that the killing of Mrs Walker was because he was under the influence of drink. It has not been submitted by Mr Wood of Queen's Counsel that the explanation for the killing is anything to do with him taking drink -- the defendant taking drink. You may think, and I have given you this direction -- you decide this case on the evidence, not on speculation -- and you may think that, although the defendant speaks of taking drink at his wedding, he does not assert that he was drunk, he does not assert that he was drunk when he took the life of Mrs Walker. But I say to this -- if you like, on top of this -- I am trying to stop you, if you don't mind me doing so, from speculating that he was drunk when he did it, but even if you considered that he was under the influence of alcohol, self-induced intoxication does not provide him with a defence to murder. A drunken intent, if you like, is still an intent. So, I think you should approach it, if I may say so, in those stages. If you think the killing took place Saturday night/Sunday morning, forget alcohol anyway. If you think that it took place Wednesday night/Thursday morning, i.e., the night that -- the wedding night, if we may call it -- you have limited evidence that he took drink. You have evidence from CCTV footage and from his behaviours as to whether he was affected by drink or not. It is not his case and it has never been his case that he was drunk and that's why he did what he did. Mr Wood has never submitted that, but, in any, event self-induced intoxication would not afford him a defence." The Grounds of Appeal 8. The applicant seeks leave to appeal on the grounds that, in response to the jury's question, the judge ought to have given a full intoxication direction (see below); he had fallen into error when stating, during his exchanges with counsel, that there had been no evidence of intoxication at the time of the killing; the effect of the material misdirection which he had given had been to instruct the jury to ignore the issue of intoxication, whereas it ought to have been instructed that it was for it to assess, in light of all the evidence, whether or not it was sure that the applicant had intended either to kill or to cause really serious harm; and to have rendered the applicant's conviction for murder unsafe. 9. The particular evidence of intoxication on the evening of 27 October on which reliance is placed derives from: (1) the police interviews, in the course of which the applicant had stated that, following the wedding, he and his wife had been "pissed" and that he had been unable to drive until he had had time to sober up having had a few shots of Pernod and Black; (2) the evidence of a neighbour, to the effect that, ordinarily, the applicant rarely drank alcohol; and (3) the evidence, adduced by way of agreed fact, of the taxi driver who had driven the applicant and his wife home from the reception, that "he could smell alcohol from them and thought they seemed to be talking gibberish, as people do when they have a drink” . The Crown's Position 10. The Crown's position, as set out in the Respondent's Notice, is that a judge is only required to provide a direction in relation to a matter upon which the jury could reasonably come to a particular conclusion: Alexander Von Starck v The Queen [2000] 1 WLR 1270. At no point had the applicant advanced a defence to the effect that he had been incapable of forming the necessary specific intent required for murder, whether by reason of intoxication or at all. From a point immediately prior to his arrest on 31 October 2021, when he had presented himself at the police station, he had given a coherent and detailed explanation of his actions, including in the course of a number of interviews under caution. At no stage had he made any reference to any incapacity to "think straight", whether born of intoxication or otherwise. His acceptance that he was guilty of manslaughter had been based upon the explanation of events which he had given and had not involved any suggestion that he had been incapable of forming the intent required for murder. He had not given evidence at trial, such that the only account which the jury had received had been that given to the Police, on arrest and in the course of subsequent lengthy interviews. Thus, there had been no evidential foundation for a finding by the jury that lack of intent caused by intoxication was a live issue for consideration. The judge had considered, with care, whether a full direction would be appropriate and the submissions advanced in that connection. His ruling had suitably adapted section 9 of the Crown Court Compendium, Part 1 to reflect the circumstances of the particular case. All CCTV footage of the night of the wedding and the early hours of the following day had shown the applicant walking and behaving normally. The judge had answered the jury's question in a satisfactory way, having regard to the evidence as a whole. For reasons detailed in the Respondent's Notice, the case against the applicant had been strong and had included bad character evidence relating to his earlier use of serious violence against both his wife and a previous cohabitee. No complaint had been made about any other part of the legal directions or rulings which the judge had given, or as to the fairness of his summing-up. At no stage had the Defence sought an intoxication direction until the jury question had been raised. In all the circumstances, the applicant's conviction had been safe. Discussion and Conclusions 11. Following the refusal of leave to appeal by the Single Judge, the applicant raised certain criticisms of the conduct of his defence by his legal representatives. He also took the opportunity to advance a substantive position regarding the events the subject of his trial; the CCTV evidence; and his own health and that of his wife, and to indicate his desire to vacate his plea of guilty to manslaughter. Following his waiver of privilege, the renewal hearing was adjourned to enable the court to consider that material and any response to it. In responding to the documents which the applicant had submitted, his former legal representatives rejected all criticism made of their conduct, and, in certain respects, its factual premise, providing cogent and coherent explanations for the position adopted, together with supporting documentation in the form of attendance notes of their discussions with the applicant and a memorandum which he had signed recording the advice which he had been given. They noted that some of the substantive assertions now made had either been before the court or had not been communicated/apparent at or before trial. The applicant's correspondence and reply advanced matters no further, for current purposes. We are quite satisfied that none of the matters raised by the applicant himself, following the decision of the single judge, constitutes or supports a properly arguable basis for his appeal against conviction. 12. We turn to consider the perfected grounds of appeal, arising from the judge's approach to the jury's question. In Aidid v The Queen [2021] EWCA Crim 581, this court addressed the circumstances in which a direction on intoxication ought to be given; the essential elements of such a direction; and the consequences of a failure to give such a direction when one is judged to have been necessary. At [87] and [88], it held: "87. It follows that, although we agree with McCloskey J in Ward that the authorities tend to speak with the same voice on the issue of the 'threshold test' , namely that there must be an issue about alcohol consumption having extinguished the necessary mens rea, it is desirable nonetheless to resolve the potential tension that we have sought to describe in the jurisprudence as to when the consumption of alcohol or drugs 'is an issue' . 88. Juries in criminal cases are not limited in their consideration of the evidence to the arguments advanced by the prosecution and the defence. They are the finders of fact and it is open to them to reach conclusions that do not match the particular contentions advanced by the parties. They are free, for instance, to reject an accused's account but nonetheless to acquit him or her (or convict of a lesser charge) because they conclude that they are unsure that one or more of the ingredients of the offence of specific intent have been made out. A defendant, for instance, who had been drinking heavily may have advanced a case that he or she knew exactly what was happening when the victim was killed, and that they had acted in lawful self-defence. If the jury reject self-defence, they would still need to consider whether they were sure he or she had the intent to kill or to cause really serious bodily harm, notwithstanding the consumption of alcohol or drugs. The judge must avoid conjuring fanciful factual scenarios, but if there is sufficient evidence as to the consumption of alcohol or drugs such as to make it, viewed realistically, a potential issue as regards intent, then regardless of the nature of the accused's defence, in our judgment the correct position was described by Waller LJ in Groark : 'if there is evidence of drunkenness which might give rise to an issue as to whether specific intention could be formed by the accused, a direction should normally be given to the jury that a drunken intent was nevertheless an intent, but that they had to feel sure, having regard to all the evidence, that the defendant had had the intent.' Or as the court observed in Bennett , 'voluntary intoxication had to be treated like any other evidence which tended to show the defendant may have lacked the state of mind necessary to support the offence' ." 13. As is clear from the above dicta, the nature of the accused's defence is not itself determinative of the need for a direction on the effect of intoxication and the judge in this case did not treat it as such. In our judgement, consistent with the approach set out in Aidid , the judge rightly focused on whether there was evidence of drunkenness which might give rise to an issue as to whether specific intention could be formed by the accused , were the jury to conclude that the deceased had been killed on 27/28 October, permissibly concluding that there was not. In so doing, he viewed, realistically, whether a potential issue had arisen as regards intent so as to require that both limbs of the intoxication direction be given. As the Crown submits, irrespective of his alcohol consumption on 27 October, the applicant had given, repeatedly, a detailed account of the events leading to his wife's death. He had not, at that time or since, suggested that his mental capacity or recollection had been materially impaired. On his own case, there had been no suggestion that, at the time at which he had killed his wife, he had been consuming alcohol. There was also the CCTV evidence of, and that relating to the applicant's behaviour on, 27/28 October, to which the judge alluded when answering the jury's question. In short, viewing the evidence in this case realistically and holistically, the threshold test, as explained in Aidid , had not been met. We consider it to be of significance that, in advance of the jury's question, notwithstanding the evidence on which the applicant relies for his renewed application, neither the Crown nor the Defence had sought a direction on intoxication having regard to the prospect that the jury would conclude that the deceased had been killed on 27/28 October. 14. But even if we are wrong about the need, in this case, for a full intoxication direction, we have firmly in mind the further dicta of the then Vice-President in Aidid [94], that: "... the failure to give the direction, or, we would add, to deliver it precisely in conformity with the formula set out by Lane LJ in Sheehan and Moore , may not necessarily result in an unsafe verdict. This will depend on all the evidence and the issues in the case, along with the directions otherwise given by the judge." 15. The case against the applicant undoubtedly was powerful. No criticism has been made of any other aspect of the judge's conduct of the trial, directions of law or summing-up. In all the circumstances, it is not properly arguable that the applicant's conviction is unsafe. 16. We refuse leave to appeal. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2023] EWCA Crim 1575' date: '2023-10-05' judges: - LORD JUSTICE HOLROYDE - MRS JUSTICE MAY DBE - MRS JUSTICE ELLENBOGEN DBE ```

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

Neutral Citation Number: [2009] EWCA Crim 1949 Case No: 200901071 A9 ; 200901072 A9 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 6th August 2009 B e f o r e : LORD JUSTICE GOLDRING MR JUSTICE BEAN RECORDER OF KINGSTON-UPON-HULL (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 21 & 22 OF 2009 - - - - - - - - - - - - - - - - - - - - - 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 Wright QC appeared on behalf of the Attorney General Mr A Roxborough appeared on behalf of the First Offender Miss A Johnson appeared on behalf of the Second Offender - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE GOLDRING: This is an application by the Attorney-General for leave to refer sentences of five years' detention in a young offender institution imposed by His Honour Judge Knopf at Bolton Crown Court as unduly lenient. We grant leave. 2. Although there is some, possibly significant, uncertainty about it, the ages of the offenders were taken by the judge as 18. As we read the transcripts, that is how in the final analysis they appeared to the court to be. In the circumstances therefore, and Mr Wright QC on behalf of the Attorney accepts it, we treat them as 18. 3. Ali is from Kashmir. Madi is from Algeria. Each arrived in this country claiming asylum. On 7th November 2008 each pleaded guilty at the plea and case management hearing to the offence of rape. The rapes were committed on 5th July 2008. The victim was a 17 year old girl whom we shall refer to as "RD". Madi pleaded guilty to her vaginal rape. Ali pleaded guilty to her anal rape on the same occasion. Each was sentenced on 4th February 2009. 263 days served on remand was set off against that sentence. Each was placed on the Sex Offenders Register for life. 4. RD was born on 2nd April 1991. On the evening of 4th July she went to the flat of a friend in Rochdale town centre. She had something to drink. She had a disagreement with the friends who were there, and at about 2 o'clock in the morning of 5th July she left the flat and began to walk home. She was alone. 5. The offenders lived in a nearby hostel in Rochdale. As she left the block of flats and walked across the road they saw her. They followed her. They called out to her and approached her. She ignored them and carried on walking home. They grabbed her and pushed her against a fence before leading her out of sight of some close circuit television cameras situated in the vicinity and towards an area known as Century Gardens. They then pushed her down an alleyway and onto the floor. She landed on her knees and sustained minor abrasions and injury. She struggled as they tried to pin her down. Ali indecently assaulted her by digitally penetrating her vagina. She continued to struggle. She managed to get away from her assailants. She started to run in the direction of her home. They pursued her. They caught up with her and pushed her into some bushes in the vicinity of a car park. She landed on the ground and was held by her shoulders as she was raped, Ali, as we have said, anally and Madi, vaginally. Immediately prior to the anal rape Ali spat on her bottom. During the anal and vaginal rapes both men ejaculated inside her. They ran off when they were disturbed by a passer-by. RD sought assistance from a passer-by and a nearby garage employee but without success. Eventually she made her way home and raised the alarm. 6. Upon examination she was found to have sustained abrasions, bruising, swelling to her forearms, her legs and her head. An anal swab revealed the DNA profile of Ali. 7. The two were arrested on 14th July 2008. Each was interviewed. Ali denied presence and purported to give an alibi. Madi admitted presence. He said he had been in Ali's company. They had seen RD leaving the block of flats from the hostel at which they were living. They had followed her. There was conversation and then there was consensual sex involving both of them. 8. In her victim impact statement RD says this: "Following the night it happened I tried to forget about what happened by drinking. I would drink every day and want to drink from morning to night, which helped me forget but as soon as I was sober it all came back again. I am depressed and thought about taking my own life but know this is not the answer as I do not want to leave my family and it would upset them. Before the assault on me I had regular appointments regarding further education and was on a course ... Since the incident I have not been able to go back as I have been so messed up and had got so far behind... I had wanted to go to college to be a dancer but now I feel I do not have any confidence to stand up in front of anyone and dance. I am trying to get my life in some sort of direction and plan to try and get a job or qualifications in childcare." She finally refers to the flashbacks and nightmares of what happened and to waking up crying. 9. There were reports before the judge in respect of each of the offenders. Ali was assessed, by virtue of the offence, as presenting a high risk of harm to the public. It was said it was difficult to assess accurately the risk he presents and the imminence of further offending. The author concluded that, taking into account that there is no pattern of previous similar behaviour on the basis of which accurately to determine dangerousness, he could be managed through a determinate sentence. 10. Madi, it was said, did not display a high level of victim empathy. He minimised his behaviour. He showed little remorse. He presented a significant risk to members of the public of serious harm. There was also a psychological report in respect of Madi. 11. In imposing these sentences which he did, the judge first considered the issue of dangerousness. He said that he was satisfied, taking into account all the circumstances and the information available, that he could exercise his discretion against imposing imprisonment or detention for public protection. No issue is taken on behalf of the Attorney in respect of that. 12. He said this too: "... so far as physical injuries are concerned, there is no evidence of force being used over and above the force that would normally be used in penetrating crimes of this nature." He said that there were no threats offered to RD and that: "... it would appear, at the time or subsequently to that, there were no indignities over and behalf those which flowed from the offences themselves which were perpetrated against her. So I take all these points into account when reaching the conclusion I have". He referred to the definitive guideline of the Sentencing Guidelines Council. As to aggravating features, he referred to ejaculation. He referred too to a situation of more than one offender acting together, unprotected sex and the consequences that this might have had. He referred to the victim impact statement. He took as the appropriate category under the guidelines the second. No issue is taken as to that selection. He seems to have taken as the appropriate sentence after trial one of about seven and a half years. 13. In the submissions on behalf of the Attorney it is said that the following aggravating features were present: there was an element of abduction or detention; more than one offender was acting together; there was both anal and vaginal rape during the same incident; the nature of the attack was sustained; there was ejaculation and lack of protection; reference is made to the age and vulnerability of RD; the offence was committed at night; there was an additional sexual indignity; and the attack took place in a secluded location, albeit it was within the centre of the town. 14. The mitigating features are said to be these, and they essentially coincide with those features relied upon by Mr Roxborough on behalf of Ali and Miss Johnson on behalf of Madi; namely, as far as Ali is concerned, his previous good character and his plea of guilty; as far as Madi is concerned, the early plea of guilty and the absence of a previous conviction for any similar offence. 15. In his submissions on behalf of the Attorney, Mr Wright describes these as most grave offences involving, as they undoubtedly did, stranger rapes by two young men on a vulnerable young woman who was in effect forcibly taken off the street and raped both anally and vaginally. He submitted that such facts called for a significant element of deterrence and that the level of culpability of the offenders was high. He refers, and we shall shortly come to it, to those features which take the case into the second category. He refers too to the fact that this was a young woman who was alone at night, who had obviously earlier been spotted before she was followed and overpowered. Throughout, both of them were acting together. 16. In addition to the features in mitigation to which we have referred, our attention has been drawn to the difficulties in prison that both these men face. Ali has limited English. He has had to be placed, because he has been targetted, in solitary confinement and therefore the punitive element of any custodial sentence is particularly high. The same applies to the second offender. 17. Turning now to the guidelines, it is necessary to spell out those features which bring the case into that second category. There are, as it seems to us, three: there was an element of abduction or detention; there was more than one offender acting together; and the attack in which together they were acting was sustained. In other words, this was not a case of simply one element of those features, but three. It is the case, as His Honour Judge Mettyear observed in argument, that a number of such different features can push a sentence up to the top of the range within those guidelines or above it. There is, in addition, the specifically mentioned aggravating feature in the guidelines of the ejaculation, which was of course referred to by the judge. 18. The starting point for an offender of 18 years or over is eight years' custody (after a trial). The bracket is six to 11 years' custody. In his submissions on behalf of the Attorney, Mr Wright submits that the appropriate sentence after trial would have been in the order of 12 years. 19. We bear in mind those features to which we have just referred. We agree with Mr Wright's analysis of the offending. It seems to us that some account should be taken, in addition to the pleas of guilty, to the difficult circumstances in which any custodial sentences would be served. 20. It seems to us that an appropriate sentence in each case after trial would have been one of 11 years. Taking into account the pleas of guilty and the other mitigating factors, we would reduce it to seven years. It follows that we have concluded the sentences imposed were unduly lenient. We substitute for the sentences of five years in a young offender institution, sentences of seven years. 21. MR WRIGHT: May I deal with one technical matter. So far as Ali is concerned, by virtue of section 28 of the Criminal Justice and Court Services Act 2000 he falls to be disqualified from working with children for life. That is a mandatory disqualification in his case, he being 18 at the date of the offence. 22. MR ROXBOROUGH: My Lord, I have no objection. 23. LORD JUSTICE GOLDRING: We make such an order, Mr Wright. Thank you very much.

```yaml citation: '[2009] EWCA Crim 1949' date: '2009-08-06' judges: - LORD JUSTICE GOLDRING - MR JUSTICE BEAN ```

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

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 1543 CASE NO 20223708/B4 Royal Courts of Justice Strand London WC2A 2LL Friday, 1 December 2023 Before: LORD JUSTICE WILLIAM DAVIS LADY JUSTICE WHIPPLE DBE HIS HONOUR JUDGE WATSON (Sitting as a Judge of the CACD REX V ROMAIN LAPIERRE __________ 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 M NELSON KC appeared on behalf of the Applicant _________ J U D G M E N T 1. LADY JUSTICE WHIPPLE: This is a renewed application for leave to appeal against sentence. On 2 December 2022, following a trial at the Central Criminal Court before his Honour Judge Kay KC, the applicant was sentenced by the same judge to custody for life with 28 years as a minimum term for murder, with a sentence of nine years' detention in a young offender institution to be served concurrently for robbery. 2. The facts are set out in the Criminal Appeal Office summary. It is sufficient to record the following brief details. The robbery occurred in the late evening of 30 June 2021. The applicant was part of a group. A taxi was called. The applicant got into the back of the taxi, put his arm across the front of the driver's neck and pressed a Rambo-style knife to the driver's throat demanding the car key. Another member of the group reached through the driver's window and took the driver's mobile phone. The taxi was blocked in by others. The driver got out of his vehicle and handed over the key. 3. The murder occurred in the early hours of the following morning. The group, including the applicant, travelled in the stolen taxi via other addresses to a house where the 16-year-old victim, Cameron Smith lived with his mother. Cameron Smith was at that address. The group wore face coverings and were armed with machetes or Rambo knives. The group knocked on the front door before the door was kicked in. The moment they got into the house the knife attack started. The victim ran upstairs to his mother's bedroom where he and his mother tried to keep the group out but some of the group forced their way in and the attack continued. The applicant was one of two individuals attacking Cameron Smith. The applicant inflicted the fatal wound. That wound cut through a loop of bowel and two major blood vessels. The wound was 11 centimetres in length and was said to have required at least moderate force. 4. At the time of these offences the applicant was two weeks short of his 19th birthday (his date of birth is 16 July 2002). The murder was in revenge for the killing of a member of the applicant's own gang which had taken place on 30 June 2021. 5. The judge's starting point in setting the minimum term for sentence was 25 years. As aggravating factors the judge held that the applicant had intended to kill his victim, that there was a significant degree of planning and premeditation, including the robbery. He noted that the group wore balaclavas and masks and had turned their phones off. The applicant was, he said, the ringleader of the group. The murder itself was vicious and heartless. The judge noted the applicant's extensive antecedents, namely 14 convictions for 26 offences including offences for robbery and knife possession as well as drugs. 6. The judge thought there were no mitigating factors other than age. If anything the applicant was "mature beyond his years". The judge took account of the applicant's ADHD and unstable upbringing but held that those factors could provide little mitigation. 7. The court had a pre-sentence report before it relating to a previous offence (report dated 22 June 2020). It set out details of the applicant's background and life difficulties. 8. The judge imposed custody for life with a minimum term of 28 years, less time spent on remand, with the sentence of nine years' detention for the robbery to be served concurrently. 9. Miss Nelson KC represented the applicant at trial, sentence and on this renewed application. In her written grounds of appeal, she submitted that the sentence imposed was manifestly excessive for the following reasons. First, the judge erred in finding there was an intention to kill. Secondly, the judge failed to take proper account of the applicant's age and other mitigation. Thirdly, the judge failed to take proper account of totality. 10. We thank Miss Nelson for her oral submissions this morning which have been clearly expressed and helpful. She presses on us that when considering whether there was an intention to kill the pathologist said that there was at least moderate force used by contrast with the judge's reference to considerable force. She argues that the confession by the applicant to his father should not have been taken into account because it was quite possibly a confession made in anger. She says that the mixed verdicts returned on the other co-defendants should have been taken into account as tending to show that there was no intention to kill. Her over-arching submission is that there was an intention only to cause grievous bodily harm. 11. So far as the factors going to mitigation are concerned, she stresses this applicant's difficult life history with ADHD and ODD. She notes his early years spent without paternal support and in care. She argues that his previous antecedents are a reflection of the circumstances of his childhood and past exploitation. 12. All of these points were considered and rejected by the single judge. We too reject them. Dealing with the first ground, it was plainly open to the judge to conclude that there was an intention to kill. The nature and extent of the injuries and the circumstances of this attack provide plentiful evidence of that. That conclusion is entirely consistent with the pathologist's view going to the force used (described by the pathologist as moderate). The judge was entitled to use a different word, “considerable” to describe the force of the fatal stab wound. More broadly we look at the overall circumstances of this attack, as the judge did. The fact that the conviction was by a majority verdict does not diminish the weight of the evidence that was before the judge, nor do the verdicts in relation to other defendants impact on the verdict as it was returned as against this applicant. We cannot accept Miss Nelson's submission that the intention was short of an intent to kill. 13. We deal with the second and third grounds together, namely mitigating factors and totality. The facts of this offending are striking in their brutality. On any view an increase above the 25-year start point was necessary. The murder was pre-planned and co-ordinated. The attack took place in the deceased's own home and in front of the deceased's own mother, indeed in her bedroom. The attack itself was sustained and brutal. Further, the previous robbery at knifepoint was a very serious aggravating factor and it was the applicant who used the knife to threaten on that occasion. The robbery forms part of a sequence of events that culminate in this terrible murder. The applicant had many previous convictions, some of which very relevant; that stood as significant aggravation. But for the mitigation in this case, we conclude that the minimum term could reasonably have exceeded 30 years for a mature adult offender. 14. There was mitigation for the applicant in his young age but the judge did not consider that he lacked maturity. That was very much an assessment for the trial judge to make. The judge thought if anything the opposite was true and this was an individual who was mature for his years. It is of course right to note that this applicant had a very troubled upbringing and he had been looked after from the age of 12 and at the time of offending he was a care leaver. All this was before the judge. We conclude that the judge was entitled to consider that those factors carried relatively little weight in the exercise overall. We are not persuaded that there was a failure by the judge to take account of totality or of mitigating factors. 15. We agree with the single judge that the minimum term imposed was not manifestly excessive, even arguably, and we refuse leave to appeal against sentence. 16. MISS NELSON: My Lords, may I apply, I think I have to, for a representation order. 17. LORD JUSTICE WILLIAM DAVIS: You can apply. We will rise very briefly to consider that. (Short adjournment) 18. LORD JUSTICE WILLIAM DAVIS: Miss Nelson, thank you very much for your attendance but I am afraid we cannot give you a representation order. 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 1543' date: '2023-12-01' judges: - LORD JUSTICE WILLIAM DAVIS - LADY JUSTICE WHIPPLE DBE - HIS HONOUR JUDGE WATSON ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical 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: [2024] EWCA Crim 238 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202400240/A4 Royal Courts of Justice Strand London WC2A 2LL Wednesday 21 February 2024 Before: LORD JUSTICE SINGH MR JUSTICE GOOSE MRS JUSTICE FOSTER REX V NIKKI BAKER __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR A BAKER appeared on behalf of the Appellant. _________ J U D G M E N T (Approved) LORD JUSTICE SINGH: Introduction 1. This is an appeal against sentence brought with the leave of the single judge. On 26 October 2023, in the Crown Court at Stafford, the appellant changed her plea to one of guilty to an offence of conspiracy to pervert the course of justice. On 21 December 2023, she was sentenced by the Recorder (now HHJ Brown) to a sentence of 10 months’ imprisonment. An appropriate statutory victim surcharge was imposed. The Facts 2. The co-defendant, Samantha Halden-Evans, was a long-standing friend of this appellant. Ms Halden-Evans worked as an operative with the Staffordshire Safer Roads Partnership. Her job involved accessing images of speeding offences and processing those images so that Notices of Intended Prosecution were sent out to the relevant vehicle owners. As part of that role, the computer system she used had the ability for offences to be marked as “Void” or for “No further action to be taken” to cover situations where it appeared to be inappropriate to initiate a prosecution. 3. On 3 March 2019, the appellant sent Ms Halden-Evans a message saying that she thought she had been caught speeding. She said: “Hi Sam, it’s Nikki. Rach gave me your number. I don’t suppose you can help me? I got flashed near the Cellarhead crossroads. Not sure how fast I was going but I think it was 50 in a 30. I Googled it and it says I could get a ban as I’ve already got points. Is this something you can help me with, please? I’d be screwed without my car. I was coming from Wetley Rocks. It was the last camera before the crossroads.” 4. Ms Halden-Evans replied: “Hiya mate, it sounds like you’ve been flashed by the yellow Gatso camera at Cellarhead. There’s only four in operation, so you’ve done well to speed through one of the only ones that works. Fortunately for you, I deal with Gatso offences now. They don’t get processed until Thursday, so send me your reg, date and time and I’ll get rid if you’ve been caught.” 5. The appellant replied: “It’s my luck at the minute, mate. You’re an absolute legend. I’ve been panicking, thinking I’m going to lose my licence. I owe you massively. Thanks, mate. I really appreciate it.” 6. The appellant then provided her details and Ms Halden-Evans responded: “Don’t panic, mate. I’ll sort it for you. I’ll give you a text Thursday and if you’ve been caught I’ll just delete that offence. LOL. No bother at all. Hope you all had a good night last night and we’ll have to go out again soon.” 7. On 7 March 2019 the appellant asked Ms Halden-Evans whether she had been caught. Ms Halden-Evans replied: “Hiya mate. Just come across your offence. It was 22.22 at night, 1 March. You were doing 39 in a 30. I’ve done the film manually, so I’ve just skipped over your offence so no trail of me getting rid. LOL. So you’re in the clear. X X” 8. Later she added: “Yeah, you did get caught but I’ve not processed your offence. Just deleted it instead. LOL. So don’t worry. You won’t be getting a letter or anything.” 9. When anti-corruption officers interrogated Ms Halden-Evans’s system they found clear images of the appellant’s vehicle speeding at 39 miles per hour in a 30 miles per hour zone on 1 March 2019. Ms Halden-Evans had wrongly marked the matter as “No further action. Already processed in another batch”. The offence had not been processed in another batch and Ms Halden-Evans had simply deleted the offence, preventing its prosecution. The appellant made inquiries of Ms Halden-Evans in August and September 2017 and in November 2020, about potential speeding offences but was reassured by Ms Halden-Evans there was no camera footage. 10. The appellant was arrested on 14 March 2021, and answered “No comment” to all questions. The Sentencing Process 11. The appellant was aged 35 and had no previous convictions. The sentencing court had the advantage of a pre-sentence report, a note on sentencing, on behalf of the prosecution and a mitigation bundle. In the pre-sentence report, the author assessed the appellant to pose a low risk of reoffending and low risk of serious harm and advised that she could be managed within the community. Should the court consider anything other than an immediate custodial sentence to be appropriate, the appellant was assessed as being suitable for an unpaid work requirement. It was not thought that it was necessary for there to be other intervention, for example, a rehabilitation activity requirement. There was no need for other interventions such as a curfew requirement or the like. 12. In the sentencing exercise, the judge had four defendants whom she needed to sentence including Ms Halden-Evans. For understandable reasons, much of the judge’s sentencing remarks focused on the position of Ms Halden-Evans as the lead offender, in particular because of the breach of trust of which she had been guilty. Because of the seriousness of both the harm and the culpability of Ms Halden-Evans’s offending, the judge concluded that the offending in her case would have a starting point of 4 years’ imprisonment, with a range of 2 to 7 years’ imprisonment. In the result, she imposed a total sentence of 4 years and 2 months’ imprisonment on Ms Halden-Evans. She then turned to the other defendants. In relation to this appellant, the judge said at page 7H to page 8D: “You, Nikki Baker had been a friend of Samantha Halden-Evans for a number of years and you prior to the offence that you pleaded guilty to, had requested that Samantha Halden-Evans provide information for your benefit. In 2017 you contacted her regarding your then partner who was driving your car. He was not insured and you were asking Samantha Halden-Evans if the driver could be identified. You asked whether they could say who it was, and you asked whether you could say it was you driving? Samantha Halden-Evans accessed the system and advised you to take the blame saying, ‘Lol, no worries [mate]. I just have missed it, if you don’t want Rich to get banned. They’ve no images so they don’t know who was driving, and you’ll just have to pay a fine or possibly get three points.’” 13. The judge continued that in March 2019: “In March 2019 you contacted Samantha Halden-Evans asking for [her] help. You told her in a text that you had thought you had been caught speeding doing 50 in a 30 and that you were worried about getting a ban because you already had points. Samantha Halden-Evans responded telling you to send your details and she would get rid of it for you.” 14. She did just that. The judge continued: “After you had committed this offence, you contacted her again in November 2020 saying that you had thought you had been caught speeding again and asked to check whether the cameras were working. Samantha Halden-Evans responded saying that not all of the cameras were working but she would check and sort it for you if they were. The clear inference that can be drawn from that is that you were asking for help because you thought you had been caught speeding.” 15. After passing sentence on the other defendants, the judge then turned to this appellant in particular, at pages 13D to 14B. The judge said that this appellant fell at the lower end of the offending, however she had conspired with Samantha Halden-Evans to have one speeding offence removed. She had made previous inquiries with Samantha Halden-Evans and had made subsequent contact when she thought she had been caught again. The judge said that the appellant knew her role and knew her willingness to assist the appellant “but that you knew that she had abused her trust which resulted in that speeding offence being removed”. The judge said the reward for the appellant was not getting points and avoiding a disqualification or a ban: “It was not insignificant”. 16. The judge was satisfied that the appellant’s part in the conspiracy meant that it fell within category 1B in the relevant guideline to which we will turn later. She said that would ordinarily give a starting point of 2 years’ custody with a range of 1 to 4 years, but the judge was satisfied that the appellant fell at the lower end of that offending. The appropriate starting point was somewhat lower from the others at 18 months’ custody. The judge had regard to the appellant’s personal circumstances, and her mitigation. She had read the pre-sentence report and the references and noted her previous good character and the impact upon her and her family, particularly her child, should she go to custody. She acknowledged the appellant’s acceptance of her offending and her remorse and reduced the sentence by 6 months to reflect that. Before credit therefore, the sentence would have been one of 12 months in custody. With credit of 10 per cent, this was reduced to 10 months in custody. That was an appropriate discount to reflect the very late stage at which the plea was entered. No complaint has been made before this Court about the discount given. 17. The judge continued that she had considered the appellant’s offending and her personal circumstances and in particular the Imposition Guidelines, and considered whether there was any alternative to custody, and whether that would meet the seriousness of the offending but she was not so satisfied. She acknowledged that there was a low risk of offending and there was some prospect of rehabilitation because of that but concluded that this offence was so serious that she was satisfied that only an immediate custodial sentence would meet the seriousness of the offending. Accordingly, as we have said, the judge imposed a sentence of 10 months’ imprisonment to be served immediately. Grounds of Appeal 18. On behalf of the appellant, Mr Andrew Baker emphasised in writing, and has repeated before us, the numerous and significant mitigating factors that were available in the appellant’s case. He advances essentially two submissions. First, he submits that the Recorder incorrectly classified the appellant’s offending, both in terms of the level of culpability and the level of harm. Secondly, he submits that the Recorder failed to consider alternatives to immediate custody. 19. So far as culpability is concerned, he submits that it should have been determined as level C, lower culpability, since the underlying offence was not serious - it was speeding at 39 miles per hour in a 30 mile per hour zone. So far as harm is concerned, this should have been placed within either category 2 or category 3. There was some impact on the administration of justice or a limited impact on the administration of justice but not a serious one. 20. Mr Baker has also referred to what is said in the Definitive Guideline, in relation to the possible suspension of a custodial sentence. He submits that the factors in favour of suspension were present here, in particular (i) there was a realistic prospect of rehabilitation; (ii) there was strong mitigation and (iii) immediate custody would have a significant impact upon the appellant’s son, who was at a critical age for his schooling. 21. Since the sentence was passed, this Court, further to the direction of the single judge in granting leave to appeal, has received a witness statement from the appellant, albeit that the version we have seen was then unsigned. In that statement she says that her son has lived with her approximately 80 per cent of the time since the age of 2, although he is currently living with his father, with whom he has a good relationship, this is still very much out of the ordinary for him as she and he have never spent longer than a week apart from each other. Her son also occasionally stays with his grandparents. The appellant states that her incarceration has been extremely emotionally difficult for her son, especially over the Christmas period. She is concerned that he has exams coming up and if he is unsettled by her incarceration this may have an impact on his studies. 22. We also have a witness statement from the appellant’s mother, in which she states that the appellant’s incarceration has been extremely emotionally difficult for her son. He often asks his grandmother when mum is coming home and expresses that he misses her. Whilst they have made every effort to avoid disruption to his education, the appellant’s being away has been very difficult and they have found it hard to establish a consistent routine. Our Assessment 23. We do not accept the first submission made by Mr Baker on behalf of the appellant. The Sentencing Council has issued a Definitive Guideline on perverting the course of justice with effect from 1 October 2023. Since the offence is one at common law, the maximum punishment available is life imprisonment. The guideline refers to categories of harm and categories of culpability. So far as harm is concerned, category 1 is where there is serious impact on the administration of justice for present purposes. Category 2 harm is where there is some impact on the administration of justice for present purposes. Category 3 harm is where there is limited impact on the administration of justice for present purposes. 24. Turning to culpability, category A (high culpability) is where there is conduct over a sustained period of time, sophisticated and/or planned nature of conduct, underlying offence is very serious or there is a breach of trust or abuse of position or office. Category B culpability (medium) is for other cases that fall between categories A and C because there are factors present which balance each other and/or the offender’s culpability falls between the factors described in A and C. Category C (lower culpability) is where the offending is unplanned and/or limited in scope and duration, there is unsophisticated nature of conduct, the underlying offence was not serious, the appellant is involved through coercion, intimidation, or exploitation, or as a result of domestic abuse. Or the offender’s responsibility is substantially reduced by mental disorder or learning disabilities. 25. The recommendation in the guideline, for present purposes, is as follows. For a category 1B offence, the starting point is 2 years’ custody with a range of 1 to 4 years’ custody; for a category 1C offence, the starting point is 1 year’s custody with a range of 9 months to 2 years’ custody. For a category 2B offence, the starting point is 1 year custody with a range of 9 months to 2 years’ custody and for a category 2C offence, the starting point is 9 months’ custody with a range of 6 months to 1 year’s custody. It should also be noted that this appellant pleaded guilty on the third day that was listed for the trial, although before the jury was sworn in. Accordingly, she was entitled to very little credit for her guilty plea. 26. In our judgment, whichever precise category of harm and/or culpability this case fell into, in particular whether it was category 1B or category 2B, the sentence imposed of 10 months’ custody fell well within the range which was reasonably open to the sentencing judge in all the circumstances of this case. We do not consider that the sentence of 10 months’ custody was in itself wrong in principle or manifestly excessive. Before leaving this ground, we would emphasise that although it has been suggested to the Court that speeding at 39 miles per hour in a 30 mile per hour zone is not a serious underlying offence, we respectfully disagree. Such rules are imposed in our society clearly for the safety of the public including children. 27. We turn to Mr Baker’s second submission, that the judge did not address the possibility of suspending the sentence in this case. The Sentencing Council’s Overarching Guideline on Imposition of Community and Custodial Sentences advises that a custodial sentence must not be imposed unless the offence is so serious that neither a fine alone nor a community sentence can be justified for the offence. If the custodial threshold is passed consideration for a sentence of this length should be given to whether it can properly be suspended. The Definitive Guideline advises that the following factors should be weighted in considering whether it is possible to suspend the sentence. The factors indicating that it would not be appropriate to suspend the custodial sentence are: (i) the offender presents a risk or danger to the public; (ii) appropriate punishment can only be achieved by immediate custody and (iii) there is a history of poor compliance with court orders. Factors indicating that it may be appropriate to suspend a custodial sentence are (i) a realistic prospect of rehabilitation; (ii) strong personal mitigation and (iii) immediate custody will result in significant harmful impact upon others. 28. We do not accept this submission by Mr Baker either. It is clear to us from page 14A to B of the sentencing remarks that the judge did address this possibility and clearly had in mind the factors which are set out both in favour of and against suspending the sentence. Although she did not expressly refer to the factors in terms, she clearly had them in mind. In our judgment, the judge cannot be faulted for her approach to the question of suspension, nor was the outcome one which was not reasonably open to her. We also note that, although the appellant was sentenced for one offence, she made similar inquiries of Ms Haldon-Evans to help her on two other occasions. Conclusion 29. For the reasons we have given, this appeal against sentence is dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]

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Neutral Citation Number: [2020] EWCA Crim 1343 Case No: 2020000068, 2020000131, 2020000071, 2020000133 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SOUTHAMPTON HIS HONOUR JUDGE ROWLAND T20197031 Royal Courts of Justice Strand, London, WC2A 2LL Date: 19/10/2020 Before : LORD JUSTICE BEAN MR JUSTICE ROBIN KNOWLES and HIS HONOUR JUDGE AUBREY QC - - - - - - - - - - - - - - - - - - - - - Between : RICHARD TOWNSEND & MARK ANDREW METCALFE Appellants - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Henry Blaxland QC for the Appellant Townsend Michael Phillips for the Appellant Metcalfe Andrew Houston for the Respondent Hearing date: 15 October 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Bean: 1. On 10 December 2019 the Appellants Richard Townsend and Mark Metcalfe were convicted in the Crown Court at Southampton of a number of sexual offences following a trial before HHJ Rowland and a jury. 2. The two identified victims were brothers and were also nephews of Townsend. We shall call them TS and OH (although only OH is entitled to anonymity and the usual reporting restrictions under the Sexual Offences (Amendment) Act 1992, since TS has died). Counts 1-5 charged Townsend with indecent assaults on TS, who was born in June 1986, between 2000 and 2002. Counts 6-15 alleged various offences against OH, who was born in October 1990; the earliest was alleged to have taken place at some point between 1996 and 1999 and the latest at some point between 2004 and 2006. In the case of count 9 the allegation was of indecent assault by anal penetration and was made against both defendants. All the other charges in this group were against Townsend only. The most serious was count 13, an allegation of rape of OH. Counts 16 and 17, laid against both defendants, alleged sexual assault on an unknown male: we will return to these counts later. Counts 18-19 charged Metcalfe with downloading child pornography. 3. The jury convicted on all counts except 10, 12 and 15, which were alternative charges on which no verdict was taken, and counts 18-19, on which Metcalfe was acquitted. 4. Both appellants appeal against their convictions on counts 16 and 17 by leave of the single judge. They renew their applications for leave to appeal against conviction on all the other counts on which they were convicted (in Metcalfe’s case only count 9), and their applications for leave to appeal against sentence, following refusal by the single judge.. 5. Townsend and Metcalfe had been in a relationship since the late 1980s. The mother of both complainants was the sister of Townsend. The number of children in the family home was a catalyst for TS and OH going to stay from time to time with the appellants. The appellants moved to Southampton in around 1998. 6. TS committed suicide on 23 September 2019, shortly before the trial of the Appellants was due to start. He had been interviewed on video a number of times. The prosecution applied successfully to admit his recorded evidence under the hearsay provisions of the Criminal Justice Act 2003. Without it, the prosecution could not have established a case to answer on counts 1-5. OH gave live evidence before the jury. 7. Counts 16 and 17 were added by amendment. They are based on a video referred to at trial as the “sex tape”. The clip is 8 minutes long, and is preceded by some innocuous footage of classic cars in a field. It shows Metcalfe masturbating an unknown male and also performing fellatio on him for two short periods at the beginning and end of the clip. A duvet covers the unknown male from the waist area upwards. His trousers and underwear are by his ankles and he is wearing trainers. He has an erection but is motionless for the entire 8 minutes. 8. The prosecution’s case as charged in counts 6 and 7 of the original indictment was that the indecent assault shown on the sex tape was on TS, on a date between June 1999 and June 2002. This became unsustainable when the defence examined the film and found that it was date-stamped 7 August 2005, a date on which TS was not visiting the Appellants’ home. The prosecution accepted that they could not demonstrate that the film depicted TS. Accordingly, at the start of the trial, they sought to amend the indictment replacing those two counts with new allegations of sexual assault (which became counts 16 and 17) on an unknown male on or about 7 th August 2005. There was and is no dispute that the film was made by Townsend and that it showed Metcalfe engaged in the sexual activity. The defence case was that the person on whom Metcalfe was performing the sexual acts was over 18 and a willing participant. Grounds of Appeal - Counts 1-15 9. The grounds on which the single judge refused leave and which are now renewed are as follows: firstly, that the evidence of TS was so unconvincing that the judge should have directed the jury to acquit Townsend on counts 1-5 of the indictment in the exercise of his discretion under s.125 of the 2003 Act. Secondly, that the effect of such an acquittal of Townsend on counts 1-5 would have been that the evidence of TS was inadmissible in respect of the counts concerning OH and, as a consequence, all the convictions on counts 6-14 were unsafe. Thirdly, that the judge wrongly failed to direct the jury to consider the significance of the admitted fact that TS wrongly identified himself on the sex tape and the consequences of this for his credibility. 10. In his ruling on hearsay Judge Rowland referred to the leading case of Riat [2013] 1 WLR 2592 . He referred to the six questions listed in paragraph 7 of the judgment of this court delivered by Hughes LJ and noted that at paragraph 8 it is made plain that although there is no rule that where the hearsay evidence is the sole or decisive evidence it in the case it can never be admitted, the importance of the evidence to the case against the accused is central to the decisions made. 11. There was, of course, no dispute that TS was dead and thus that s.116(1) and s.116(2)(a) were satisfied. The next question was what material could help to test or assess the hearsay. 12. The judge noted that it was possible for the defence to put before the jury the inconsistencies in TS’ account and the absence of detail in parts of his story. He also noted that there were a number of items of evidence supporting the prosecution case independently of the hearsay evidence of TS. These included previous convictions of Townsend for sexual offences and his possession of photographs of TS naked from the waist up. 13. There were also chatroom exchanges in 2017 which the prosecution submitted amounted to confessions to sexual abuse of his two nephews. The defence response to this was that the exchanges were as consistent as with sexual fantasy as with a confession. There were discrepancies between the ages of the complainants and of the boys mentioned in the chatroom exchanges. The judge adopted the “potentially safely reliable” test referred to in Riat and observed that “it is difficult to see what could be more powerful supporting evidence than a confession made freely”. 14. The judge dealt in considerable detail with what was described as the “evolution” of TS’ evidence about the sex tape. TS said in his second interview that he recognised the flowery curtain of the back bedroom and said that the trainer shown in one still could have been of the kind he wore as a teenager. In his third interview he said he had found the tape, intended to record himself skateboarding, years ago, checked the tape to see whether he was going to be recording over anything, found footage of classic car shows, and then a short clip of what he assumed to be himself lying on a bed having oral sex performed on him. In a further interview a year later he confirmed that the recording was the one he had stumbled across many years before. 15. The judge noted the defence contention that TS had given context to his finding of the recording, skateboarding, which cannot have been true. It was implausible to suggest he would have been skateboarding in 2005. He describes a camcorder which was inconsistent with the Canon camcorder bought by the defendants in November 2004 on which the recording was made. None of these issues could be canvassed with TS in cross-examination. 16. The judge set out the prosecution response to these points in his ruling: “68. P respond to what they call a broad suggestion TS has lied about the recording. They do not accept he has lied or that there is anything untoward about this issue. They point to the fact that TS was given very limited information in his second interview about the recording. The information about classic cars was not fed to him. Importantly, in his third interview TS gave information about what was on the recording that he could only have known if he had watched it. He said it showed someone walking around a classic car show and panning across cars in a field. 69. P submit it is not surprising that TS came to the conclusion it was him in the recording. It took place in the same room as he alleged and the activity was striking similar in the sense it shows a young male with the duvet pulled up. P invite a safe inference to be drawn that TS saw the recording after 7.8.05 at a time when he visited the Ds. There is evidence that he continued to visit Ds until the summer before he went to college. 70. In my judgment the high point of the Ds’ objection is lower than they assert. I cannot find there is the inescapable conclusion that TS has lied about the recording. At its height there is evidence that TS has made a genuine but understandable mistake about his being in the recording. Equally it is safe to draw an inference that TS was wrong about when he said he viewed it. This is understandable given the lapse of time. There is, however, cogent evidence that he had watched the recording at a point in the past. If Ds wish to pursue a suggestion TS was shown it at a time before his fourth interview, then they can explore that with the investigators. Equally, the jury can assess TS’s reaction in his fourth interview when he was shown the start of the recording. 71. I reject the submission that TS has told lies in relation to the recording or that he is so unreliable on the issue that this the hearsay in relation to it falls foul of the Riat test. Consequently, there is no need for me to consider any knock-on effect for the rest of TS’s account. The defence are in a position to put before the jury the chronology relating to the recording. They are able to cross-examine the investigators. 17. The judge accordingly ruled that the evidence could be admitted. 18. At the conclusion of the prosecution evidence (save for some immaterial items) the defence applied to the judge for a ruling under section 125 that the evidence of TS was unconvincing and that the jury should be directed to acquit Townsend on counts 1-5 of the indictment. The judge rejected the application. In his careful and detailed written reasons for doing so, he accepted the prosecution submission that “there is abundant support for the reliability and credibility of TS’ account which means that the potentially safely reliable test in Riat is still satisfied”. At paragraph 12 of the s.125 ruling he said:- “Having now heard all the evidence in the case, save for minor sweepings, I am not driven to the inescapable conclusion that TS has lied about the sex tape. In my judgment there were opportunities for TS to have seen the tape after it was made. His reaction to viewing it in his fourth interview was stark. There are myriad supporting areas of evidence which satisfy the Riat test. Given that conclusion, the primary defence submission fails. If I am wrong about that conclusion the secondary prosecution submission is that relating to retrospective tainting. Even if TS has lied about the sex tape does that mean everything he has said before that lie has to be disbelieved? The answer to that question is no. The sex tape is an important issue in this trial but it is not determinative. The test is that set out in section125. Is the hearsay so unconvincing that I ought to stop this case now? The answer is no.” 19. Mr Blaxland QC submits that TS had clearly lied about the sex tape. He argues, as he did before the judge, that “it was such an obvious lie” that it discredited the evidence of TS as a whole and “that no rational tribunal could conclude that what he said about finding the tape was true”. 20. As the judge noted, and as emphasised by Hughes LJ at paragraph 28 of Riat , the exercise arising on a section 125 application is different from the ordinary “half time” submission of no case to answer applying Galbraith . The judge’s careful rulings reflect this fully. Despite Mr Blaxland’s best efforts we consider that the judge’s reasoning is impeccable. It was for the jury to say whether the fact that TS had originally - wrongly - identified himself as having been shown in the sex tape undermined his credibility: or, putting it another way, whether he had been lying or merely mistaken. 21. Mr Blaxland also took issue with the judge’s finding in his ruling that there were many items of evidence supporting the reliability and credibility of TS’ account. Prominent among these, as Mr Houston pointed out in his Respondent’s notice and in oral argument, was the fact that in August 2017 Townsend apparently confessed in an internet chatroom, in which a video had been shown of the rape of a child, to having abused his two nephews when they were aged between 8 and 11. Mr Blaxland submits that internet chatrooms often thrive on fantasy. That may be so, but whether these chats were mere fantasy was an issue for the jury to evaluate. 22. Other matters identified by the judge as making the evidence of TS “potentially reliable” included his confession to OH in November 2017; TS’ complaints to a doctor and a social worker; sexually suggestive topless photographs of TS, then aged about 13, that had been taken by Townsend in Metcalfe’s presence. Townsend’s admitted sexual interest in young boys as evidenced by a book containing nude photographs; and the finding of a hole in the wall just above the spare room skirting board which was consistent with TS’ memory of finding a webcam cable that connected with the defendant’s bedroom. 23. The judge’s decision on whether TS’ hearsay evidence was “unconvincing” within the meaning of section 125 required an assessment of the relevant potentially reliable evidence as a whole. The judge was right to rule that the hearsay evidence did not “fall foul of the Riat test” and that he should reject the defence application under section 125. 24. The third ground of appeal was not pursued in oral argument, and we need say no more than that we can find no error in the way the judge directed the jury. 25. Accordingly we refuse the renewed application by both Townsend and Metcalfe for leave to appeal against conviction (other than on counts 16-17) on the grounds refused by the single judge. Grounds of appeal – Count 16 and 17 26. These argued that the judge should not have permitted the indictment to be amended by the addition of counts 16 and 17; and should not have permitted the prosecution to adduce expert evidence about the age of the unknown male shown in the video. 27. The judge ruled, and in our view was right to do so, that there was at least a prima facie case that footage of an unknown adolescent with his face covered, not moving a muscle, during 8 minutes of sexual activity being performed by Metcalfe, could amount to a sexual assault. It was for the jury to decide whether the unknown male shown on the sex tape was (in the prosecution’s words) frozen into submission or genuinely consenting. As for the expert evidence about age, the prosecution did not have to prove that the unknown male was under a particular age: their case was simply that the younger the male was, the less likely he was to be consenting to masturbation and fellatio and the more likely he was to be submitting involuntarily. The expert evidence of Dr Erhardt was adduced to rebut the defence case that the male was a willing adult participant. 28. Mr Blaxland and Mr Phillips submitted that the evidence of Dr Erhardt was inadmissible according to the decision of this court in Land [1998] 1 Cr App R 301. In that case it was argued that the defendant’s conviction of possessing indecent photographs of children contrary to section 1(1)(c) of the Protection of Children Act 1978 could not stand because (i) the prosecution could not prove that the defendant knew that the person photographed was under 16 (an issue which does not arise in the present case) and also because (ii) the prosecution had failed to adduce expert evidence that the person in the photograph, whose identity was unknown, was aged under 16. This court, in a judgment delivered by Judge LJ, rejected both grounds. As to the second, the court said this in 306b:- “We can see no basis for concluding that in the absence of paediatric or other expert evidence the jury is prevented from concluding that [an] indecent photograph depicts a boy or a girl under the age of 16. The judge directed the jury that in deciding whether it was proved that the photographs were of a child: “You can do no more than use your own experience, your judgment and your critical faculties in deciding this issue. It is simply an issue of fact for you, the jury, to decide what you have seen with your own eyes…” In our judgment this direction is not open to question. In any event such expert evidence tendered by either side would be inadmissible. The purpose of expert evidence is to assist the court with information which is outside the normal experience and knowledge of the judge or jury. Perhaps the only certainty which applies to the problem in this case is that each individual reaches puberty in his or her own time. For each, the process is unique and the jury is as well placed as an expert to assess any argument addressed to the question whether the prosecution has established, as it must before there can be a conviction, that the person depicted in the photograph is under 16 years old.” 29. The ratio of Land is firstly that the prosecution did not have to prove that the defendant knew that the person depicted in the indecent photographs was a child under 16, and secondly that the conviction was not rendered unsafe by the prosecution’s failure to adduce expert paediatric evidence to that effect. The passage beginning with the observation that “in any event such expert evidence tendered by either side would be inadmissible” is obiter , though from a judge of great criminal experience. It is not easy to construe. Judge LJ cannot have meant that expert evidence about the age of an individual is always inadmissible: as Mr Blaxland accepted, there are many types of criminal case in which such evidence is routinely given. 30. It is unnecessary for us to decide whether expert evidence as to the age of a person shown in a photograph or series of photographs is inadmissible in the normal case where the subject’s face is included in the photograph or in some of a series of photographs, or in a film. It may be said that jurors, like anyone else, are used to seeing people in real life or on film or in a photograph and reaching a conclusion about that person’s age. But it is not a matter of normal experience to be asked to assess a person’s age from a film or photograph which shows only the lower half of their body. We conclude that the judge made no error of law in allowing Dr Erhardt to give expert evidence. 31. Mr Blaxland makes a further point that Dr Erhardt based his evidence partly on a method of assessment known as the Tanner Scale which has now been disavowed, at least to some extent by its original author. But that fact was before the jury and, as in any other case, they were free to disregard the opinion of Dr Erhardt if they did not accept his evidence. 32. For these reasons the appeal against conviction on counts 16 and 17 by both defendants is dismissed. Sentence 33. Both applicants renew their respective applications for leave to appeal against sentence after refusal by the single judge. 34. Townsend is now 58 years of age. He had one previous conviction relating to five offences of taking indecent photographs of a child or assisting in the commission of such an act, the offences being committed in 2017. In March 2018 he had been sentenced to a total of 2 years imprisonment suspended for 2 years 35. In the present case Townsend received an extended sentence of 23 years imprisonment, the custodial term being 18 years and the extension period 5 years. That sentence was imposed in respect of Count 13, a charge of rape of OH when he was aged 13 or 14, but reflected the totality of the offences of which he had been convicted; the judge passed concurrent sentences on the other counts of which he had been convicted. Mr Blaxland rightly, and realistically, does not take issue with the structure of the sentence nor with the total figure of 18 years in custody. The sole issue argued before us was dangerousness. 36. The judge did not consider it necessary to adjourn for a report to consider the issue of dangerousness. He noted that it was not obligatory for him to do so and in the circumstances of the case he did not consider it necessary. He found that there was a significant risk that Townsend would commit further specified offences and by doing so, would cause serious physical or psychological harm to one or more people. He was found to be dangerous due to the nature of the convictions and their circumstances, combined with his activities in the zoom chatroom . The judge stated that in his view Townsend’s predilection had not gone away since he ceased abusing his victims and that his actions in trying to discourage TS and OH from complaining were highly manipulative and dangerous . He concluded that there was “a significant risk you will revert to contact offending, based on that Zoom evidence and what I saw of you during your trial” and that “a determinate sentence would not be sufficient to protect young boys from the risk of serious harm presented by you”. 37. It is submitted on behalf of the applicant Townsend that the learned Judge’s finding that the applicant was dangerous was not warranted and it was wrong for the court to have imposed an extended sentence. It is further submitted that the Judge was wrong to have rejected the defence submission that a report should be obtained to assist with the determination of dangerousness . 38. In most cases of this kind it is desirable to obtain a report on the issue of dangerousness; indeed, there is an obligation to do so pursuant to section 156(3) of the Criminal Justice Act 2003 unless (subsection (4)) the sentencing judge is of the opinion that it is unnecessary to obtain a report. 39. In this case we are satisfied that it was not unreasonable for the judge who had presided over the trial to form the opinion that a report was not necessary. The judge, having presided over the trial, was best placed to make such a finding of dangerousness. In particular, having regard to the nature and circumstances of the offences, and the fact that Townsend had admittedly had in 2017 a sexual interest in young boys (while stating it did not extend to contact offences), the judge found that “his predilection has not gone away”. 40. The judge further considered whether a long determinate sentence would be sufficient to protect young boys from the risk of serious harm. He found that a determinate sentence would be insufficient. The judge made such a finding in the knowledge that he was imposing an indefinite Sexual Harm Prevention Order. We are of the view that the learned judge was not wrong to make the assessment he did. 41. Metcalfe, a man now 57 years old and of previous good character, was sentenced to 4 years imprisonment in respect of Count 9 (indecent assault on OH by anal penetration), and 3 years imprisonment in respect of Counts 16 and 17, concurrent with each other but consecutive to the 4 years on Count 9. Mr Phillips does not and could not take issue with the imposition of consecutive sentences in principle, but submits that the judge failed to have due regard to totality, or to his client’s previous good character. 42. It is right that the offences under counts 16 and 17 have a starting point of 2 years custody under the relevant Guideline, and that the judge’s sentence was above that starting point. But as against that, the starting point for the assault by penetration offence the subject of count 9 was 8 years. While it may be that the sentences imposed could have been structured differently, in our judgment it is not arguable that the total sentence of 7 years imposed on Metcalfe was excessive or disproportionate. 43. Accordingly both the renewed applications for leave to appeal against sentence are refused.

```yaml citation: '[2020] EWCA Crim 1343' date: '2020-10-19' judges: - HIS HONOUR JUDGE ROWLAND - LORD JUSTICE BEAN - MR JUSTICE ROBIN KNOWLES - HIS HONOUR JUDGE AUBREY QC ```

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

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 1867 No. 202103892 A2 Royal Courts of Justice Wednesday, 14 September 2022 Before: LORD JUSTICE SINGH MR JUSTICE FRASER MR JUSTICE HENSHAW REX V JOSHUA JASON PORTER __________ 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 S QUINTON-CARTER appeared on behalf of the Appellant. ________ JUDGMENT MR JUSTICE FRASER: 1 This is a renewed application for permission to appeal against sentence following refusal by the single judge. The applicant also requires an extension of time of 106 days for the renewal of the application for permission, a point to which we shall return at the end of this judgment. 2 The applicant has been most ably represented today by Ms Quinton-Carter of counsel who has been appearing on his behalf pro bono. We are very grateful to her for her succinct and helpful submissions, which we have found of great assistance. 3 On 2 July 2021 the applicant was committed to the Crown Court for sentence by the Magistrates' Court, having pleaded guilty to two counts of drugs possession contrary to s.5(2) of the Misuse of Drugs Act 1972. One of these counts was for possession of Class A drugs, namely cocaine, and the other for possession of Class B, namely cannabis. He also pleaded guilty to an offence of possession of a bladed article contrary to s.139(1) and (6) of the Criminal Justice Act 1988. 4 On 27 September 2021 he refused to appear at a Plea and Case Management Hearing on three other charges and not guilty pleas were entered on his behalf to each of those charges. He did, however, plead guilty to them on 12 November 2021. Those other charges were all of his being concerned in the supply of a controlled drug contrary to s.4(3)(b) of the Misuse of Drugs Act 1971. Two of these charges were for Class A drugs, namely crack cocaine and diamorphine, and one for Class B, namely cannabis. 5 He was sentenced by Mr Recorder Eissa QC in the Crown Court at Basildon on 12 November 2021 in respect of all of these charges. The sentencing judge in the Crown Court sentenced the applicant without a pre-sentence report, although a short report was available from the Probation Service in respect of his response to earlier community disposals for previous convictions. Section 33 of the Sentencing Act 2020 states that the full court must now obtain a report, unless it agrees one was unnecessary or is not now necessary. We do not consider such a report is necessary and we state that expressly here. 6 Before reciting the sentences passed on each of the counts, we should explain that the two counts contrary to s.4(3)(b) of the Misuse of Drugs Act are characterised by s.313(5) of the Sentencing Act 2020 as Class A trafficking offences. Previous convictions that the applicant had included offences that are also characterised as previous drug trafficking offences. Those convictions are those dated 21 January 2014 and 7 February 2019. Accordingly, and in accordance with s.313 of the Sentencing Act 2020, the sentencing judge was obliged to impose an appropriate custodial sentence of seven years, which applied unless the court was of the opinion that there were particular circumstances which related to any of the offences or the offender that would make it unjust to do so in all the circumstances. Discounts to that statutory minimum for pleading guilty are permitted, but by s.73(3)(a) of the Sentencing Act 2020 credit for a guilty plea in such circumstances to be applied must not reduce the appropriate custodial sentence below 80 per cent of that minimum of seven years. The judge in his sentencing remarks did not find any circumstances that would make it unjust for him to impose the minimum term, but stated that he would reduce it by the maximum permissible period. 7 He went on to pass the following sentences on the different counts. For the two counts of being concerned in supplying a controlled drug of Class A to another, he passed sentences of imprisonment of five years and six months on each. Those sentences were ordered to run concurrently. On the third count of being concerned in supplying a controlled drug of Class B to another, he passed a sentence of 18 months' imprisonment, also to run concurrently. On the two possession of drugs counts, namely possessing a controlled drug of Class A and possessing a controlled drug of Class A diamorphine, he passed two sentences, each of one month of imprisonment, also to run concurrently; and for possessing a bladed article he passed a sentence of five months' imprisonment, also concurrent. The overall total sentence was therefore one of five years and six months' imprisonment. He also made other relevant orders, including imposing a statutory surcharge order and one for forfeiture, destruction and disposal of the drugs and for the mobile telephone seized upon arrested. In calculating the relevant period for the two most serious charges of being concerned in the supply of Class A drugs, the judge fell into arithmetic error and passed sentences that fell below the 80 percent minimum required under s.73(3)(a) of the Sentencing Act 2020. This is a point to which we will return. 8 The facts of the offending are as follows. For the offences to which he first pleaded guilty, these arose on 24 August 2019 when police on a patrol in the Chalvedon area of Basildon received reports of someone drug dealing in the area. They saw the applicant a short distance away from them and concluded that he matched the description given. They stopped him and found upon his person a gold tin containing one small package of cocaine and one of heroin with a combined weight of 0.2 grams. The applicant had a rucksack with him which was found to contain a small bladed scalpel. The applicant was arrested and made full admissions in interview about the drugs and said he simply forgot he had the bladed article with him in the bag. We have seen the photograph of the bladed article and it is a sharp scalpel or box cutter-type knife. 9 For the more serious offences, police officers were looking at a telephone belonging to a known Class A drug user and they saw offers to purchase drugs from a number which ended with the digits 983. Further enquiries were made into that number and it was found that over a period of about six weeks between the start of May 2021 and the end of June 2021 that number had sent out a total of 138 bulk messages with offers to supply both cocaine and heroin. From those messages offering drugs, there was a take up of just under one half. 10 On 25 August 2021, which is the day after the possession offences which we have just explained, police officers attend the applicant's address. He was not present and they did not find any drugs, but they did find a set of scales. Later that day he contacted the police to find out why his property had been searched. Officers attended once more and found that the applicant had on his person a mobile telephone that ended with the digits 983. Checks on the telephone showed there were 11 bulk messages sent out advertising cannabis for sale. He was arrested and provided a full comment interview, saying it was his telephone but he had lent it to a friend. By his guilty pleas, he accepted that he was involved in drugs supply of both Class A and Class B drugs. 11 His previous convictions are that prior to these six offences he had nine convictions for 26 offences between 21 January 2014 and 20 October 2020. These included two offences of conspiracy to supply a controlled drug of Class A and one of producing a controlled drug of Class B. For these he received a suspended sentence order of eighth months' imprisonment suspend for 12 months and that was imposed on 21 January 2014. He also had two offences of possessing a controlled drug of Class A with intent to supply, three of committing a supply of controlled drugs of Class A on the premises and one of possession of a bladed article. For these offences, he had received a two-year Community Order with a drug rehabilitation requirement and an unpaid work requirement, that sentence being imposed on 7 February 2019. Prior to these offences, he had not previously served a custodial sentence. As we have noted, importantly these previous convictions included two for Class A drug trafficking as defined by s.313(5) of the Sentencing Act 2020 and this led to the seven-year minimum sentence to which we have already referred. 12 The grounds of appeal initially were, firstly, that the judge imposed a sentence which was wrong in principle in respect of Counts 1 and 2 in that he imposed a sentence in line with s.313 of the Sentencing Act 2020 when it was unjust to do so in the particular circumstances. A different way of expressing this is it is effectively said on the applicant's behalf that the sentencing judge or this court ought to have found or to now find that there were or are particular circumstances which related to any of the offences or the offender that would make it unjust to apply the s.313 minimum sentence in all the circumstances. 13 There was a second ground of appeal, which was that the sentence in respect of Count 3 was wrong in law as that was not an offence that fell foul of the mandatory minimum sentencing provisions, but that ground was abandoned when it was identified that in fact the sentencing judge had passed a sentence of 18 months concurrent on that count and not five and a half years concurrent as had been initially thought by the applicant’s advisers. This misapprehension was corrected by the applicant's legal representatives and helpfully confirmed again today by Ms Quinton-Carter. 14 We therefore have considered the first and only ground. We have considered the careful submissions made today and the authorities provided on the applicant's behalf, both those referred to at para.32 to 35 of the advice and grounds and the others that have been sent to the court. We are unable to accept that the applicant's personal circumstances made it unjust to impose the statutory minimum. We agree with the single judge who stated the following in refusing leave to appeal: "The learned Recorder who sentenced you was entitled to conclude that your circumstances and those of your offending did not render it unjust to impose the statutory minimum sentence. It was not wrong in law, nor can it be said to be manifestly excessive, to sentence you on that basis. In particular, there is no rule of law that sentencing at the minimum is unjust for a street dealer who is involved in dealing as a by-product of their own addiction. The judge was reasonably entitled to the view that your case in fact fitted the intention of Parliament to impose the minimum sentence, to give you ample time in custody to address your addiction as well as to serve as proper punishment (and deterrent to others) in the face of repeat offending of this kind." 15 There is nothing we can usefully add to those remarks. We do not consider the challenge to the sentence passed by the learned sentencing Recorder to be reasonably arguable and we dismiss it. 16 We therefore return to the calculation of the relevant term. Twenty per cent of seven years is 1.4 years. Taking account of the fact that there are 12 months in a year, 0.4 of a year is when expressed in months 4.8 months. The learned recorded applied a reduction of 1.5 years or one year and six months, which is therefore in excess of the maximum permitted reduction of 20 per cent. The sentence passed therefore contravenes the express requirement of the legislative provision committing the court to reduce the maximum sentence imposed for such an offence. However, this error is in the applicant's favour. This court has no power to increase a sentence on appeals such as this one. This is not an Attorney General's reference under s.36 of the Criminal Justice Act 1988 and we are precluded by the provisions of s.11(3) of the Criminal Appeal Act 1968 from imposing a sentence that would result in the applicant being more severely dealt with, taking the case as a whole, than he would have been in the court below. Given the overall term of the resulting sentence passed upon him in the Crown Court below is five years and six months, we cannot interfere with that error or correct it, and it remains undisturbed. The arithmetic error to which we have referred therefore gives the applicant a sentence very slightly less than he ought to have been given under the statute but by an amount of only 1.2 months. 17 Finally, we return to the question of an extension of time of 106 days. The explanation given to the court by the applicant's solicitors in their letter of 1 August 2022 is that notification having been given to the applicant that the single judge had refused leave, difficulties at the prison with booking, and obtaining a video link for instructions were such that this was not possible until a period of over three months had passed. We have dealt in this judgment with the merits of the renewed application in any event and have considered it as though it were brought within time. However, having concluded there is no merit in it and that the application is not reasonably arguable, there would be no point in extending time and we refuse to do so. 18 We therefore dismiss the application for an extension of time and also dismiss the renewed application. __________

```yaml citation: '[2022] EWCA Crim 1867' date: '2022-09-14' judges: - LORD JUSTICE SINGH - MR JUSTICE FRASER - MR JUSTICE HENSHAW ```

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

Neutral Citation Number: [2020] EWCA Crim 1560 Case No: 201901325 A4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/11/2020 Before : LORD JUSTICE GREEN MR JUSTICE JULIAN KNOWLES HIS HONOUR JUDGE BLAIR QC THE RECORDER OF BRISTOL - - - - - - - - - - - - - - - - - - - - - Between : TYLER WHITTINGTON Applicant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr David Leathley for the Applicant The Crown did not appear and were not represented Hearing dates: 4 November 2020 - - - - - - - - - - - - - - - - - - - - - APPROVED JUDGMENT Mr Justice Julian Knowles: Introduction 1. This is an application for an extension of time of approximately 14 months to renew an application for leave to appeal against sentence, following refusal by the single judge. The original application was also significantly out of time. On 12 September 2018 in the Crown Court at Cardiff the Applicant was sentenced by Mr Recorder Treverton-Jones QC, having been convicted by the jury, on three counts (namely, Counts 1, 3 and 5) of possession of a controlled drug of Class A, with intent to supply, contrary to s 5(3) of the MDA 1971 namely cocaine and heroin. 2. The Applicant’s application for leave to appeal against sentence was received in the Criminal Appeal Office on 8 April 2019, about 180 days out of time. In Counsel’s original advice it stated the application was late in because of new facts raised by the financial investigation under the Proceeds of Crime Act 2002. The Applicant only indicated a desire to challenge his sentence on 6 February 2019 following a visit from solicitors. On 13 June 2019 the single Judge (Nicklin J) refused leave to appeal. On 21 June 2019 the single Judge’s decision was sent to the applicant. 3. On 8 September 2020 the application to renew the extension of time and leave to appeal was received in the Criminal Appeal Office, thus approximately 14 months out of time. 4. The Registrar has helpfully drawn our attention to the fact that a guilty verdict may have been wrongly returned on Count 2, simple possession, which was an alternative to Count 1, possession with intent to supply. Once the Applicant had been found guilty on Count 1, no verdict should have been taken on Count 2. The records are, unfortunately, incomplete, but for the avoidance of doubt, we quash any guilty verdict on Count 2 and order that that Count lie on the file on the usual terms. 5. The Applicant was sentenced to eight years’ imprisonment concurrent on each count. He was also made subject to the victim surcharge. Given the existence of confiscation proceedings, a technical issue arises whether that order should have been made, but in the absence of any evidence of prejudice, we say no more about it. Facts 6. The facts were as follows. 7. The Applicant was arrested on 1 April 2018 in Newport, in possession of a small quantity of Class A drugs, mostly heroin and a little cocaine. But when the police went to his address in Newport they found in a cupboard just outside his flat a quantity of heroin and cocaine. There was a trial. The Applicant was convicted by the jury. In passing sentence, the judge said that the quantity of heroin found was about 1 kg (the Grounds of Appeal suggest a lesser quantity, namely 490 g) and there had been a significant amount of cocaine. He said the offences were therefore very serious. The Applicant had admitted possession but denied intent to supply. 8. The judge said that the evidence which he had heard showed that the value of the cocaine and the heroin which was found in the cupboard was well over £10,000, and if the heroin were to have been be adulterated the value would have been more than double that. Under the relevant Sentencing Guidelines, the judge assessed the Applicant as having a significant role, and the amount of drugs involved placed the case into Category 2. The sentences of eight years were in accordance with the starting point for such offences under the Guidelines. 9. The Applicant has relevant previous convictions for drug offences as recently as 2016. 10. When refusing leave the single judge said: “It is the quantity of the drugs – not their value (as to which there will frequently be a dispute) – that governs the categorisation on the sentencing guidelines. The forensic drugs report identified that … the quantity of heroin was over 1kg. That is before any cocaine is taken into account. The Judge was correct to assess the applicant as having a significant role. The supposed evidence from the proceeds of crime investigation that the applicant’s lifestyle and available property is inconsistent with the applicant having a significant role is unpersuasive. These are not pre- requisites for a finding that a person performed a significant role. In light of that, the sentence cannot remotely be described as manifestly excessive; it is squarely within the guideline. No error of approach or principle has been identified. The balance of the matters raised in the advice (§4) appear to be a belated challenge to the conviction of the applicant on the basis that the drugs (or at least a quantity of them) were not in his possession. These are not appropriate matters to raise in a sentence appeal.” 11. Before us on this renewed application, Mr Leathley did not seek to pursue the grounds of appeal which had not persuaded the single judge to grant leave. He accepted, expressly, that the single judge had been right and that leave to appeal on the grounds as then presented had been ‘deservedly refused’. That was a realistic concession. 12. Instead, Mr Leathley focussed his submissions on the current COVID-19 pandemic and argued that that should result in this Court reducing the Applicant’s sentence. He referred to Manning [2020] EWCA Crim 592 (30 April 2020) and Jones [2020] EWCA Crim 764 (12 June 2020) in which this Court considered the impact of the pandemic on sentencing. 13. Mr Leathley argued, firstly, that the effect of the pandemic in prisons has been to make the impact of imprisonment harsher than it would otherwise be because of, for example, the reduced time out of cells that is currently permitted. There are also reduced family visits. He said that the judge, had he known the sentence he imposed would span the pandemic (which, of course, he could not have known when he imposed it), would not have imposed such a long sentence. Mr Leathley also relied on what he said were the Applicant’s mental health conditions, including schizophrenia. We were not, however, taken to any medical evidence nor does it appear that the sentencing judge was referred to such evidence. Mr Leathley said that Mr Whittington’s family were concerned he might not be receiving his medication. 14. The impact of the COVID-19 pandemic on sentencing has been considered by this Court in several cases, and we therefore reserved judgment in this case to consider those decisions and their effect on the correct approach to appeals against relatively lengthy sentences such as those to which the Applicant is subject. As well as the two cases cited by Mr Leathley, the issue was raised in Korta – Haupt v Chief Constable of Essex [2020] EWCA Civ 892 (13 July 2020); Randhawa [2020] EWCA Crim 1071 (23 July 2020); Wayne [2020] EWCA Crim 1303 (25 September 2020); and Beirne [2020] EWCA Crim 1218 (8 October 2020). In Scotland, the issue was considered by the Appeal Court, High Court of Justiciary, in Crown Appeal against Sentence by Her Majesty’s Advocate Against Ian Lindsay [2020] HCJAC 26 (12 June 2020). 15. In Manning , supra, a Reference by the Solicitor General, the Lord Chief Justice said at [41][42]: “41. 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.” 16. In the Scottish case of Ian Lindsay , supra, (an appeal by the Crown against the sentences passed on the defendant for coughing in the faces of two police officers) the Lord Justice Clerk said at [9] that the sheriff had applied a discount of one third (from six months to four months) to reflect ‘the considerable utilitarian value of the plea of guilty; particularly due to the current inability to conduct trials and backlog, caused by the Covid19 pandemic’. It was submitted for the Crown that the sheriff had fallen into error in giving an enhanced discount on account of the pandemic [10]. 17. At [13] the Lord Justice Clerk said that the discount of one-third was in line with usual practice for a plea of guilty in the circumstances of the defendant’s case and therefore that the premise of the Crown’s argument that an enhanced ‘pandemic discount’ had been awarded was a false premise. She went on at [14] to follow the approach in Manning , supra. 18. On the same day this Court gave judgment in Jones , supra. The application for leave to appeal against sentence had been referred to the Full Court because of the short sentences involved. On 17 March 2020, just six days before the first lock-down began, in the Crown Court at Cardiff, the applicant was sentenced on count one (attempted burglary) to eight months imprisonment and on count 2 (possession of Class A drug) to no separate penalty. 19. At [15] Green LJ said: “Mr Bishop, for the applicant, has framed his arguments under two broad headings. First, arguments relating to whether the sentence was manifestly excessive; second, arguments relating to the fact that the applicant was sentenced during the period immediately prior to the Covid-19 pandemic lock-down when the sentencing judge would have been unaware that in sentencing the applicant to custody he would be detained in conditions which would involve a greater degree of privation than would be the case but for the lock-down.” 20. The Court dismissed the first limb of the argument. As to the second, Green LJ cited [41] and [42] of Manning , supra, and said at [19]: “We are of the view that in the present, exceptional, circumstances it is appropriate to take the conditions under which the applicant is presently held in custody into account. We do not of course criticise the judge for the sentence imposed because the judge was wholly unaware of the change in prison conditions that would arise just days after the sentence was imposed.” 21. On 23 June 2020 Holroyde LJ, Chairman of the Sentencing Council, made the following statement (available at https://www.sentencingcouncil.org.uk/news/item/the-application-ofsentencing-principles-during-the-covid-19-emergency/): “The Sentencing Council is aware of and understands the concerns that many people have about the effect the Covid-19 emergency is having on conditions in prisons and the potentially heavier impact of custodial sentences on offenders and their families. There are wellestablished sentencing principles which, with sentencing guidelines, are sufficiently flexible to deal with all circumstances, including the consequences of the current emergency. These principles are familiar to judges and magistrates and were reaffirmed by the Lord Chief Justice when giving the judgment of the Court of Appeal in the case of Manning . The Council hopes this statement will help to clarify the position for those who are less familiar with the principles or not involved in the criminal justice system. Each case must of course be considered on its own facts, and the court has an obligation to protect the public and victims of crime. Judges and magistrates must make their independent decisions as to what sentence is just and proportionate in all the circumstances of each individual case. By statute, a court must not impose a community sentence unless it is of the opinion that the offence was serious enough to warrant such a sentence, and must not pass a custodial sentence unless it is of the opinion that the offence was so serious that neither a fine alone nor a community sentence can be justified. In deciding whether a custodial sentence is necessary, a court must follow the approach set out in the Sentencing Council’s Imposition guideline. This guideline requires the court to consider first whether the custody threshold has been passed. It makes clear that even where the court decides that the custody threshold has been passed, it must go on to consider whether it is unavoidable that a custodial sentence be imposed. If a custodial sentence is unavoidable, the court must then decide what is the shortest term commensurate with the seriousness of the offence(s) and must consider whether the sentence can be suspended. In accordance with well-established principles, the court in answering those questions should take into account the likely impact of a custodial sentence upon the offender and, where appropriate, upon others such as children or other dependents. This has recently been confirmed by the decision in the case of Manning … In addition, when applying the Reduction in sentence for a guilty plea guideline, the court must consider the exceptions in that guideline. The exceptions include whether there were particular circumstances affecting the defendant’s ability to understand the allegations or to receive the advice necessary before pleading guilty, or where the defendant pleads guilty to, and is then convicted of, a different offence from that originally charged. In making these considerations, the court must keep in mind the practical difficulties of defendants accessing legal advice during the present emergency.” 22. Korta-Haupt , supra, involved two appeals against sentence for contempt of court arising from breaches of Gang-Related Injunctions. Peter Jackson LJ said at [30]: “Next, both judges gave consideration to the impact of Covid-19 on any custodial sentence. The significance of the pandemic, as was made clear in Manning , is that the impact of a sentence is likely to be heavier because of conditions in detention, lack of visits and anxiety. There is no entitlement to a ‘Covid discount’ – it all depends on the circumstances. In this case, there were no individual features of either appellant’s situation that suggested a reduction was called for. The emergency had not prevented them from travelling the country during lockdown and the additional burden of the pandemic on them and their families during a relatively short period of detention was not significant.” 23. The next case in time is Randhawa, supra. Hickinbottom LJ qualified the principle set out by the Lord Chief Justice, at [13] and [15]: “13. Finally, relying on the recent judgment of this court in R v Manning [2020] EWCA Crim 592 , Mr Smith submits that although the sentence was passed prior to the COVID-19 lockdown, the restrictions resulting from that pandemic have had serious adverse effects on the Appellant, with (e.g.) the postponement of home leave and family visits, difficult in any event because of the distance involved. … 15. … In our view, the Appellant having been sentenced prior to the COVID-19 lockdown, Manning (which requires consideration to be given to the adverse impact of the restrictions when considering a sentence of imprisonment) has no application here …” 24. In Wayne, supra, the Court said at [16] that counsel for the Appellant had noted that although the matter had not specifically been raised before the judge, no consideration had been given to the present ongoing effects of the pandemic on the conditions in which the appellant would have been detained, 25. In Beirne , supra, [22] the Court of Appeal noted that the sentencing judge had been referred to Manning , supra, but did not further address the issue. Discussion 26. We do not read these authorities as providing support for the proposition that a lengthy prison sentence like the Applicant’s should, without more, be substantially reduced on appeal on account of the pandemic in circumstances where it was passed many months before the pandemic and first lockdown started. In the Appellant’s case, that period was 18 months. The Applicant requires a substantial extension of time to make this application; it is only because he is so far out of time that he able to raise the pandemic issue at all. Had he made his original application in time, and applied to renew in time (as he should have done), then his case would have been determined in 2019, long before the pandemic began. 27. Manning , supra, established that the pandemic could be taken into account by sentencing judges in deciding on the length of sentence or (as in that particular case) whether to suspend a sentence. As the Lord Chief Justice explained, and as Holroyde LJ later amplified, the impact of the pandemic on prisoners can be taken into account during the sentencing process because of the general sentencing principle that the particular impact of a prison sentence on a prisoner must always be taken into account when a sentence is being determined. 28. The position is not the same on an application for leave to appeal. The Manning principle was qualified in Randhawa , supra, where it was held to have no application in relation to sentences passed before the lockdown started. In Jones , supra, a short sentence was reduced on appeal on Manning grounds, but the Court was at pains to point out that the facts were exceptional, the sentence was short, and the sentence had been passed only days before the lockdown began. 29. The present case is very different, for the reasons we have explained. 30. Whilst this Court, in accordance with well-understood principles, can reduce a sentence where there are proper grounds do so, we think it will be rarely – if ever - appropriate to do so in respect of a long sentence passed many months before the pandemic started. Randhawa , supra, would suggest that the Manning principle does not apply at all in such a case. Without taking such an absolute approach, we think it likely that particularly cogent evidence of the increased harsh impact of imprisonment because of the pandemic will be needed before such a course should be contemplated in the case of a long term prisoner. The more serious the offence, and the longer the sentence, the less the pandemic can weigh in the balance in favour of a reduction unless there is clear, cogent and persuasive evidence of a disproportionately harsh impact on the prisoner. Over the course of a long sentence the period of time during which the prisoner is subject to lock down because of the pandemic might be quite short in relative terms. It is for prison governors to do what they can to alleviate the worst adverse effects. The course of the pandemic is uncertain. The current lock down is due to end in early December. We hope that prison conditions might return to something near normal in the near future. We do not wish to say anything to encourage long term prisoners with no other viable grounds of appeal to apply to this Court for leave to appeal against sentence simply on the grounds of the pandemic. Such applications are likely to be given short-shrift. 31. Turning to the case before us, as we have pointed out, the Applicant is only able to make this argument because he is substantially out of time. There is not a great deal of evidence about the Applicant’s particular circumstances, however we have seen correspondence from G4S from September 2020 indicating that he has two hours a day out of his cell, and one family visit per month. G4S acknowledged the situation is far from ideal. We accept that the Applicant ‘s prison regime has been impacted by the pandemic, in line with the authorities we have cited. On the other hand, his sentence was passed a long time before the first lock down. As we have said, the current, second, lock-down is due to end in early December 2020, and it is to be hoped that the prison regime to which he is subject will return to some sort of normality soon after that, although no doubt some restrictions will continue. 32. Overall, despite Mr Leathley’s admirably clear submissions, we are not persuaded this is a case where we can properly interfere with what is otherwise a perfectly appropriate sentence. 33. We therefore refuse leave to appeal.

```yaml citation: '[2020] EWCA Crim 1560' date: '2020-11-23' judges: - LORD JUSTICE GREEN - MR JUSTICE JULIAN KNOWLES - HIS HONOUR JUDGE BLAIR 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: 200502373/B1 Neutral Citation Number: [2005] EWCA Crim 3162 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 25th November 2005 B E F O R E: LORD JUSTICE MOSES MR JUSTICE GIBBS MR JUSTICE TREACY - - - - - - - R E G I N A -v- JOSEPH CHARLES MCPEAKE - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR M HEYWOOD appeared on behalf of the APPELLANT MR B HURST appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. MR JUSTICE TREACY: At the outset of the judgment we would like to express our appreciation to Mr Heywood for his assistance in having accepted the court's invitation to provide advice to Mr McPeake this morning at short notice and then in making submissions to us. 2. The appellant in this case is Joseph Charles McPeake. He is 56 years of age. On 15th April 2005 in the Crown Court at Bradford, the appellant pleaded guilty on the third day of his trial. He pleaded guilty to an offence of arson being reckless as to whether life is endangered. That was count 2 upon the indictment at that time. The lives endangered were expressed to be those entering the appellant's property as rescuers. The jury was discharged, on that plea being entered, from returning a verdict on count 1, which was also a count of arson being reckless as to whether life was endangered. On that count the particulars indicated that the lives in question were those of the occupants of neighbouring houses. On the same day the trial judge imposed an extended sentence of some five and a half years. The custodial element was fixed at three and a half years and the extension period was fixed at two years. 3. The appellant appeals against conviction by leave of the single judge. The single judge refused his application for leave to appeal against sentence, but that has been renewed before us. 4. The circumstances are these. At about 7.15 a.m. on the morning of 28th October 2004 the appellant, who had consumed a considerable amount of alcohol, made a determined attempt to take his life by setting fire to the house which he and his former wife owned. He had purchased large quantities of an accelerant, turpentine, which he placed around the house. He linked the quantities of accelerant together by tied pieces of newspaper. He also placed bottles of whiskey around his house which he said he intended to drink as he set each fire in order to render himself unconscious as the fires took hold. He then set fire to a motorcycle outside his house. That motor cycle belonged to his ex-wife. He then returned inside and set fire to the papers on a table in the living room downstairs. 5. Neighbours had noticed the fire outside and called the fire brigade. However, that fire (that is the fire relating to the motor cycle) burnt itself out and the neighbours cancelled the call to the fire brigade. However, they then noticed a fire inside the house and saw the appellant in the same room as the fire. The neighbours entered the house with a fire extinguisher, and whilst one put the fire out, the other one restrained the appellant who was trying to prevent the fire being extinguished. Those neighbours then left the house, but subsequently noticed a further fire burning on the first floor. They called the fire brigade again. The fire brigade attended and pulled the applicant to safety despite his protests that he wished to remain in the house to die. The appellant admitted that his purpose was not only to commit suicide, but also to deprive his former wife of any substantial interest in the property. 6. We turn, first, to the appeal against conviction. Count 1, as stated, related to a count of arson being reckless as to whether life was endangered where the particulars referred to the occupants of neighbouring houses as being the endangered persons. The appellant's version of events at trial was that using his expertise and knowledge of the house he believed that the fire would be contained within the walls of the house and therefore that it represented no danger to his neighbours. 7. The trial before the jury progressed without any questioning of prosecution witnesses called by the Crown, it having been indicated in advance that their evidence could be agreed. 8. The appellant was called to give evidence. He gave evidence in line with the version already mentioned. Whilst he was being cross-examined, prosecution counsel started to cross-examine him along the lines of dangers which would be caused to people entering the premises as rescuers. The trial judge intervened and stopped that line of questioning. However, it seems that that intervention by the judge and the line of cross-examination which had been embarked upon by the Crown, led to a reassessment of the position. The Crown then sought and obtained leave from the judge to amend the indictment to include count 2 to deal with the rescuers' aspect of the case. That application and that leave to amend the indictment took place in the absence of the jury. 9. The case was then adjourned overnight on the second day of the trial so that the defence could consider their position. On the third morning of the trial the appellant pleaded guilty to this newly added second count. The appellant pleaded guilty to the new count in the presence of the jury, but the jury were not invited to return a guilty verdict on the learned judge's direction. Prosecuting counsel had indicated that the jury should return a verdict, but the judge took the view that the appellant had never been put in charge before the jury on that count so they did not have to return a verdict. It is correct to say that the jury had never in fact been put in charge on count 2. Once the plea was entered, the jury were then discharged from returning a verdict on count 1. 10. Grounds of appeal submitted by trial counsel rely on the decisions of this court in the case of Hancock 23 Cr App R 16 and Heyes 34 Cr App R 161 . Those were cases where the appellant had admitted his guilt upon a count during the trial in relation to which a jury was in charge. In those cases the judge took the verdict without reference to the jury and then proceeded to sentence. In each of those cases it was held that the procedure was a nullity because it was for the jury to return a valid verdict once they had been put in charge. Accordingly, trial counsel advised that there were valid grounds of appeal on the basis that the verdict in this case was a nullity. The single judge gave leave on the basis of counsel's advice. 11. When the matter came to the Crown's attention, leave having been granted, the Crown pointed out that there was a recent authority of this court which was relevant to the decision. That decision was the case of Poole [2002] 2 Cr App R 13 . In that decision the decisions in Hancock and Heyes were not followed. This was apparently unknown to counsel then acting for the appellant, and, as we have said, had not been drawn to the attention of the single judge. 12. Poole is a case where the appellant had pleaded guilty during the trial to a count upon which the jury had been in charge since the start of the trial. The judge discharged the jury and accepted the guilty plea as if it had been taken before a jury was sworn. The issue before the court was whether, where a defendant tendered a guilty plea on rearraignment while in the charge of the jury, the jury's verdict had to be taken. 13. The court held that there was no possible unfairness or disadvantage to a defendant who elected to change his plea after the start of the trial, if his plea was treated in precisely the same way as it would have been if it had been tendered before the jury was sworn. It involved a personal statement made publicly by the defendant that he was guilty of the crime alleged in the indictment. The protection to which he was entitled was the absolute freedom to enter whatever plea he wished. The requirement that the jury should enter the verdict after a change of plea was little more than a formality and should not act as a limitation on the trial judge's discretion to discharge the jury from giving the verdict, when, in his judgment, it was right to do so. 14. In the decision in Poole Judge LJ explains in detail at paragraph 22 of the judgment the significant legislative and procedural changes which had taken place since the cases of Hancock and Heyes were decided. It provides the relevant context in which those decisions are no longer to be followed. We consider that the case of Poole is decisive for the reasons briefly referred to and therefore that leads to the conclusion that this appeal against conviction must be dismissed. 15. We would add that the facts of the present case are even stronger in favour of this conclusion. Heyes , Hancock and Poole were all cases where the jury were actually in charge of the defendant on the relevant count. In the present case the jury had never been put in charge on count 2 because of the way matters developed in the trial. The requirement of putting in charge and then taking a verdict in those circumstances would be a wholly empty formality. Accordingly, we dismiss the appeal against conviction. 16. Before leaving the matter, we should point out that defence counsel's grounds appear to be based on what is now paragraph 7-358 of the 2006 edition of Archbold. The cases of Hancock and Heyes are cited, but Poole is not. The editors may wish to consider an amendment to this passage to reflect the decision in Poole , as it plainly misled the appellant's counsel in this case, and the passage does not now appear to reflect the existing law. 17. We turn, then, to the renewed application for leave to appeal against sentence. This appellant was 56 years of age. The material available to the court showed that he had suffered a number of adverse matters in his personal life. His marriage had broken down. He had been living on his own in an isolated part of North Yorkshire. He had lost his employment and he had abused alcohol to a significant extent. It was a combination of those features which had apparently led him to make this determined suicide attempt. 18. His antecedents showed that he had two recent convictions for driving with excess alcohol. He had never served any previous custodial sentence and had spent a period of two months or so as a condition of bail on the secure wing in a local psychiatric hospital. 19. The submission made to us is that the custodial element in this case of some three and a half years was too severe and gave insufficient credit for the fact of the guilty plea at the first opportunity. We treat this matter as a case where the plea of guilty was entered at the first opportunity, since a plea to the count in the form in which it was framed was not available to the appellant until the third day of the trial. 20. It is pointed out to us, in addition, that the appellant has no conviction prior to this for arson and that the judge accepted that there was little likelihood of the spread of the fire to adjoining buildings. We are asked to bear in mind that the offence was committed in the context of personal difficulties to which we have already alluded. It is submitted that the custodial element must have represented a five year starting point for the judge in order to result in a three and a half year term, and it is submitted that that, in the circumstances, was too high. 21. In sentencing the trial judge pointed out, rightly, that this was a well planned offence. The judge acknowledged that credit should be given to the appellant for his guilty plea, and for his acknowledgment that he had always accepted that he had started the fire. 22. We have considered the contents of a psychiatric report which was available to the judge. That report was produced by a Dr Hyde. The report indicated that the appellant was suicidal at the time of the fire, and that he had suffered from low moods, but it went on to say that he had acted in the context of life circumstances rather than in reaction to any major depressive episode. The conclusion of Dr Hyde was that the appellant showed no evidence of major mental illness, or severe depressive illness. He assessed the appellant's personality as having clear narcissistic traits which at times would lead to maladaptive responses to situations. It was unlikely that longer term psychological therapy would change his underlying personality, or that further treatment in a psychiatric hospital would benefit the appellant. 23. The assessment of Dr Hyde included the observations that the appellant showed no remorse for his conduct, that he did not recognise the risk that was caused to others by his behaviour and that he was uninterested in engaging in any therapeutic manner with hospital staff. He was unwilling, according to Dr Hyde, to accept responsibility for his actions. 24. For offending of this type, and taking into account the contents of the psychiatric report, a custodial sentence was plainly appropriate, as was an extended period of licence of the type imposed by the judge. The issue is whether the custodial element of three and a half years was too long in the circumstances. 25. We have considered the matters which have been urged on us by Mr Heywood this morning, and which were set out also in trial counsel's grounds of appeal. This was, in our judgment, a serious and determined case of arson. The site of the fire had been set in a number of places. It was plainly preplanned. The appellant's determination to continue with the offence is shown by the fact that he sought to prevent efforts to put out the fire by neighbours who had come into his premises with a view to stopping him. Even after they had departed, the fire was set upstairs in the premises and thus necessitated the arrival of the fire brigade. The charge was one which recognised the risk to the lives of those who came into the premises as rescuers. On two occasions people were required to do that: in the first instance neighbours and in the second instance members of the fire brigade. Accordingly, in our view, the case called for a substantial custodial sentence. 26. We have considered the authorities to which trial counsel drew attention, but are not persuaded that, in all the circumstances, this sentence was excessive. We take the view that when the circumstances are carefully considered, notwithstanding the matters of mitigation to which we have helpfully been referred, this sentence cannot be described as too long, or wrong in principle. Accordingly, this renewed application is refused. 27. LORD JUSTICE MOSES: Mr Heywood, we will make an order that you should be paid for legal assistance out of whatever the appropriate fund is. Thank you. 28. MR HEYWOOD: Thank you.

```yaml citation: '[2005] EWCA Crim 3162' date: '2005-11-25' judges: - LORD JUSTICE MOSES - MR JUSTICE GIBBS - MR JUSTICE TREACY ```

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

No: 200305869/A4-200304971/A1 Neutral Citation Number: [2003] EWCA Crim 3514 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Thursday, 20th November 2003 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE LEVESON MR JUSTICE TUGENDHAT - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 64 OF 2003 (MOUSSIN BOUJETTIF) (JOHN HARRISON) - - - - - - - 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 ORCHARD appeared on behalf of the ATTORNEY GENERAL MR P BOGAN appeared on behalf of the OFFENDER MR B SASTRY appeared on behalf of the APPELLANT HARRISON MR N FRYMAN appeared on behalf of the Crown - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: There are before the Court two unrelated cases, both of which raise issues as to the circumstances in which a Drug Treatment and Testing Order (to which we shall refer as a "DTTO") should be made. The first is an application by the Attorney-General for leave, under section 36 of the Criminal Justice Act 1988 , to refer a 2 year DTTO made on Moussin Boujettif to this Court on the basis that it is an unduly lenient sentence. We grant leave. 2. The second is an application for leave to appeal against sentence, referred to the Full Court by the Registrar, by John Harrison, against a sentence of 4 years' imprisonment, in which it is said that a DTTO should have been made in the court below. We grant Harrison leave to appeal. 3. Before dealing with the particular cases before us, we think it may be helpful to make some general observations in relation to DTTOs. First, we refer to the structure and nature of the DTTO provisions, which were introduced by the Crime and Disorder Act 1998 . Such orders give rise to the only community sentence whereby offenders who give their consent are required to attend for drug treatment. They are orders which are designed to increase the number of drug misusers entering treatment and to reduce drug related crime and its impact on communities. There is evidence that such orders are effective in reducing both drug misuse and offending. They are a high-intensity community sentence, which can be targeted at persistent offenders who commit a high volume of crime. They require frequent drug testing and a high level of contact and supervision, in addition to the provision of a wide range of treatment to meet the offender's treatment needs. In consequence, they place a heavy demand on offenders. They are closely monitored and rigorously enforced. Those who pass sentence can influence the overall direction of an order and monitor compliance with it through the means of review hearings. DTTOs provide a good opportunity to divert offenders from prison and provide drug treatment in the most appropriate setting. 4. By virtue of section 52(3) of the Powers of Criminal Court (Sentencing) Act 2000 the Court may make an order, if it is satisfied that the offender "is dependent on or has propensity to misuse drugs and that his dependency or propensity is such as requires and may be susceptible to treatment." 5. The legislation does not refer to the type of drugs, but it is contemplated that, usually, such orders will be made in relation to Class A drugs, predominantly heroin and crack cocaine, both of which are linked to acquisitive crime and require the level of drug treatment intervention set out in the national standards for DTTOs. 6. The Home Office has issued guidance to probation staff in circulars issued in 1999 and 2000 which states "those convicted of burglary, robbery, theft, including shoplifting, perhaps embezzlement and any other acquisitive crime are most frequently to provide offenders suitable for the drug treatment and testing order" and "while those convicted of offences involving violence are more likely to receive a custodial sentence, it is possible that some may be suitable candidates." Volume of offending is likely to be a more important consideration than the seriousness of the offence and DTTOs should, according to the guidance, be targeted at offenders who have a disproportionately disruptive effect on their communities with priority being given to those who are known to be multiple offenders. 7. There is other guidance given in the London Probation Area that the relevant offence must be serious enough to deserve a community penalty or a short custodial sentence. 8. The national standards to which we have already referred were introduced by the Home Office in February 2001. They set out the requirements placed on the probation service in relation to assessment, supervision, contact, treatment, testing, court reviews and enforcement. The probation service, jointly with designated treatment providers, assess an offender to determine whether he is likely to respond to treatment and will give his informed consent. The criteria which must be assessed are the type and seriousness of the offence, the seriousness of the drug problem, susceptibility to treatment, motivation to change and volume of drug related offending. DTTOs can be made for between 6 months and 3 years. Where, following sentence in the Crown Court, cases go by way of appeal to this Court, the assessment which is carried out at the pre-sentence stage may not, of course, still be valid. 9. During the term of such an order, an offender will be expected to attend a treatment programme for 20 hours a week during the first 13 weeks and this can be reduced to 12 hours per week for the remainder of the order if the offender is responding well. The programme has a range of components including clinical treatment, structured drug day care programmes, alternatives therapies, offending behaviour programmes and other interventions designed to provide social reintegration and skills. Where needed, accommodation support is provided. Treatment may be in a residential setting. Offenders are tested for drugs at least twice a week for the first 13 weeks, reducing to a minimum of once per week dependent upon progress. 10. The courts are required to maintain a supervisory role, over these orders, through review hearings to which we have referred. The probation service is required to advise the court about progress and to provide results of drug tests. This provides a measure of deterrence and allows the court to help in motivating the offender. 11. Such orders are rigorously enforced. Breach action may be taken after one unacceptable failure and must be taken after a second unacceptable failure to comply with the requirements of the order. A failed drug test is not a breach by itself, but regular failures often indicate unsatisfactory progress, which may also be demonstrated, for example, by unacceptable absences. 12. Although a custodial sentence can offer benefits that a DTTO does not, by removing the possibility of further offending for the duration of the sentence and providing a highly structured environment for offenders to receive interventions for drug misuse and offending away from outside pressures, the durability of remaining drug free, upon release from prison, can be limited without proper post release treatment support for which it appears, only now, are appropriate resources beginning to be provided. 13. We turn to the Court's approach in relation to the making of orders of this kind. The art of sentencing involves a particularly difficult exercise of discretion when a judge is deciding whether or not to make a DTTO. This is a matter on which, in due course, the views of the Sentencing Advisory Panel will be welcome. In the meantime, this Court, differently constituted, in R v Belli [2003] EWCA Crim 2752 , in a judgment given by Mantell LJ, helpfully reviewed the authorities including Attorney-General's Reference No 28 of 2001 ( R v McCollins ) [2001] EWCA Crim 1373 , R (On the Application of Inner London Probation Service) v Tower Bridge Magistrates' Court [2001] EWCA Admin 401, [2002] 1 Cr App R(S) 179, R v Robinson [2002] EWCA Crim 535 , [2002] 2 Cr App R(S) 434, R v Kelly [2002] EWCA Crim 2060 , [2003] 1 Cr App R(S) 472, and R v Billinger [2003] EWCA Crim 239 . In the course of the proceedings before this Court today, two other authorities have been referred to R v Waters [2003] EWCA Crim 1693 and R v Watson [2003] EWCA Crim 1751 . 14. In the light of the authorities, it is possible to identify, without purporting to be exhaustive, some of the factors relevant when considering whether it is in the public interest that a DTTO should be made: (i) judges should be alert to pass sentences which have a realistic prospect of reducing drug addiction whenever it is possible sensibly to do so; (ii) many offences are committed by an offender under the influence of drugs. The fact that a defendant was so acting is not in itself a reason for making a DTTO; (iii) a necessary prerequisite to the making of such an order is clear evidence that a defendant is determined to free himself or herself from drugs; (iv) a DTTO is likely to have a better prospect of success early rather than late in a criminal career, though there will be exceptional cases in which an order may be justified for an older defendant; (v) it will be very rare for a DTTO to be appropriate for an offence involving serious violence or threat of violence with a lethal weapon; (vi) the type of offence for which a DTTO will generally be appropriate is an acquisitive offence carried out to obtain money for drugs, though the fact that the motive was to feed drug addiction does not compel the conclusion that a DTTO should be made; (vii) a DTTO may be appropriate even when a substantial number of offences have been committed; (viii) a DTTO is unlikely to be appropriate for a substantial number of serious offences which either involve minor violence, or have a particularly damaging effect on the victim or victims. There must be a degree of proportionality between offence and sentence, so that excessive weight is not given to the prospect of rehabilitation at the expense of proper regard for the criminality of the offender; (ix) material about the offender, which becomes available between sentencing and appeal to this Court, may be of particular significance as to the propriety of a DTTO. The Single Judge of this Court may therefore order a further up-to-date assessment in an appropriate case; 15. In the light of these considerations, we turn to the two cases before the Court. The offender, Boujettif, is 24, having been born in June 1979. On 6th June 2003 he pleaded guilty to both aggravated burglary and burglary at premises in Sussex Place, London. He also pleaded guilty to one other offence of domestic burglary and another of attempted domestic burglary and had 36 offences of burglary and three of attempted burglary taken into consideration. 16. He was sentenced at Blackfriars Crown Court, by His Honour Judge Martineau on 22nd September 2003, to a 2 year Drug Treatment and Testing Order. No separate penalty was imposed for the breach of licence which had occurred by reason of the commission of these offences. 17. In summary, on 8th May 2003, in the early hours of the morning, the offender broke into domestic premises in Sussex Place and stole a handbag and its contents. He went back to the same premises an hour or two later at 3 o' clock in the morning. He took a knife with a 7 inch blade from the kitchen and woke up the female occupier, close to whom was her 10-day-old baby, sleeping. The mother had been breast feeding and tried to pull her bra back on. The offender threatened her and the baby with the knife. He pulled her from the bed by the arm and led her downstairs to look for her bag. He threatened to kill her if she did anything silly. The bag was not there. They went back upstairs and awakened the victim's mother. The offender from her demanded money and took cash and a watch, in the meantime waving the knife. While this was going on he produced a watch which was recognised by the householders as having been taken in the earlier burglary that morning. He made good his escape with something over £3,000 worth of property. 18. He then, a little later that day, committed another residential burglary in Pelham Crescent and an attempted burglary in Onslow Gardens. The circumstances of the burglary were that, at 10.10 on the evening of 8th May, a gentleman and his wife were in their bedroom. They were disturbed by a loud banging coming from downstairs. The male householder went down and was confronted by the offender, who claimed to be the police and further claimed that he had found the door open. The offender was holding a walking stick, which the householder grabbed. The offender said: "I've got a knife" and he pulled one out. The householder's wife activated the audible panic alarm. The offender fled. He had stacked up property to the value of some £4,000 by the front door. A length of bamboo cane was found inside the front door. 19. Within half-an-hour or so, the offender's attentions concentrated on premises in Onslow Gardens, not far away, where there was a dinner party in progress. The hostess noticed her letter box opening and closing and an arm reaching through it the hand of which contained a bamboo cane. She shouted. The offender (for it was he) dropped the cane and ran off. The police were quickly on the scene and they saw the offender nearby. When stopped, he gave a false name. The bamboo cane was found nearby. He was arrested. Fingerprints were taken to establish his identity and it was found what his true identity was and that he was on licence from prison. 20. On 9th May he was interviewed at length and made admissions in relation to the burglary in Pelham Crescent and the attempted burglary in Onslow Gardens. He said he had taken the knife from the kitchen block in Pelham Crescent to cut the aerial cable and not as a weapon. He claimed to have outstanding drug debts on which he was unable to meet the interest. Since he had been released on licence, on 10th March 2003, he had been living in fear of his creditors. He claimed that he had been unable to visit his probation officer lest thereby he be traced. He had been committing burglaries to fund his crack addiction. He expressed remorse and wanted to make it clear that he had no intention of hurting anyone. He was charged with those offences in Pelham Crescent and Onslow Gardens but it was not until later that the aggravated burglary and burglary in Sussex Place came to the knowledge of the police. 21. He admitted 36 burglaries and three attempted burglaries, carried out in the west and southwest areas of London, during March, April and May 2003. The total value of the property taken was in excess of £120,000. Property a little in excess of £70,000 was recovered. 22. When he was arrested for the Sussex Place offences he, at first, denied them, but later he admitted having entered those premises twice in the same evening. On the first visit, he saw a handbag and found cash, which he used to buy crack, and then he returned to the premises knowing there was a computer there. He went into the kitchen and took a knife, he said, to cut the computer wire. He then heard a noise coming from the bedroom and he encountered the mother of the baby whom he asked to be quiet. He still had the knife with him. He admitted leading her round the premises. He claimed to be unaware of the presence of the baby. 23. There was an impact statement obtained from the mother on 2nd September 2003. This indicates that the consequences of this incident to her have been very serious. It was not a document which was placed before the learned judge. Whether, if it had been, his view as to the appropriate sentence in this case would have been different, it is impossible to say. What we do say is that it would not, as it seems to us, be appropriate for us to have regard to the contents of that statement as it was not before the learned judge and has only recently been served on the defence who, as will shortly emerge, are, in any event, in some difficulties in this case. 24. The offender has 22 previous convictions, which include two for robbery and 13 for burglary, of which 12 involved domestic properties. His last burglary conviction was in January 2000 when, for offences of robbery, false imprisonment and burglary, he was sentenced to a term of 4 years' detention in a young offender institution. In that case, a knife had been obtained from the victim's premises and used to force the victim to go to a cashpoint. As we have already said, he was released from prison on licence on 10th March 2003. He was recalled on 14th April 2003, the matters to which we have referred having come to light. His licence was due to expire on 10th August 2003. 25. The pre-sentence report before the judge indicated that the offender's criminal conduct was directly linked to the need to fund his drug habit. The author of the report took the view that the offender's remorse was genuine but also said that the offender was considered to be at a high risk of reoffending. The report also rehearsed the fact that when he was released on licence, no accommodation arrangements had been put in place for him, in March 2003, so he had been forced to sleep rough and had quickly reverted to using crack cocaine. In a later report, he was assessed as suitable for a Drug Treatment and Testing Order which, as we have said, the learned judge ultimately made. 26. In mitigation before the judge, the early pleas of guilty, the admissions in interview and the acceptance of the other offences taken into consideration, were all stressed. It was said that the offences could be described as opportunistic and he was genuinely remorseful and regretful. He had never been given the opportunity to attend a rehabilitation programme and had been receiving custodial sentences repeatedly since he was 17 years of age. 27. The learned judge passed sentence on the basis that the total value of the property taken, that is to say the figure in excess £120,000 to which we have referred, may have been inflated. Credit was given for the earliest possible pleas of guilty. The judge went on to say that, had the matters been contested, the offender would have been looking at a sentence of 8 years or more; on a plea of guilty, something like 6 at least. He then said that, if a custodial sentence was to be imposed, he would have been inclined to have imposed one of just under 4 years, which would be a very light sentence. But, in the event, he made the DTTO for 2 years to which we have referred. 28. On behalf of the Attorney-General, Mr Orchard draws attention to what he submits are a number of aggravating features: the burglaries were at night time; there were repeated offences on the same property in Sussex Place, although as Mr Bogan, on behalf of the offender, rightly points out, the householders would not have been aware of the first intrusion into their premises, when it occurred. Mr Orchard refers to the element of planning which is evidenced by the carrying and use of the bamboo cane or canes. The premises in question were domestic and were occupied. A knife was used to threaten although, as Mr Bogan rightly points out, it was not a knife taken to the premises by the offender. The victims in Sussex Place were particularly vulnerable, having regard to the presence of the baby. Mr Orchard draws attention to the traumatic effects, which are usual in the burglary of occupied households in the middle of the night. Finally, on this aspect, Mr Orchard points out that these offences were aggravated by having been committed while the offender was on licence. 29. He draws attention to the mitigation to be found in the plea of guilty at the first opportunity, to the fact that the offender was highly co-operative with the police and made admissions in interviews. He accepted the 39 offences to be taken into consideration. He expressed remorse, regret and willingness to attend the Restorative Justice Programme. 30. Mr Orchard referred to Attorney-General's Reference No 35 of 2001 ( R v Girt ) [2002] 1 Cr App R(S) 187 where, in a case of aggravated burglary, in which the offender had pleaded guilty, the victim being 72 years of age and the offender armed with a knife, the court, in increasing the sentence passed from three-and-a-half years to four-and-a-half years expressed the view that at least 6 years would have been appropriate in the court below. 31. Mr Bogan has, with skill, represented the interests of the offender, who is absent from these proceedings because, on 4th November, he absented himself from where he was supposed to be living and undergoing the Training and Treatment provided by the DTTO which the judge had made. A warrant has already been issued for his arrest, but his whereabouts are presently unknown, both to the police and to Mr Bogan, who did not appear in the court below. Mr Bogan inferred that he had instructions to appear on behalf of the offender, although nothing had been heard from him since the Reference was formally made. Mr Bogan, in addition to the parts of his submission to which we have already referred, stresses the double jeopardy which is a feature of all Attorney-General's References, that is to say an offender is being sentenced a second time. He stresses also that some part of the DTTO had been complied with and the offender was, prior to the time at which he absconded, apparently drug free and he asks us to take that into consideration, if we take the view that the sentence passed was unduly lenient, which he submits we should not. He further submits that, even if a DTTO was inappropriate, this Court should have regard to the 4 years or less which the learned judge expressed to have in mind if he imposed a custodial sentence. 32. All of these matters, we bear in mind. In the light of the considerations set out earlier in this judgment, this was plainly not a case for DTTO. The circumstances of the aggravated burglary and burglary at Sussex Place, involving repeated intrusion in the middle of the night into the same occupied dwelling-house and the use of a knife to threaten the two adults and the baby are serious matters. When there are added the further incursions into domestic premises, in Pelham Crescent and Onslow Gardens, marked by a degree of planning evidenced by the bamboo cane, and when one takes into account the 39 other offences involving domestic premises and the fact that all this criminal activity took place while the offender was on licence and against the background of the offender's record, it seems to us that the public would be affronted and confidence in the criminal justice system would be undermined if a very substantial term of imprisonment were not to be imposed on this offender. 33. Accordingly, we conclude that the DTTO was an unduly lenient sentence. We would have expected, in the court below, in relation, in particular, to the aggravated burglary, a sentence of 6 years or more. Taking into account double jeopardy, that a custodial penalty is now being imposed, that some part of the DTTO had been successfully complied with, and the special particular mitigation applicable to this offender, the sentence which we pass in relation to all of these offences, concurrently in each case and taking into consideration the 39 other offences, is one of 4 years' imprisonment. That sentence will start to be served when the offender surrenders or is arrested pursuant to the warrant which has already been issued. 34. We turn to John Harrison. On 25th April 2003, at Bolton Crown Court, he pleaded guilty to a count of burglary. On 4th June he pleaded guilty to a count of assault occasioning actual bodily harm. He was sentenced by Her Honour Judge Kushner QC to 4 years' imprisonment for burglary and 6 months concurrently for the assault occasioning actual bodily harm. As indicated at the outset of this judgment, we have granted leave to appeal. 35. The facts were that, on 9th February 2003, the appellant knocked on the door of a house of a man called Williams whom he knew. The appellant was with another man whom Williams did not know. When Williams opened the door the appellant asked for money and assaulted him, causing a small laceration to the scalp. The appellant told his accomplice to take a video player. He also saw that Williams was wearing a gold bracelet and the appellant shouted at him to take it off. As he was doing so, the appellant ripped it from him. He then saw some keys for a car and he took them together with Williams' mobile telephone. The appellant and his accomplice used the keys to drive off in Williams' car. Williams went to hospital and received three stitches for his cut. 36. On 15th February the appellant was arrested and in interview he declined to comment. The basis of his plea was that he knew the victim, as he had previously bought drugs from him. He accepted that he had entered the premises uninvited and taken the items referred to. He accepted responsibility for the injuries but he had never had any weapon at the time of the offence. 37. The learned judge, in passing sentence, took account of the plea and basis of the plea, the fact that no weapon had been used and the fact that good progress had been made while on remand, prior to sentencing. She said that this was not a simple burglary and had all the hallmarks of robbery. So far as that comment is concerned, the offender fell to be sentenced for burglary. The learned judge went on to say that, although the defendant had been assessed as suitable for a Drug Treatment and Testing Order, he was not fully ready for that, at the moment. He was still minimising his involvement in the offence and not only had he to address his problems with drugs, but he also had to address the problems that had led to his offending. Accordingly a custodial sentence was inevitable. We do not criticise the learned judge for taking that view, at that stage, in relation to the propriety or otherwise of making a DTTO. 38. The appellant is 36 years of age. He has regularly (almost every year for over 20 years) appeared before the courts for dishonesty offences and occasional minor violence. Since he was sent to borstal (more than 20 years ago) and to youth custody for 15 months (18 years ago) he has been dealt with by a variety of community penalties and fines and short periods of imprisonment, the longest of which was a period of some 10 months. The last sentence of imprisonment was one from which he was released about 11 months before these offences were committed. It is apparent that drug addiction has been at the root of his criminal offending. 39. It is equally apparent, in the light of the recent report, dated 12th November 2003, which is before this Court and which was, of course, not before the sentencing judge that, in the period of 9 months which the appellant has now spent in custody, he has used his time constructively to address his drug and other related problems. His behaviour and attitude towards his sentence have been excellent. The progress that he has made is evidence of a high degree of commitment and motivation on his part to address his offending behaviour and related problems. In consequence, the likelihood of him re-offending and the risk of harm posed to the public have now been significantly reduced. 40. He appreciates that, should he relapse from his present drug free state, the likelihood of him reoffending will be significantly increased, as will, of course, the likelihood of him appearing before the courts in future. His views are assessed in the report as being realistic. But he needs a good deal of support in relation to his genuine desire to lead a drug and offence free life. 41. He is eligible for a DTTO but the view is expressed by the author of this report that to make such an order at this stage would be a retrograde step because it would necessarily bring the appellant into contact with others who are still using drugs. A community punishment order would not offer the means or opportunity to address his offending behaviour or victim awareness. 42. What is suggested in the report is that the court make a community rehabilitation order, that being the most appropriate course suitable for him at this time. He is assessed as being suitable for inclusion on a Think First Programme. He is also to be supported, if the Court makes such an order, by an ACORN team, which will make provision for accommodation for him on his return to Bolton. 43. In the light of those considerations and the submissions made by Mr Sastry on the appellant's behalf, the Court is persuaded that the appropriate course, in relation to this appellant, is to quash the sentences of imprisonment imposed on the appellant by the learned judge and to substitute, in relation to the two offences, a community rehabilitation order. The Court's present inclination is to make that for a term of 2 years but there is nothing in the report before the Court which expresses a view as to what would be an appropriate term. 44. The Court is also minded to make it a condition of the order that he take part in a Think First programme, that he addresses his substance misuse and, it may be, that there should be a specific condition imposed in relation to a drug abstinence requirement. The appellant is not here today because his case came before the Court as an application only. 45. It is necessary, before a community rehabilitation order can be made, for the Court itself to explain to the appellant the nature, effect and consequences of such an order. That, as it seems to us, must either be done face-to-face or, if it is possible for arrangements to be made, by way of a video link. The terms of this judgment have indicated that we will allow this appeal and make a community rehabilitation order. The length and special conditions of that order will be identified when the court has the opportunity, by one of the two courses which I have indicated, to explain the position to the appellant. 46. THE VICE PRESIDENT: Mr Sastry, we are told that arrangements have been made for a video link at 10.30 tomorrow morning. The Court, on that occasion, will consist of two of the present constitution. It may or may not consist of all three. But, as this is a sentence appeal, that does not matter. There is no need for you to attend. You have heard the result and there is no particular part that you can take in the proceedings unless there is something about this matter that we do not know. It follows, Mr Fryman, there is no need for you to attend either. 47. For the avoidance of doubt, the appeal will not formally be allowed until tomorrow morning but it will be allowed then for the reasons which we have sought to explain. (The Court Adjourned until 21.11.03) 48. MR JUSTICE LEVESON: Are you John Harrison? 49. THE APPELLANT: Yes. 50. MR JUSTICE LEVESON: Just hold on a minute. Mr Gardiner, thank you very much for your report. I gather that a condition can be made in relation to the Think First Programme. You asked for a condition in relation to residence which I would impose in any event but we cannot make a Drug Abstinence requirement. Other than that, the general condition about substance abuse is not required to be specified as part of the community rehabilitation order. 51. THE LIASON PROBATION OFFICER: That's correct, I apologise for the handwritten report. 52. MR JUSTICE LEVESON: Thank you very much. Mr Harrison, let me explain. Yesterday, in the presence of your counsel, it was made clear that this Court was prepared to quash the sentence imposed upon you for burglary and assault and to impose in its place a community rehabilitation order. Do you understand that? 53. THE APPELLANT: Yes. 54. MR JUSTICE LEVESON: Has that been explained to you overnight. Since yesterday? 55. THE APPELLANT: No. 56. MR JUSTICE LEVESON: You have not been told that? 57. THE WITNESS: No. 58. MR JUSTICE LEVESON: I will explain. Let me make clear what is required of you under the order that we are about to make. The Court intends to deal with you by means of a community rehabilitation order, which was known as a probation order, for a period of 2 years. Do you understand? 59. THE APPELLANT: Yes. 60. MR JUSTICE LEVESON: The effect of the order will be that you will be under the supervision of a probation officer for that period of 2 years. Do you follow? 61. THE APPELLANT: Yes. 62. MR JUSTICE LEVESON: We intend to impose two further additional requirements. The first is that, as directed by your supervising officer, you attend a Think First Programme. It is designed to assist you. Do you follow? 63. THE APPELLANT: Yeah. 64. MR JUSTICE LEVESON: The second is that you reside at an address approved by your supervising officer, and do not live elsewhere without prior approval. Do you understand? 65. THE APPELLANT: Yes. 66. MR JUSTICE LEVESON: Very good. As part of your community rehabilitation order, it is inevitable that you will be required to address your substance abuse; in other words, you have to consider the damage you are doing to yourself by use of drugs. I am sure that you will be prepared to do that. Do you agree? 67. THE APPELLANT: Yes. 68. MR JUSTICE LEVESON: Right. If you fail to comply with any of the requirement that I have just outlined, you will be brought before a Magistrates' Court which will be able to fine you, or order you to perform a number of hours work. Alternatively, you may be sent back to the Crown Court for sentence and the Crown Court will have a power to revoke this order and pass any other order on you including sentence of imprisonment. In other words, we are giving you a chance. If you fail to take this chance it is inevitable that you will end up serving longer and longer terms of imprisonment. Do you follow? 69. THE APPELLANT: Yes. 70. MR JUSTICE LEVESON: Right. That is the sentence of the Court imposed upon you. It had to be done in your presence. You were not here yesterday, so I have now explained it to you and therefore doubtless you will be able to speak to the probation officer within the prison where you are presently detained who can arrange for your release accordingly. Do you follow? 71. THE APPELLANT: Yes. 72. MR JUSTICE LEVESON: That is the sentence of the Court and the appeal is allowed to that extent. Thank you very much. 73. THE APPELLANT: Thank you.

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Case No: 2016/02668/B4 Neutral Citation Number: [2017] EWCA Crim 1391 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SHEFFIELD MR JUSTICE MALES Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/09/2017 Before: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES LORD JUSTICE DAVIS LORD JUSTICE TREACY MR JUSTICE SWEENEY and MR JUSTICE SPENCER - - - - - - - - - - - - - - - - - - - - - Between: Regina Respondent - and - Steven Jason Ray Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shaun Smith QC for the Appellant John McGuinness QC (instructed by CPS Appeals and Review Unit, York ) for the Respondent Hearing date: 19 July 2017 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Thomas of Cwmgiedd, CJ: Introduction 1. The issue in this appeal which is brought with the leave of the Full Court is whether s.76(5A) of the Criminal Justice and Immigration Act 2008 , which provides the defence of self defence for the so-called “householder case”, was correctly interpreted by the Divisional Court in R (Denby Collins) v The Secretary of State for Justice [2016] EWHC 33 (Admin) , [2016] QB 862 . That decision, given by a court presided over by the President of the Queen’s Bench Division sitting with Cranston J, is not binding on this court. The factual background 2. The deceased, Rory Hemmings, had for some years lived at an address in Sheffield with Kirsty Allen and their two children. It was her evidence that the relationship with the deceased had been a violent one, particularly if he had been drinking. On one occasion in 2008 he had held a knife to her throat. She had often had to call the police when she got to the end of her tether. Eventually she had ended the relationship, although the deceased remained under the same roof for a while until he got a flat of his own. 3. She then began a relationship with the appellant. She told the deceased about it. Her evidence was that he hated the relationship and threatened to smash both their faces in. Her evidence was that the appellant was never violent towards her or her children and had not “bad mouthed” the deceased in front of the children. In November 2015 there were various incidents, including one on 6 November when there had been an altercation between the deceased and the appellant. Despite this incident, which occurred when the deceased had come to collect or return the children, there had been other occasions between then and 14 November when he had come to the house but there had been no problems. 4. On 14 November the appellant and Kirsty Allen were at home. Some abusive texts were sent by the deceased that evening. That evening the deceased was at a party when he was told by a friend that he had slept with Kirsty Allen; it appears that made him very angry. 5. On the morning of Sunday 15 November Kirsty Allen was awoken by banging on the door. When she opened it the deceased burst in shouting and swearing. She described him as being very angry, particularly as the appellant was in the house. There was evidence that the appellant tried to calm the situation and to get the deceased to leave the premises. The two men started fighting and the children started screaming. Kirsty Allen said she was very frightened. 6. In the course of that altercation, the appellant stabbed the deceased. 7. An ambulance was immediately summoned. Whilst they waited for the ambulance the appellant performed CPR on the deceased. The medical evidence was that the cause of death was a single stab wound, 6 to 10 cm in depth, from the knife which had measured 11 cm. The degree of force required could not be established with certainty but it was possible that only mild force was used because the knife had not come into contact with resistance from bone or cartilage. 8. The appellant’s evidence was that during the fight in the kitchen he thought that the deceased had a weapon. He had made movements towards his pocket, but had not produced anything. The deceased was holding on to the kitchen units so that he could not be pulled away. His hand was on the drainer next to a knife. The appellant feared the deceased would reach for it and use it so in one quick motion the appellant himself grabbed the knife and stabbed the deceased. He did not mean to stab him but did so because he was scared for himself. 9. The appellant was charged with murder and tried at the Crown Court at Sheffield before Males J and a jury in May 2016. The appellant admitted stabbing the deceased but contended he had acted in self defence. The judge summed the case up in accordance with the decision in Denby Collins. Intent was also a live issue at trial. 10. On 11 May 2016 he was convicted by a majority of 11 to 1 of murder. He was sentenced to life imprisonment with a minimum period of 12 years, less time on remand. The common law and the relevant statutory provisions The defence at common law 11. The defence of self defence was developed at common law. Although it might have been suggested by some authors at various times that any force used in defence of self or property was lawful, the common law developed so that there was a requirement that the force used be reasonable: see the note Using Force on Burglars by Professor John Spencer: [2016] 6 Archbold Review. 12. In the leading judgments, the law was made clear. For example, in Palmer v R [1971] AC 814 Lord Morris of Borth y Gest, in giving the judgment of the Privy Council, made the point that: “In their Lordships' view the defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. It requires no set words by way of explanation. No formula need be employed in reference to it. Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have to avert the danger by some instant reaction.” 13. This view was recently echoed by the Vice-President of this Court, Hughes LJ as he then was, in R v Keane, R v McGrath [2010] EWCA Crim 2514 , [2010] Crim LR 393, when he commented that the law as developed was not complicated: it represented “a universally recognised common sense concept”. At paragraph [5] he stated: “It is however very long established law that there are usually two and sometimes three stages into any enquiry into self-defence. There may be more, but these are the basic building blocks of a large proportion of the cases in which it is raised: 1. If there is a dispute about what happened to cause the defendant to use the violence that he did, and there usually is such a dispute, then the jury must decide it, attending of course to the onus and standard of proof. 2. If the defendant claims that he thought that something was happening which the jury may find was not happening, then the second question which arises is what did the defendant genuinely believe was happening to cause him to use the violence that he did? That question does not arise in every case. If it does arise then whether his belief was reasonable or not, providing it is genuinely held, he is to be judged on the facts as he believed them to be unless his erroneous belief is the result of voluntarily taken drink or drugs, in which event it is to be disregarded. 3. Once it has thus been decided on what factual basis the defendant's actions are to be judged, either because they are the things that actually happened and he knew them or because he genuinely believed in them even if they did not occur, then the remaining and critical question for the jury is: was his response reasonable, or proportionate (which means the same thing)? Was it reasonable (or proportionate) in all the circumstances? Unlike the earlier stages which may involve the belief of the defendant being the governing factor, the reasonableness of his response on the assumed basis of fact is a test solely for the jury and not for him. In resolving it the jury must usually take into consideration what are often referred to as the “agony of the moment” factors.” The 2008 Act 14. From about 2004, after a number of cases involving householders including R v Martin [2001] EWCA Crim 2245 , [2003] QB 1 , private members’ bills were brought forward designed to provide for an absolute defence where force was used in the home in defence of another person or property, unless the force used was grossly disproportionate. These did not pass. However, the then Government pledged in 2007 to review the law of self defence. 15. The result was s.76 of the Criminal Justice and Immigration Act 2008 ( the 2008 Act ) which after reaffirming the common law defence of self defence set out some of the applicable principles. Its effect, as originally enacted, was summarised in R v Keane at paragraph 6 : “For the avoidance of doubt, it is perhaps helpful to say of s. 76 three things: (a) it does not alter the law as it has been for many years; (b) it does not exhaustively state the law of self-defence but it does state the basic principles; (c) it does not require any summing-up to rehearse the whole of its contents just because they are now contained in statute.” The 2013 Act 16. In 2010, the Coalition Agreement setting out the programme for the newly elected Government contained an express commitment to ensure that people “have the protection they need when they defend themselves against intruders.” 17. S. 43 of the Crime and Courts Act 2013 ( the 2013 Act ) was the result of this commitment. It provided for a redefined application of the law of self defence, as set out in the 2008 Act (as amended by s.148(1)-(5) of the Legal Aid Sentencing and Punishment of Offenders Act 2012) , to those who defended themselves, described as householders, against intruders. 18. Although the issue in this appeal turns principally on subsection (5A) of the 2008 Act as amended, it is necessary to set out much of s.76 as amended; the amendments made in 2013 are in italics: “(1) This section applies where in proceedings for an offence— (a) an issue arises as to whether a person charged with the offence ("D") is entitled to rely on a defence within subsection (2), and (b) the question arises whether the degree of force used by D against a person ("V") was reasonable in the circumstances. (2) The defences are— (a) the common law defence of self-defence; … (3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question. (4) If D claims to have held a particular belief as regards the existence of any circumstances— (a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but (b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not— (i) it was mistaken, or (ii) (if it was mistaken) the mistake was a reasonable one to have made. (5) But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced. (5A) In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances. (6) In a case other than a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances. (6A) In deciding the question mentioned in subsection (3), a possibility that D could have retreated is to be considered (so far as relevant) as a factor to be taken into account, rather than as giving rise to a duty to retreat. (7) In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)— (a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and (b) that evidence of a person having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose. (8) Subsections (6A) and (7) are not to be read as preventing other matters from being taken into account where they are relevant to deciding the question mentioned in subsection (3). (8A) For the purposes of this section "a householder case" is a case where— (a) the defence concerned is the common law defence of self-defence, (b) the force concerned is force used by D while in or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both), (c) D is not a trespasser at the time the force is used, and (d) at that time D believed V to be in, or entering, the building or part as a trespasser. (8B) – (8E)….. (9) This section , except so far as making different provision for householder cases , is intended to clarify the operation of the existing defences mentioned in subsection (2). (10) In this section— (a) " legitimate purpose" means— (i) the purpose of self-defence under the common law, … (b) references to self-defence include acting in defence of another person; and (c) references to the degree of force used are to the type and amount of force used.” The decision in Denby Collins 19. In Denby Collins the President of the Queen’s Bench Division concisely summarised the effect of the amendment at paragraphs 20-22 and 33-34: “20. Thus, s.76(5A), read together with s.76(3) and the common law on self-defence, requires two separate questions to be put to the jury in a householder case. Presuming that the defendant genuinely believed that it was necessary to use force to defend himself, these are: (i) Was the degree of force the defendant used grossly disproportionate in the circumstances as he believed them to be? If the answer is “yes”, he cannot avail himself of self-defence. If “no”, then; (ii) Was the degree of force the defendant used nevertheless reasonable in the circumstances he believed them to be? If it was reasonable, he has a defence. If it was unreasonable, he does not. 21. [Counsel for the Crown] submitted that where a defendant has gone completely over the top, such actions would be grossly disproportionate, unless there was some material or reason that pointed against that conclusion. For my part, I consider that such an approach could well be useful for a jury tasked with the responsibility of understanding what is meant by the concept of gross disproportionality. 22 On the plain words of s. 76, a jury should consider these two questions disjunctively…. …. 33. To summarise, on a proper construction of s.76(5A), its true meaning and effect is: (i) whether the degree of force used in any case is reasonable is to be considered by reference to the circumstances as the defendant believed them to be (the common law and s. 76(3)); (ii) a householder is not regarded as having acted reasonably in the circumstances if the degree of force used was grossly disproportionate (s.76(5A)); (iii) a degree of force that went completely over the top prima facie would be grossly disproportionate; (iv) however, a householder may or may not be regarded as having acted reasonably in the circumstances if the degree of force used was disproportionate. 34. This represents no more than a refinement to the common law on self-defence. …. The position is better expressed by the editors of Blackstone's Criminal Practice , 2016 edition, para A3.63 which makes it clear: “The new provision merely affects the interpretation of ‘(un)reasonable in the circumstances’ so that force is not by law automatically unreasonable in householder cases simply because it is disproportionate, provided it is not grossly disproportionate.”” 20. We would add that the view expressed in Blackstone is the same as that set out in Smith and Hogan, 14 th edition, at pages 434-7. Submissions of the parties 21. It was contended by Mr Shaun Smith QC on behalf of the appellant that the President’s interpretation of s.76 in Denby Collins had in effect put the position of the householder in the same position as a non-householder; the interpretation thus, he said, had not provided the protection that Parliament had clearly intended. Parliament had intended that if the jury were satisfied that the use of force was not, or may not have been, grossly disproportionate, then the degree of force used must in law be regarded as reasonable and the defence of self defence will have been made out. 22. Mr McGuinness QC for the prosecution submitted that the decision in Denby Collins was correct for the reasons set out in the judgment of the President. The construction of the Act 23. In our view the interpretation placed in Denby Collins on the householder’s defence under s.76 of the 2008 Act as amended by the 2013 Act was correct. 24. Once the jury have determined the circumstances as the defendant believed them to be, the issue, under s.76(3), for the jury is (as it always has been at common law) whether, in those circumstances, the degree of force used was reasonable. 25. In determining the question of whether the degree of force used is reasonable, in a householder case, the effect of s. 76 (5A) is that the jury must first determine whether it was grossly disproportionate. If it was, the degree of force was not reasonable and the defence of self defence is not made out. 26. If the degree of force was not grossly disproportionate, then the effect of s.76(5A) is that the jury must consider whether that degree of force was reasonable taking into account all the circumstances of the case as the defendant believed them to be. The use of disproportionate force which is short of grossly disproportionate is not, on the wording of the section, of itself necessarily the use of reasonable force. The jury are in such a case, where the defendant is a householder, entitled to form the view, taking into account all the other circumstances (as the defendant believed them to be), that the degree of force used was either reasonable or not reasonable. 27. The terms of the 2013 Act have therefore, in a householder case, slightly refined the common law in that a degree of force used that is disproportionate may nevertheless be reasonable. 28. As subsection (6) makes clear, in a non-householder case the position is different; in such a case the degree of force used is not to be regarded as reasonable if it was disproportionate 29. Thus in our judgment the amendments to s.76 put the householder relying on self defence in a position different from all others relying on the defence. This is clear on the language of the Act. But it is narrow and not of the wide-ranging effect for which the appellant contended. We accordingly reject the contention that provided the degree of force used by a householder is not grossly disproportionate then it is necessarily reasonable. The Parliamentary material 30. We were asked by the appellant to consider (and did so de bene esse) the debates that had taken place in Parliament on the 2013 Act . Although we could see no basis on which the statements made by the then Home Secretary or the then Minister of State were admissible under the principle in Pepper v Hart [1993] AC 593 , we have set the statements out as they are in line with our interpretation and that reached in Denby Collins which we have affirmed: i) On 14 January 2013 Mrs May, the then Home Secretary, said in moving the Second Reading: The Bill also delivers on our coalition commitment to ensure that the law is on the side of people who defend themselves when confronted by an intruder in their home. Few situations can be more frightening than when someone’s own home is violated. Faced with that scenario, a person will do what it takes to protect themselves and their loved ones. They cannot be expected dispassionately to weigh up the niceties of whether the level of force they are using is proportionate in the circumstances. If the intruder is injured, perhaps seriously, in such an encounter, the householder should not automatically be treated as the perpetrator where, with hindsight, the force used is considered to have been disproportionate. Clause 30 will ensure that, in such a context, the use of disproportionate force can be regarded as reasonable, while continuing to rule out the use of grossly disproportionate force. ii) When the Bill was examined in Committee on 5 February 2013, Mr Damian Green, the then Minister of State for Policing and Justice, said: “It is common ground between us that we are seeking to afford householders greater protection where they defend themselves against an intruder in their own home. The question is about where we draw the line. … The effect of the clause would be that householders who fear for their safety and act instinctively to protect themselves or others in their home from intruders, using a disproportionate level of force, will not automatically be regarded as having acted unreasonably and treated as criminals. … The key difference is that disproportionate force will not of itself be deemed unreasonable. That is the level of guidance it is sensible to give to both the police and the courts. That is the difference; it is an extra protection for householders …. The prohibition is certainly not a licence to commit any act of violence whatever the circumstances. People would still be prosecuted if their use of force was unreasonable in the circumstances. Specifically, what would appear to be disproportionate force in the cold light of day might be allowed but the use of grossly disproportionate force will never be reasonable. We are raising the bar by stating that the use of disproportionate force can now be regarded as reasonable in those terrifying situations where a householder is confronted by an intruder.” 31. Finally, we were referred to the Explanatory Note to the 2013 Act and to a Ministry of Justice Circular No. 2013/02 dated 26 April 2013, shortly before the provision came into force in May 2013. i) The Explanatory Note stated: “ S.43 amends s.76 … so that the use of disproportionate force can be regarded as reasonable in the circumstances as the accused believed them to be when householders are acting to protect themselves or others from trespassers in their homes. The use of grossly disproportionate force would still not be permitted.” ii) The circular stated at paragraphs 9 - 11: “The effect of subsection (5A) is that householders who use a disproportionate level of force to protect themselves or others in their homes will not automatically be regarded as having acted unlawfully and treated as criminals. The use of grossly disproportionate force will continue to be unlawful however. The provision does not give householders free reign to use disproportionate force in every case they are confronted by an intruder. The new provision must be read in conjunction with the other elements of s. 76 of the 2008 Act . The level of force used must still be reasonable in the circumstances as the householder believed them to be (s 76 (3)). S. 76 (7) says if people only do what they honestly instinctively thought was necessary for a legitimate purpose this will be strong evidence that only reasonable action was taken for that purpose. The key change introduced by s. 43 is that if householders act honestly and instinctively to protect themselves or their loved ones from intruders using force that was reasonable in the circumstances as they saw them, they will not be guilty of an offence if the level of force turns out to have been disproportionate in the circumstances. The provision is designed to give householders greater latitude in terrifying or extreme situations where they may not be thinking clearly about the precise level of force that is necessary to deal with the threat faced.” 32. These are again entirely consistent with the statements of the then Home Secretary and the then Minister of State. Summing up to juries 33. Whilst, by the terms of s.76(5A) and (6), Parliament has drawn a distinction in a householder case between a degree of force used which is disproportionate and a degree of force used which is not reasonable, the wording of the section does not elucidate what that distinction is. That presumably is to be ascertained by each case being considered by reference to the particular circumstances in which the individual householder finds himself. At all events it certainly is not likely to assist juries, or to be comprehended by juries, if they are presented with esoteric and conceptual distinctions between what is “disproportionate” on the one hand and what is “unreasonable” on the other hand. The kinds of debate on these concepts in which lawyers, academics and judges have engaged in administrative law cases cannot sensibly be translated in practical terms to jury trials. 34. As is evident from the judgment in Keane , the words “disproportionate” and “unreasonable” can in some contexts be regarded as synonymous, albeit, as we have explained, in s.76(5A) and (6) they are not. It will nevertheless very rarely be helpful for judges to attempt explicitly in a summing up to distinguish between what is “disproportionate” and what is “unreasonable”. The focus of the jury in the context of a householder case ultimately should be on what is reasonable or unreasonable in the particular circumstances. In the overwhelming majority of cases it therefore should neither be necessary nor helpful in a summing up to use language referring expressly to the contrast between disproportionate and unreasonable force; because once the jury have concluded that the degree of force used was not grossly disproportionate the sole issue is whether the degree of force used was unreasonable in the circumstances. That should be the focus for the jury. That was the approach taken in the judgment of the President in Denby Collins at paragraph 20, which we endorse. 35. It nevertheless may not always be easy for a jury readily to appreciate the task that faces them in a householder case. It is therefore important that when summing up in cases where the householder’s defence is raised the judge gives some colour to the issue of self defence which arises. It may be helpful to explain to the jury in general terms that Parliament has conferred a greater latitude in cases of a householder in his own home, for reasons they will doubtless readily understand. It can be pointed out that what might be an unreasonable degree of force used when confronting an aggressive individual in a club might not be so when used by a householder confronting an intruder in his own home. That is why it is particularly important that the jury assess the defendant's actions by reference to the circumstances in which he found himself and as he believed them to be – a point that can then be illustrated and expanded in the summing up with the detail appropriate to the case. However, it must of course be made clear to the jury that the use of force that is grossly disproportionate (completely over the top, in ordinary language) can never be reasonable. 36. It would, in our view, generally be helpful also to explain to the jury in such a case in everyday language the dilemma that would confront any householder when an intruder enters his or her house. The householder is entitled to some latitude as to the degree of force used; if the jury do not regard the degree of force as being completely over the top they need carefully to examine all the circumstances in determining whether the prosecution have proved that the degree of force used was unreasonable. It is this context that differentiates the householder case. 37. It would often be helpful, for that purpose, to spell out the kind of circumstances which the jury should consider in determining whether the degree of force used by a householder was reasonable. These might, for example, include the shock of coming upon an intruder, the time of day, the presence of other help, the desire to protect the home and its occupants, the vulnerability of the occupants, particularly children, or the picking up of an object (such as a knife or stick that would lawfully be to hand in the home), the conduct of the intruder at the time (or on any relevant previous occasion if known to the defendant). Each of these might lead to the view that what was done, such as using a knife, which otherwise in a different context might be unreasonable, in the circumstances of a householder coming on an intruder might, in all the circumstances of such a case, be reasonable. 38. Another useful illustration may be the question of retreat. S. 76(6A) makes clear that there is no duty to retreat; the possibility of retreat is but a factor in determining whether the degree of force used was reasonable. If there is a threat of confrontation in the street, then the option to retreat may be important in determining whether the use of any force was reasonable. In the case of an intruder in the home, however, the option of retreat is unlikely to arise in many cases and therefore the degree of force used, although otherwise appearing to be disproportionate, might nonetheless be assessed as reasonable. Conclusion 39. For the reasons we have set out, the appeal is dismissed.

```yaml citation: '[2017] EWCA Crim 1391' date: '2017-09-26' judges: - MR JUSTICE MALES - LORD JUSTICE DAVIS - LORD JUSTICE TREACY - MR JUSTICE SWEENEY - 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} ======

No: 200701201 A9 Neutral Citation Number: [2007] EWCA Crim 1229 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Tuesday, 15th May 2007 B E F O R E: LORD JUSTICE HUGHES MR JUSTICE BEAN MR JUSTICE SAUNDERS - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 16 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 N HILLIARD appeared on behalf of the ATTORNEY GENERAL MR S C MEADOWCROFT appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. LORD JUSTICE HUGHES: Her Majesty's Attorney General seeks to refer under section 36 of the Criminal Justice Act 1988 a sentence of three and a half years' imprisonment imposed for the offence of conspiracy to rob. We give leave. 2. The defendant supplied four motor cars which had been stolen previously to people who then used them to carry out robberies. His role was, if not to steal them himself, and there was no evidence of that, to receive the cars, disguise them perfunctorily by equipping them with false number plates, and in one case by darkening the window glass, and then supply them to the robbers. The robbers, whoever they were, were never caught. The defendant's fingerprints, however, were found in all four stolen cars after they had been used to commit the principal offences. 3. The robberies carried out were serious, although they were not right at the upper end of the scale. They were planned and the robbers carried weapons, although not firearms, on at least three of the four occasions. 4. One of the offences was an attempted robbery of a Securicor van as it made a cash delivery. There were two masked robbers. If there were weapons on that occasion they were not seen. The approach of the robbers was noticed, the alarm sounded and the attempt was aborted. The second was a day-time robbery of a post office. It was carried out by three masked men, one of them carrying an axe. There were threats of violence, although no actual violence. The four people in the shop co-operated, no doubt sensibly and in the face of armed assailants. The third offence was a very similar day-time post office robbery, again carried out by three masked men, this time equipped with a hammer and a sword. Lastly, on the fourth occasion a further attack was made on a Securicor van which was making a delivery. There were on this occasion three masked robbers and they had between them an axe and a machete. One guard was in the course of that offence kicked in the stomach. That is the only example of actual force used, but the threats were designed of course to avoid the necessity for actual force. Those were the robberies. 5. This defendant was 25. He had fairly frequent previous convictions from the comparatively early age of 13 onwards. They were for burglary, motoring and dishonesty, but not for violence. The judge did not regard a conviction for snatching a bag, nor one at the age of 13 for affray, as altering that analysis; nor do we. The defendant had on three previous occasions been sent into custody for periods up to but not exceeding 21 months. So his record showed that he was well used to burglary and dishonesty, significantly less serious than the present offences. 6. When the defendant was initially interviewed by the police, he admitted straightaway that he routinely supplied cars which he realised would end up in the hands of criminals; indeed, he said "The vehicles I sell do invariably end up being bought by people with criminal links". Thereafter in the course of interview he preferred to answer no questions, except that he disputed the suggestion at that stage that he knew that the cars would be used in robbery. In the end, he did plead guilty to the offence of conspiracy to rob. He did not, however, do that until the first day of his trial. He pleaded guilty expressly on the basis that he supplied vehicles to people whom he knew would use them in robberies and that there would be robberies in which some sort of weapon, such as a baseball bat or similar, would be used to threaten the victims. 7. We have been referred by counsel for the Attorney General to the Attorney-General's Reference (No 52 of 2004) R v Chilton [2004] EWCA Crim 2768 . There this court increased a sentence of five years which had been imposed for a series of four robberies, among other offences, saying that it would have been a case for eight or nine years on a plea of guilty. Exactly what the stage was at which the plea had been tendered in that case does not appear from the report. We do not for a moment doubt the analysis in that case. It is enough to say two things of that case. Firstly, the offences were somewhat more serious than these because they involved very frightening threats made at night to vulnerable victims, some of whom were invaded in their bedrooms. Secondly, it is common ground between counsel for the Attorney and counsel for the present defendant that, placing the present case in its proper position in relation to cases such as Chilton , those who committed the present robberies, had they been caught and had they been convicted after contested trials, could have expected sentences in the general region of ten years. With that latter proposition we agree. 8. A person such as this defendant, who supplies stolen motorcars suitably disguised for use in robbery, is as much guilty of the offence of conspiracy to rob as those who carry out the attacks. In some cases a facilitor of such crimes may well be in the position of instigator, organiser and perhaps a large-scale sharer in the proceeds. That kind of defendant may well merit a sentence equal to or even sometimes greater than those who carry out the robbery themselves. Fagin, if prosecuted, deserved a longer sentence than the boys deployed. That, however, is not the allegation and never has been the allegation against this defendant. This defendant was in an ancillary role. There are a number of potential ancillary roles to offences such as robbery. The important question is at what level ought the sentence to be fixed for this kind of ancillary role. This defendant knew that he was dealing with a team of armed robbers -- armed robbers in the sense that we have described, not at the top of the scale, but people who could be expected to extract money from others by threatening them with weapons such as baseball bats. 9. For the Attorney, Mr Hilliard submits that, after a contested trial, such a defendant as this should normally expect a sentence in the general region of six years. For Mr Hargreaves, Mr Meadowcroft dissents from that only to this extent: he submits that the appropriate bracket is something in the region of four and a half to five years. 10. We take the view that, for a man who on four separate occasions supplies disguised vehicles to enable people who he knows are armed robbers to carry out their offences more effectively, the sentence proposed by Mr Hilliard is nearer to the mark than that proposed by Mr Meadowcroft. There is of course a proper bracket of discretion for any judge dealing with an offence of this kind, but in our view it would be somewhere between five and six years and nearer to six, normally, than to five years. 11. The present sentence of three and a half years was imposed after a late plea of guilty. A late plea of guilty does not attract the same level of reduction as does a plea promptly tendered. There was, in reality, no significant level of negotiation between the parties at the court door on the occasion of this trial. The defendant ultimately, but belatedly, accepted the case which the Crown had always made against him. The Crown had never suggested that he could be shown to be a participant in these robberies; he was always prosecuted as an ancillary supplier of motor vehicles knowing the use to which they were likely to be put. 12. In those circumstances, the judge's sentence of three and a half years is, we are satisfied, outside the available bracket for the offence. We take the view that the sentence which ought to have been imposed upon this defendant ought to have been five years or a little more. We are satisfied that the sentence is sufficiently far below the proper sentence for it to be a case in which we ought to interfere. Not every case of a sentence which is lenient comes into that category, but we think this one does. We propose to vary the judge's sentence to one of five years. That will be the order of the court.

```yaml citation: '[2007] EWCA Crim 1229' date: '2007-05-15' judges: - LORD JUSTICE HUGHES - MR JUSTICE BEAN - MR JUSTICE SAUNDERS ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical 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 745 Case No: 202003002 A2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WOOLWICH HIS HONOUR JUDGE MILLER T20207057 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/05/2021 Before : PRESIDENT OF THE QUEEN'S BENCH DIVISION MR JUSTICE SWEENEY and MR JUSTICE FOXTON - - - - - - - - - - - - - - - - - - - - - Attorney General’s Reference under Section 36 of the Criminal Justice Act 1988 (R v Aaron Mark McWilliams) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Tom Little QC on behalf of Her Majesty’s Solicitor General for the Attorney General Lee Sergent instructed by GT Stewart Solicitors for Aaron Mark McWilliams Hearing date : 5 th May 2021 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Dame Victoria Sharp P.: 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply in this case. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of that Act. 2. This is the third occasion in a matter of months in which the Attorney General has sought leave to refer a sentence to this Court arising from the interrelationship between the court’s power under section 82A(3) of the Powers of Criminal Courts (Sentencing) Act 2000 (the PCCSA) to fix the minimum term to be served under a discretionary life sentence, and the custodial period after which prisoners serving determinate sentences are eligible for release as set out in the Criminal Justice Act 2003 (the CJA 2003). Mr Tom Little QC, who appears for the Attorney General on this application, submits to the Court that at present, judges at first instance are not taking a consistent approach to this issue. 3. We feel compelled to observe that these difficulties have largely arisen through a combination of two factors. First, the way in which section 82A(3) addresses the relationship between minimum terms for discretionary life sentences and the date of eligibility for early release under a determinate sentence: by instructing the judge fixing the minimum term to “take into account” the early release provisions as set out in another statute, section 244(1) of the CJA 2003. Second, the piecemeal way in which the early release provisions for determinate sentences in the CJA 2003 have been amended, and the differing legislative techniques adopted to effect those changes. 4. In this application, the Attorney General seeks leave to refer the life sentence imposed on the Offender (McWilliams) for 40 child sex offences, on the ground that the minimum term imposed by His Honour Judge Miller in the Crown Court at Woolwich on 2 November 2020 was unduly lenient. We grant leave. 5. Mr Little QC advances this application on three grounds, albeit he made it clear that it was the first ground which was at the forefront of this application. 6. First, the judge misconstrued or misapplied section 82A of the PCCSA, section 244 of the CJA 2003 and the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 No 158 (“the 2020 Order”). The judge should have arrived at the minimum term by taking into account the effect of the 2020 Order, which increased the proportion of a determinate sentence which those convicted of relevant violent and sexual offences had to serve before being eligible for early release from one-half to two-thirds. For that reason, the judge should have reduced the ultimate notional determinate term of 18 years that he had arrived at, after full credit for plea, to a minimum term of 12 years and not 9 years. 7. If that submission is not accepted, then the second ground advanced is that the exceptional gravity of the offending in this case required the judge to exercise his discretion under section 82A of the PCCSA to calculate the minimum term by taking two-thirds of the notional determinate sentence, rather than one-half. 8. Finally, in what was very much a subsidiary submission, it was contended that the notional determinate sentence arrived at by the judge of 27 years before credit for plea was itself unduly lenient. The Offences 9. It is undeniable that the offending in this case was of the most serious and distressing kind. In order to put the Attorney General’s second and third grounds into their proper context, it is necessary to set out the circumstances of that offending. 10. Over a period of some 4 ½ years, between September 2012 and March 2017, McWilliams engaged in a campaign of serious sexual abuse and humiliation of 23 child victims, whose ages ranged from 4 months to 13 years. McWilliams, who was between 20 and 25 years’ old at the relevant time, put himself in a position to commit these offences by exploiting positions of trust he obtained in the homes of seven unsuspecting families, as an au pair, nanny or babysitter. McWilliams obtained this employment by forging references, setting up false email accounts or taking other measures to ensure that any requests for references received thoroughly reassuring responses. He then used that employment to secure childcare or baby-sitting work with the friends of his employers. 11. The first offences were committed in September and October 2012, when McWilliams was employed as an au pair by a family we will refer to as “Family 1”, helping to look after two boys, aged 13 (“Child 1”) and 6 (“Child 2”). During that period, McWilliams put Child 2’s penis in his mouth, as well as assaulting him in other ways, and also touched Child 1’s bottom and penis. McWilliams also assaulted another child who came to Family 1’s house to play, although the police were unable to trace this victim. 12. Between May and August 2013 McWilliams worked for another family (“Family 2”), who had two boys aged 6 and 4 (“Child 3” and “Child 4”). McWilliams put his penis in Child 3’s mouth on three occasions, and on two occasions made Child 4 kiss and lick Child 3’s penis and otherwise interact with him in a sexual way. On two occasions, McWilliams orally raped Child 3, and on six occasions he performed oral sex on Child 4. During this period of employment, he also looked after a 6-year-old boy (“Child 5”) who was a friend of Child 4. McWilliams took video tape of Child 5’s bottom, and rubbed Child 5’s penis, filming the assault. 13. Between September and October 2013, McWilliams worked as an au pair for a family with three children (“Family 3”), ages 6, 4 and 2 (“Child 6”, “Child 7” and “Child 8”). Child 6 was abused on three occasions, including orally, McWilliams filming the offences on his mobile telephone. Child 7 was also assaulted, both orally and otherwise, and McWilliams also touched Child 8’s penis. While working for Family 3, McWilliams was caught stealing jewellery, which led to the termination of his employment. He was convicted of the theft and, in November 2013, was made the subject of a 14-month suspended sentence, with an operative period of two years. However, his relentless sexual offending did not come to light. 14. McWilliams managed to procure employment with another family (“Family 4”), who had two boys ages 7 and 6 (“Child 9” and “Child 10”). Between January and February 2014, he orally assaulted Child 9, in the presence of Child 10, and filmed the assault. He also sat Child 9 on his penis while he masturbated. There were similar assaults on Child 10, in the presence of Child 9, and on one occasion McWilliams ejaculated over Child 10. 15. From May 2014 to March 2015, McWilliams worked as an au pair for a family living abroad (“Family 5”) who had three children, ages 6-7, 2 and four months (“Child 11”, “Child 12” and “Child 13”). McWilliams performed oral sex on Child 11 on ten occasions and rubbed his penis on Child 11’s bottom before ejaculating onto Child 11’s face. He also digitally penetrated Child 12’s anus and performed oral sex on Child 12 on two occasions. He rubbed his penis around Child 13’s face, masturbated himself while straddling Child 13, and then ejaculated on Child 13’s face before using his finger to wipe his semen inside Child 13’s mouth. 16. Between April and July 2015, McWilliams worked as an au pair for another family (“Family 6”) who had two boys ages 9 and 4 (“Child 14” and “Child 15”). On three occasions, McWilliams rubbed Child 14’s leg over his clothing while he was filming, and he also filmed Child 14’s penis while Child 14 was sleeping. On two occasions, McWilliams anally raped Child 15, and he attempted to do so on two further occasions. He also digitally penetrated Child 15’s anus. He performed oral sex on Child 15 on three occasions, masturbated Child 15, and masturbated over him, and on eight occasions he touched Child 15’s penis. McWilliams took 7 videos of these assaults. He also exploited the opportunities offered by his employment with Family 6 to sexually assault friends of Child 14 and Child 15. He rubbed the penis and performed oral sex on Child 16, who was aged 9, filming the incident, performed oral sex on another 10year-old boy (“Child 17”) and performed oral sex on three occasions and penetrated the anus of Child 18, the four-year-old brother of Child 17. It will shortly be necessary to say a little more about other offending against Child 18. McWilliams also touched the penis of another friend, who was four years-old (“Child 19”), filming the assault, and performed oral sex on another 11-year-old child (“Child 20”) while the child was sleeping. 17. On 16 July 2015, Child 18 spent the day with Family 6 on a play date. On his return home, Child 18 reported to his mother that McWilliams “shook his willy on [his] tummy”, and that McWilliams had “pee’d on [his] belly before wiping it off”. McWilliams was arrested, and in due course pleaded guilty to a single count of sexual assault on Child 18 involving ejaculation on Child 18’s stomach. It is a matter of the greatest regret that the true scale of McWilliams’ offending did not come to light at this time. In March 2016 he was sentenced to 32 months’ imprisonment (plus 4 months for breach of the suspended sentence imposed in November 2013) on the basis that this was an isolated offence. A sexual harm prevention order was imposed (“the SHPO”). 18. Very shortly after his release from that sentence, whilst on licence and in breach of the SHPO, in February 2017 McWilliams deceived another family (“Family 7”) into employing him as a nanny. Family 7 had three children: two boys aged 9 and 4 (“Child 21” and “Child 22”), and a four-year-old girl (“Child 23”). On three occasions, McWilliams touched Child 21’s penis, and on four occasions he masturbated Child 22. He also sexually assaulted Child 23, including by touching her vagina. Child 23 told her mother that McWilliams had touched her in this way. McWilliams was charged with sexual assault on Child 23, and breach of the SHPO (to which he pleaded guilty). He pleaded not guilty to the assault and was convicted by a jury. By coincidence, the sentencing hearing for those offences came before HHJ Miller, and in August 2017 he sentenced McWilliams to an extended sentence with a custodial term of 7 years. 19. McWilliams’ mobile telephone had been seized on his arrest, and analysis revealed a large number of indecent images and videos of him sexually assaulting the children placed in his trust. Confronted with this material, McWilliams made extensive admissions in interview in December 2018, including in relation to sexual assaults or features of such assaults which had not been captured on video. The children’s parents were then faced with the unimaginably distressing task of identifying their children in the material recovered from McWilliams’ mobile telephone. 20. The impact of these appalling revelations on the families can scarcely be contemplated. A number of the victims have already shown signs of serious psychological harm, and the parents live with the constant dread of further manifestations, and the agonising decision of whether, and if so when, to talk to their children about what happened to them. Their victims’ statements describe the devastating impact McWilliams’ offending has had on their lives, and their fears for their children’s future. A striking theme of the statements is an unwarranted, but understandable, sense of guilt felt by the parents that someone capable of committing such monstrous acts was able to obtain positions of trust in their homes or in relation to their children. However, the parents were the victims of McWilliams’ devious behaviour, and the sophisticated efforts he went to in order to present himself as someone very different from his true self. 21. In March 2020, McWilliams pleaded guilty to 38 of the 40 counts and later that same month he indicated an intention to plead guilty to the remaining 2 counts on the Indictment. Sentence was adjourned and was thereafter delayed by the pandemic. The sentencing hearing 22. The judge conducted the sentencing hearing with conspicuous thoroughness and care. The prosecution opened the facts on 24 August 2020. The judge then adjourned the sentencing hearing to 1 September. At the resumed hearing, Ms Hobson, completed her submissions, and defence counsel made submissions in mitigation. The judge then ordered the production of an updated pre-sentence report (he had commissioned a report when sentencing McWilliams in 2017) for the purpose of assessing dangerousness. Once that report was available, the sentencing hearing resumed on 2 November 2020. 23. In his sentencing remarks, the judge correctly identified the level of culpability as “at the highest”, and the very large number of aggravating features. However, the judge’s task was complicated by the Offender’s convictions in March 2016 and August 2017 to which we have referred. All of the (40) offences for which he was now being sentenced were committed before the sentence imposed in August 2017; and 33 out of the 40 offences had been committed before the sentence imposed in March 2016. 24. The judge had regard to those factors, and to the scale of the offending, in arriving at a notional determinate term after trial of 30 years, which he reduced by 3 years to reflect the available mitigation, namely McWilliams’ relative youth at the time of the offending, his diagnosis of Autism Spectrum Disorder, and his co-operation with the police after his second conviction. The notional term of 27 years was then further reduced by one-third to 18 years to reflect the full credit to which McWilliams was entitled for his early guilty pleas. The judge concluded (as he had in August 2017) that McWilliams was dangerous, that he presented a high risk of further sexual offending and that the scale of risk posed to children, together with the severity of the offending, required the judge to impose a life sentence. 25. In fixing the minimum term before McWilliams would become eligible for consideration for release, the judge said: “If I had been sentencing to a determinate sentence, taking account of all of the aggravating and mitigating factors in the case after a trial, I would have sentenced you to 27 years’ imprisonment. Giving you full credit for your prompt pleas of guilty, I would have reduced that sentence to 18 years. Because you would have served up to half that sentence in custody, I fix the minimum term which you will serve at half of 18 years, that is nine years”. 26. At the conclusion of the judge’s sentencing remarks, Ms Hobson raised the effect of the 2020 Order, and specifically, whether the minimum term should be calculated as two-thirds rather than one-half of the notional determinate term. The judge said the prosecution should pursue the matter if it wished to do so under the slip rule, which it then did. The slip rule application was heard on 6 November 2020. The judge declined to alter his sentence. He said there was nothing in the 2020 Order which said it was intended to apply to discretionary life sentences; and nothing in the Crown Court Compendium, or in Archbold Criminal Pleading Evidence and Practice 2020 or in Banks on Sentence suggested that it should do so. 27. In that context, it should be noted that the slip rule hearing took place before two decisions of this Court in which obiter observations were made about the effect of the 2020 Order: see R v McCann (Attorney General’s Reference No 688 of 2019) , R v Sinaga (Attorney General’s Reference No 5 of 2020) [2020] EWCA Crim 1676 ; [2021] 4 WLR 3 handed down on 11 December 2020, and R v Safiyyah Shaikh and R v Fatah Abdullah [2021] EWCA Crim 45 handed down on 21 January 2021. See further [41] to [49] below. The position before amendments made in 2020 to the early release provisions 28. The legislative history of section 82A of the PCCSA (now section 323 of the Sentencing Act 2020) and the early release provisions in the CJA 2003 is summarised at [22]-[28] and [33] of Sheikh . It is not necessary to repeat that summary here. At the time material to this appeal, section 82A provided as follows: “(1) This section applies if a court passes a sentence in circumstances where the sentence is not fixed by law. (2) The court shall… order that the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 (referred to in this section as the “early release provisions”) shall apply to the offender as soon as he has served the part of his sentence which is specified in the order. (3) The part of his sentence shall be as such as the court considers appropriate taking into account— (a) the seriousness of the offence… (b) the effect that the following would have had if the court had sentenced the offender to a term of imprisonment— (i) section 240ZA of the Criminal Justice Act 2003 (crediting periods of remand in custody) (ii) … (iii) any direction which the court would have given under section 240A of the Criminal Justice Act 2003 (crediting periods of remand on bail subject to certain types of condition). (c) the early release provisions as compared with section 244(1) of the Criminal Justice Act 2003”. 29. We set out the terms of section 244 of the CJA 2003 below, in a form which shows the alterations made following the 2020 changes to the early release provisions for certain classes of determinate sentences. 30. In Attorney General’s Reference (No 27 of 2013) (R v Burinskas) [2014] EWCA Crim 334 ; [2014] 1 WLR 4209 Lord Thomas CJ addressed the relationship between a minimum term set under section 82A of the PCCSA and the early release provisions for determinate sentences. In that case, the Court heard a number of appeals concerned with extended and life sentences. When addressing the approach to be adopted when setting a minimum term under section 82A(3), the Court stated at [34] that “when imposing a discretionary life sentence judges reduce the notional sentence by one half to reach the minimum term”. The Court noted that that approach had been endorsed in R v Szczerba [2002] EWCA Crim 440 ; [2002] 2 Cr App R (S) 86, and that Szczerba had also held that “there might be cases in which, exceptionally, the reduction might be less than one half”. This was a reference to [32]-[35] of Szczerba , in particular [35] which stated that “unless there are exceptional circumstances, half the notional determinate sentence should be taken”. 31. One of the arguments raised in Burinskas was that if the minimum term of the discretionary life sentence was fixed at half of the notional determinate sentence, this might, in some cases mean that prisoners serving a life sentence would be released earlier than prisoners sentenced to an extended sentence for the same offence. The Court’s answer to that submission was as follows: “[35] A number of advocates drew to our attention what they described as an anomaly caused by the provisions for early release in respect of the new extended sentences. The effect is that a life prisoner may serve less time in prison than an offender serving the custodial term of an extended sentence even though the appropriate custodial term is the same. Offender A, subject to a life sentence, is given a minimum term of five years on the basis that but for the life sentence he would have been sentenced to a ten-year determinate sentence. He serves five years before being considered for parole. He may be released at that stage. Offender B is made the subject of an extended sentence. The appropriate custodial term is ten years. Offender B is not eligible for release until he has served two thirds of his sentence. Even if he is released at that point he will have spent longer in prison than the life prisoner who has been released at the first opportunity. Thus, the first opportunity for release occurs sooner for the life prisoner than for the prisoner serving an extended sentence. [36] We understand the argument, but the position is more complex. A life prisoner is not entitled to release at the end of the minimum term. He must wait until the Parole Board consider that it is safe to release him. In some cases that date is years after the minimum term has expired. The prisoner serving an extended sentence is entitled to be released at the end of the custodial period without any further assessment of risk. Where the custodial term is less than ten years the entitlement arises at the two thirds point. [37] There is an argument that if the alternative to a life sentence is an extended sentence rather than a determinate sentence then it is the extended sentence, with its longer time to serve, that should form the basis of the calculation of the minimum term in a life sentence. That would reduce the notional determinate sentence by one third rather than one half and would lead to an increase in the minimum term to be served in life cases of one third. There are four difficulties with that approach: (i) an extended sentence is not necessarily an alternative to a life sentence under section 225; (ii) an extended sentence is not an alternative to a life sentence imposed under section 224A; (iii) the sentencing judge must compare the early release provisions at section 244(1) —which are concerned with determinate sentences; (iv) a measure which increases minimum terms in life sentences by one third is, in our judgment, a matter for Parliament.” The 2020 amendments to the early release provisions 32. In 2020, two changes were made to the provisions relating to the early release of prisoners serving determinate sentences. 33. On 26 February 2020, the Terrorist Offenders (Restrictions of Early Release) Act 2000 (“the 2020 Act”) came into force. Section 1 of the 2020 Act inserted a new section 247A into the Criminal Justice Act 2003 which provides that the “requisite custodial period” before an offender became eligible for release on licence for many terrorism offences would now be two-thirds of the determinate sentence imposed. 34. On 1 April 2020, the 2020 Order came into force. The 2020 Order was enacted under powers conferred on the Secretary of State by sections 267, 330(3) and 330(4) of the CJA 2003. As required by section 330(5) of the CJA 2003, a draft of the 2020 Order had been laid before Parliament and approved by a resolution of each House. Article 3 of the 2020 Order provides: “In section 244 of the 2003 Act (duty to release prisoners), the reference to one-half in subsection (3)(a) is to be read, in relation to a prisoner sentenced to a term of imprisonment of 7 years or more for a relevant violent or sexual offence, as a reference to two-thirds.” 35. It is common ground that a determinate sentence imposed for 21 of the offences of which McWilliams was convicted would have attracted the operation of Article 3 of the 2020 Order. If therefore McWilliams had been sentenced to a determinate sentence for those offences, he would not have been eligible for release until he had served twothirds of that sentence. 36. Following these two amendments to the early release provisions, section 244(1) provides or is to be read in the relevant respects as providing as follows (with the changes underlined): “(1) As soon as a fixed-term prisoner, other than a prisoner to whom section 234A, 244A, 246A, 247 or 247A applies, has served the requisite custodial period for the purposes of this section, it is the duty of the Secretary of State to release him on licence under this section. … (3) For the purposes of this section “the requisite custodial period” means— (a) in relation to a prisoner serving one sentence [where the 2020 Order applies] two-thirds of his sentence ”. 37. The new section 247A provides: “(1) This section applies to a prisoner (a "terrorist prisoner") who— (a) is serving a fixed-term sentence imposed (whether before or after this section comes into force) in respect of an offence within subsection (2), and (b) has not been released on licence. … (3) It is the duty of the Secretary of State to refer the case of a terrorist prisoner to the Board— (a) as soon as the prisoner has served the requisite custodial period, and (b) where there has been a previous reference of the prisoner's case to the Board under this subsection and the Board did not direct the prisoner's release, no later than the second anniversary of the disposal of that reference. (8) For the purposes of this section— "the requisite custodial period" means— (a) in relation to a person serving one sentence imposed under section 226A, 2226B, 227, 228 or 236A two-thirds of the appropriate custodial term, (b) in relation to a person serving one sentence of any other kind, two-thirds of the sentence …” 38. As is apparent, these two amendments took very different forms. The 2020 Order effectively made a specific amendment to the early release provisions set out in section 244 for relevant violent and sexual offences. The amendments effected by the 2020 Act removed the terrorism offences to which that Act applied from the scope of section 244 altogether and made separate provision for them in section 247A. The authorities addressing the effect of the 2020 Order when fixing the minimum term for a discretionary life sentence 39. We were referred to three authorities in which obiter observations have been made about the effect of the 2020 Order. Khan v Secretary of State for Justice 40. In Khan v Secretary of State for Justice [2020] EWHC 2084 (Admin) the applicant unsuccessfully sought a declaration that the 2020 Act and the resultant section 247A of the CJA 2003 were incompatible with articles 5, 7 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms. At [31] the Divisional Court stated: “Since 1 April 2020, under the 2020 Order, sexual and violent offenders are not entitled to automatic release until the twothirds point of their sentences. A court will be entitled to take this into account under section 82A(3)(c) when setting the minimum tariff period in respect of a discretionary life sentence”. McCann 41. The Court in McCann heard three unconnected cases in which the defendants had been sentenced (before the 2020 Order came into effect) to discretionary life terms for a large number of (predominantly sexual) offences. McCann was sentenced to a discretionary life sentence with a minimum term calculated by reference to two-thirds of the notional determinate sentence, because the judge would have imposed an extended sentence if he had decided that a life sentence was not appropriate. 42. One of the issues before the Court was whether the seriousness of the offending in the cases before it constituted “exceptional circumstances” which justified fixing the minimum term under section 82A of the PCCSA at two-thirds, rather than one-half of the notional determinate term. 43. The Court addressed at [54]-[60] the circumstances in which the sentencing judge was entitled to fix the minimum term at a greater proportion of the notional determinate term than one-half and reviewed various authorities in which the minimum term had been fixed by reference to a higher proportion: see Szczerba, R v Jarvis [2006] EWCA Crim 1985 and R v Rossi [2014] EWCA Crim 201 ; [2015] 1 Cr App R (S) 15 . At [58]- [59] the Court referred to suggestions that relying on the defendant’s offending history or the seriousness of the offending, when deciding whether to fix the minimum term at a greater proportion of the notional determinate term than one-half, involved “doublecounting” because these matters would already have been taken into account when arriving at the notional determinate sentence: see Criminal Law Review 2015, 4, 294 and Archbold Criminal Pleading Evidence and Practice 2020 , para. 5A-717. The Court took the view this conflicted with the decisions in Jarvis and Rossi and concluded at [60]: “When ‘taking into account’ the early release provisions for determinate sentences judges, in the great majority of cases, have adopted the one-half approach; but this does not mean that, when justified, the court cannot reflect the culpability of the offender both in the length of the notional determinate sentence and in the way the minimum term is calculated, for instance in order to capture the exceptional seriousness of the offence or offences. This does not involve ‘double counting’ but instead provides a staged approach that enables the court to impose appropriate punishment. A defendant's grave antecedents or the extent and seriousness of the offence or offences for which he or she is to be sentenced may be relevant, first, to the length of the determinate term and, secondly, to whether there are persuasive circumstances that justify a departure from the usual one-half approach. As was said by this court in R v Martin [2016] EWCA Crim 474 the judge should explain the justification for departing from the usual approach of fixing the minimum term at one-half (see [16]).” 44. At [92], the Court noted that “in the collective experience of this court the cases of McCann and Sinaga … come within the most serious cases involving a campaign of rape to have been tried in England and Wales”. On the basis of that finding, at [95], the Court held: “These two cases are paradigms of the circumstances which justify a departure from the usual position of fixing the requisite custodial period at a half of the determinate term. We agree with Edis J in McCann's case that a custodial period of two-thirds is necessary, but we express this step as being required for both offenders to ensure that the proper requirements of punishment are met for these unique crimes rather than by reference to the release provisions for an extended sentence”. 45. The Court also noted three matters of context, the first of which concerned the 2020 Order which had come into force in the period between sentencing and the hearing of the appeal in that case. At [62], the Court said: “With effect from 1 April 2020, in relation to a defendant serving a fixed-term sentence of seven years or more for a relevant violent or sexual offence (an offence listed in Part 1 or 2 of schedule 15 to the 2003 Act for which a sentence of life imprisonment may be imposed) which was imposed on or after that date, the requisite custodial period is two thirds (not a half) (see [the 2020 Order]). These sentences for McCann and Sinaga, for offences which overwhelmingly came within Part 1 or Part 2 were imposed before that date”. 46. The Court then referred, at [63], to [31] of Khan (which we have set out above). At [66], the Court concluded: “The position, therefore, is that the significant changes to the release provisions which have either been recently implemented or are awaiting implementation will have a considerable impact on the position of individuals convicted of a wide range of serious offences.” Shaikh 47. Finally, we turn to Shaikh . In that case, two unconnected defendants had been sentenced to discretionary life terms for terrorism offences to which the 2020 Act applied. The sentencing judge in each case fixed the minimum term for the discretionary life sentences he imposed at one-half of the notional determinate term, rejecting the argument that, following the coming into force of the 2020 Act, the appropriate proportion was two-thirds. The Solicitor General sought leave to refer the sentences as unduly lenient. 48. The Court was invited to construe the requirement in section 82A(3)(c) of the PCCSA to “take account” of “the early release provisions as compared with section 244(1)” as extending not simply to the “requisite custodial period” provided for in section 244 itself, but also that contained in section 247A. It was argued that this was appropriate because of the express carve-out from section 244 of sentences which were subject to section 247A. The Court was unable to accept that conclusion, stating at [50]: “In our view, it would be a bold reading of section 82A(3)(c) to interpret it as extending it not simply to the early release provisions provided for in section 244(1), but to other early release provisions appearing elsewhere merely because they have been expressly carved out from section 244(1).” 49. The Court contrasted the legislative mechanism by which the amendments in the 2020 Act had been given effect with that adopted in relation to the 2020 Order, stating at [52]: “We acknowledge that this conclusion entails that the legislative structure of the 2020 Act (creating a new early release regime in section 247A and then removing that subject to that regime from the operation of section 244(1)) has a different effect so far as the setting of minimum terms is concerned to that adopted by the 2020 Order (which amended the definition of “relevant custodial period” in section 244(1) itself). However, different forms of statutory language do have different consequences.” The Attorney General’s submissions 50. Mr Little QC submits that the effect of the 2020 Order, in conjunction with section 82A(3) of the PCCSA, is clear. For relevant violent and sexual offences, the early release provided for by section 244(1) of the Criminal Justice Act 2003 which the judge was required to take into account, was the two-thirds requirement the 2020 Order had brought into effect. This construction, he contends, is supported by what was said in Khan , McCann and Shaikh and further, by the commentary of Dr Lyndon Harris on the decision in Shaikh in Crim LR, 2021,5,409. The Offender’s submissions 51. Mr Sergent for the Offender submits that Parliament cannot have intended that the minimum term for discretionary life sentences for offences which were subject to the 2020 Act should be calculated taking one-half of the notional determinate term (the effect of Shaikh ) whereas minimum terms for relevant violent and sexual offences should be calculated as two-thirds of the notional determinate term. Whilst he accepts that the effect of the 2020 Order is that a sentencing judge fixing a minimum term for a relevant violent or sexual offence is required to “take into account” the two-thirds provision introduced by that order, he submits that the authorities have established that taking one-half of the notional determinate term is “the norm” ( Szczerba , [58]). Further, he argues that only legislation addressing the fixing of minimum terms directly can alter that norm. Thus, he says it is only permissible for a sentencing judge to fix a minimum term by reference to more than one-half of the notional determinate term when there are “exceptional circumstances”. Conclusion 52. As the Court noted in Burinskas at [37], any measure “which increases minimum terms in life sentences by one third is … a matter for Parliament”. Further, Parliament’s intention to effect such a significant change must be manifest with sufficient clarity ( Shaikh , [51]). Mr Little QC is right to accept as he did in his submissions, that it would have been possible to communicate this change in a clearer and more coherent way than achieved by the 2020 Order. Nonetheless we conclude that the 2020 Order does sufficiently manifest such an intention. As Dr Harris noted in his commentary on Shaikh (Crim LR 2021, 5, 409, 413), “a conclusion to the contrary would be difficult to sustain”. Moreover, such a conclusion receives strong support from the passages in Khan , McCann and Shaikh which we have set out above. 53. As for the first of Mr Sergent’s contrary arguments, the primary means by which the courts ascertain the intention and effect of legislation is through the legislative text, read in context. As the editors of Bennion on Statutory Interpretation (7th) note at Section 11.1: “The legislative intention is the meaning attributed to the legislature in respect of the words used. So the interpreter’s objective, when interpreting an enactment, is to determine the true meaning of the words used by the legislature”. 54. The difference in the approach to be adopted when calculating minimum terms for discretionary life sentences for offences which are subject to the 2020 Act on the one hand, and those which are subject to the 2020 Order on the other, is the inevitable result of the different language used in the relevant legislation, from which Parliament’s intention is principally to be derived. That in itself is a sufficient answer to Mr Sergent’s first argument. However, his attempt to rely on a presumption of consistency of legislative policy faces a further difficulty. The 2020 Order is delegated legislation; the 2020 Act is primary legislation. Moreover, Parliament has frequently provided for different sentencing regimes for different types of serious offending (for example the minimum terms which are imposed for some serious offences, but not for others). 55. As for Mr Sergent’s second argument, it is important to note why Szczerba and McCann described taking one-half of the notional determinate sentence as the normal approach. When the sentences in those cases were passed, the only “early release provisions in section 244(1))” which could be “taken into account” provided for the release of prisoners serving determinate sentences at the half-way point. The position has now changed. Section 244 now provides for a different early release provision for relevant violent and sexual offences, and judges fixing minimum terms for such offences are obliged to take that provision “into account”. For such offences, two-thirds is now the “normal” proportion. We do not accept, therefore, that though sentencing judges are required to take account of the new early release provisions, there has been no change in the approach to fixing a minimum term, save where there are exceptional circumstances. 56. In view of our conclusion on the principal ground argued before us, it is not necessary to address the argument on exceptionality; and indeed we need say little more on the discrete ground relied on of undue lenience, which Mr Little QC raised but did not press in oral submissions. As to that, as Mr Little QC properly acknowledged, there were two material factors which the judge was correct to have in mind when determining the appropriate notional determinate term. First, by the time of sentence, McWilliams had already served the equivalent, or near enough, of an 8-year sentence for the convictions in March 2016 and August 2017. Secondly, relevant mitigation (the three-year reduction made by the judge in that connection was not challenged in this reference). Having regard to those two factors, the sentence in this case was equivalent to one of nearly 35 years after allowance for mitigation and before credit was given for the Offender’s plea. Exceptionally serious as this offending was, such a sentence could not in our view be characterised as unduly lenient. Conclusion 57. In all the circumstances, we have concluded that by taking half, rather than two-thirds of the notional determinate term of 18 years, the judge arrived at a sentence which was unduly lenient. Accordingly, the life sentence imposed on the Offender will remain in place, but with a minimum term of 12 years to be served, in substitution for the minimum term of 9 years originally specified by the judge.

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No: 201800938/C1 Neutral Citation Number: [2018] EWCA Crim 498 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 : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION SIR BRIAN LEVESON MRS JUSTICE CARR DBE MRS JUSTICE YIP DBE - - - - - - - - - - - - - - - - - - - R E G I N A v AHMED HASSAN INTERLOCUTORY APPEAL UNDER S.35(1) OF THE CRIMINAL PROCEDURE AND INVESTIGATIONS ACT 1996 - - - - - - - - - - - - - - - - - - - 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 Maloney QC and Mr K Missouri appeared on behalf of the Applicant Miss A Morgan and Mr B Lloyd appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - 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. J U D G M E N T 1. THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: On 5th March 2018, that is to say yesterday, this applicant was due to stand trial in the Central Criminal Court before Haddon-Cave J and a jury charged with attempted murder and causing an explosion, contrary to section 2 of the Explosive Substances Act 1883. By reason of the nature of the offence, a preparatory hearing had been convened under section 29(1C) of the Criminal Procedure and Investigations Act 1996, during the course of which the judge was asked to rule upon the admissibility of the evidence of a psychologist which had been obtained in circumstances to which we shall later refer. That hearing was conducted on 23rd February with judgment handed down on 27th February. 2. On 1st March the applicant served Notice of Appeal to which the prosecution responded on the following day. The applicant by his counsel then replied to that response also on that day. At what should have been the beginning of the trial, Haddon-Cave J refused the applicant permission to appeal but could not start the trial until any further application to this court had been resolved. In the circumstances, Mr Maloney QC on behalf of the applicant now applies for leave to appeal against the ruling. The application has been referred to the full court by the Registrar. It is a matter to note that the court is in a position to move swiftly when the need arises, but it is a procedural step to be taken only in the most exceptional circumstances, not least because of the enormous inconvenience that it causes to the court and the organisation of its other business. 3. The provisions of section 37 of the Criminal Procedure and Investigations Act 1996 apply to these proceedings, as a result of which the report both of proceedings and of this judgment is prevented until the conclusion of the trial, save for the specified basic facts such as the name of the accused and the offence. The court does not order that the provisions do not apply. Given that the trial is due to start tomorrow, there is no basis for lifting the restrictions in whole or in part in order to permit the decision to be be reported, albeit anonymously. 4. In short, the applicant is alleged to have manufactured an explosive device which he intended would be detonated on a crowded London Underground train, the Crown contending that he thereby intended to kill those in close proximity and injure many others. The device was constructed using Triacetone Triperoxide ("TATP") which is unstable and unpredictable as its main charge. The initiation mechanism of the device was attached to a timer allowing the applicant to abandon the device. 5. He carried out this plan on 15th September 2017, leaving the device in a carriage on a tube train. The device was detonated as the train arrived at Parsons Green Tube Station, causing a partial explosion. It is a matter of great fortune that the main charge of the device did not function or react as the Crown contended this applicant intended. 6. The applicant is an Iraqi national and during his application for asylum in early 2016 he told immigration officers that he had been taken by force by members of ISIS and had been trained by them. He said they had threatened to kill his family if he had not done what he was told. He denied that he had been sent to Europe to work for the group. He was referred to Prevent and oversight was maintained by a Channel Panel. 7. CCTV from 15th September showed the applicant leaving home shortly before 7 am carrying a bag which it is contended contained the device. Shortly before 8 am he boarded an Eastbound District Line train travelling towards Parsons Green Station. He left the device in the carriage when got off at Putney Bridge Station at 8.17. At 8.19 the device partially detonated causing flames to engulf the area between the rear of carriage six and the front of carriage seven, causing obvious fear and panic amongst the passengers on the train and at the station. CCTV of the applicant's movements thereafter appeared to show that he had taken steps to avoid detection. 8. An examination of the device revealed that it was potentially viable as an improvised explosive device containing several hundred grams of TATP and several kilograms of shrapnel. A viable initiation mechanism had been incorporated into the device using a timer to provide a delay between the instigation of the countdown and the initiation of the device. It had failed fully to function. If it had, it could have caused extensive and indeed fatal harm to people and extensive damage to property. The failure may have been because it was not well constructed or because of defects in the manufacture of the TATP. The applicant was further linked to the device by scientific evidence. On arrest, he admitted that he had constructed the device. 9. In his first interview the applicant said that he had done what he had done in anger, describing it as an act of aggression and over reaction to curry favour with those in Iraq. In a later interview he maintained that he had done so because he was bored and lonely and acted to highlight his distress to others. It is perhaps this latter interview that is reflected in the terms of his defence case statement which Mr Maloney explains remains the basis of the defence which asserts as follows: "3. The defendant will assert that his actions amounted to 'a hoax'. That is to say, he never intended to create and deploy a device which would cause serious injury to a person or serious damage to property. He did not intend to kill anyone or maliciously cause an explosion that would be likely to endanger life or cause serious injury to property. 4. The defendant used information found on the internet to create the device in question. 5. In creating a TATP, he [that is to say the applicant] deliberately used weaker strength hydrogen peroxide and dilute sulphuric acid in order that the TATP would not explode. 6. In addition, he made modifications to elements of the device designed to avoid generating the kind of pressure that would lead to an explosion. Thus, he did not place a lid on the blue jar and he made a hole within the Tupperware container and the foil surrounding it. 7. He did not intend that the knives and other metal items found in the device would injure people. He believed that they would not be expelled from the device." 10. Thus, there will be two main issues at the trial now due to commence tomorrow. The first is the viability of the explosive device which the applicant made and placed on the London Underground train on 15th September. The second, whether the applicant had the relevant intention to commit the offences as alleged or, as he contends, he had deliberately modified the device so that it would not result in the commission of those offences. 11. The central issue at the preparatory hearing was the admissibility of psychological evidence from Dr Timothy Green and in particular whether the evidence was relevant to the question of intent. 12. In a comprehensive ruling, which it will be clear from the chronology that we have provided was handed down but a few days after the argument was ventilated and which runs to 70 paragraphs, Haddon-Cave J ruled against the admissibility of the evidence. Thereafter he ruled that the application for leave to appeal was out of time and, in any event, without merit. Although Mr Maloney argued before Haddon-Cave J that after his ruling delivered at 11.03 on 27th February an appeal subsequently lodged at 4.49 on 1st March was in time, he has not sought to challenge the judge's finding that it was out of time and thus required leave. 13. In that regard, as to time, the judge pointed to the chronology which involved the preliminary hearing on 19th October 2017. On 19th January 2018 at the PCMH it was claimed that a report from a consultant psychologist would be relied upon for context only and would not go to the issue of intent. This was repeated in a defence note dated 22nd January and in oral submissions. Only on 14th February was Dr Green's report served, one day after it was supposed to have been delivered, and even more serious only on 23rd February was it suggested that it would be relied upon as relevant to the proof of intent. With the trial date due to start on 5th March, that date was immediately in jeopardy, for had it been suggested that this evidence would or could go to the defence of the charge, the prosecution would inevitably have had to seek and would have obtained the opportunity to seek its own evidence. It is not difficult to see why the judge was not prepared to exercise his discretion to extend time. 14. Turning to the merits, having extensively reviewed the authorities, the judge expressed the general principle that the admissibility of psychological evidence was limited to cases of alleged duress and suggestibility in confessions. It is a mistake to refer to that general principle as a rule. The rule is no more than a requirement that, in order to admit the evidence, it must satisfy the appropriate criteria in law. 15. Mr Maloney relied below on two decisions of this court to suggest that psychological evidence could also be admitted on the question of intent. Thompson [2014] EWCA Crim 836 considered the admissibility of expert evidence about Asperger's Syndrome in the context of sexual offences. The offences required proof that there was "intentional touching" and that the touching was "sexual". The content and characterisation of the activity were important. The appellant in that case was obsessed with hygiene and was rule bound such that over-thorough towelling of a boy who had been bathing and inappropriate touching need not have been sexual. The diagnosis of Asperger's Syndrome was relevant to the question, first, what the appellant did, and second, with what intention he did it. The evidence was not admitted to suggest the appellant was not capable of forming the necessary intent because it may have assisted the jury in considering the nature of the act or its purpose. The prosecution, it is important to underline, had suggested the appellant must have been aware he was taking an extreme risk by behaving as he did and that itself pointed to a sexual motive for his behaviour. The expert evidence of his Asperger's Syndrome was thus centrally relevant to this question. We agree with Haddon-Cave J that the judgment of the Court of Appeal in that case repays careful reading. The facts of this case and the issues to be determined are very different to those in Thompson . 16. This fact-focused approach is consistent with the very recent decision in Grant-Murray [2017] EWCA Crim. 1228 at paragraphs 37 to 64 in which Thompson was considered. This was a decision on renewed applications for leave to appeal against convictions for joint enterprise murder. One of the applicants, Henry, sought leave to adduce fresh evidence relating to a new assessment suggesting that he had suffered from autism. Despite multiple referrals pre-trial, Henry had never previously been so diagnosed. It was submitted for Henry that knowledge of autism would be relevant to the assessment of Henry's state of mind at the time of the incident and to his credibility. It was also argued that it would be important for the jury to know of the diagnosis, just as knowledge of Asperger's Syndrome was found to be similarly relevant, and of assistance to the court in Thompson . Lord Thomas, CJ commented at 53 that Thompson was not of any real assistance as it was the duty of the court to consider in each case the relevance of such evidence to the issues in the case. A court is not assisted by cases that may, as Thompson did, turn on their own facts. On the facts of Henry, the court declined to grant leave for this fresh evidence to be adduced. When considering its possible impact the court concluded that having regard to all the evidence autism could not have had any effect on the issue of Henry's thinking process at the time of the murder or the assessment of his credibility. 17. Grant-Murray serves to underline the basic proposition that the question of admissibility and relevance will in each case turn on the nature of the issues arising on the specific facts and the extent to which the particular material in question can assist a jury. Thus, for example, as was the case in Thompson , expert evidence may be relevant if it will assist a jury in the interpretation of conduct that to a "neuro-typical mind" may suggest one motive, but in the context of a developmental disorder may appear different. 18. Mr Maloney does not dissent from the proposition that the question of admissibility turns on the facts of each case but argues that this case falls on the side of the line that permits the evidence to be admitted. 19. The other case on which Mr Maloney relies is Huckerby [2004] EWCA Crim. 3251 where psychiatric evidence of PTSD was admitted on the basis that it might provide the jury with an explanation for the appellant's behaviour at the time of the robbery, said by the prosecution only to be explicable on the basis that the appellant was an insider. The evidence was admitted. Potter LJ (as then he was) said at paragraph 105: "Huckerby was not raising a defence of duress; as such he did not seek to 'confess and avoid' participation in the crime. Nonetheless, the absence of a satisfactory explanation for his behaviour having been erected into a main plank of the prosecution case, the situation was analogous to a plea of duress, in the sense that the jury were invited by the prosecution to investigate the mind and motivation of the defendant and to conclude that he willingly followed the instruction of the robbers, as opposed to having his will overcome by fear." 20. We reject the proposition that the evidence of a psychologist is admissible to assist the jury on the question of what the applicant or indeed any defendant actually intended, in this case when he made and deployed the explosive device. Indeed, Mr Maloney does not suggest that Dr Green can give evidence of what the applicant's intention was, but only how his mind might have operated which itself could impact on the jury's consideration of the issue. 21. In reality, however, the objection to Dr Green's evidence is far more potent than that, perhaps because of the limitations of what Dr Green is able to say in the light of the issues in the case and of the overly broad questions put to him. Thus, the context is provided by what the appellant had said and how his instructions have been reflected to the court both in his interview and in the defence case statement which we have set out above. 22. Pulling these strands together, it is said that the defendant deliberately intended a hoax. He did not intend to deploy a device that would injure anyone or cause an explosion that would be likely to endanger life. In order to achieve that end he deliberately used weaker strength chemicals to avoid an explosion. The only proper interpretation of the defence is that the appellant knew perfectly well that if he did create an explosion it would be likely to endanger life, but, on his account, he took steps to avoid that happening. Compare that with Dr Green's report. The highest it is put (in language which we consider more in keeping with defence advocacy) in the report considered by the learned judge, is at 8.3 in these terms: "Mr Hassan's need for attachment and positive reinforcement to combat depressive and anxious cognitions and feelings leaves him vulnerable to overwhelming feelings of anxiety regarding his self-worth and self-esteem. This may be seen to have resulted in his acting as he did at the time of the index offence, where it might be suggested he felt overwhelming distress and had no effective means of highlighting this to others or of communicating his need for assistance. This impoverishment in capacity to communicate distress to others is in keeping with a presentation of Asperger's disorder. I would suggest that Mr Hassan was isolated and frightened at the time of the alleged offence and, lacking the ability to develop any appropriate problem solving strategies to seek help due to his high functioning Autism, he engaged in a behaviour that he believed would draw attention to his plight, without fully understanding or being able to consider the consequences of his actions." With great respect to Dr Green that flies in the face of what is contended in the defence case statement. 23. The question is what the applicant intended and it is not suggested that he was not perfectly capable of forming an intent to kill or endanger the lives of others. If Dr Green was purporting to answer that question, which Mr Maloney in any event challenges, he is not entitled to do so. If he is not, one could question how the jury would be assisted by what he has said in the context of what the issues identified by the defence case statement are. 24. After the ruling of the learned judge, Dr Green provided another lengthy report in which he sought to deal with some of the concerns the judge had raised. The judge was not prepared to consider this further evidence but in order that this judgment is a complete analysis we include from this report at paragraph 4.2: "Mr Hassan is not capable, in my opinion, to clearly distinguish in his thinking that he could have caused harm. Indeed, his thinking is of such a concrete nature that he could believe that he had constructed a device that would draw attention but would do no harm at all. Such a style of thinking is entirely consistent with a diagnosis of Asperger's Disorder." The doctor then moves back into advocacy mode by continuing: "Mr Hassan appears shocked that he has caused psychological distress to people who were present, as well as to the broader community. It is the nature of an individual with an Autistic mind to not be able to understand 'the grey areas' as it were, not to be able to consider the actions upon a continuum of what might be risky, but instead to be caught in rigid and concrete thinking that is the defining characteristic of individuals with Asperger's Disorder. In short, it is my opinion that it is likely that Mr Hassan may not have forseen deaths of persons in the train nor the risks to such persons nor serious injury to them or property: he may well have been, as a result of the autistic functioning of his mind, specifically his Asperger's Disorder presentation, too single-mindedly focused on his task of making a scene to highlight the fact that he was experiencing a lack of support." That again runs entirely counter to the assertion at paragraph 5 of the defence statement that the applicant deliberately used weaker strength hydrogen peroxide and dilute sulphuric acid in order that the TATP would not explode and indeed made other modifications to avoid generating the kind of pressure that would lead to an explosion. Again, Dr Green adduced the phrase "not capable to clearly distinguish that he could have caused harm" which is equivalent to his earlier phrase "not fully understand". For our part we do not see what the jury could make of this graded opinion. 25. In any event a further difficulty is how this evidence, were it to be given, would help the jury in the context of the defence case statement that the device had been carefully calibrated not to cause harm. It is as if Mr Maloney wants to argue that his client should be acquitted because he tried to be careful to construct a device that would be a hoax and would not cause injury or endanger anyone, but if the jury reject that submission, he should be acquitted because he could not fully understand the consequences of his actions or clearly distinguish he could have caused injury. These defences are, with respect, inconsistent. 26. In our judgment, irrespective of what might be the position in other cases, the learned judge was right to reject this evidence as inadmissible and right to refuse leave to appeal. For such material to be admitted so late in the day it would have to be clear and compelling. Instead not only was it out of time it is, in our judgment, inadmissible as a matter of law and in any event inconsistent with the way the case is being put in the defence statement. It would not serve to elucidate but merely confuse. On all these grounds leave to appeal is refused. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400

```yaml citation: '[2018] EWCA Crim 498' date: '2018-03-06' judges: - SIR BRIAN LEVESON - MRS JUSTICE CARR DBE - MRS JUSTICE YIP DBE ```

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WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. No. 201904686 B3 IN THE COURT OF APPEAL CRIMINAL DIVISION [2020] EWCA Crim 467 Royal Courts of Justice Friday, 13 March 2020 Before: LORD JUSTICE HADDON-CAVE MRS JUSTICE CARR DBE MR JUSTICE PEPPERALL REGINA V PAUL ROBERT HESSEY REPORTING RESTRICTIONS APPLY: THE SEXUAL OFFENCES (AMENDMENT) ACT 1992 __________ 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] _________ J U D G M E N T MRS JUSTICE CARR: 1 On 29 November 2019 in Derby Crown Court the appellant was convicted of nine counts of sexual offending. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with s.3 of the Act . 2 The appellant appeals his conviction on Count 7, being a count of indecent assault contrary to s.14(1) of the Sexual Offences Act 1956 . Count 7 was a multiple incident count of indecent assault by the applicant putting his penis in the vagina of the complainant on at least ten occasions. The incidents occurred during the period December 1996 to December 1998 when the complainant was aged 14 or 15. The offending behaving would have been charged as unlawful sexual intercourse with a girl under 16 contrary to s.6(1) of the Sexual Offences Act 1956 . However, that offence bears a time restriction contained in s.37(2) and para.10 sch.2 of that act: a prosecution for such an offence may not be commenced more than 12 months after the offence charged. That was why the offence was charged with an offence contrary to s.14(1) of the Sexual Offences Act 1956 . 3 Following the decision in R v J [2004] UKHL 42 , the Crown was in fact precluded from prosecuting the appellant for the offence on Count 7 under s.14(1) of the Sexual Offences Act 1956 in such circumstances. Thus, and as the prosecution rightly concedes, Count 7 should never have been on the indictment or allowed to go to the jury. 4 The appeal will accordingly be allowed to this extent. The conviction on Count 7 will be quashed. __________ OPUS 2 DIGITAL TRANSCRIPTION CERTIFICATE Opus 2 International Limited hereby certifies that the above is an accurate and complete record of the Judgment or part thereof. Transcribed by Opus 2 International Limited Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] This transcript has been approved by the Judge.

```yaml citation: '[2020] EWCA Crim 467' date: '2020-03-13' judges: - LORD JUSTICE HADDON ```

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Case No: 200403870/B3 Neutral Citation Number: [2006] EWCA Crim 5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL ( CRIMINAL DIVISION) ON APPEAL FROM BOURNEMOUTH CROWN COURT HH Judge Jarvis Royal Courts of Justice Strand, London, WC2A 2LL 20 th January 2006 Before : LORD JUSTICE THOMAS MR JUSTICE GRIGSON and THE RECORDER OF CARDIFF (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - B&Q plc Appellant (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) - - - - - - - - - - - - - - - - - - - - - Peter Rouch QC (instructed by Bond Pearce ) for the Appellant George B Alliott (instructed by Head of Legal and Democratic Services of the Borough of Poole ) for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Thomas: 1. We gave judgment on 27 September 2005 (reported at [2005] EWCA Crim 2297 ), dismissing the appeal on conviction and the amount of the fine imposed; we allowed in part the appeal against the quantum of the order for costs made by the trial judge. 2. It was not possible to deal with the costs of the appeal at the handing down of the judgment, as insufficient notice was given by the respondent. We directed that written submissions be supplied. We have considered those submissions. 3. The overall costs of the respondents on the appeal were (in round figures) £10,400 and those of the appellants were (in round figures) £61,000. 4. It was argued on behalf of the appellants that the proper approach to the assessment of costs of the appeal should be on the basis that the issue on the appeal as to the costs awarded by the trial judge represented one third of the costs of the appeal. Therefore their success on the issue of the costs awarded by the trial judge justified an award that reflected (1) a one third reduction from the amount of the respondent’s costs the appellants would otherwise have to pay and (2) payment to the appellants by the respondent of a third of their costs of the appeal. This would result in a net payment by the respondent to the appellants, even if the costs of the appellants’ solicitors incurred on the appeal were reduced significantly on the assessment, because for the reasons given in paragraph 56 (v) of our judgment, the employment of leading and junior counsel by the appellants was not, in our view, an expense which was not properly incurred. 5. However, we do not consider that the issue of costs of the appeal should be approached on the basis that one third of the costs should be apportioned to the argument on the issue of the costs awarded by the trial judge. The argument on this issue did not long occupy the time of this court, it plainly did not take long to prepare and the written submissions that were supplied to the court after the hearing of the appeal (see paragraph 54 of the judgment) were within a manageable length. 6. We accept, however, that the appellants are entitled to some of their costs to reflect their success on the issue of the costs awarded by the trial judge, but costs which would reflect an amount significantly less than one third of the time. We therefore approach the issue of the costs of the appeal on the basis that the appellants were substantially unsuccessful on the appeal. Bearing in mind the sums in issue, we do not consider that it is in the interests of justice to order a detailed assessment of the costs. 7. Assessing, therefore, the costs of the appeal on the basis of the information before us, we order the appellants to pay £4,000 to the respondent by way of the costs of the appeal. This sum is arrived at by deducting from the amount which the appellants would otherwise have had to pay the respondent for the overall costs of the appeal, i) A sum to reflect the respondent’s failure on the issue of the costs awarded by the trial judge; ii) An amount that the respondent would have to pay the appellants in respect of the issue of the costs awarded by the trial judge. We leave the appellants to bear their own costs of the appeal.

```yaml citation: '[2006] EWCA Crim 5' date: '2006-01-20' judges: - LORD JUSTICE THOMAS ```

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Neutral Citation Number: [2014] EWCA Crim 1521 Case No: 201402917 C1; 201402924 C1; 201402923 C1 201402922 C1; 201402921 C1; 201402920 C1; 201402919 C1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LIVERPOOL CROWN COURT His Honour Judge Wright T20137916 & 7917 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17 th July 2014 Before: LADY JUSTICE RAFFERTY DBE MR JUSTICE WILLIAM DAVIS and HER HONOUR JUDGE DEBORAH TAYLOR (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between: Regina Appellant - and - “JG”, “SF”, “MKS”, “JPGT”, “RSST”, “MN” & “PJR” Respondents - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr B Jones appeared on behalf of “JG” Mr M Le Brocq appeared on behalf of “SF” Mr M Wilson appeared on behalf of “JPGT” Mr S Swift appeared on behalf of “RSST” Mr M Walsh appeared on behalf of “MN” Mr P Astbury appeared on behalf of “PJR” Mr A Ford appeared on behalf of the Crown Hearing date: 1 st July 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lady Justice Rafferty: 1. The Respondents currently stand trial at the Crown Court in Liverpool for conspiracy to supply heroin. On Wednesday 18 th June 2014 the judge ruled there was no case to answer for 6 of the 7 defendants charged . The jury was not discharged. The Crown appealed against that ruling pursuant to Section 58 of the Criminal Justice Act 2003. We heard the appeal on the 1 st July 2014. The trial was due to resume on that day against the remaining defendant, Fowler. We allowed the Crown’s appeal, reversed the ruling and ordered that the trial be resumed against all defendants. The legal framework 2. Section 67 Criminal Justice Act 2003 provides that this court may not reverse a ruling unless satisfied it was wrong in law, involved an error of law or principle, or was not reasonable for the judge to make. The facts in synopsis 3. The case for the Crown is that Nicholls and Johnson based in Evesham in Worcestershire sourced drugs from Gibson and Roach (assisted by Siddeley and Thompson) based in Leigh in Lancashire with Fowler as courier. Having observed Fowler travel to Leigh on 25 th September 2013 and having monitored his movements on the 25 th and 26 th September in the Leigh area, police intercepted him on his return south next day and seized a package containing heroin. On November 28 th 2013 at a point approximately equidistant between Evesham and Leigh Nicholls and Johnson in one vehicle and Gibson, Thompson and Siddeley in another met on a quiet road leading to a quarry. The meeting was very brief. Police stopped both vehicles on their respective journeys homeward. £4,000 cash was seized from Gibson’s vehicle or its occupants. The history of the proceedings 4. The trial began on 2 nd June 2014. Gibson, Roach, Nicholls and Johnson had applied to dismiss the charge. The judge refused the applications and gave reasons in an oral judgment of 5 th June 2014. Submissions of no case to answer were successful on 18 th June at the close of the case for the Crown when the judge gave an oral judgment. The judge’s approach 5. The judge took the Crown’s case at its highest. The case relied on circumstantial evidence. Thus, where “a key issue ….was whether there was sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference against the defendant from a combination of factual circumstances based upon evidence adduced by the prosecution, the exercise of deciding that there is a case to answer involved the rejection of all realistic possibilities consistent with innocence” (Goddard 2010 EWCA Crim 1756 ; Jabber 2006 EWCA Crim 2694 ) Hedgecock 2007 EWCA Crim 3486 ) 6. The judge found the circumstantial evidence centred on 25 th to 26 th September and 28th November. He summarized the Crown’s case. On 25 th September Fowler travelled from Evesham to Leigh to collect drugs. His movements were controlled by a person or persons using a mobile never recovered, but whose number was stored in Fowler’s handset as ‘Reko’ (“Reko”). The Reko number liaised with Roach. Roach organised Gibson’s meeting with Fowler whilst the drugs were being sourced ie until the following day. Over the two days in September Fowler met Gibson Roach and Siddeley. On the evening of 26 th September Fowler when stopped on the M6 had secreted in his trousers a half kilogram sealed package comprising 5gm heroin at 23% purity and a 500gm packet of breadmix. Over those September days Fowler was in contact with Roach and the Reko telephone. On 28 th November Gibson, Siddeley and Thompson drove from Leigh to the Midlands to meet Johnson and Nicholls on a quiet road leading to a quarry, the Gibson vehicle having taken anti-surveillance precautions en route. After a few minutes both drove away, Gibson Siddeley and Thompson heading north, Nicholls and Johnson south. Both cars were stopped and searched. Nothing was found on Nicholls or Johnson but two bundles of £2,000 fell from the rear of the Gibson vehicle near Thompson. The money was payment for the intercepted package or was ongoing trade. 7. The judge observed that there was no direct evidence of the passing of the package to Fowler, there were no admissions to participation on the part of any defendant, no science linked the package to any defendant making a submission and there was no evidence of dealing on any other day. 8. The judge considered whether a reasonable jury properly directed could reject all realistic possibilities consistent with innocence. He ignored what Fowler said in interview when considering the case against the other defendants. He accepted that a reasonable jury could infer that Fowler had travelled north so as to collect drugs. The issue was whether Fowler’s trip were associated with any other defendant. 9. The evidence disclosed significant periods when Fowler had not been under observation. In particular Fowler had not been observed in the hour before he left Leigh, during which, inferentially, he had collected the package. 10. Other potentially significant telephone contacts involving Fowler had not been investigated. The police had determined that they were not relevant yet two numbers were in regular contact in the relevant period. Neither these nor any other number had been attributed or cell-sited ( sic ). 11. Science had emerged during the Crown’s case. Two DNA matches on the packaging had been identified. The detail was set out in the Admissions. The two men from whom the DNA came were from the Manchester and Salford areas and linked to drugs. Neither was linked by the Crown to any defendant. [The judge referred to then rejected a contention (actual or potential) by the Crown that they could have acted at the behest of Gibson and Roach. Such was never part of the Crown’s case.] 12. There was no evidence against Nicholls and Johnson regarding the September events. Evidence about the Reko phone linked it only to Fowler and Roach. What Roach said in interview about having spoken to Nicholls when his telephone was connected to the Reko number was not admissible against Nicholls. Evidence from D.C. Greenhough excluded any link between Johnson and Reko. The clandestine meeting in November and the payment of £4,000 did not cast an informative shadow over the events of September. Expert evidence was that £4,000 was too much for five grams of heroin at 23% purity and too little for half a kilogram. 13. A jury could infer that money passed from Nicholls and Johnson to Gibson, Siddeley and Thompson as part of a conspiracy. On its own, divorced by two months and absent evidence in between, those events had insufficient probative force to show it related to Class A drugs. The evidence demonstrated a realistic possibility that the package seized in September 2013 had come from the two whose DNA was on the packaging. A jury could not reject all realistic explanations consistent with innocence and there was no case to answer against the 6 defendants in relation to whom submissions had been made. The Appellant Crown’s Grounds 14. The Grounds rely upon insufficient change in the position between the refusal to dismiss and allowing the half-time submissions, the rulings inherently contradictory. The starting point for its criticism is the reliance on Fowler not being under observation for the entirety of his time in Leigh. The submission is that the rulings are inherently contradictory. The Crown argues that the ruling on the submissions was unreasonable in light of the whole of the evidence, it contained errors and important errors on the question of inferences and that the overall evidence provided ample grounds on which a jury could convict. The Respondents’ Grounds of Opposition 15. These are common to all with a limited number of exceptions which for the purposes of this ruling need not trouble us. All argue that for the reasons the Judge set out the Crown must fail. The Judge was not wrong in law as his recitation of the relevant extract from the authorities made clear. He made no error of law or principle. The wide ambit of his discretion means that the Crown cannot clear the very high hurdle of showing that his decision was one it was not reasonable for him to make. Discussion and conclusion 16. The Crown was before us dogged in its emphasis upon the evidential differences between the position at the application to dismiss and at the close of its case. To the extent that an exercise in comparison might serve to isolate where the judge fell into error we were content to receive its submissions in that form. However, as we repeatedly made clear, what mattered was not the difference between the two rulings. Never mind what the dismissal ruling set out, analysis of the position at the close of the case for the Crown was dispositive. 17. The starting point for its criticism is the reliance on Fowler not being under observation for the entirety of his time in Leigh. The Crown was never anxious about this and could afford not to be. The defence made a certain amount of hay whilst the sun shone as the negative was highlighted in cross-examination. This is of no consequence, particularly given the approach of the Crown. All it had to prove on this part of its case, if only by setting up a tenable inference, was that in the Leigh area someone at some relevant time handed the drugs to Fowler. Who, when and precisely where is neither here nor there. Since it could show that Fowler must have obtained the heroin during his visit to Leigh, someone or some people at the Leigh end must have been conspirators. The Crown could prove that Fowler began this expedition from Evesham and it was an obvious inference that when stopped he was going back. The Crown could also show that others were in the Midlands. That such were party to the conspiracy was obviously a conclusion it was entitled to invite a jury to draw. 18. Some numbers Fowler had rung were not investigated. DC Greenhough, to whom the Crown gave the label “expert” did not dispute in cross-examination that only 15 of the apparent telephone contacts between Roach and Fowler were meaningful communications. This had to be seen in the context of the 283 communications via Fowler’s handset in the two days before his arrest. The raw telephone data revealed Fowler calling popular numbers throughout his time in Leigh. This is also of little consequence given our analysis of known calls, to which we shall come. 19. What of the DNA evidence? DNA on the package, which had an inner and outer layer of wrapping, was consistent with that of two individuals neither of whom was in the dock, and who had no established link to the defendants. Each was named in the Admissions and each had connections to the world of drugs, at least according to untested police intelligence. This had not been known at the dismissal hearing. At first blush this development might have appeared to have more bite since no science linked any defendant to the packaging. However on more rigorous examination it is in our view of little evidential relevance. Inculpation of X and Y as rebuttably involved with the heroin falls a long way short of exculpation of the defendants from a criminal agreement as pleaded. It was always important that the world of drug dealing was seen in its context. Common sense indicates that this branch of commerce makes it likely that the goods or their containers or in this case their wrapping have passed through more hands than those in the dock. 20. The judge found that the Reko telephone could not, as had first been claimed by the Crown, be attributed to Johnson. This was presented to us by the respondents as a distinct change between dismissal ruling and ruling at the close of the Crown’s case. This aspect of the case below puzzled us. DC Greenhough agreed there was no evidence to show Johnson had been in contact with Roach or Fowler or that he had made calls to either. He said there was no evidence Johnson had even been in possession of the Reko phone or that he ever used it. Understandably the defence emphasized this. Quite why DC Greenhough was thought qualified to interpret, rather than factually to set out, the evidence for the assistance of the jury is another matter. What the jury made of what the Crown could (and could not) establish about the Reko telephone was a matter for it and it required no overlay of interpretation even assuming one such were admissible. This aspect however need not trouble us. 21. The judge found that the November meeting and the presence in the car of £4000 was no help for the jury when it considered events in September. Had he had more assistance as he analysed the position we suggest he would have taken a different view. The telephone activity in September is the starting point. Then there was the meeting in November which, per the defendants, was for no reason. It included possession of £4000 by Thompson, for which there was no explanation. All of this was probative of the conspiracy and the meeting in November clearly informative in relation to September. 22. The only evidence against Johnson, it was said, was his presence in the car in November and Johnson had given an explanation in interview. That is correct so far as it goes. However that during that interview Johnson said money was handed over during the November meeting. He later appeared to dilute the force of that admission, but admission it was. 23. Our analysis reveals that the Crown could show the following: In September Fowler in Leigh was in contact with co-defendants. He left with a package containing heroin. After a gap of two months Gibson Siddeley Thompson Johnson and Nicholls met in secluded circumstances. After the meeting, next to Thompson, in one of their cars, was £4000 for which no-one offered a plausible explanation. 24. Information to be gleaned from telephone traffic, as so often in allegations of conspiracy such as this, proves its worth. 25. Reko over this period rang Johnson’s girl-friend and Johnson’s landline. Johnson’s girl-friend’s telephone had stored in it numbers used by Reko. Reko used the same cell sites as her telephone at the same time on the days flanking Fowler’s visit to Leigh, suggesting the two handsets were together. The cell site used by Reko making calls to Fowler was consistent with the handset being at the address of Johnson and of Nicholls, a caravan site near Evesham. The Crown was entitled to invite the inference that Johnson used Reko, a number in play only from 23 rd September - 1 st October. 26. On 25 th September at 1539 Fowler rang Roach for long enough to permit of conversation. Roach promptly rang Gibson, also long enough for conversation. At much the same time Fowler rang Reko. After a few minutes Roach rang Fowler then Gibson. 27. For more than an hour beginning at about 1630 traffic included Reko to Fowler, and immediately Fowler to Roach, or Fowler to Roach then immediately Roach to Gibson. By 1817 Gibson reached the car park where Fowler had based himself in Leigh and got into Fowler’s car. Fowler never left Leigh that night, staying overnight at a local hotel. 28. Next day, 26 th September, from 0932 Gibson Siddeley and Fowler breakfasted at Fowler’s hotel until 1030. Fowler spent the balance of the day in Leigh and it included more telephone traffic of interest and significance. There were repeated sequences of calls: Fowler would call Roach whereupon Roach would call Fowler; Roach would call Gibson following which he would call Fowler: Fowler would call Reko following which he would call Roach. Variations on these sequences occurred throughout the day with a particular concentration in the hour prior to Fowler’s departure. The Crown could rely upon this as suggesting arrangements about the heroin being discussed and/or made. Once it had that, it could remind the jury of the subject matter of the indictment and rely on the telephone data to support a criminal agreement, not only between those involved in these particular exchanges but also, arguably, by any to whom the tentacles extended. 29. The Crown could then turn to events as Fowler moved south. From 1900, when the Crown could suggest he was beginning or had begun his journey, traffic was abundant between Roach and Gibson, Roach and Fowler, Roach and Reko and Fowler and Reko. By 1949 Roach Siddeley and Gibson were together, at a locus at which Fowler had been recently seen. 30. Uninterrupted by arrest he would have been back in Leigh barring disruption no later than 2200. From 2150 there was a litany of attempted contact by Reko to Fowler’s number. Since he was under arrest the Reko number did not speak to Fowler. Twice during this litany the Reko number contacted Roach. 31. Gibson, who denied knowing the content of the package, figured in the telephone traffic. The day after the arrest of Fowler, Gibson was one end of another litany of calls, many to or from Roach. November 32. Roach was in custody. Gibson Siddeley and Thompson travelled south to an old quarry and within minutes were joined, in this secluded location entirely lacking in amenities, by Johnson and Nicholls. The cars pulled up driver to driver. Gibson got out and spoke to those in the Johnson and Nicholls car. On parting Gibson Siddeley and Thompson drove north, Johnson and Nicholls south. From Gibson’s car from the position occupied by Thompson fell the two bundles of £2,000. Siddeley said he had been there to view a bike. All this was plainly probative, especially set against what the Crown could prove about September. 33. In interviews Nicholls and Gibson made no comment. Roach conceded he knew Johnson and Nicholls. He said that his 26 th September telephone contact with Nicholls concerned Fowler wanting money. Johnson said that in November he had given Nicholls a lift as asked and knew nothing of the purpose of the meeting save hearing an unspecific reference to some money. Siddeley admitted meeting Fowler on 26 th September but had paid no attention to any dialogue between Fowler and Gibson. In November he had time on his hands and he went along for something to do. He did not pursue the suggestion that he had been interested in buying a bike. Thompson initially adopted Siddeley’s bike-buying account. In a later interview he conceded that was a lie. He then claimed the money was his savings. 34. The telephone traffic without more was sufficient for the Crown to answer the submissions at the close of its case. It provided evidence from which a jury could infer contact between defendants, during a time or times when conspirators would take a keen interest in keeping abreast of developments, or formulating plans, or understanding why things were not running to schedule, or all of the above. Leaving aside the telephone traffic, the Crown also pointed to Roach, Nicholls and Johnson serving in the same prison two years earlier. It could rely on the November meeting as supporting the continuance of the conspiracy after the September episodes. 35. We are confident that, had the judge had the assistance of the analysis as we have set it out, his vast experience of criminal trials coupled with his undoubted familiarity with these facts would have led him to reject the submissions. 36. We add that he is also criticized for having omitted from his citation of Goddard what might be the vital passage relating to putting the prosecution case at its highest. It is unnecessary for us to reach a conclusion on that point. Had we dealt with it in more detail we would have begun with a rehearsal of how, unimpugnably, the judge had dealt with the same extract at the dismissal stage and the unlikelihood that by the time of the challenged ruling he had forgotten any part of it as opposed to making one slip of the tongue. 37. For the reasons given we conclude that the judge made an error of principle, or reached a conclusion not reasonably open to him. We quash his decision and the trial will thus continue.

```yaml citation: '[2014] EWCA Crim 1521' date: '2014-07-17' judges: - LADY JUSTICE RAFFERTY DBE ```

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

Neutral Citation Number: [2011] EWCA Crim 2312 Case No: 2011/04685/A6 (1) 2011/04941/A2 (2) 2011/05031/A8 (3) 2011/05027/A4 (4) 2011/05029/A6 (5) 2011/04942/A5 (6) 2011/05100/A4 (7) 2011/05028/A5 (8) 2011/04842/A8 (9) 2011/04844/A1 (10) IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CHESTER CROWN COURT THE RECORDER OF CHESTER (1) (2) ON APPEAL FROM MANCHESTER CROWN COURT THE RECORDER OF MANCHESTER (3) (4) (5) (9) (10) ON APPEAL FROM INNER LONDON CROWN COURT HIS HONOUR JUDGE FRASER (6) ON APPEAL FROM WOOD GREEN CROWN COURT HIS HONOUR JUDGE ADER (7) ON APPEAL FROM MANCHESTER CROWN COURT HIS HONOUR JUDGE HENSHELL (8) Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/10/2011 Before : LORD JUDGE, THE LORD CHIEF JUSTICE OF ENGLAND AND WALES SIR JOHN THOMAS, PRESIDENT OF THE QUEEN’S BENCH DIVISION and LORD JUSTICE LEVESON - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - v- Blackshaw (1) R -v- Sutcliffe (2) R -v- Halloway (3) R -v- Vanasco (4) R -v- Gillespie-Doyle (5) R -v- McGrane (6) R -v- Koyuncu (7) R -v- Craven (8) R -v- Beswick (9) R -v- Carter (10) Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - G Roberts for Blackshaw (1) R Tanner (Solicitor Advocate) for Sutcliffe (2) D Gaskell (Solicitor Advocate) for Halloway (3) M Stanbury for Vanasco (4) R Tanner (Solicitor Advocate) for Gillespie-Boyle (5) G Newell for McGrane (6) C Palmer for Koyunco (7) R H English for Craven (8) R H English for Beswick (9) H Richardson (Solicitor Advocate) for Carter (10) D Perry QC and D Penny for the Crown Hearing dates : 27 th September 2011 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: 1. There can be very few decent members of our community who are unaware of and were not horrified by the rioting which took place all over the country between 6 th August and 11 th August 2011. For them, these were deeply disturbing times. The level of lawlessness was utterly shocking and wholly inexcusable. 2. These are appeals against sentence (leave having been given by the sentencing judge or by this court) by ten adult offenders involved in the lawlessness in different ways and different places. I. Sentencing Principles 3. Before we summarise something of the ghastliness inflicted on a variety of different neighbourhoods subjected to public disorder, and dealing with the individual appeals, we shall identify the applicable sentencing principles. 4. There is an overwhelming obligation on sentencing courts to do what they can to ensure the protection of the public, whether in their homes or in their businesses or in the street and to protect the homes and businesses and the streets in which they live and work. This is an imperative. It is not, of course, possible now, after the events, for the courts to protect the neighbourhoods which were ravaged in the riots or the people who were injured or suffered damage. Nevertheless, the imposition of severe sentences, intended to provide both punishment and deterrence, must follow. It is very simple. Those who deliberately participate in disturbances of this magnitude, causing injury and damage and fear to even the most stout-hearted of citizens, and who individually commit further crimes during the course of the riots are committing aggravated crimes. They must be punished accordingly, and the sentences should be designed to deter others from similar criminal activity. 5. This is not new found sentencing policy. In the context of a riot in Cambridge some 40 years ago, this court observed: “When there is wanton and vicious violence of gross degree the court is not concerned with whether it originates from gang rivalry or from political motives. It is the degree of mob violence that matters and the extent to which the public peace is broken… Any participation whatever, irrespective of its precise form, in an unlawful or riotous assembly of this type derives its gravity from becoming one of those who by weight of numbers pursued a common and unlawful purpose. The law of this country has always leant heavily against those who, to attain such a purpose, use the threat that lies in the power of numbers… In the view of this court, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence.” ( R v Caird [1970] 54 Cr. App. R 499 at 506.) 6. This approach reflects consistent sentencing policy for many years and continues in force today. 7. The broad submission on behalf of each appellant is that the sentences passed on the individual offender for his or her individual offence were disproportionately severe. If the court were dealing with a single isolated offence, that submission would have considerable force. If, for example, a young man went down a quiet street in the middle of a town miles away from any rioting, but at a time when rioting was occurring miles away elsewhere, and broke into shop premises and there, without causing any damage, stole some cigarettes, and then left the premises, for the unfortunate shopkeeper to discover on the following morning that he had been burgled, the case would be serious enough. It would properly be dealt with in accordance with sentencing principles as the offence that it was, an offence without the aggravating feature that the offence formed part of the mob criminality which produced the public disorder. 8. It is elementary that sentencing courts cannot ignore the context in which the crime or crimes for which sentence is to be passed was committed. It is an essential feature in the assessment of culpability. In some cases, the context would provide the most powerful mitigation, for example, a genuine mercy killing as a final act of love and devotion. In other cases, including the present appeals, the context hugely aggravates the seriousness of each individual offence. None of these crimes was committed in isolation. Eight of them were intrinsic to or arose from the widespread lawlessness and two more were intended to contribute to or aggravate it at a time when the disorders were at their most disruptive and alarming. 9. It was observed on behalf of some of the appellants that their involvement followed earlier criminal activity by others. While that is factually correct, it provides no mitigation whatever for criminal activity which created or exacerbated the public disorder problem with which police and fire officers were dealing. The reality is that the offenders were deriving support and comfort and encouragement from being together with other offenders, and offering comfort support and encouragement to the offenders around them. Perhaps, too, the sheer numbers involved may have led some of the offenders to believe that they were untouchable and would escape detection. That leads us to address the suggestion that perhaps this level of public disorder should be treated as “mindless” activity. It was undoubtedly stupid and irresponsible and dangerous. However none of these appeals involves children or young offenders (where different sentencing considerations arise) nor indeed offenders with significant mental health problems. None of the offenders before us was “mindless”. The actions were deliberate, and each knew exactly what he (and in one case, she) was doing. 10. The next broad submission to be addressed is that the sentences were inconsistent with existing sentencing guidelines. Section 142 of the Criminal Justice Act 2003 (“ the 2003 Act ”) provides: “(1) Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing: (a) The punishment of offenders, (b) The reduction of crime, (including its reduction by deterrence), (c) The reform and rehabilitation of offenders, (d) The protection of the public, and (e) The making of reparation by offenders to persons affected by their offences.” Section 143(1) provides: “In considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused…” Guideline judgments given by this court, together with guidelines issued by the Sentencing Guidelines Council and the Sentencing Council reflected these principles both before and after the enactment of sections 142 and 143 of the 2003 Act . 11. For offences committed after 6 April 2010, section 125(1) of the Coroners and Justice Act 2009 (“ the 2009 Act ”) provides: “Every court – (a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case and (b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the function, Unless the court is satisfied that it would be contrary to the interests of justice to do so.” Further for such offences, section 174(2) of the 2003 Act , as amended by paragraph 84 of schedule 21 to the 2009 Act , makes clear that when sentencing for offences committed after 6 April 2010, the court must: “(a) identify in the definitive sentencing guidelines relevant to the offender’s case and explain how the court discharged any duty imposed on it by section 125 of the Coroners and Justice Act 2009 (a)(a) where the court did not follow any such guidelines because it was of the opinion that it would be contrary to the interests of justice to do so, state why it was of that opinion.” 12. The same provision amends section 174 to cover guidelines issued by the Sentencing Council for England and Wales under section 120 of the 2009 Act . The guidelines which fall within the ambit of section 120 include guidelines issued by the Sentencing Guidelines Council under the 2003 Act which were in effect immediately before section 125 of the 2009 Act came into force, as well as guidelines included in any judgment of this court given before 27 February 2004 which have not been superceded by new sentencing guidelines. (see paragraph 7(1) and (5) of the Coroners and Justice Act 2009 (commencement number 4 (Transitional and Saving Provisions) Order 2010.) 13. When formulating guidelines one feature to which the Sentencing Council must have regard is the “need to promote consistency in sentencing” (see s 120(11) (b) of the 2009 Act ). This legislation does not constrain the proper exercise of individual judgment on the specific facts of the case and the provision in section 125(1) (a) that the court “must follow… any sentencing guidelines” does not require slavish adherence to them. This follows not only from the fact that the latitude given by the legislation to sentence anywhere within the offence range (see s125(3) and (4)) but, more generally, because of the specific provisions of s125(1) which expressly removes any obligation to follow the guidelines where “the court is satisfied that it would be contrary to the interests of justice to do so”. 14. In our judgment the effect of current legislation is simple. The court should approach the sentencing decision by reference to any relevant guidelines (which effectively apply the legislative requirement to consider culpability and harm even when not necessarily expressed in those terms). This provides the starting point and it produces the desirable consistency of approach to sentencing decisions up and down the country without sacrificing the obligation to do justice in the individual and specific case. The often quoted aphorism, that sentencing guidelines are guidelines not tramlines, continues to be fully reflected in the present legislative framework. The principles were summarised in R v Height and Anderson [2008] EWCA Crim 2500 at paragraph 29 in the context of schedule 21 of the Criminal Justice Act 2003 , summarising numerous decisions to the same effect: “we have lost count of the number of times when this court has emphasised that these provisions are not intended to be applied inflexibly. Indeed, in our judgment, and inflexible approach would be inconsistent with the terms of the statutory framework…even when the approach to the sentencing decision is laid down in an apparently detailed and on the face of it intentionally comprehensive scheme, the sentencing judge must achieve a just result.” 15. Those observations applied to the statutory provisions governing sentencing in the most serious criminal cases, murder. The legislation relating to sentencing guidelines issued by the Sentencing Council cannot, we believe, impose a more rigid system than that which applies to the statutory sentencing framework created for sentencing in murder cases. What is more, nothing in the 2009 Act has diminished the jurisdiction of this court, where necessary, to promulgate judgments relating to the principles and approach to be taken to sentencing decisions. They bind sentencing courts. The relationship between this court and the Sentencing Council proceeds on the basis of mutual respect and comity. 16. Guidelines of possible relevance to the offences with which these appeals are concerned have been issued by this court in relation to handling offences, in cases such as R v Webbe and others [2002] 1 Cr App R (S) 82 , by the Sentencing Guidelines Council in relation offences of theft and burglary, and by the Sentencing Council in relation to offences of violence. However none of these guidelines contemplated the offences with which they are concerned would take place within the context of the nationwide public disorder to which we have referred. Therefore sentences beyond the range in the guidelines for conventional offending (i.e. offending which lacked the aggravating features of widespread public disorder common to these appeals) were not only appropriate, but for the reasons we have already given, inevitable. As we have explained these principles are long established. Nothing in any sentencing guideline undermines them or reduces their application. 17. For these reasons, we endorse the observations of His Honour Judge Gilbart QC by whom many of the present appeals were heard, that: “…the context in which the offences of the 9 th August were committed takes them completely outside the usual context of criminality. For the purposes of these sentences, I have no doubt at all that the principal purpose is that the courts should show that outbursts of criminal behaviour like this will be and must be met with sentences longer than they would be if the offences had been committed in isolation. For these reasons I consider that the Sentencing Guidelines for specific offences are of much less weight in the context of the current case can properly be departed from.” 18. Judge Gilbart also indicated a range of sentences which would be applied in Manchester Crown Court in the context of a group of eleven types of offence, most of which were not then before the court and were not directly related to cases before him. His object was to be open and transparent. He explained that he had discussed these issues with his fellow judges in Manchester in an effort to ensure consistency of approach to sentencing decisions arising from the public disorder. However the form in which he communicated publicly the result of these discussions led the broad framework he enunciated to be treated as if it provided guidance to other courts dealing not only with the specific offences then immediately before Judge Gilbart, burglary and handling, but also of the broad ranges of sentence for offences not then before the court, such as arson. Judges in other parts of the country would inevitably respect Judge Gilbart’s work and would wish to maintain consistency of approach with him. But, certainly in relation to offences which were not then being sentenced by Judge Gilbart, they could not know or appreciate the context prevailing in Manchester or the features which form the basis for the upper and lower ends of the range he indicated. It is not altogether far fetched to imagine that other senior judges might form different views on these issues, not least because the rioting and disorder within the jurisdiction of their own courts might have been more, or for that matter less intense than those in Manchester and the aggravating or mitigating features may have been different to those Judge Gilbart had in mind. The result might have been a multiplicity of sentencing indications. 19. What happened here was altogether different from events in Bradford in 2001. Offences committed in the context of public disorder limited and considered specifically in the context of Bradford with no suggestion of outbreaks elsewhere in the country were under consideration. Led by the Recorder of Bradford, His Honour Judge Gullick, the judges formulated their broad approach to these sentencing problems in the context of widespread public disorder for application in each individual case. They did not announce in advance the sentences which would be imposed for any specific offences, but knowledge of the range of sentences applied in Bradford was quickly derived from the sentences actually passed. These decisions were fully explained publicly, and were then considered in this Court on appeal. 20. It was, as we have indicated, entirely appropriate for Judge Gilbart to make clear that any offence committed in the context of a riot was different in kind from a similar offence committed in isolated circumstances, and for that reason to indicate his intention to depart from the sentencing guidelines provided for specific offences in what he described as the “usual context of criminality”. It is however inappropriate for Crown Court judges to issue, or appear to be issuing, sentencing guidelines. Up and down the country judges will pass the sentences they think appropriate in the context of the public disorder taking place in their own cities, and nationally, and in the light of well understood principles, and in the event of any appeals against these sentences, by reference to the decisions of this court. That is the correct process. Until there are appeals against sentence, this court cannot and should not have any input into the sentencing decisions in the Crown Courts, save in the broad sense that the principles to be applied have in fact already been established. 21. Much the same applies to magistrates courts. Legal advisers to magistrates are indeed legal advisers. It was clearly appropriate for them to advise magistrates that the magistrates’ courts sentencing guidelines were not drafted with offences committed in the context of riot and public disorder in mind and that it was open to courts, if they thought appropriate in the individual cases, to impose sentences outside the range suggested by those guidelines. If any individual sentence was excessive, it would, of course, be subject to appeal to the Crown Court in the usual way. II. The Facts 22. The question in each of these appeals therefore is whether in the light of the principles we have identified, the sentence in any individual case was manifestly excessive. To enable us to address this question, we shall summarise, as briefly as we can, the basic facts, and put the criminal activity by each of the appellants into its factual context. 23. In summary, rioting and looting broke out first in Tottenham, and then in Tottenham Hale Retail Park on 6 th August 2011. This was followed on 7 th August by riots in the London districts of Brixton, Enfield, Islington, Wood Green and Oxford Circus in the centre of London. On 8 th August looting arson and violence occurred in Brixton, Bromley, Camden, Chingford, Clapham, Croydon, Ealing, East Ham, Hackney, Lewisham, Peckham, Stratford, Waltham Forest and Woolwich. On 9 th August outbreaks of rioting arson and looting occurred outside London, notably in Birmingham, Bristol, Derby, Gillingham, Gloucester, Nottingham, Leicester, Liverpool, Manchester, Rochdale, Salford, Sefton and Wirral. The rioting and looting came to an end on 11 th August. 24. We shall now set out the factual context in greater detail. On 6 August 2011 a crowd gathered outside Tottenham Police Station demonstrating in support of justice for Mark Duggan. The demonstration became violent. Two police cars, a bus and cars were set on fire, shops were set alight. Disorder became widespread. Before long it had nothing whatever to do with any demonstration. Between 20:45 that evening and 4:30 the following morning the London Fire Brigade dealt with 49 “primary” fires in the Tottenham area and received more than 250 emergency calls from the public. Riot officers and police on horseback were deployed to disperse the crowns, but they came under attack from bottles, fireworks and other missiles. After shops were attacked, looting began. This continued until the early hours of Sunday morning and spread to the Tottenham Hale Retail Park. The premises which were attacked included a Comet store. £350,000 worth of damage was caused to those premises, and stock valued at £855,000 was stolen by a large number of individuals. The appellant, Koyunco, (whose appeal we consider at paragraph 101 and following below) was involved in this offence. He was identified by police officers as he climbed out of the broken entrance to the store. 25. The looting continued in Tottenham into the early hours but by midnight fire crews had managed to bring all the fires under control, although damping down in some burnt-out buildings was continuing. Later that afternoon, trouble erupted in Enfield, and then in Brixton. Approximately 100 hooded youths gathered around Enfield Police Station, and police officers were injured after intervening in an altercation in Brixton. Windows were then smashed in shops in Enfield, and mounted riot police and patrolled the street. Coming towards the late evening, approximately 50 people caused damage to property in Oxford Circus in the West End of London, and disorder spread to Walthamstow, Waltham Forest and Ponders End. Shop premises were vandalised. Looting took place. 26. At 2:20 on Monday 8 th August 2011 Scotland Yard reported that police were responding to copycat criminal activity across London and that “small and mobile groups” of looters had been targeting areas of north, east and south London. Gangs of youths were attacking police officers, and shops were being targeted in Waltham Forest. In Enfield the High Street remained cordoned off after disorder in the area had been contained. In Walthamstow the situation was said to be under control after some 30 youths, many in masks, had vandalised the looted shops there. Fire-fighters had been called to a number of fires in Enfield, Brixton and Walthamstow, and 6 fire engines and 30 fire-fighters were fighting a blaze at a shop on Brixton Road. 27. By 6:15 that morning, the Metropolitan Police reported that a further 100 arrests had been made, and 16 people were charged in relation to disturbances overnight. 28. The morning began calmly, and no trouble was reported until the afternoon, when skirmishes began between groups of young people and the police in Hackney as the troubles began to spread further afield. Shortly afterwards, a bus was set on fire in Peckham, and vehicles set ablaze in Lewisham. By 20:00 shop windows had been smashed and looting had taken place in various locations. In Croydon several fires were set. The entire area around West Croydon station was closed by the police during the evening. Numerous shops were broken into, and much looting took place. A large furniture shop, called House of Reeves, which had been open in Croydon since 1867 was set alight and burned to utter destruction. It was one of many shops, cars and buses set alight in West Croydon. The television pictures of this event were stark. Homes, with people at peace in them, were set ablaze and destroyed. Although none of the present offenders is charged with any offence connected with these particular arsons it surely needs no imagination to envisage how terrifying the events of that evening were, and will remain in the memory of the victims. 29. That evening at about 21:30 Lorri McGrane (see paragraph 109 and following) was one of those who looted the premises of Argos in Rowcross Street, London SE1. This store was extensively looted and damaged. The cost of repairing the damage was estimated at £40,000. An estimated £80,000 worth of stock was stolen. When the police attended the scene following a report of a break in, this appellant was seen a short distance away, carrying a television in a large box. 30. In the meantime trouble spread to South Croydon where a man was shot and killed. There was rioting in parts of West Bromwich in the Midlands, premises at Headington in Oxford were set alight and a fire was burned in Barton in Oxfordshire. Fires were burning in Clapham High Street and looting was continuing in Woolwich High Street. It was reported on the BBC that several hundred youths were involved, but that there were no police around. Rioting continued in Ealing where the windows of a Tesco supermarket were put out, a car was set on fire and rubbish strewn in public areas. 31. That night there was violence in Nottingham, in which 40 vehicles were damaged. The police foiled an attempt to break in to the Victoria Centre in Nottingham. The trouble here lasted for about 3 hours. One senior officer described the violence in Nottingham as “motivated” by the London riots. In the meantime Essex and Suffolk police sent officers to London to assist the Metropolitan police to deal with the disorder. Indeed by 9 th August an extra 10,000 police officers were deployed in London. The numbers included 1700 officers from other forces around the country who were, of course, no longer available to protect public order in the places for which their forces had specific responsibility. The streets of London became quieter but rioting and looting was spreading further afield. The worst troubles occurred in Manchester, Liverpool and Birmingham. 32. During the evening of 8 th August Blackshaw (see paragraphs 54 and following) created an event on the Facebook social networking site. The objective was a riot in Northwich. 33. At 00:45 on 9 August a police station in Handsworth in Birmingham was set on fire, and shortly afterwards Merseyside Police confirmed that they were dealing with a number of incidents in South Liverpool, which included cars being set alight. Some 200 rioters hurled missiles at officers in Smithdown Road Liverpool. A few minutes later BBC staff reported that hundreds of youths were ransacking a Panasonic store in West Ealing, and there were then disturbances and troubles in Derby. 34. It was about this time that Sutcliffe (see paragraph 60 and following) used Facebook to construct a webpage called “The Warrington Riots”. 35. To underline one specific aspect of all these offences we mention that a friendly international soccer match between England and Holland was called off that morning because of the rioting in London. The story of the public disorder in this country had a vast international dimension. Television films of London burning were seen throughout the world. We have no doubt they were a source of incredulity abroad as they were at home, and of considerable dismay among those who retain affection for this country. The rioting also enabled a spokesman for a dictatorial regime abroad to equate those conducting demonstrations for greater civil liberties with the rioters here. 36. By 17:46 reports were received of rocks and stones being hurled at police vans by gangs of youths in Salford, and disorderly conduct was reported in Birmingham, where several groups tried to get into various shopping and office centres, and had to be dispersed by officers using batons. However shortly after their dispersal around 500 people gathered outside a shop, and then a violent crowd broke into a supermarket in the city centre. This crowd of some 300 people was dispersed, but the gangs re-grouped and attacked a number of shops and a Job Centre in Queen Street, and set fire to a police station in Handsworth. In Gloucester in the central shopping area a number of stores were reported to have been targeted by vandals, and close to the Cathedral crowds set fire to a building, many rubbish bins, and two cars. 37. At 19:28 there was an appeal by the police in Manchester for calm following a number of attacks by rioters on shops in Manchester City Centre and Salford. Continuing reports of trouble in Birmingham and West Bromwich were received. And in Basildon in Essex, some 350 youths smashed shop windows and set fires in the town centre. When fire-fighters attempted to respond to an incident, they were attacked by the rioters. There were problems in Nottingham where a police station was fire bombed by a group of rioters. In Birmingham a public house was looted, its windows smashed and fires started. Eleven shots were fired at police officers who attended the incident and petrol bombs were thrown at them. A police helicopter came under fire. 38. The public disorder in Greater Manchester and Salford starting in the afternoon of 9 th August and continuing into the following morning was severe. Extensive damage was caused to many business, most of which had been looted. The economic cost to Salford alone is likely to run into millions of pounds. 155 fires were reported in Salford and Manchester City Centre. 147 premises, mainly business premises, were damaged. Officers were attacked and residents, business owners and staff put in fear for their own safety. Due to fear of attacks on them, the fire brigade was forced to send 9 fire-fighters to each incident, and 351 fires were dealt with. The fire brigade was forced to withdraw from 4 of these fires because of attacks on fire-fighters by youths throwing bricks. 39. Hassan Halloway (see paragraph 78 and following),was seen in Dale Street, Manchester on the evening of 9 th August, directly participating in the rioting, orchestrating a group, and throwing bricks at police officers on two separate occasions. In between the two incidents of direct violence he burgled 5 retail premises and stole property from 4 of them. Gillespie-Doyle (see paragraph 94 and following) was one of those who entered Sainsbury’s store in Deansgate Manchester. At 21:32 Gillespie-Doyle was observed on the CCTV system entering the premises. He went behind one of the tills and removed cigarettes from the shelves. 40. Another shop, a branch of Jessops in the centre of Manchester, was also attacked and looted. Vanasco (see paragraph 88 and following) joined in with others in burgling the store and he stole property worth in the region of £300. That night the store suffered damage valued at between £15,000 and £20,000 and stock valued at £10,000 was stolen from it. 41. Overnight between 9 th August and 10 th August clashes between rioters and looters and the police continued in the early hours in many areas outside London, which remained calm, and which were now focussed on the Midlands and north west of England. 42. On the evening of 9 th August, a pawn shop in the shopping precinct in Salford was broken into. The property looted from the shop included a 32 inch television. On 11 August the police went to the home of Craven (see paragraph 119 and following). The television was found there. 43. At 12:40am Beswick (see paragraph 128 and following) was found by the police close to the troubled areas in Salford Precinct. In the boot of his car at 37 inch television, stolen from a shop in Salford, was found. A few minutes later, at 12:50 Carter (see paragraph 134 and following) was arrested in King Street in Manchester. He was found in possession of approximately £500 worth of stolen items of clothing, which came from a shop which had been looted. 44. In the early hours, reports were received of disorder in Bristol City Centre. All this paled into insignificance when set against the emerging news of a terrible incident which occurred in Birmingham in what appears to have been a hit and run incident. In view of a likely trial for homicide, we expressly refrain from making any comment about the facts of this case. 45. Later that afternoon, the Association of Chief Police Officers reported that 6 forces had required assistance during the previous night. They were Avon and Somerset, Gloucestershire, Greater Manchester Police, the Metropolitan Police, the West Midlands Police, and the Nottinghamshire Police. 250 police officers from Scotland were dispatched to the Midlands and the north of England to help deal with the disorder. 46. Trouble began again in Manchester at 17:30. Premises in exchange square and the Manchester Arndale Centre were attacked by rioters, and hundreds of looters were reported to be attacking premises in Deansgate. Trams were unable to move in the Market Street because of yobs and onlookers. Brawls then broke out in Market Street Manchester. The rioting continued that evening, with businesses, banks and hotels and bus stops being smashed, and shops looted. 47. The effect of the disturbances in Manchester and Salford were summarised into community impact statements dated 14 August 2011. The significant points are stark. Between 18:00 on 9 August and 4:00 on 10 August Greater Manchester Police received reports to attend 363 incidents, and between 17:00 and 4:00 on the same night, the number in Salford was 356. The main focus of the disorder was looting, smashing shop windows, and looting in the course of what was identified as sustained attacks from groups of thosee determined to enter them and make off with their stock and their money. When police officers attended the scene to restore order they came under sustained attack, and 20 of them were injured while performing their duties. In total 155 fires were reported, and fire fighters performing their duties came under sustained attack. 147 premises were damaged and the cost of damage runs into millions of pounds. This figure takes no account of loss of earning, loss of revenue, stolen and damaged stock losses and consequential loss caused because business premises had to be closed. 48. Judge Gilbart QC dealt with four of the cases which are the subject of the present appeals on 16 th August 2011. Like other judges and magistrates courts, his court had dealt with the cases brought before it with remarkable speed and efficiency. As the Recorder of Manchester he made these observations about the impact of the offences. “To anyone who lives or works in Manchester or Salford, the effect of what had happened was heartbreaking. This (Manchester and Salford taken together) is a hard working city with a wonderfully diverse society which is one of its great strengths. Manchester and Salford City Councils and their communities have worked hard to get this city to put its best foot forward. Some who live outside this great city may be unaware of the dedication shown by those Councils and other parts of the community to putting this City back on its feet once the recession of the 1980s had taken its toll, and then again after the IRA bomb in 1996. The achievements in regeneration have been substantial, not least the renewed vitality of the city centre’s commercial core. To those of us who knew Manchester and Salford in the 1970s and early 1980s, the transformation has been quite remarkable. The city has struggled and must still struggle through bad economic times so that all of its areas can benefit from the regeneration which that hard work has produced. The commercial life of the retail sector is no small part of that. It provides jobs for large numbers of people, and services to the whole population of the area. It also supports Manchester City Centre and Salford Quays in providing cultural vitality to the region in theatres and concert halls, clubs and all the other facilities of a vibrant city centre which adds up to 100,000 people in all over a weekend evening.” 49. The London-wide community impact statement includes the following passage: “Although at first the violent disorder was directed at police officers, with over 100 officers being injured over the 3 nights, it quickly became focussed on business premises and residential properties within the areas affected. Many commercial premises were either ransacked by looters or set ablaze by arsonists. Many homes were broken into by marauding gangs intent on burglary. Many vehicles were also stolen and then set alight during the violent disorder. Some of these fires quickly became out of control, spreading to residential premises and flats above business premises, endangering life and leaving many local people homeless. Although no specific community groups have been targeted in the attacks, members of the public have been injured and tragically an elderly male lost his life in Ealing as a result of the disturbances.” 50. A community impact statement prepared in respect of Southwark describes violence which erupted in Southwark on the afternoon of 8 th August, initially directed at police officers and local business. A number of police officers were injured, and the police station at Peckham came under sustained attack with windows smashed and a petrol bomb thrown at the buildings. Individuals using their motor cycles were attacked, so were buses, and shops were attacked damaged and looted. Many members of the public were assaulted and a Mosque at the Old Kent Road was attacked after the occupants made two citizens’ arrest for looting. The Borough police at Southwark recorded 252 offences which included arson, robbery, burglary and grievous bodily harm. This was described as “the worst instance of serious public disorder in the recent history of the Borough. The local communities were devastated and saddened…and they are determined to stand together to re-build and restore the excellent community relations that existed prior to that appalling evening”. 51. The Haringey Borough community impact statement described the initial outbreak of violent disorder on 6 th August which was directed at police officers who were subjected to a prolonged missile attack. Vehicles were high-jacked the set ablaze, and then the disorder spread to a wide range of premises including jewellers, and mobile phone and electrical stores. Commercial premises were broken into ransacked, looted and set alight. Fires quickly ran out of control, endangering life and leaving many people homeless. The High Road in Wood Green was closed to traffic for 48 hours, and the High Road in Tottenham was closed for a week. The cost of damage to local authority vehicles alone was assessed at £600,000. Among the more frightening incidents, a bus driver was dragged from his vehicle and attacked, and then bus the was set on fire, and television pictures of it circulated throughout the country, and indeed overseas. A barber shop run by an 89 year old man for the last 41 years was ransacked: all the equipment, including the kettle to make tea, was taken. A building which contained flats for 20 families was completely destroyed by fire. 52. In very relative terms Nottingham was not as badly affected as parts of London, Manchester and Salford. Nevertheless it is salutary to remind ourselves that the impact of the rioting in Nottingham, even if relatively speaking less serious than rioting elsewhere in the country, was itself extremely serious. On the evening of the 8 th August significant disorder was reported in the St Ann’s area, with cars damaged then set on fire, and a petrol bomb attack on the police station. Then, in the early evening, there were numerous incidents of disorder across the city and conurbation, with incidents not only in St Ann’s, and in the city centre, but in areas like Bestwood, Bulwell and Meadows. The incidents involved the destruction of vehicles by fire, damage to premises by fire, and looting of their contents of two shops, including a jewellers shop. During both nights the disorder lasted until well into the early hours. Several groups of youths were involved. Many of them wore face coverings and were armed with weapons and missiles, and the police were subjected to numerous attacks. In summary, at least 25 vehicles were damaged or destroyed by fire. A college was damaged by fire. A school was occupied by a gang throwing missiles. Two city shops were entered and the contents stolen. A number of police stations were attacked with petrol bombs. Police were subjected to violent attacks. Officers were drafted in from elsewhere to cope with the public order problems. At the height of the violence on 9 th August the number of calls received by the police increased by 47%. The additional cost of the policing operation was over £1 million. The premises damaged and attacked ranged from small family retail business, to large commercial chains, and included schools, police stations, and private dwelling houses. We emphasise that this was serious public disorder. But serious as it was there were cities where the magnitude of public disorder was much greater. III. The Individual Appeals (a) Incitement by the use of Facebook Jordan Philip Blackshaw and Perry John Sutcliffe Jordan Philip Blackshaw – the facts 53. We shall deal with the cases of these appellants together although their offences were committed entirely independently of each other. 54. On 16 August 2011 at Chester Crown Court before the Recorder of Chester, His Honour Judge Elgan Edwards, Blackshaw pleaded guilty to committing an offence contrary to section 46 of the Serious Crime Act 2007 , encouraging or assisting offences believing that one or more would be committed. The offence or offences which he believed would be committed were riot, burglary and criminal damage. It is important to emphasise that the applicant admitted and was convicted of doing an act capable of encouraging the commission of riot, burglary and criminal damage, and doing so believing that what he did would encourage or assist the commission of one or more of the offences, and that one or more of the offences would in fact be committed. This was no joke. He was sentenced to four years’ imprisonment. 55. At 10.30 on 8 th August 2011 he used Facebook to set up and plan a public event called “Smash down in Northwick Town”. It would start behind the premises of McDonalds at 13.00 next day. The riots were in full flow. The appellant knew perfectly well that they were. The purpose of his website was to wreak “criminal damage and rioting in the centre of Northwich, and the event called for participants to meet in a restaurant in Northwich at lunchtime on 9 th August. The website was aimed at his close associates, who he referred to as the “Mob Hill Massive”, and his friends, but he also opened it to public view and included in the website references to ongoing rioting in London Birmingham and Liverpool. He posted a message of encouragement on the website that read “we’ll need to get on this, kicking off all over”. 56. Fortunately members of the community who saw the website were revolted by it and alerted the police. It addition, some of them left messages on the website expressing their disgust in no uncertain terms. The police infiltrated the website and posted messages on it, warning of the consequences if the website were followed. By the time it was closed down by the police, 9 people had confirmed their intention to attend. In the result, the offence which the appellant was inciting did not take place. 57. Following his arrest at 11.00 on 9 th August, the appellant admitted that he had watched media coverage of the riots on the television and that he set up the website. He agreed that the event would be carried out, and that he would have attended himself if he had had enough alcohol. He said that it was not something that he would have done sober, and claimed that he had set the site up for a “laugh and to meet people to drink with”, but in later discussions he agreed that what he had done was stupid and that the effect of his actions was to encourage rioting and looting. He accepted responsibility for his actions. As we have indicated, his later guilty plea made clear that he had not set up the website as a joke. He believed that the offences he was inciting would happen. 58. The appellant is 21 years old. He has no criminal record, save for some motoring convictions, but in May 2011 he was cautioned for causing criminal damage. In the pre-sentence report attention was drawn to the fact that although he described the offence as a “sick joke” that had gone wrong, he knew that his invitation would make its way to many people. Perry John Sutcliffe – the facts 59. On 16 th August 2011 in the Crown Court at Chester before the Recorder, this appellant pleaded guilty to intentionally encouraging or assisting the commission of an offence contrary to section 44 of the Serious Crime Act 2007 . This conviction meant that the appellant accepted that he had encouraged the commission of riot, and intended to encourage its commission. In other words this too was deliberate action, with a specific intention, and certainly no joke. He was sentenced to four years’ imprisonment. 60. In the early hours of 9 th August the appellant used Facebook to construct a web page called “The Warrington Riots”. On this web page he included a photograph of police officers in riot equipment in a “stand off position” with a group of rioters. He also included a photograph of himself and others in a pose described by police as “gangster like”. He sent invitations on his Facebook to 400 contacts. They were invited to meet at a Carvery in Warrington at 7pm on 10 th August. In addition to his own Facebook contacts the website was also made available for general public viewing. Through the website 47 people confirmed that they would go to the meeting. In the meantime the police received communications from local residents who had seen and were concerned by what they read on the webpage and they closed the site down in the early hours of 9 th August. In the result no one attended the meeting. The applicant was arrested at 11.00 on 9 th August. He gave two “no comment” interviews. The court proceedings were rightly treated as urgent. 61. At the hearing the appellant pleaded guilty. After he entered his plea it was said on his behalf that he went back to the Facebook site and cancelled the event. It was further said that he woke up at around 10.00 and received a telephone call from a friend who had seen the entry on Facebook and, asked him about it. This had prompted the appellant to go to the Facebook site and cancel the event, posting a remark to the effect that it was a joke. It was suggested that the prosecution could not gainsay the appellant’s assertion that he brought about closure of the event before the police arranged for the Facebook site to be closed down. After discussion the Recorder said that he would deal with the appellant on the basis that he had retracted the entry as he had changed his mind. The issue which the discussion did not address was the reason for the change of mind. It was said on his behalf that the appellant decided to cancel the event after his friend had “asked him about the Facebook entry”. It was however not suggested that he had done so out of an overwhelming sense of regret or concern about the possible consequences of his entry. Nevertheless it was argued that the appellant had attempted to mitigate his crime by “putting things right”. The circumstances in which the appellant cancelled the event was important to any mitigation that might be available. At that stage the evidence on the point was incomplete. In an endeavour to establish the facts we asked for further evidence to be provided by the prosecution. In due course this was circulated to the appellant’s solicitor. We also sent a draft of the judgment which would be based on the further evidence, if admitted. We invited submissions whether the evidence should be admitted in the interests of justice under section 23 of the Criminal Appeal Act 1968 . We also made clear that if the appellant wished to give evidence he would be permitted to do so. He declined the opportunity. We received written submissions from the appellant’s solicitor. In effect she asked us to rely on and treat ourselves as bound by the discussions before Judge Edwards. That was not good enough. We had to proceed on the basis of evidence which was not immediately available on 16 th August. The interests of justice were clear. The case should proceed on the facts. 62. They show that at 10.15am on 9 th August police went to an address in Warrington searching for the appellant. At this address they spoke to an individual called Phil O’Neil, making inquiries about the appellant’s whereabouts. Then they visited another address in the area and asked another friend of the appellant about his whereabouts. At 11.00am police officers attended 35 Richmond Avenue, Latchford, and they saw the appellant in company with Phil O’Neil, to whom they had spoken some 45 minutes or so earlier. The two men were coming out of the front garden of this address. 63. A forensic analysis of the appellant’s computer equipment establishes that the posting on Facebook which cancelled the event and said it was “only jokin f... hell” was created at 10.54am, literally a few minutes before the police arrived. Although we approach the decision in the appeal on the basis that the appellant decided to retract the Facebook entry, as his advocate suggested, the inference seems clear that this decision followed an intimation that the police were searching for him. 64. The appellant is 22. Earlier this year he was convicted of possession a class B drug and fined. According to the pre-sentence report he did not remember much about the offence as he had been drinking during the afternoon and evening, and when he was contacted by a friend he had been unable to recall what he had done. The Sentencing Decision 65. In his sentencing remarks the judge made clear to both appellants that the sentence had to be a deterrent sentence to demonstrate that this conduct would not be tolerated. He took account of their early guilty pleas. 66. In relation to Blackshaw, he noted that the appellant had sought to take advantage of the public disorder and criminality occurring elsewhere and to transfer it to the peaceful streets of Northwich. If such disorder had arisen, he might become personally involved in the troubles. In short he had sought to organise criminality which had revolted many right thinking members of the community, who had expressed their revulsion by contributing to the detection of the offence, enabling the police to give warnings against any attendance. The appellant had sought to create public disorder and mayhem in Northwich. A custodial sentence was inevitable. 67. Taking account of the appellant’s plea, but as a deterrent to others a sentence of 4 years’ detention was appropriate. 68. In relation Sutcliffe the judge identified the relevant features of the case, including the fact that no less than 47 people had agreed to attend. They were fortunately outweighed by the number of residents in Warrrington who had contacted the police. The appellant had placed considerable strain on police resources in Warrington and caused real panic in the town, where a number of people anticipated scenes of riot similar to those which had been occurring throughout the country. The judge took the view that the case was more serious than that of Blackshaw, but he gave credit to the appellant for having changed his mind. 69. Again the sentence had to be a deterrent sentence. This behaviour would not be tolerated. A sentence of 4 years imprisonment was imposed. 70. In relation to Blackshaw the submission on the appeal is that the sentence was manifestly excessive. Insufficient credit was given for the early guilty plea, and disproportionate weight attached to the necessity to impose a deterrent sentence. The judge failed to give adequate weight to the fact that this was a single stupid act. No one had been contacted outside the entry on Facebook. There was nothing persistent about his conduct. He had not taken any further steps to incite any criminal activity. According to the written grounds of appeal the judge had failed to “distinguish between tangible acts of criminality and incitement which, in actual fact, leads to nothing”. Disproportionate weight to the necessity to deter others had been given by the judge to what was a spontaneous but monumentally foolish act. 71. In relation to Sutcliffe the effect of the written and oral submissions proceeded on the same broad premise and the judge was criticised for emphasising too heavily the reduction of crime which followed from the attention he paid to the potential for harm rather then the actual harm which had followed. It was suggested that insufficient attention had been given to the fact that the appellant thought better of his actions and closed down the site before any harm could be done. We are however unable to accept that the closing of the site was not directly connected to the information that the police were looking for him. It was also suggested that there was a degree of disparity in relation to different sentences already imposed in other parts of the country, and in particular the sentence imposed by His Honour Judge Milmo QC at Nottingham Crown Court in the case called R v Pelle. This contention, too, is without foundation. In Pelle the maximum sentence available to Judge Milmo was 5 years imprisonment. In the present case it is 10 years imprisonment. In both cases a reduction to allow for the guilty plea was appropriate. In other words, even if all other features of the case were identical (which they were not) the disparity argument is flawed at the outset. 72. When dealing with these two appeals we are, of course, conscious of the fact that in the end no actual harm in the streets of Northwich and Warrington actually occurred. It is not however accurate to suggest that neither crime had any adverse consequences. We know for a certainty that in each case a number of decent citizens were appalled by what they had read, and given the widespread rioting throughout the country, which at that time was spiralling out of control, we have no doubt that some, at least, of them were put in fear. In any event the fact that no rioting occurred in the streets of Northwich or Warrington owed nothing to either appellant. The reality was that armed with information from members of the public who were disturbed at the prospect, the police were able to interfere and bring the possibility of riot to an end. 73. We are unimpressed with the suggestion that in each case the appellant did no more than make the appropriate entry in his Facebook. Neither went from door to door looking for friends or like minded people to join up with him in the riot. All that is true. But modern technology has done away with the need for such direct personal communication. It can all be done through Facebook or other social media. In other words, the abuse of modern technology for criminal purposes extends to and includes incitement of very many people by a single step. Indeed it is a sinister feature of these cases that modern technology almost certainly assisted rioters in other places to organise the rapid movement and congregation of disorderly groups in new and unpoliced areas. 74. As we have already described, well established principles of sentencing have relatively recently been encapsulated in section 143(1) of the Criminal Justice Act 2003 . This provides that when deciding the seriousness of any offence the court must consider “the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused”. What both these appellants intended was to cause very serious crime, in the case of Blackshaw, rioting burglary or criminal damage, each in the context of serious public disorder, and in relation to Sutcliff, rioting, in the context of serious public disorder. All this was incited at a time of sustained countrywide mayhem. 75. The judge was fully justified in concluding that deterrent sentences were appropriate. These offenders were caught red-handed. For the citizens of Northwich and Warrington that was just as well, because as we have explained, and the guilty pleas acknowledged, neither offender was joking when the Facebook entry was set up. These appeals are dismissed. (b) Burglary 76. We now come to five offences of burglary, the first of which, in addition involved direct violence against the police. Hassan Halloway 77. On 10 th August 2011 at the Manchester City Magistrates Courts the appellant pleaded guilty to one count of violent disorder and five counts of burglary. He was committed for sentence to the Crown Court. On 18 th August he was sentenced at Manchester Crown Court before His Honour Judge Gillbart QC the Recorder of Manchester to a total of 4 years 8 months’ imprisonment. The sentence was calculated on the basis of a 28 month sentence of imprisonment for violent disorder, together with a further 28 months’ imprisonment on each count of burglary, to run concurrently with each other but consecutively to the sentence for violent disorder. 78. The appellant was involved in violent disorder in the circumstances described in paragraph 40. He was noticed by police officers who were dealing with a group of thirty or so men during the disturbances in Manchester at about 19.30 on 9 th August. He stood out from the rest of the crown due to his distinctive clothing and the fact he was wearing a hood. He was orchestrating the group and taunting the police. As officers moved up the street he threw a brick at a police handler and his dog, and when the brick missed, he threw a second brick which also missed. When he was interviewed later he accepted that he had hurled bricks and charged at the police, and as part of the crown which eventually fled from the police he noticed that a restaurant had been broken into. He went inside and stole two bottles of wine. Together with other members of the group he then proceeded towards the Piccadilly area. There he noticed that a Spar store had been attacked. Again he went inside and stole cigarettes and alcohol valued at £190, which he handed out to others. From there he moved on to Nobles Arcade where he tried to get money out of some of the machines. He then went on to another store, which had been attacked, and stole crisps and chocolate, and then to another store, Marks and Spencer, where he took and handed out to the crowd some £90 worth of spirits. In the course of this burglary he cut his hand. 79. He then came into the street and saw the police trying to clear the street. He noticed the officer he had targeted with his brick at the earlier stage. He picked up another brick and threw it at a police van. He then ran off into the crown. Later, with his hood removed he returned to the police seeking their assistance for the cut he had sustained to his hand. He was arrested for violent disorder. Initially he denied responsibility, but eventually he said “yeh, but I missed”. 80. In his interview he said that he had heard about the riots in London and wanted to experience the thrill. That is why he became involved. He wanted to create “lawlessness” and had thrown items at the police to stop them. He had not considered the consequences of his actions. 81. The appellant is 39 years old. He had a number of previous convictions, but his most recent conviction, for common assault, took place in 2000. He had never previously served a custodial sentence. 82. In the pre-sentence report the appellant accepted full responsibility for his behaviour and considered he had become involved due to “mob mentality”. He had been out of work for six years. He had received mediation for depression and panic attacks. However his cognitive skills were not impaired. He was intelligent and educated. 83. The grounds of appeal accept that is was entirely proper for Halloway to be sentenced outside the Sentencing Council Guidelines, but argued that the sentencing range identified for the burglary offences was too high, and the total sentence of 56 months’ imprisonment failed sufficiently to consider Halloway’s personal circumstances, his guilty plea and admission in interview, and that as a totality the sentence was manifestly excessive. Our attention was drawn to a good family background, and it was emphasised that his initial presence in the city Centre had been for a legitimate reason. In other words, he had not come to the city in order to participate in the riots, but rather had become caught up with them. 84. The judge accepted that the appellant’s initial presence had been legitimate, but considered that this was irrelevant because his subsequent activities outweighed the fact that he had not deliberately gone into the city to participate in the disturbances. He had joined a group of thirty who had caused serious violent disorder in the City Centre, and was one of those who had “orchestrated” what was happening, as well as hurling bricks at the police. As the disorder moved down the streets he had entered stores which had been attacked, stealing from them, and handing out the results of his thefts to others. 85. The judge reflected on the mayhem and general damage to Manchester believing that a deterrent sentence had to be passed. He reflected on the totality. He made the order currently under appeal. 86. The only issue in this appeal is the total sentence. It might have been constructed differently. A deterrent sentence of 4years and 8 months’ imprisonment for an individual who had attacked the police on two separate occasions in the course of rioting, and had burgled five separate premises, sharing out the proceeds of his crime with others who were also participating in the disorder was not manifestly excessive. This appeal is dismissed. Enrico Vanasco 87. On 15 th August 2011 at Manchester City Magistrates Court, the appellant pleaded guilty to burglary. On committal for sentence to the Crown Court, on 18 th August he was sentenced by the Recorder of Manchester to 20 months’ imprisonment. 88. The facts have already been partly narrated at paragraph 41. We simply repeat that on the night of the disturbances in Manchester between 9 th and 10 th August 2011 the appellant entered a camera shop in Princess Street where he stole a camera valued at just under £300. During the course of these disturbances the shop had suffered significant damage, valued at between £15,000 and £20,000, and stock had been valued at £10,000 had been stolen from it. He was linked to the scene of the crime by a DNA profile found in some blood at the store. He was arrested on 14 th August. He admitted stealing the camera. He explained that he had watched the disturbances on the television, and had gone to the City Centre out of curiosity. He had seen others breaking in to the store, and as he needed a camera, he followed them in and took one. He told the police where the camera was. 89. The appellant was 25 years old. He had no relevant previous convictions. In the pre-sentence report he accepted his responsibility for the offence, but preferred to view himself not as a participant in the disturbances but as an observer of them. He was employed as a chef at a well known local restaurant, and had been in work for the majority of the 9 years he had lived in this country. He usually earned £350 per week. 90. Passing sentence the judge acknowledged that it was a tragedy to see the appellant in the dock, because he had great skills which gave pleasure to many people. But, as the judge pointed out, his work was in the City Centre, and he and the business he worked in, would have been affected by the disturbances that evening, as part of the general damage to the City Centre. He had chosen to enter Manchester knowing of the disturbances, and his presence added to the difficulties. He had compounded this by committing the burglary. He had no previous convictions, and although account was taken of the guilty plea, his offence was a serious one. 91. The argument on the appeal is that the sentence is manifestly excessive in the context of sentencing guidelines, and the deterrent purpose which the sentence was intended to serve could have been achieved in any event by a shorter custodial sentence. 92. The appellant was guilty of looting in a vandalised shop, and his crime was intrinsic to and part of the overall public disorder in Manchester that night. The sentence was within appropriate range. The appeal is dismissed. Michael Gillespie-Doyle 93. On 10 th August 2011 the appellant pleaded guilty to burglary at Manchester City Magistrates Court. On committal to the Crown Court, on 16 th August, he was sentenced by the Recorder of Manchester to 2 years detention in a Young Offender Institution. 94. This offence took place against the backdrop of the public disorder in Greater Manchester and Salford that started at about 16.30 on 9 th August as narrated in paragraph 40. At about 18.00 that evening a Sainsburys store closed early because of the disorder. The staff became aware of large groups of men outside the store moving around the building. They had been seen smashing windows of other buildings, and concerned for the safety of his staff, the manager locked the store, and removed them all into the back offices, locking the doors to those back offices. He then watched what was happening to the store of the CCTV system. It must have been immensely frightening. At 20.10 the store doors were forced open, and a large group of men entered, stealing mainly cigarettes and alcohol. A police officer who was nearby realised what was happening, and with other officers approached the store and checked it. The appellant was seen, together with a juvenile co-accused, running through an “insure” door into the store where they were caught and arrested as they were attempting to steal cigarettes and alcohol. 95. When he was arrested the appellant said “I was on my way home. I only did it because everyone else was”. In interview he said that he had been told that there was a riot, and thought he would go into Manchester where his friends would be. Although he did not intend to become involved in the rioting, he followed the crowds into the store. The appellant is 19 years old. He has numerous previous convictions since 2008 for a variety of different offences, including robbery, possession of an imitation firearm, handling stolen goods, shoplifting, breaches of anti-social behaviour orders, using disorderly behaviour or threatening abusive or insulting words likely to cause harassment alarm or distress. 96. In the pre-sentence report he maintained that he had entered the city out of curiosity, but had become swept up in the atmosphere and so involved himself. He now asserted that he was ashamed and disgusted at what he had done. His offending had begun at the age of 18, and had been serious, but he had been very young when it started. And for the past 3 years he had lived between hostels and friends, having fallen out of the education system at 14. 97. The mitigation, and basis of the submission that the sentence was manifestly excessive are based on the early guilty plea and admission of the offence at interview. There was nothing to suggest that he had been involved with the first wave of rioters who had broken into the store, causing the staff to take refuge, and had come in to the city knowing of the disturbances, only out of curiosity. The part he played in the disturbances was minor, and his offence involved no specific aggression, violence or attempts to resist arrest. 98. In his sentencing remarks the judge took account of the early guilty plea, and the appellant’s relative youth. He also noted, however, that he had “amassed a very considerable record”. He had chosen to enter Manchester knowing the disturbances were “underway” and when he saw that the store had been broken into by others, he took his chance and went in and took some goods. 99. In argument before us no specific criticism is directed at the judge’s sentencing observations. The contention is that the overall sentence was, in the circumstances, manifestly excessive. We disagree. It was within the appropriate range. This appeal is dismissed Hassan Koyuncu 100. On 1 st September 2011the appellant pleaded guilty at Highbury Corner Magistrates Court to burglary. Following committal for sentence, on 13 th September he was sentenced at Wood Green Crown Court before His Honour Judge Ader to 12 months’ detention in the Young Offender Institution. 101. This offence took place on 7 th August 2011 at the Comet store in Tottenham Hale as described in paragraph 24. These premises had been vandalised. £35000 worth of damage was caused during the attack on it, and no less then £855000 was stolen. A group of police officers who had been dealing with burning vehicles were re-directed to the retail park to deal with reports of this attack. When they arrived they witnessed large numbers of people breaking in to stores and making off with property. 102. The appellant was identified by the police as he climbed out of the broken entrance to the store. He ran away, but was followed and detained. He was arrested. When he was searched a pair of speakers, a media player and a camera were found on him. When he was interviewed he explained how he had arrived at the retail park and seen that the windows had been smashed and that people were inside the store stealing. So he went in, and decided to take “a couple of stereos and a camera”. 103. The appellant is 18 years old. He had previous convictions for robbery and attempted robbery when he received a 9 month concurrent referral order for each offence. He had however completed the referral orders without problems. 104. The pre-sentence report referred to his learning difficulties, but there were no psychiatric problems as such, and he displayed reasonable interpersonal skills in interview. He had difficulty in recognising the anti-social nature of his offence, or in appreciating that he had placed himself in the middle of serious public disorder. 105. Before the Crown Court it was accepted that the offence had, in the overall circumstances, crossed the custody threshold, but it was emphasised to the judge, as it was to us, that the appellant was only just 18 years old when the offence was committed, and that the correct sentencing approach was to treat him as if he was 17 at the time of the offence. He had not been to a mainstream school, and he had only ever had 2 weeks work in his life, a job which ended when he was made subject to curfew. The appellant should be treated as someone who had passed an open shop when it had already been looted. 106. In his sentencing observations, the judge summarised the relevant facts. He took account of the guilty plea offered at the first opportunity, and that there had only been one previous court appearance. Unfortunately the appellant had not learned his lesson from the leniency of the sentence. He took account of the appellant’s age, and acknowledged a level of special educational needs, but added that the appellant knew that what he was doing was wrong. The judge was unimpressed with a note in the pre-sentence report that the appellant had regretted leaving the store via the front because if he had left by the back he would have avoided arrest. The appellant should have regretted ever having entered the store at all. 107. The argument on appeal is that the sentence was manifestly excessive on the basis that the facts of the case merited a sentence other than immediate custody, and that the deduction for the early guilty plea had only been 25% rather than the 33% to which, following the guidelines, he was entitled. There was no such entitlement. The appellant was caught literally climbing out of the broken entrance to the store carrying property stolen from it. This offender was one of many who contributed to the ransacking of the Comet store. Making due allowances for his age and his personal disadvantages, the sentence was within the appropriate range. This appeal is dismissed. Lorraine McGrane 108. On 10 th August 2011 at Camberwell Green Magistrates Court the appellant pleaded guilty to burglary and following committal to the Crown Court for sentence, on 1 September 2011 in the Inner London Crown Court before His Honour Judge Fraser she was sentenced to 13 months’ detention in a Young Offender Institution. 109. This offence arose from the attack at about 21.25 on 8 th August 2011 of a large group of rioters on an Argos store in a Retail park in London SE1 as described in paragraph 29. The cost of repairing the damage to the store was estimated at £40000 and estimated £80000 worth of stock was stolen. When the break-in was reported, the police attended the scene. They saw the appellant. She was carrying a television and a large box. When she saw the police she attempted to run away. They stopped her. She told officers the television was hers. The television was put down in the road while the officers were dealing with the appellant. It was then stolen by someone else. The appellant was arrested. She said “I was stopped at the wrong time. These people are nicking everything from Argos. There was stuff lying around outside and I took it. There was worse stuff going on that me just nicking a television”. 110. When she was interviewed on the following day she explained that she had been returning home when she saw a mob attacking the Argos shop, and she followed the mob inside. She watched the store being raided. A man carried a television out of the stock room and put it on the floor. She picked it up and walked out of the store. 111. The appellant is 19 years old, and of previous good character. She was unemployed but she is a serving member of the Territorial Army, which supplied a positive character reference. She said that she had been “swept up in the hysteria” of the events. Her involvement in the public disorder had led to her father, with whom she lived, receiving an eviction notice. 112. In mitigation it was accepted that the custody threshold had been passed, but it was argued that any custodial sentence should be suspended. Credit should be given for the early guilty plea and full admissions at the scene and at interview. She had not set out that night intending to become involved in any looting, but was on her way home, and only in a moment of spontaneity had become involved and taken the television. 113. Her father was no longer at risk of eviction. She had been named and shamed in the local news. 114. In sentencing remarks the judge noted that the appellant had initially run away from the police and asserted that the television was her own. She had given differing accounts about how she came to be in possession of the television. The judge took account of the appellant’s age, previous good character, and personal circumstances. There was however the further consideration of the protection of the public in the context of a serious offence committed during a second night of rioting and looting. The sentence could not be suspended, and so, with a starting point of 20 months, reduced to allow for the mitigation, a sentence of 13 months detention was appropriate. 115. The submission is that the sentence was manifestly excessive or wrong in principle, and arising from the judge’s application of too high a starting point. Although it was conceded that Sentencing Council Guidelines do not apply in these circumstances, the sentence was significantly higher than the sentence normally imposed in the context of a commercial burglary. It was suggested that there was a potential disparity argument, other defendants having been less severely treated than the appellant. 116. On the material before us there is nothing in the disparity argument. It is, we accept, dispiriting that a young woman of good character should have involved herself in this offence, but her criminal activities were self-evidently intrinsic to the rioting and looting which was in progress. Even allowing for her positive good character, this sentence was appropriate. This appeal is dismissed. (c) Handling 117. We now come to three offences of dishonest handling. In cases like these, a line needs to be drawn between the offences which arose from and were directly connected with the disorder (which is an aggravating feature in itself) and those which were intrinsic to the disorder (an even more aggravating feature). None of these cases of dishonest handling involves someone who handled stolen goods by way of encouragement of the commission of burglary and theft as part of the disorder. Rather each represents opportunistic involvement after the burglaries had occurred, and although in close proximity to the scenes of disorder, the appellants did not participate or contribute to them. The connection between the offences which they committed and the burglary and theft committed during the disorders takes them outside the ordinary guidelines for handling offences, but not every handling offence committed during the public disorder was as intrinsic to it as, say, the burglaries of shops which had been smashed and looted. The sentences must recognise these distinctions. Stephen Craven 118. On 12 th August 2011 at the city of Salford Magistrates Court, the appellant (to whom we refer at paragraph 43) pleaded guilty to handling stolen goods and theft. Following committal for sentence on 22 August 2011 His Honour Judge Henshell sitting at Manchester Crown Court sentenced him to a total of 12 months’ imprisonment for handling stolen goods and 1 month imprisonment for theft. 119. The precise circumstances which led to the arrest of the appellant are not entirely clear, but initially he was arrested at his workplace on 11 th August for an offence of burglary. However he was charged with dishonestly handling a 32 inch Samsung High Definition television valued at £300, and theft of a Tesco shopping trolley. On arrest he told the officers where the television was. He said he bought it for £20 from some children, and he told another officer he had been stupid and knew he should not have bought it. 120. In interview this explanation was expanded. The television was bought shortly after 23.00 on 9 th August. He had been aware of the scale of the disturbance and had been in his father’s home in Salford precinct. He had seen the disturbances with his own eyes and on the television, and he was aware that shops had been broken into when he left his father’s home at about 23.00. On his way home a group of laughing youths passed him with the television, which he offered to buy for £20. They accepted. He knew the television was worth about £300 at the time, and he took it home by “a number of passageways”. He had found the stolen shopping trolley some 2 weeks before and had stolen it. 121. The appellant was 24 years old. He had minor previous convictions without receiving a custodial sentence. He was employed as a caretaker, and had been living with his partner for 8 years. He had 2 children. With his father he ran a football club, the aim of which was to prevent problems arising in the community associated with boredom. 122. Counsel on his behalf accepted that the custody threshold had been passed, but he urged that any custodial sentence should be suspended. 123. In his sentencing observations the judge acknowledged the guilty plea to both offences. The offence was committed during the disturbances. What the appellant had done was to provide an immediate market for a valuable piece of looted property. His offence was therefore aggravated by its proximity to the original offence when he knew perfectly well what was already happening in the streets locally. 124. The appeal proceeds on the basis that the facts advanced in mitigation show that the sentence was manifestly excessive. 125. The most significant feature of this case is its opportunistic nature. The appellant was out on the streets, on his way home. The temptation to “buy” a television at a huge undervaluation was too strong. The offence formed part of the process of public disorder, in the sense that when it was committed the appellant was in close proximity to those who had been involved in the rioting and looting. Nevertheless, given that he did not intend to and did not actually participate in any public disorder, but was, genuinely, walking home when the events occurred, we have concluded that the deterrent element in the sentence can be tempered. 126. A sentence of 6 months’ imprisonment would be sufficient. To that extent the appeal would be allowed. David Beswick 127. On 10 th August 2011 at Manchester City Magistrates Court, the appellant pleaded guilty to handling stolen goods. Following committal for sentence, on 16 th August he was sentenced at Manchester Crown Court by the Recorder of Manchester to 18 months’ imprisonment. 128. Based on his interview following arrest, it appears that the applicant went into Salford City Centre to watch the disturbances. (see paragraph 44 above). He followed a crowd and watched them throwing stones at the police, but had not become involved himself. At about 12.15am on 10 th August he decided to go home. Although he was very low on petrol, did not want to leave his car in the vicinity, in case it was damaged through all the troubles. A friend offered to go and get some petrol for him, and while he was waiting for the return of his friend, another man he knew said he would give him £20 if he looked after a television. It was put in his car pending this mans return, and the applicant was pouring petrol into his car’s fuel tank when police officers arrived. What happened then is clear. The officers told him that they would search his car. In the boot they found a 37 inch Sanyo television set stolen from “Cash Generators” and valued at £349-£399. The appellant was arrested. He immediately responded “well like a dick head I was just holding it for someone else”. That night “Cash Generators” had some £3500 of damage committed to their store and £1000 of goods taken. CCTV footage did not show any evidence to suggest that the appellant himself had entered the premises, or that he had been in the vicinity at any time. 129. The appellant is 31. He has a number of previous convictions, but none were for offences of dishonesty, and he had never received a custodial sentence. The pre-sentence report suggested that the offence had been committed for financial reasons, and suggested that the appellant did not fully recognise the seriousness of his behaviour and the wider social implications of what he had done. 130. In mitigation it was submitted that the appellant was in employment, and that his involvement was to provide transport to enable the stolen television to be removed from the area. He had been simply caught up in the event. 131. The judge considered that this was a cynical offence, committed by someone who knew what he was doing. He had stood and watched the offending for some hours. By accepting the television he had played his part in the overall public disorder. Grounds of appeal argued that the sentence is manifestly excessive. The judge failed to follow an appropriate guideline, but in any event he failed fully to take account of the available mitigation, and appeared to be punishing the appellant for offences committed by others. 132. We do not accept that the sentence punished this appellant for the actions committed by others. It reflected the context in which the offences were committed. That said, on the available facts this appellant fell to be sentenced for handling stolen goods on behalf of someone else. He was prepared to look after them when he must have appreciated that they represented the proceeds of looting during the course of the public disorder. That makes it a serious offence of its kind. It was closely connected with the public disorder, in which however the appellant himself played no direct part. A sentence of 9 months’ imprisonment was appropriate. To that extent the appeal is allowed. Stephen Carter 133. On 10 th August 2011 at Manchester City Magistrates Court, the appellant pleaded guilty to handling stolen goods. On committal to the Crown Court he was sentenced by the Recorder of Manchester to 16 months’ imprisonment. 134. As narrated at paragraph 44, at 12.50am on 10 th August 2011 police officers attending King Street saw a man walking with some bags. He was asked to stop. He ran from officers. He was eventually detained. Within the bags they found boxes of shoes and shirts, all still within their packaging. They had been stolen from a clothing store. Their estimated value was £500. When the appellant was cautioned, he said he had found them on the floor. In effect, this was theft by finding. 135. In interview he amplified this explanation. He had gone into town to see what was happening, and he remembered a shop being broken into. He also witnessed considerable trouble and looting in the City Centre. In an attempt to find his friends he eventually returned to a hostel in which he was staying. As they were not there, he went back into town to look for them. As he could not find them, he decided to return to the hostel where he found the bags of clothes as his made his way back. He admitted the offences. 136. The appellant is 26 years old. He has previous convictions, including convictions for offences of dishonesty and battery. He had recently served a custodial sentence of 10 weeks’ imprisonment. 137. The pre-sentence report noted that the appellant had recently separated from his partner who had left with their 16 month old child. He had briefly found himself homeless. He did not attempt to minimise or blame others for his offence, and recognised that the public disorder had adversely affected others. 138. In mitigation it was submitted that the appellant had been extremely intoxicated by alcohol and through misuse of cannabis when he was arrested. He had not intended to become involved in the troubles in Manchester. He had found the bag of clothes in unusual circumstances. He immediately admitted his offence and had made full admissions at the police station. On the night in question he had been asked to leave the hostel because he could not afford to pay the low rent. He was truly sorry for what he had done. His mother and sister have themselves received verbal abuse due to their association with him. He did not commit any offence of violence or looting that night and he had not been involved in the planning of any offence. 139. The judge took the view that this was an opportunistic crime committed by an individual who had entered the City Centre knowing perfectly well that public disorder was afoot. He accepted that the appellant had struggled with alcohol and drugs. Allowance should be made for the guilty plea, but the judge was concerned about the appellant’s recent bad history of offending. 140. The submission on appeal is simple. The sentence was manifestly excessive. The issue, as it seems to us once again revolves round the circumstances in which the handling offence was committed. It was a serious offence of its kind. The property was valuable. It was stolen by someone else in the course of looting and public disorder. The appellant’s crime stemmed from this public disturbance, but it was not intrinsic to it. The appropriate sentence in this case is 8 months’ imprisonment. To that extent this appeal is allowed. The Court Process 141. We cannot leave these appeals without highlighting the committed and dedicated way in which a number of Crown Courts and magistrates courts dealt with a large number of cases arising out of the public disturbances. Some magistrates’ courts sat, literally, through the night to dispose of the work. However their best efforts would have been unsuccessful, and the speedy administration of justice would not have occurred if the Police Service, the Crown Prosecution Service, the Probation Service and the Prison Service had not fulfilled their own responsibilities by preparing the cases and bringing them and the defendants to early hearings. The disposal of the cases in court represents the very end of a system in which these different services have distinct and independent responsibilities. At court, quite apart from judges and magistrates, the legal profession and court staff employed by Her Majesty’s Courts and Tribunal Service made their own contributions to speed the processes along. The efficient administration of justice represented a combined effort by all of them.

```yaml citation: '[2011] EWCA Crim 2312' date: '2011-10-18' judges: - LORD JUSTICE LEVESON ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical 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 2437 Case Nos: 2012/03046/B5 & 2012/03008/B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM A CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/11/2012 Before : PRESIDENT OF THE QUEEN'S BENCH DIVISION MRS JUSTICE COX and MR JUSTICE KENNETH PARKER - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - YDG and ZSB Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr C Daw for the Appellant YDG Mr G Gozem QC for the Appellant ZSB Miss S H Goddard QC and Mr J Savage for the Respondent Hearing date: 23 October 2012 - - - - - - - - - - - - - - - - - - - - - Judgment The President of the Queen’s Bench Division: 1. This is an application for leave to appeal with the hearing of the appeal to follow immediately (if leave is given) against a ruling of a Crown Court judge made at what is said to have been a preliminary hearing under s.29 of the Criminal Procedure and Investigations Act 1996 ( CPIA) . As a trial will follow, we have stated the facts on the main issues before us in the briefest terms so that the issues that arose on the application and appeal can be set out in an open judgement. We allow that to be published, but in accordance with s.37 of the CPIA the Annex to this judgment is not to be published until after the conclusion of any trial. The facts 2. X was involved for a period of some months period prior to 2001 in a conspiracy to import and supply drugs. He was charged with conspiracy. An order was made restraining him from dealing in his assets; the assets restrained exceeded £100,000 in value. In 2001 he was convicted on his plea of participation in that conspiracy. Proceedings for the making of a confiscation order under the provisions of the Drug Trafficking Act 1994 (DTA 1994) were commenced; it was the Crown’s contention in the statements served that the benefits attributable to the conspiracy exceeded £1.5 million. The court issued in the course of those proceedings, under the provisions of the DTA 1994 to which we shall refer, a certificate in the following terms: “The Court Certifies that The value of the defendant’s proceeds of drug trafficking is £[100,000] To be paid before …….. 2002.” X’s realisable assets exceeded the amount of £[100,000] set out in the certificate. A Drug Trafficking Order (DTO) was then made in the sum of £[100,000]. As a result, various assets which had been the subject of the restraint order were returned to him. The material which might explain why the certificate was issued in those terms has been destroyed in accordance with retention policies. No-one involved has any recollection about it, save that the amount set out in the certificate appears to have been agreed. 3. Some years later, in 2010, Y and Z (the applicants for leave to appeal) were charged with and subsequently indicted on a multi-count indictment for money laundering under s.327(1) of the Proceeds of Crime Act 2001 ( POCA 2002). X had in the meantime died. It is the Crown’s case that the acts of laundering charged all occurred in the period 2003-2010. The Crown contends that in respect of all but two of the counts on the indictment, the money laundered was the proceeds which X derived from the six months conspiracy prior to 2001 to which we have referred in paragraph 2 and in respect of which the DTO had been made. 4. Y & Z’s principal argument can be summarised as follows: i) The value of the proceeds of X’s drug trafficking had been certified by the court in the sum of £[100,000]. ii) The certification of X’s proceeds was a certification as against the whole world and the Crown could not go behind it. iii) The amount certified had been satisfied in 2001 through the realisation of assets seized. iv) It was not therefore permissible for the Crown to contend that any further sums were obtained by X from that conspiracy. v) Y and Z could not therefore be guilty of money laundering any proceeds of crime after 2001 insofar as such proceeds were alleged to be derived from the six month conspiracy prior to 2001. There is no authority in point; CPS (Sussex) v Mattu [2009] EWCA Crim 1483 was a case where the point on a money laundering charge related to the basis of plea that the same defendant had made in earlier proceedings. 5. Y and Z also contended that, even if that certification was not binding as against the world, each, on the facts of the case, could rely upon that certification as making it unfair for the Crown to proceed against them in respect of any sums alleged to have been derived from the six month conspiracy. 6. Both contentions were advanced on the basis that it was an abuse of process to continue the proceedings. The hearing before the judge 7. In 2012, a hearing took place before the judge on various issues. The first matter raised was the application by Y and Z that the continuation of the proceedings was an abuse of process on the basis we have set out. 8. Counsel for the Crown told the judge that both the Crown and those acting for Y and Z were agreed that the issues raised by Y and Z should be determined by way of a preparatory hearing and that the judge should order the hearing to continue as a preparatory hearing under s.29 of the CPIA . 9. After some discussion, and after counsel for the Crown had pointed out that it was not enough that counsel were agreed and the judge must exercise his own independent judgment in deciding whether there should be a preparatory hearing, the judge confirmed that the hearing would be a preparatory hearing under s.29. 10. The argument then proceeded in front of the judge on the basis that the hearing was a preparatory hearing. Some days after the conclusion of the argument, the judge delivered a written ruling. In that ruling he confirmed that he had made an order that the hearing was to be treated as a preparatory hearing under s.29 so as to permit an appeal. He then set out his reasons for determining the issue against Y and Z. At the end of his judgment the judge concluded, after referring to various cases, that there was no conflict of authority that would justify a preparatory hearing. Everything turned on the facts. He therefore revoked the direction for a preparatory hearing. Was the hearing before the judge a preparatory hearing? If so, was he entitled in his ruling to revoke the order he made? 11. The first matters we were therefore asked to determine was whether the hearing before the judge had been a preparatory hearing by order of the judge, and if so, whether he was entitled to revoke that order. 12. It was common ground before us and is clear from the transcript, that the judge did, in fact, order that the hearing before him continue as a preparatory hearing. That was his own clear and definite decision; it was not qualified in any way, even if such a qualification was permissible. After his decision, the argument continued for the greater part of that day and continued into the following day. 13. It seems to us clear that the conditions in s.29 of the CPIA were satisfied as he was being asked, under s.31(3)(b) of the CPIA , to determine a question of law. The ruling the judge made was a ruling on that question. As we have set out, it is clear that the first of the issues raised by Y and Z as set out at paragraphs 3 and 4 was plainly a question of law. 14. In those circumstances, the question arose as to whether the judge had power to revoke the order he had made. In R v C [2011] Crim LR 396, [2011] 3 All ER 509 , this court held that it was not permissible to declare retrospectively after the relevant ruling had been given that a pre-trial hearing had been a preparatory hearing for the purposes of s.29 of the CPIA . 15. Similarly it seems clear that it is not permissible, once a decision has been made to hold a preparatory hearing, for the judge in the course of his judgment to revoke that decision. The Act contains no such power. It is wrong in principle to allow a judge to take this course which would, in the instant case, have prevented any appeal. 16. We have reached this conclusion on our own analysis. However we must point out that counsel for both appellants, Y and Z, and counsel for the Crown all contended that the judge had no such power. 17. We therefore turn to consider the principal issue in the appeal, namely whether the certificate had the effect contended for by Y and Z. The effect of the certificate (a) The provisions of the DTA 1994 18. It was common ground that the effect of the certificate was a matter of the interpretation of the DTA 1994. When the DTA 1994 took effect, it replaced the Drug Trafficking Offences Act 1986 as regards the confiscation regime; a number of features of the Act were considered by Parliament to be unsatisfactory: see Dr David Thomas: The Criminal Justice Act 1993: Part 1: Confiscation orders and drug trafficking [1994] Crim LR 93. The DTA 1994 in turn has been superseded by POCA 2002. 19. Under s.2 of the DTA 1994, when a person was convicted of a drug trafficking offence, a confiscation order was initiated either by the prosecutor asking the court or the court considering it was right to do so; the process was not mandatory, unlike the position under the earlier legislation. 20. If the court proceeded to consider making an order, the court first had to determine whether the defendant had benefited from drug trafficking: s2(2). If it determined that he had benefited then the amount to be recovered was to be determined in accordance with s.5: s.2(4). The court was then to order him to pay that amount: s.2(5). 21. Under s.4, the court was required to make statutory assumptions for the purposes of determining whether the person had benefited from drug trafficking and, if he had, assessing the proceeds of drug trafficking. 22. S.5 set out the amount that was to be recovered. “ Amount to be recovered under confiscation order . (1) Subject to subsection (3) below, the amount to be recovered in the defendant’s case under the confiscation order shall be the amount the Crown Court assesses to be the value of the defendant’s proceeds of drug trafficking. (2) If the court is satisfied as to any matter relevant for determining the amount that might be realised at the time the confiscation order is made (whether by reason of the acceptance of an allegation made in a statement given under section 11 of this Act or made in the giving of information under section 12 of this Act, or otherwise) the court may issue a certificate giving the court’s opinion as to the matters concerned, and shall do so if satisfied as mentioned in subsection (3) below. (3) If the court is satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the court assesses to be the value of his proceeds of drug trafficking, the amount to be recovered in the defendant’s case under the confiscation order shall be— (a) the amount appearing to the court to be the amount that might be so realised; or (b) a nominal amount, where it appears to the court (on the information available to it at the time) that the amount that might be so realised is nil.” It is under s.5(2) that the certificate set out in paragraph 2 was issued. 23. SS.13-18 of the DTA 1994 dealt with the ability of the court to take further proceedings after sentence or after the making of the confiscation order. One of the powers given to the court was a power to revise the amount determined under s.2(4). S.15 provided, where material, as follows: “(2) Where the prosecutor is of the opinion that the real value of the defendant’s proceeds of drug trafficking was greater than their assessed value, the prosecutor may apply to the Crown Court for the evidence on which the prosecutor has formed his opinion to be considered by the court. ….. (4) If, having considered the evidence, the court is satisfied that the real value of the defendant’s proceeds of drug trafficking is greater than their assessed value (whether because the real value at the time of the current section 2(4) determination was higher than was thought or because the value of the proceeds in question has subsequently increased), the court shall make a fresh determination under subsection (4) of section 2 of this Act of the amount to be recovered by virtue of that section. ….. (15) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date of conviction; and in this subsection “the date of conviction” has the same meaning as in section 13 of this Act.” (b) Our conclusion 24. We have set out the main submission made on behalf of Y and Z at paragraph 4. It was supplemented by reference to the provisions of s.15 and in particular s.15(15); if re-opening the value of the proceeds of the drug trafficking obtained by the person engaged in drug trafficking was barred after 6 years, Parliament must have intended that it was not possible to re-open the amount of the proceeds in any circumstances. If Parliament had barred action against the principal, it must have intended that proceedings were barred against accessories. Reliance was also placed on the provisions of s.49(2) which made it an offence knowingly to conceal, disguise or transfer property for the purposes of assisting any person to avoid a prosecution for drug trafficking or the enforcement of a confiscation order. 25. Attractively presented though these submissions were by Mr Daw and Mr Gozem QC, in our judgment there is nothing in the language of the 1994 Act which suggests that the certificate is a certificate which has effect against anyone other than the person in respect of whom it is made. Although that person cannot after the lapse of six years have the value of the proceeds of drug trafficking re-assessed against him, we can discern no reason why Parliament would have intended that a person who held any proceedings of that drug trafficking should not be the subject of criminal prosecution in respect of proceeds that were greater than the amount certified. Ordinarily and unless the context otherwise requires, a certificate issued by a court only affects the parties to the proceedings in which the certificate was issued; the provision for re-opening the value of the proceeds of drug trafficking is entirely consistent with that, as there would be reasons of finality in confining the period in which the certificate could be re-opened to a limited period. 26. However, we can think of no reason why Parliament would have intended that the certificate should have any effect on any other person. The legislation was designed to impose a punitive regime on all who participate in drug trafficking or assisted in the laundering of proceeds. If many years later it was discovered that an associate was knowingly dealing with what could be proved to be proceeds of the drug trafficking in excess of the amount certified, could Parliament have intended that such a person could rely on the certificate given in proceedings to which he was not a party? We can think of no reason why Parliament would have any such intention given the purpose of the 1994 Act . There is nothing in the language of the Act that would support any such intention. Confiscation orders were referred to in s.49(2) as one way of committing the offence was for the purpose of avoiding the making of a confiscation order. The reference to confiscation orders has no other relevance. 27. We are satisfied from the purpose of the Act and from its language that Parliament had no such intention as is contended by the appellants. Whatever may have been enacted to provide for finality for the person subject to the confiscation proceedings, that does not affect the position of any other person. Thus the appeal on the primary ground fails. The alternative contention 28. The alternative contention that even though the certificate could not be relied on as a certificate good against the world barring the Crown from proceedings, it was unfair to allow the Crown to proceed on the specific facts of this case. 29. This is a contention that turns on the specific facts of the case. For reasons set out in an annex which cannot be published until after the conclusion of the proceedings against Y and Z, we consider that this contention fails. Conclusion 30. Although we give leave to appeal, we dismiss the appeal.

```yaml citation: '[2012] EWCA Crim 2437' date: '2012-11-20' judges: - MR JUSTICE KENNETH PARKER ```

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

Neutral Citation Number: [2016] EWCA Crim 14 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/02/2016 Before : LORD JUSTICE LLOYD JONES MR. JUSTICE EDIS and HIS HONOUR JUDGE WAIT, Sitting as a judge of the Court of Appeal (Criminal Division) ON APPEAL FROM HHJ GOLDSTAUB QC T20117306 Case No: 2013 05021 C3 Between : Robert Marcantonio Appellant - and – Regina Respondent ON APPEAL FROM HHJ BISHOP T20140055 Case No: 2015 00606 C2 Between: Dick Chitolie Applicant - and – Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Duncan Atkinson, Mr. Paul Mitchell, Mr. Richard Stevens and Mr. Matthew Curtis (instructed by Crown Prosecution Service ) for the Respondent Ms. Brenda Campbell (instructed by G.T. Stewart ) for Marcantonio Mr. Chitolie appeared in person Mr. Louis Mably (instructed by the Registrar ) as amicus curiae Hearing dates : 16 th & 17 th December 2015 - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE LLOYD JONES : 1. This is the judgment in two cases, an appeal against conviction ( R v. Marcantonio ) and an application for permission to appeal against conviction ( R v. Chitolie ), which have in common the submission that the appellant/applicant in each case was unfit to plead, within section 4, Criminal Procedure (Insanity) Act 1964, at the time of his trial, and that this court should therefore quash his conviction and consider the exercise of its powers under section 6, Criminal Appeals Act 1968. A third case ( R v. T ) was heard at the same time. A separate judgment is handed down in that case which, because of the orders made, is subject to reporting restrictions. A fourth case ( R v. John Cawley ) in which an application was made for leave to appeal against conviction and which raised the same issues was originally listed to be heard at the same time as the other cases but was abandoned the day before the hearing. Legal principles The applicable test 2. The question whether an accused is fit to plead is determined by the application of tests laid down at common law. The direction of Baron Alderson to the jury in Pritchard (1836) 7 C&P 303, 304-5 remains the foundation of the current law. “There are three points to be enquired into: First, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of the proceedings on the trial so as to make a proper defence - to know that he might challenge [any jurors] to whom he may object - and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation. Upon this issue, therefore, if you think there is no certain mode of communicating the details of the trial to the prisoner, so that he can clearly understand them, and be able properly to make his defence to the charge; you ought to find that he is not of sane mind. It is not enough that he may have a general capacity of communicating on ordinary matters.” 3. In Podola [1960] 1 QB 325 , 353, a case concerning hysterical amnesia, Lord Parker CJ stated that these tests had been followed so often that they may be said to be “firmly embodied in our law”. Lord Parker observed: “So far as “make a proper defence” is concerned, it is important to note that the words do not stand alone, but form part of a sentence the whole of which is “whether he is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence”. In other words, this passage itself defines what Alderson B. meant by “make a proper defence”. As to the word "comprehend", we do not think that this word goes further in meaning than the word "understand". In our judgment the direction given by Alderson B. is not intended to cover and does not cover a case where the prisoner can plead to the indictment and has the physical and mental capacity to know that he has the right of challenge and to understand the case as it proceeds.” (at p. 354) 4. The Pritchard test has been reinterpreted by the courts to make it more appropriate for the modern trial process. This is apparent, for example, in John M [2003] EWCA Crim 3452 , where this court, following the earlier authorities including Pritchard and Podola , approved the written directions of His Honour Judge Roberts QC at first instance. ( John M was decided before section 22, Domestic Violence, Crime and Victims Act 2004 provided that the decision whether an accused is unfit to plead shall be taken by a judge alone, rather than by a jury as had previously been the case.) The judge directed the jury that they had to be sure whether the defence had persuaded them on a balance of probabilities that the accused was suffering from a disability which rendered him unfit to stand trial. He directed them that in order to be fit to stand trial at all a defendant must be capable of doing six things and that it followed that it was sufficient for the defence to persuade them on the balance of probabilities that any one of those six things was beyond the defendant’s capabilities. Those six things were: (1) understanding the charges; (2) deciding whether to plead guilty or not; (3) exercising his rights to challenge jurors; (4) instructing solicitors and counsel; (5) following the course of the proceedings; (6) giving evidence in his own defence. 5. The judge provided an explanation of each in terms which included the following: (1) The ability to instruct his solicitor and counsel (para.21): "This means that the defendant must be able to convey intelligibly to his lawyers the case which he wishes them to advance on his behalf and the matters which he wishes them to put forward in his defence. It involves being able (a) to understand the lawyers' questions, (b) to apply his mind to answering them, and (c) to convey intelligibly to the lawyers the answers which he wishes to give. It is not necessary that his instructions should be plausible or believable or reliable, nor is it necessary that he should be able to see that they are implausible, or unbelievable or unreliable. Many defendants put forward cases and explanations which are implausible, unbelievable or unreliable. The whole purpose of the trial process is to determine what parts of the evidence are reliable and what parts are not. That is what the jury are there for." (2) The ability to follow the course of the proceedings (paras.22-23): "This means that the defendant must be able (a) to understand what is said by the witness and by counsel in their speeches to the jury and (b) to communicate intelligibly to his lawyers any comment which he may wish to make on anything that is said by the witnesses or counsel. Few defendants will be able to remember at the end of a court session all the points that may have occurred to them about what has been said during that session. It is, therefore, quite normal for the defendant to be provided with pencil and paper so that he can jot down notes and pass them to his lawyers either as and when he writes them, or at the end of the session. (Lawyers normally prefer not to be bombarded with too many notes while they are trying to concentrate on the evidence). There is also no reason why the defendant's solicitor's representative should not be permitted to sit beside him in court to help with the note taking process... It is not necessary that the defendant's comments on the evidence and counsels' speeches should be valid or helpful to his lawyers or helpful to his case. It often happens that a defendant fails to see what is or is not a good point to make in his defence. The important thing is that he should be able to make whatever comments he wishes." (3) The ability to give evidence (para.24): "This means that the defendant must be able (a) to understand the questions he is asked in the witness box, (b) to apply his mind to answering them, and (c) to convey intelligibly to the jury the answers which he wishes to give. It is not necessary that his answers should be plausible or believable or reliable. Nor is it necessary that he should be able to see that they are implausible or unbelievable or unreliable. Many defendants and other witnesses give evidence which is either in whole or in parts implausible, unbelievable or unreliable. The whole purpose of the trial process is to determine what parts of the evidence are reliable and what parts are not. That is what the jury are there for. Nor is it necessary that the defendant should be able to remember all or any of the matters which give rise to the charges against him. He is entitled to say that he has no recollection of those events, or indeed of anything that happened during the relevant period." 6. The Pritchard criteria have been subjected to much criticism. In this regard we draw attention to the judgments of this court in Murray [2008] EWCA Crim 1792 , Diamond [2008] EWCA Crim 923 and Walls [2011] EWCA Crim 443 and to the Law Commission’s Report on Unfitness to Plead (Law Com No 364; 13 January 2016). However, as matters presently stand, the Pritchard criteria are firmly established as the law which has to be applied by this court. 7. It seems to us, however, that in applying the Pritchard criteria the court is required to undertake an assessment of the defendant’s capabilities in the context of the particular proceedings. An assessment of whether a defendant has the capacity to participate effectively in legal proceedings should require the court to have regard to what that legal process will involve and what demands it will make on the defendant. It should be addressed not in the abstract but in the context of the particular case. The degree of complexity of different legal proceedings may vary considerably. Thus the court should consider, for example, the nature and complexity of the issues arising in the particular proceedings, the likely duration of the proceedings and the number of parties. There can be no legitimate reason for depriving a defendant of the right to stand trial on the basis that he lacks capacity to participate in some theoretical proceedings when he does not lack capacity to participate in the proceedings which he faces. It is in the interests of all concerned that the criminal process should proceed in the normal way where this is possible without injustice to the defendant. Moreover, it seems to us that such an approach is essential, given the emphasis which is now placed on the necessity of considering the special measures that may assist an accused at trial. (See, for example, Walls [2011] EWCA Crim 443 ; [2011] 2 Cr App R 61 .) The effectiveness of such measures can only be assessed in the context of the particular proceedings. 8. Nevertheless, the current test as developed in the judicial authorities is expressed as a single, indivisible test which must be met in its entirety. A defendant will not be fit to plead or stand trial if any one or more of the specified competences is beyond his capability. (See, for example, the direction of the judge in John M .) In particular, the current test does not distinguish between capacity to participate effectively in a trial and capacity to plead guilty. It seems to us that a strong case could be made out for a test which draws such a distinction. There will be cases in which the defendant would be unable to follow proceedings at trial or to give evidence but would not lack the decisional capacity necessary for entering a plea of guilty. We would question the desirability of denying such a defendant the option of pleading guilty Once it is established that a defendant who intends to plead guilty has the capacity to do so and that his plea is a sound basis for a safe conviction, it is difficult to see why he should be considered unfit to plead on the ground that he would be unable to understand a trial which will not take place or to give evidence in his defence when the evidence he would give, if called, is that he is guilty and he would not therefore be cross examined. Moreover, in such circumstances difficulties are likely to arise in defining the issues which will arise at trial. If the test has to be applied to the actual proceedings which are contemplated and not to every type of proceedings which might be brought, it seems inconsistent to disregard the input of the defendant into that trial. The course of a criminal trial is greatly affected by the conduct of the defendant. The issues are defined by his defence. Thus, when contemplating the proposed trial an important question may be whether the defendant has capacity to make admissions and, if so, what admissions he chooses to make. The answer will identify the evidence which the prosecution must call and which the defendant must be able to follow. It will also define the instructions which he will give which will form the basis of the cross-examination on his behalf which he must also be able to follow. 9. We note that this issue is addressed by the Law Commission in its recent report on Unfitness to Plead where it recommends the introduction of a second test, one of capacity to plead guilty, for defendants who would otherwise lack the capacity to participate effectively in a trial. However, this issue was not fully argued before us and, as will become apparent, it is not necessary for us to decide it in these proceedings. Accordingly, we do not do so. Procedure 10. The procedure to be followed when an accused might be unfit to plead and the consequences of a finding of unfitness to plead are set out in the Criminal Procedure (Insanity) Act 1964, sections 4, 4A and 5. Section 4 provides in relevant part: “(1) This section applies where on the trial of a person the question arises (at the instance of the defense or otherwise) whether the accused is under a disability, that is to say, under any disability such that apart from this Act it would constitute a bar to his being tried. (2) If, having regard to the nature of the supposed disability, the court are of opinion that it is expedient to do so and in the interests of the accused, they may postpone consideration of the question of fitness to be tried until any time up to the opening of the case for the defence. (3) If, before the question of fitness to be tried falls to be determined, the jury return a verdict of acquittal on the count or each of the counts on which the accused is being tried, that question shall not be determined. (4) Subject to subsections (2) and (3) above, the question of fitness to be tried shall be determined as soon as it arises. (5) The question of fitness to be tried shall be determined by the court without a jury. (6) The court shall not make a determination under subsection (5) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.” Section 4A provides: “(1) This section applies where in accordance with section 4(5) above it is determined by a jury that the accused is under a disability. (2) The trial shall not proceed or further proceed but it shall be determined by a jury— (a) on the evidence (if any) already given in the trial; and (b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence, whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence. (3) If as respects that count or any of those counts the jury are satisfied as mentioned in subsection (2) above, they shall make a finding that the accused did the act or made the omission charged against him. (4) If as respects that count or any of those counts the jury are not so satisfied, they shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion. (5) A determination under subsection (2) above shall be made— (a) where the question of disability was determined on the arraignment of the accused, by a jury other than that which determined that question; and (b) where that question was determined at any later time, by the jury by whom the accused was being tried.” Section 5 provides in relevant part: “(1) This section applies where– (a) a special verdict is returned that the accused is not guilty by reason of insanity; or (b) findings have been made that the accused is under a disability and that he did the act or made the omission charged against him. (2) The court shall make in respect of the accused– (a) a hospital order (with or without a restriction order); (b) a supervision order; or (c) an order for his absolute discharge. (3) Where– (a) the offence to which the special verdict or the findings relate is an offence the sentence for which is fixed by law, and (b) the court have power to make a hospital order, the court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection). (4) In this section– “hospital order” has the meaning given in section 37 of the Mental Health Act 1983; “restriction order” has the meaning given to it by section 41 of that Act; “supervision order” has the meaning given in Part 1 of Schedule 1A to this Act.” Rule 38.10 of the Criminal Procedure Rules states: “(1) This rule applies where – (a) it appears to the court, on application or on its own initiative, that the defendant may not be fit to be tried; and (b) the defendant has not by then been acquitted of each offence charged by the indictment. (2) The court – (a) must exercise its power to decide, without a jury, whether the defendant is fit to be tried;… 11. If the issue of fitness to plead is raised by the defence, the burden of proof is on the defence to establish on a balance of probabilities that the accused is unfit ( Robertson [1968] 3 All ER 557). If it is raised by the prosecution, the burden of proof is on the prosecution to establish beyond reasonable doubt that the accused is unfit ( Podola [1960] 1 QB 325 ). 12. In Norman [2008] EWCA Crim 1810 ; [2009] 1 Cr App R 13 the Court of Appeal gave the following procedural guidance: (1) Once the issue of fitness to plead has been raised, very careful case management is required to allow early resolution of the issue. (2) Once full information is available, the court should consider carefully whether to postpone determination of the issue, or to proceed to an immediate determination. (3) If the court determines that the accused is unfit to plead, it is the court’s duty under section 4A(2) of the Criminal Procedure (Insanity) Act 1964 carefully to consider who is the best person to be appointed by the court to put the case for the defence. 13. In Walls [2011] EWCA Crim 443 ; [2011] 2 Cr App R 61 , Thomas LJ, delivering the judgment of this court, emphasised three matters (at [37]): “(1) A finding that a defendant is unfit to plead has the consequence that the court must determine whether he did the act in accordance with the procedure set out in s.4A of the Criminal Procedure (Insanity) Act 1964. The court appoints a representative to put the case for the defence, but the defendant himself will not give evidence and ex hypothesi, his ability to give instructions or the ability to obtain an account from the defendant is limited. Depriving the defendant of these very significant rights is a very serious step. (2) There are available to those with learning disabilities in this age, facilities that can assist. Consideration can now be given to the use of an intermediary under the court’s inherent powers as described in the Sevenoaks case, pending the bringing into force of s.33BA (3) and (4) of the Youth and Criminal Evidence Act 1999 (added by the Coroners and Justice Act 2009). Plainly consideration should be given to the use of these powers or other ways in which the characteristics of a defendant evident from a psychological or psychiatric report can be accommodated with the trial process so that his limitations can be understood by the jury, before a court takes the very significant step of embarking on a trial of fitness to plead. (3) A finding that a defendant did the act in question, has the consequence that the court’s powers of disposal are limited to a hospital order (where the issues are too well known to need stating), a supervision order for a specified period of no more than two years or an absolute discharge – see s.5 of the Criminal Procedure (Insanity) 1964. The court’s ability either to protect the public or to assist the defendant is severely limited.” 14. He went on (at [39]) to emphasise that the court must rigorously examine evidence of psychiatrists adduced before it and then subject that evidence to careful analysis against the Pritchard criteria as interpreted in Podola . “Save in cases where the unfitness is clear, the fact that psychiatrists agree is not enough, as this case demonstrates; a court would be failing in its duty to both the public and a defendant if it did not rigorously examine the evidence and reach its own conclusion.” Approach to fitness to plead on appeal 15. Section 6 of the Criminal Appeal Act 1968, provides in relevant part: “ (1) This section applies where, on an appeal against conviction, the Court of Appeal, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of opinion- … that the case is not one where there should have been a verdict of acquittal, but there should have been findings that the accused was under a disability and that he did the act or made the omission charged against him. (2) The court of appeal shall make in respect of the accused – a hospital order (with or without a restriction order); a supervision order; or an order for his absolute discharge. …” 16. This court has emphasised the need to exercise caution in addressing the issue of fitness to plead when on an appeal against conviction it is submitted that an accused was not fit to plead at the time of his trial. In Erskine [2009] EWCA Crim 1425 ; [2009] 2 Cr App R 29 , Lord Judge CJ stated (at para.89): “Assuming that the defendant is legally represented (and in cases like these, he will normally be represented by leading and junior counsel, as well as solicitors) his legal representatives are the persons best placed to decide whether to raise the issue of fitness to plead, and indeed to seek medical assistance to resolve the problem. There is a separate and distinct judicial responsibility to oversee the process so that if there is any question of the defendant's fitness to plead, the judge can raise it directly with his legal advisers. Unless there is contemporaneous evidence to suggest that notwithstanding his plea and the apparent satisfaction of his legal advisers and the judge that he was fit to tender it, and participate in the trial, it will be very rare indeed for a later reconstruction, even by distinguished psychiatrists who did not examine the appellant at the time of trial, to persuade the court that notwithstanding the earlier trial process and the safeguards built into it that the appellant was unfit to plead, or close to being unfit or that his decision to deny the offence and not advance diminished responsibility can properly be explained on this basis. The situation is, of course, different if, as in Erskine, serious questions about his fitness to plead were raised in writing or expressly before the judge at the trial.” (See also Moyle [2008] EWCA Crim 3059 .) Regina v Roberto Marcantonio 17. On 19 September 2011 between 10.30 a.m. and 11.30 a.m. a burglary occurred at a house in New London Road, Chelmsford. The property had been left locked and secured but when the occupant returned she found a rear window was broken and the house had been searched untidily. She and her husband had lived there for 54 years and numerous items of sentimental and monetary value had been stolen, including, jewellery, ornaments and a camera. The total value of the stolen goods was approximately £11,000. Fresh blood was found near the broken window which on forensic analysis was found to match the blood of the appellant, Roberto Marcantonio. 18. The appellant was arrested on 9 October 2011 at his home address on the Old Kent Road in South East London. A quantity of cash (approximately £2,000) was found in a pocket of a pair of trousers and seized by the police. At the time of his arrest he was living in the community with support, receiving psychiatric services for older adults in South East London, and had a named care co-ordinator. In interview he made no comment. He was charged and remanded into custody to HMP Chelmsford. 19. On 19 December 2011 in the Crown Court at Chelmsford (H.H.J. Goldstaub QC) the appellant pleaded guilty to an offence of burglary contrary to section 9(1)(b), Theft Act 1968 and was sentenced to a term of 5 years imprisonment. 20. On 25 May 2012 the Criminal Division of the Court of Appeal (Elias LJ, Owen J and the Recorder of Liverpool) dismissed an appeal against sentence. 21. On 2 October 2013 an application for leave to appeal against conviction was lodged, 1 year and 9 months out of time, by new solicitors. The issue raised was the appellant’s fitness to plead. It was submitted that the conviction was unsafe in light of the opinions expressed in the reports of three consultant psychiatrists, Dr. Fawzi, Dr. Larkin and Dr. Hillier, all of whom considered that the appellant was unfit to plead at the time of his arraignment. 22. The single judge referred the application to the full court and directed expedition. On 13 March 2014 the full court (Sharp LJ, Silber J, His Honour Judge Lakin) adjourned the matter and gave directions in relation to waiver of privilege, service of material and set a proposed timetable. On 13 May 2014 Mr. Peter Barlex, the solicitor advocate who had represented the applicant in the Crown Court, provided a section 9 statement and supporting documentation. On 22 January 2015 the Full Court (Bean LJ, Irwin and Turner JJ) granted leave to appeal against conviction and gave directions. 23. The appellant was released on licence on 13 April 2014. He was then re-arrested for another matter but those proceedings were discontinued and he was released into the community on licence once again in November 2014. Evidence Mr. Peter Barlex 24. The statements of Mr. Peter Barlex disclosed that at a conference at Chelmsford Crown Court before the plea and case management hearing on 19 December 2011 the appellant had raised issues such as dementia but had accepted that he was guilty and had been involved in the burglary. The question of fitness to plead did not arise and Mr Barlex was entirely happy that the appellant had fully understood the nature of the allegation and he had no concerns about the appellant’s ability to follow proceedings and to discuss the evidence. In oral evidence Mr. Barlex stated that the conference had lasted ten or twelve minutes, possibly a quarter of an hour. The appellant mentioned that he was suffering from dementia. Mr. Barlex said that he made an assessment there and then that it was not an issue. They discussed the case including evidence, plea, mitigation and sentence. The appellant gave a brief account of his involvement, explaining what had happened. Dr. Waleed Fawzi 25. Dr. Fawzi is a consultant psychiatrist. He examined the appellant on three occasions: in February 2010, in May 2013 in connection with these proceedings and in September 2014 in connection with other proceedings. His opinion is based on these interviews and on medical records and prison records from 2007 onwards. 26. In his report dated 24 July 2013 Dr. Fawzi stated that the appellant suffered from multiple psychiatric morbidities, which had been assessed, diagnosed and treated since 2007, namely schizophrenia, depression and dementia, complicated by intermittent use of drugs and alcohol. He was currently stable in mental state, with marked stable cognitive deficits, which rendered him extremely vulnerable in the community and impacted on his capacity to make decisions. His understanding of events and his behaviour equated to that of a child. In Dr. Fawzi’s opinion he did not recognise that he was involved in a burglary and had limited understanding of the consequences of his actions. He was most probably led by his acquaintances under false pretences to the burgled property. His presentation in 2010, prior to the offence, and in 2013, after sentencing, was largely unchanged. This was also confirmed by numerous assessments over the course of 3 years. It was extremely unlikely that his behaviour was orchestrated as it was almost impossible, given his cognitive impairment, to maintain the exact clinical picture over several years. It was highly unlikely that he was fit to plead at the time of his sentencing in December 2011. He was unable to comprehend the course of the proceedings. His ability to instruct his legal representative was compromised by his limited understanding of the charge and poor knowledge of the evidence against him. 27. In a further report dated 22 April 2015, Dr. Fawzi responded to the report of Dr. Mackenzie which had not caused him to change his original opinion. The appellant was simply not capable of recreating a fabricated clinical presentation consistently over 5 years. The fact that he had tried to use his illness to his advantage and might have exaggerated his symptoms did not mean he was free of impairment. 28. In his oral evidence Dr. Fawzi was taken through the appellant’s medical records. In 2009 there had been concerns about his cognitive state. In May 2010 he was prescribed anti-psychotic medication and anti-depressants in the community. The appellant was first referred to Dr. Fawzi in August 2010. Dr. Fawzi considered that the appellant suffered from cognitive impairment but was not psychotic at that time. His cognitive impairment was apparent from his score of 17/30 on Mini Mental State Examination (“MMSE”). Nevertheless Dr. Fawzi had at that time stated his view that the appellant was able to cope with his impairment and remained very functional. Dr. Fawzi said in his evidence that he was surprised that M was able to travel by bus to see him and able to live independently. He was not globally impaired; there were pockets of ability. He was capable of living in the community with support. In a letter he wrote at that time Dr. Fawzi expressed the view that he was very functional but very vulnerable due to psychiatric illness. 29. On the 14 May 2011 the appellant was arrested in connection with some graffiti. He had not been taking his medication. At this time he was sectioned for a brief period and considered not capable of giving his consent. In June 2011 Dr. Shetty had found that the appellant scored only 10/29 on MMSE but this was at a time when he was very unwell with psychotic illness. Dr. Fawzi agreed with Dr. Larkin that a score in the range of 10-19 means that the person is generally unlikely to be able to function independently and unable to take slightly complex decisions such as how to take a journey, or whether to participate in treatment. 30. In October 2011 he was arrested for burglary. On 11 October 2011 he received a specialist CPA assessment at Chelmsford Magistrates Court as dementia was indicated on his prisoner escort record. The assessment recorded that his memory was impaired and he was unaware of dates, time and whereabouts. He was vulnerable. Throughout November and December 2011 there was a consistent picture. He was detained on health care with moderate cognitive deficit. His prison medical records state that on 19 December 2011 he returned from court stating he thought he pleaded today but was not sure. He appeared confused over his attendance at court and was not sure about what had happened or who was his solicitor. At the time of the proceeds of crime hearing on 27 March 2012 his record states he had no idea of what happened in court. On 26 May 2012 following his appearance in the Court of Appeal he is recorded as not knowing what had happened at the hearing. It was Dr. Fawzi’s opinion that he was functioning well in custody but was confused and suffering cognitive impairment. 31. When Dr. Fawzi saw the appellant on the 21 May 2013 it was his impression that he tried very hard. He scored 22/30 on MMSE, the upper end of the moderate bracket. He scored 42/100 on the Addenbrookes Test which is more comprehensive. These results showed a severe cognitive impairment. However this was partly explained by poor education and language skills. The results were at the boundary of moderate/severe for dementia. Dr. Fawzi was satisfied he was not malingering. He stated it would be impossible for him to fool this number of people for this length of time. Dr. Fawzi also stated that at this interview in May 2013 the appellant gave an account of the burglary. He knew what a burglary was. Dr. Fawzi says that he considered the appellant’s ability to give instructions. In his view he would not understand the consequences of pleading guilty. He did not think he would have been able to make an informed decision as to whether to plead guilty or not. 32. When Dr. Fawzi saw the appellant in September 2014, in relation to a separate criminal matter which was later discontinued, he scored 16/30 on the MMSE. When Dr. Fawzi asked him how he was going to plead M replied “What should I plead?” In Dr. Fawzi’s view this was consistent with the way he had appeared since 2010. It was consistent with his cognitive impairment and indicated that he would do what he was told without understanding the consequences. 33. Dr. Fawzi stated that he was convinced on the balance of probabilities that the appellant was not fit to plead. He was not fit to decide what plea to enter. Even with modifications, this man would struggle. His memory span would not allow him to hold and process the information necessary. 34. In cross examination Dr. Fawzi accepted that, throughout the time he had known him, the appellant had functioned with support in the community. There was, he said “a disconnect between his scores and his ability to function with a lot of support.” Dr. Fawzi also accepted that there was an educational bias to the test. Dr. Fawzi accepted that the appellant had been able to describe to others the burglary and his role in it, as he had to Dr. Fawzi in May 2013. He understood that it was illegal and he understood that he had admitted that in court. Dr. Fawzi also accepted that during the judge’s sentencing remarks the appellant had corrected him as to some dates and had also accepted that he had committed the burglary. However, Dr. Fawzi very much doubted that he would be capable of understanding potential defences available to him such as duress. Furthermore, he would not be able to understand what a guilty plea would entail. Dr. Fintan Larkin 35. Dr. Fintan Larkin is a consultant psychiatrist. He has not examined the appellant but produced a report dated 29 December 2013 on the basis of an examination of records. In his view the appellant was not fit to plead or stand trial in December 2011. The medical assessments gave a clear picture of a man suffering from a dementing illness, exacerbated at times by other mental disorders and substance misuse, but progressing steadily in any event. While exaggeration, malingering and factitious disorders had to be considered when assessing offenders, it seemed implausible that so many clinicians would have been fooled so many times, that the scores varied exactly as one would expect and that their pattern never erred towards a malingering picture. His successful act would have been kept up for years without error, even in hospital, and even prior to the burglary itself. In his opinion there was very persuasive evidence that the appellant suffered, and suffers, from a genuine and significant dementing illness. His cognitive difficulties were of such severity that they would have affected his ability to enter a plea of guilty or not guilty and his ability to challenge jurors. He would not have been able properly to instruct counsel, nor to follow the evidence in court. Even with reasonable adjustments to the court process, he would simply not have been able to take in and retain the new information for long enough to consider it, compare it against the facts (many of which he would have forgotten) and properly instruct his legal team. Furthermore, his mental disorder would have been present at the time of the alleged offences. 36. In a second report dated 22 April 2015, Dr. Larkin commented on the reports of Dr. Fawzi and Dr. Mackenzie. However, at that date he had not been provided with Dr Hillier’s 2014 report, nor the appellant’s recent medical records. He noted that there was broad agreement on the facts across all reports. He found nothing in Dr Mackenzie’s report that caused him to change his opinions expressed in earlier reports. In essence there were two doctors who took the view that the appellant was not fit to plead in 2011, another doctor who found the same in 2014, and then Dr Mackenzie’s report in 2015, in which he said he was unsure. Joint Addendum by Dr. Fawzi and Dr. Larkin dated 11 June 2014 37. In a Joint Addendum dated 11 June 2014 Dr. Fawzi and Dr. Larkin addressed the statement of Mr. Barlex and the notes of instructions from the appellant. In their opinion the appellant showed poor comprehension during the course of the proceedings, evidenced by the transcript of the hearing on 19 December 2011 and the entries in his inmate medical records referring to his confusion as to what had happened. The appellant had not denied his involvement at any stage. However, Dr Fawzi noted that he had overwhelming guilt feelings, which were apparent during the interview, and he has experienced derogatory auditory hallucinations in the past when unwell, possibly a feature of depression and / or low self esteem. In their view it was unlikely that he would have dictated the letter to change his solicitor, as his level of education and verbal fluency were poor. Dr Fawzi also noted his written language and handwriting were very poor in the written tasks, which were part of the cognitive assessments he conducted on him. He was however probably able to highlight his mental health issues not being appropriately presented to the court. His presentation was complex and his fitness to plead should have been assessed by an old age psychiatrist, preferably with forensic experience. An assessment had been requested by his treating consultant psychiatrist in prison at the time, but this did not take place. After reviewing the documents their view regarding the appellant’s fitness to plead on the day of his sentencing remained unchanged. He was, on the balance of probabilities, not fit to plead. Oral evidence of Dr Larkin 38. In Dr Larkin’s view the appellant did not have sufficient cognitive function to understand evidence and to make an informed choice as to plea. He would have understood the concept of burglary and that it was legally wrong but he would run into difficulty in understanding options and possible defences. His ability to understand would depend on the nature of the question. As it became more complicated he would expect that the appellant would not be able to answer in a normal way. He could not convey pertinent issues in a reasonable way. He was of sufficient intellect to understand the right to plead not guilty. However his choice would be influenced by his understanding of the options. He would have difficulty in understanding certain factors and in deciding whether there was a realistic prospect of success. He would think of short term consequences, seeking to identify the quickest solution. He would not understand that he need not follow advice. 39. In cross examination he accepted that the appellant was able to answer questions about the burglary and to give broadly consistent accounts. Dr. Larkin was asked whether, if the appellant was told that on his account he could plead not guilty, he would understand that. Dr. Larkin replied that the fact that he did not put it forward showed he had no real grasp. Yet he accepted that the appellant was able to explain that he had been taken advantage of and that he had never denied that he was involved in the burglary. Dr Bradley Hillier 40. Dr Bradley Hillier, a consultant psychiatrist, carried out an assessment of the appellant on 23 rd October 2014 following the appellant’s arrest for a subsequent offence (going equipped) on 23 May 2014. In his report dated 28 October 2014 he agreed with Dr Fawzi that he suffered from a number of psychiatric morbidities, the most prominent of which was dementia. From a review of the records it appeared that dementia had been an established diagnosis since at least 2008 and was subject to fluctuation and possible deterioration. He had also attracted diagnoses of psychotic illness (probably paranoid schizophrenia) and depression. There were unlikely to be any improvements. He concluded that the appellant was not fit to plead or to participate effectively in a trial. It was not likely he would regain fitness to plead or stand trial. Furthermore, no modifications to the court process would make him fit to plead or stand trial. 41. In a later report dated 5 July 2015 Dr Hillier confirmed that he agreed with Dr Larkin and Dr Fawzi in relation to the appellant’s fitness to plead and stand trial in 2011. He had read Dr. Mackenzie’s report. It did not cause him to change his opinion. 42. In his oral evidence Dr Hillier said that he had come to the view that the appellant was probably not fit to plead. He did not have sufficient cognitive functioning to make informed choices as to how to plead. On the contemporaneous records there was evidence of cognitive impairment. Asked whether he could understand the evidence against him Dr. Hillier said it would depend on how complex the evidence was. He noted that the evidence in this case seemed straightforward. However, he considered that without support the appellant might struggle to do that. In his view he probably did not have sufficient cognitive functioning to challenge evidence without support. Dr Hillier had concerns about the appellant’s ability to answer questions without support or even with support. His thinking in relation to consequences and his processing of information were impaired. He would be able to understand that he had a right to plead not guilty but he would not be able to act on his own volition to enter a plea. He would not be able to give instructions without support and Dr Hillier would have concerns about his ability to do so even with support. In the most simplistic terms, he would understand the consequences of pleas of guilty and not guilty but would have difficulty in retaining the information and using it to inform his decisions. If the choice had been laid out simply for him he could have exercised that choice but on the records Dr. Hillier was not confident that that occurred. His view was that the appellant was probably unfit to plead at the relevant time. 43. In cross examination Dr Hillier accepted that when he examined the appellant in October 2014 he may have been exaggerating. He achieved different scores with different clinicians, but there had been a consistent baseline of cognitive impairment over the years. The clinical picture he formed in October 2014 was consistent with everything he read in relation to the previous 5 years. Although some clinicians (e.g. Dr Chukwuma) had questioned whether he was cognitively impaired, the majority of records showed that he was and those most involved in his care considered that he was. Dr Hillier accepted that the appellant appeared to be able to function in the community and to make day to day decisions. His ability to answer questions would depend on how complex they were. He accepted that the appellant had been able to give an account of the burglary to clinicians. Dr Hillier said that if he was told he could plead not guilty on the basis of his account he would understand that, but whether he could use that information to take a decision was more difficult. It was possible that he would not retain the information. He could answer simple questions. He could understand matters that were explained simply to him, but Dr Hillier was concerned as to his ability to retain information. He would encounter serious problems where he was required to engage in serious issues without his memory impeding that in some way. Dr Scott Mackenzie 44. At the request of the Crown, the appellant was examined on 26 March 2015 by Dr. Scott Mackenzie, a consultant psychiatrist, who produced two reports dated 30 March 2015 and 17 November 2015. 45. In his report dated 30 March 2015, Dr Mackenzie stated that his assessment was limited because he did not have access to the appellant’s NHS medical records and only had access to the reports prepared at the request of his solicitors. He considered that the appellant had some degree of residual cognitive deficit with a paranoid psychotic illness, a depressive illness and history of substance misuse. He did not appear to be suffering currently from acute depressive or psychotic symptoms. However, he noted that the appellant might well be exaggerating or fabricating his symptoms. His functional presentation appears at odds with his reported level of disability and bedside clinical tests suggested some degree of malingering or exaggeration of the severity of his memory difficulties. The only way to be certain of the true level of disability or cognitive impairment was by multidisciplinary in-patient hospital assessment with detailed psychological testing addressing his cognitive function and possible malingering or fabrication of disability. He would want to have access to full NHS medical records. In these circumstances he considered that it was difficult for him to comment with any certainty on the appellant’s fitness to plead in December 2011. He considered that in view of the appellant’s reported history of cognitive impairment and history of psychotic illness, the court should have formally addressed his fitness to plead if his history of disability was raised. However, he pointed out that cognitive impairment does not inherently lead to a finding of unfitness. If his cognitive function was only mildly impaired at the material time, it is possible that he would have been fit to enter a plea (and stand trial) if necessary modifications were made to support him in the process. Dr Mackenzie considered that he would be able to form a more definitive view of the level of disability at December 2011 if he had access to his full NHS records and his current diagnosis and if the true level of his disability were more fully ascertained. With regard to his having no reported memory of previous long prison sentences, this would be possible if he were suffering from advanced dementia. However, he did not appear to be. Dr Mackenzie considered that this may well be part of his exaggeration or fabrication of symptoms. A person with advanced dementia is unlikely to report spontaneously when arrested that he has dementia. This again may be part of his exaggeration or fabrication of symptoms. Given his history, it was possible that he had also experienced some cognitive decline secondary to his paranoid psychotic illness and substance misuse. People suffering from dementia can show some degree of fluctuation in their level of cognitive impairment. The appellant’s assessment was complicated further by his on-going paranoid psychotic illness and history of possible depression and substance misuse. When suffering from symptoms of these conditions his score on any cognitive tests was likely to be reduced. 46. By the time of his addendum report dated 17 November 2015, Dr Mackenzie had been provided with the appellant’s prison healthcare records dating from April 2010 to summer 2013. He had also been provided with a number of reports and letters dating from 2010 to 2011. However, he remained of the opinion that the appellant may well have been fabricating or exaggerating the degree of his cognitive impairment at the time of his trial in December 2011 and that he might be continuing to overstate this. The newly available community and prison records revealed that he was found to have some degree of cognitive impairment in 2010 and the summer of 2011. It was of note, however, that he did not have a detailed psychological assessment of his cognitive function and he appeared to be functioning to a level where he could successfully live independently at this time. The prison healthcare records from autumn 2011 and 2012 noted clear concerns raised by the psychiatric in-reach team that his functional presentation appeared at odds with his reported level of disability. Specialist assessments in prison in autumn 2011 would have been very helpful in attempting to clarify the true level of his disability (in the context of his possible active paranoid psychotic illness, depressive symptoms, history of substance misuse, underlying personality and ongoing criminal charges). It was more than possible that he was overstating the true level of his disability due to the criminal charge he was facing. As noted in his previous report, a detailed assessment of his current cognitive functioning would have been very helpful in attempting to ascertain his cognitive function at the material time. Neuropsychological assessment, a personality assessment and tests for fabrication or malingering by an experienced forensic psychologist were required. These assessments had been organised by the Crown Prosecution Service in summer 2015 but it was noted that the appellant did not attend them. An objective account of his current social circumstances and level of functioning would also be helpful in determining the level of his current cognitive function. Without a detailed objective account of his level of disability, it was difficult to say with any certainty whether he had been fit to plead. However, given the appellant’s history of known cognitive impairment and possible active psychotic symptoms in autumn 2011, he remained of the opinion the court should have formally asked that his fitness to plead be assessed by appropriate section 12 approved medical practitioners. However, cognitive impairment and active psychosis did not inherently lead to a finding of unfitness. If his cognitive function was only mildly impaired at the material time, it was possible that he would have been fit to enter a plea (and stand trial) if necessary modifications were made to support him in the process. 47. In his oral evidence Dr Mackenzie stated that when he interviewed the appellant on 26 March 2015 he found his presentation inconsistent. He was guarded during the interview but after it concluded he was much more relaxed and open, telling Dr Mackenzie much more about his background. Dr Mackenzie had tested for malingering. The fact that the appellant did not engage with him had raised Dr Mackenzie’s concern. Dr Mackenzie also noted inconsistencies in his accounts. He was able to give an account of the burglary to Dr. Mackenzie. In Dr Mackenzie’s view he would be able to give such an account to a lawyer unless he was actively psychotic. There were lower level indications of psychotic illness at that time. The appellant might well have been able at some level to understand advice. Dr Mackenzie considered that a neurological assessment would be crucial to understanding the extent of his cognitive impairment. Asked if M would be able to understand pleas of guilty and not guilty Dr. Hillier replied that he would be able to understand more simple concepts. 48. In cross examination Dr Mackenzie accepted that the appellant had a level of cognitive impairment. This was shown by the records. However raw scores on MMSE needed to be approached with caution because scores could be lowered by psychiatric illness. The question was the degree of cognitive impairment. Dr. Mackenzie had concerns about the appellant’s ability to understand advice at some levels. He noted that the prison records referred to him playing cards which showed a significant degree of cognitive capacity. He was also able to do a job in the prison garden which showed a level of functional ability. D. Mackenzie remained of the view that he may have been exaggerating the extent of his impairment. In his view he may have been fit to plead even if he had some cognitive impairment. MMSE was not the best assessment of cognitive impairment because other factors might lower his score. On balance Dr. Mackenzie felt that he was fit to plead notwithstanding that he had a mild cognitive impairment at the time. However without detailed assessment it was difficult to say. Evidence 49. We admit the evidence of Mr. Barlex and the expert evidence of the consultant psychiatrists under section 23, Criminal Appeal Act 1968. Discussion 50. We consider that when applying the Pritchard test, as developed in later authorities, in order to determine whether a defendant is or was fit to plead and to stand trial, it is necessary to have regard to the particular circumstances of each case. It is necessary to take a realistic view of the nature of the proceedings and their likely course and the nature and complexity of the issues which are likely to arise. Nevertheless, we proceed on the basis that the test does not distinguish between fitness to plead guilty and fitness to stand trial. In the present case, it is clear that the issues arising in relation to the offence charged were whether the appellant had participated in the burglary and, if so, whether he did so under duress. As Dr. Mackenzie observed in his oral evidence, these are relatively straightforward issues. There is no doubt that the appellant suffered at all material times from a significant cognitive impairment. This was the unanimous view of the experts who gave evidence at the hearing of this appeal. They considered that the available medical reports record that he had persistently presented with symptoms of cognitive impairment since at least 2009. They also considered that, in addition, he had a history of mental disorder, specifically paranoid psychotic illness / schizophrenia, a depressive illness and harmful substance misuse. In their view, his cognitive decline may have been adversely affected by his history of paranoid psychotic illness and harmful substance misuse. The central questions for this court are the degree of his cognitive impairment and its relevance to his fitness to plead and to stand trial. 51. It was also the unanimous view of the expert clinicians who gave oral evidence in this case that the appellant’s fitness to plead ought to have been assessed prior to his guilty plea on 19 December 2011. The fact that it was not requires this court to undertake, as best it can, an assessment as to the fitness of the appellant to plead some four years ago on the basis of contemporary evidence and the retrospective opinion of expert clinicians. 52. Miss Campbell on behalf of Marcantonio submits that, had the appellant been assessed for his fitness to plead prior to his arraignment, the court would inevitably have concluded that he was unfit to plead. In this regard she points, in particular, to the fact that on a mini mental state examination (MMSE) some eight weeks before his arraignment he scored only 14/30 and that some five months previously his score was as low as 7/30 or 10/30, results indicating significant impairment. Contemporaneous records showed that he had not, for at least two years, been able to identify the day, the week, the month or the year. Although detained in prison he was on occasion disoriented in place and circumstance. The records also include entries by mental health nurses that following his return from court on 19 December 2011 (the sentencing hearing), on 27 March 2012 (Proceeds of Crime Act hearing) and 25 May 2015 (appeal hearing) he had stated that he did not know what had happened in court. 53. We note, however, that the appellant was able to give accounts of the burglary to his lawyers and to the clinicians who have examined him. These accounts are generally consistent and the appellant has never denied his involvement in the burglary. Although Mr. Tipper, who attended on him in the magistrates’ court on 11 October 2011, was unable to take instructions from him, on 19 December 2011 at Chelmsford Crown Court, the appellant was able to give Mr. Barlex an account of the burglary. Mr. Barlex’s attendance note is extremely brief but it does indicate that the appellant had also told him that others had taken advantage of him. The appellant gave a detailed account of his involvement in the burglary to Mr. Jewell who attended on him in HMP Chelmsford on 16 May 2012 prior to the first appeal. In that account the appellant stated that he must have had an argument with one of the other two burglars resulting in him being hit. He also provides an explanation as to how his blood came to be in the burgled property. The attendance note of this meeting also refers to the appellant going immediately after the burglary to see his support worker, Mr. Steve Bryant of St. Giles’s Trust, to discuss what had happened. In his evidence Mr. Barlex confirms that the account he was given on 19 December 2011 was the same as that given to Mr. Jewell save that in the account given to Mr. Barlex the appellant had accepted that he had helped to remove property from the burgled property and said that the same men had stolen his dog. We note that duress was advanced as mitigation in the first appeal. The appellant’s interruption of the judge at the sentencing hearing was also consistent with his other accounts. Once again he was accepting his participation in the burglary. It also shows that he was aware that he had pleaded guilty to burglary and was being sentenced for that. 54. In Erskine this court emphasised that where a defendant is legally represented his legal representatives will generally be the persons best placed to decide whether to raise the issue of fitness to plead and to seek medical assistance to resolve the problem. Mr. Barlex has been in practice as a solicitor practising in criminal law since 1995. When he met the appellant at Chelmsford Crown Court on 19 December 2011 he was aware that Mr. Tipper had not been able to take instructions and he had the attendance note which referred to dementia. Furthermore, Mr. Barlex recorded in his attendance note that on 19 December the appellant had raised mental health issues such as dementia with him. Accordingly he would have been alerted to the need to consider the appellant’s mental condition. Nevertheless, Mr. Barlex’s evidence was that he was entirely happy that the appellant fully understood both the nature of the allegation and his part in the offence. He had no concern at his ability to follow proceedings. The appellant was able to provide him with unambiguous instructions. Mr. Barlex explained that although he requested a pre-sentence report and would, no doubt, have sought medical evidence, he did so for the purpose of sentence and not from any concern as to the appellant’s fitness to plead. However, Mr. Barlex spent only a short time with the appellant; he estimated it at ten to twelve minutes, possibly a quarter of an hour. As explained later in this judgment, we have concerns as to the brevity of this meeting and as to the thoroughness of the consideration given by Mr. Barlex to the case. In these circumstances we are able to attach only limited weight to the contemporary assessment of Mr. Barlex. 55. We consider that the MMSE evidence can give only a limited picture of the degree of cognitive impairment. Dr. Fawzi accepted that the test has an educational bias, i.e. that those who have had a poor education will do worse, but he said that he tried to make allowance for this. We note that Dr. Shetti, who obtained the lowest score on an MMSE, nevertheless considered that the appellant was able to function in the community with some support. We accept the submission that there is a contradiction between the scores in the MMSE evidence and the fact that the appellant was able to function in the community with some support. 56. We accept that the appellant was and remains significantly cognitively impaired and accept the views of the expert psychiatrists that it would not have been possible for the appellant to deceive them all in relation to this matter over such a long period. Nevertheless, all of the clinicians who gave evidence on the hearing of this appeal accepted that there may have been an element of exaggeration of his symptoms at times. We consider that there have definitely been occasions on which the appellant has sought to exaggerate. (1) On 1 November 2011 Dr. Chikwuma, a consultant psychiatrist described an assessment attended by the appellant. He stated that this was a difficult assessment because the appellant was largely unco-operative and largely inconsistent in his responses. In his view, sometimes his behaviour and responses appeared orchestrated. (2) His prison medical records stated that on 12 February 2012 he was observed playing cards with other prisoners. In Dr. Mackenzie’s opinion this showed a significant degree of cognitive capacity. (3) The detailed account he gave to Mr. Jewell on 16 May 2012 is inconsistent with someone who is totally disoriented in place, circumstance and time. (4) His prison medical records for 26 May 2012 recorded his saying that he did not know what happened at the appeal hearing. This conflicts with the evidence of Mr. Barlex that he saw the appellant immediately before and after that hearing and that after the hearing he was no longer so friendly; he was disappointed and no longer so communicative. (5) Dr. Mackenzie reported that at interview on 26 March 2015 the appellant was a notably poor historian answering “I don’t know” to almost all questions. However, at the end of the interview, when Dr. Mackenzie had put his papers away, the appellant was much less guarded and started to tell him more about his current interests and past life when asked. 57. In their oral evidence the psychiatrist experts were questioned on the appellant’s capacity and understanding in relation to entering a plea of guilty. (1) Dr Fawzi accepted that the appellant was capable of describing the burglary and his role in it. He was capable of describing a burglary of which he was guilty, of understanding that that was illegal and that he had admitted that in court. However, he would not understand what a guilty plea would entail. Furthermore, he doubted whether the appellant would be able to understand potential defences available to him. (2) Dr Larkin’s evidence was that he was not of sufficient cognitive function to understand evidence and make an informed choice as to plea. He would have understood the concept of burglary and that it was legally wrong but he would run into difficulties understanding options and possible defences. However, he accepted that he was able to answer questions about the burglary and give broadly consistent accounts. He accepted that he was able to explain that he had been taken advantage of. He could understand the immediate consequences of pleading guilty if simply explained but would not understand the long term implications. (3) Dr Hillier accepted he could give an account of the burglary. He could answer simple questions and understand matters that were explained simply to him. If told he could plead not guilty on the basis of his account he would understand that but whether he could use that advice to take a decision was more difficult. Dr. Hillier was concerned at his ability to retain information. He would encounter serious problems if he were required to engage in serious issues. (4) Dr Mackenzie accepted he could give an account of the burglary. He was able to understand simple concepts but Dr. Mackenzie had concerns about his ability to understand advice at some levels. On balance he felt that he was fit to plead if his cognitive impairment at the time was mild. 58. We are satisfied on the evidence before us, not least the appellant’s interruption of the judge at the sentencing hearing, that he understood that he was admitting his involvement in the burglary, that it was illegal and that the effect of his plea was that he would be sent to prison. There is nothing to suggest that an inability to retain information or advice had any impact here, as his plea accorded with his consistent account. Furthermore, there is nothing to indicate that in his conference with Mr. Barlex any consideration was given to a possible defence of duress. In these circumstances, no question arises as to the appellant’s ability to understand such advice. We shall return to this issue in the context of a further ground of appeal which the appellant now seeks leave to advance. Furthermore, having regard to the wider aspects of the Pritchard test, we conclude on the balance of probabilities on the basis of the evidence before us that he would have been capable of exercising a right to challenge jurors for cause, instructing his legal advisers, following the course of the proceedings and giving evidence in his own defence. In this regard we attach particular weight to his undoubted ability to give full and consistent accounts of the burglary and his part in it. 59. At least two psychiatric consultants who examined the appellant advised that he should have an MRI scan. None was carried out. Furthermore, Dr. Mackenzie called for a neurological assessment. Arrangements were made for the appellant to attend for a neurological assessment by Dr. Harrison at the offices of solicitors acting for him on this appeal. However, he failed to attend on two occasions. We are satisfied that, at least on the first occasion, this was the fault of the appellant who had been at the solicitors’ office earlier that day and had been reminded of the appointment. Dr. Mackenzie emphasised in his evidence how informative such an assessment would have been and the difficulties of expressing firm opinions on the extent of cognitive impairment without one. In this regard, we bear in mind that the burden lies on the appellant to establish on the balance of probabilities that he was unfit to plead. 60. For the reasons set out above, the appellant has failed to persuade us on the balance of probabilities that he was unfit to plead on 19 December 2011. Further ground of appeal 61. At the hearing of the appeal, Miss Campbell sought leave to advance a further ground of appeal. She submits that if the court is not satisfied that the appellant was unfit to plead, clear inadequacies in his legal representation denied him the opportunity to advance, or even to consider advancing, a defence to the indictment, with the result that the plea, as entered, was unsafe. 62. Here she refers to the well documented vulnerability of the appellant living in the community, his presentation on the day of the burglary to Mr. Bryant at the St. Giles’s Trust as upset and injured, and the account given by the appellant to his solicitors and to Dr. Fawzi that he had been taken into the countryside under false pretences and then punched in the face during the burglary. In this regard she also points to the appellant’s statement to the judge that he did not want to do this burglary. She submits that there was no discussion with Mr. Barlex on defences which might be available to him. There was, she submits, a lack of adequate legal representation up to and including the day on which the plea was entered. 63. In his evidence, Mr. Barlex does not suggest that prior to arraignment any consideration was given to a possible defence of duress. On the contrary, while he refers in his attendance note to the appellant’s claim that he had been taken advantage of, it appears that this matter was relied upon both in the Crown Court and on the first appeal as going to mitigation only. Furthermore, effective consideration of a possible defence of duress would have required Mr. Barlex to obtain the relevant facts by questioning the appellant, to apply the relevant legal principles and to advise the appellant accordingly. We do not consider that this could be done effectively in a pre-court conference lasting only ten to twelve minutes, possibly a quarter of an hour, in which other matters had to be discussed. 64. Nevertheless, we are confident that, had the appellant been properly advised on the availability of a defence of duress in his case, he would have been advised that such a defence would be most unlikely to succeed. Such a defence would encounter a number of factual difficulties including the following: his association with the other two burglars, the large sum of money (approximately £2,000 in cash) found in the pocket of his trousers at his home, and why two competent burglars should employ duress to enlist such a vulnerable man to assist them in their criminal enterprise. Moreover, on the appellant’s account there was no prior threat; on his account he was already in the house that was being burgled when he was hit in the face. Furthermore, any such plea of duress would almost certainly have resulted in the appellant’s many previous convictions for burglary being admitted as evidence of bad character. In these circumstances, we are confident that even if the appellant had been competently advised in relation to a possible defence of duress, it would have led to the same result. 65. Accordingly, we refuse leave to appeal on this further ground. Conclusion 66. For these reasons, this appeal will be dismissed. Regina v Dick Lucien Chitolie 67. The applicant, Dick Lucien Chitolie, was charged with acting in breach of a restraining order contrary to section 5(5), Protection from Harassment Act 1997. The particulars were that on 21 October 2013, without reasonable excuse, he entered Ronalds Road, London N5, which he was prohibited from doing by a restraining order imposed by Highbury Corner Magistrates’ Court on 28 March 2012, following the applicant’s summary conviction on a charge of having, on 15 December 2011 at 56, Ronalds Road, caused criminal damage to the property belonging to Ms Guy. 68. The trial took place on 4 and 5 August 2014, at the Crown Court at Inner London (HHJ Bishop). The applicant was unrepresented, his legal representatives having withdrawn following the preliminary hearing. The applicant refused to take part in the trial and left the dock, returning to the cells. A plea of not guilty was entered on his behalf and the trial proceeded in his absence. On 5 August 2014 the applicant was convicted in his absence of acting in breach of a restraining order. The judge adjourned sentence and directed that psychiatric reports be obtained. 69. On 19 November 2014 an interim hospital order was made pursuant to section 38, Mental Health Act 1983. 70. The sentencing hearing took place on 3 March 2015. The applicant refused to be produced for this hearing. Before proceeding to sentence, the judge set out the history of the proceedings and noted that the issue of the applicant’s fitness to plead had not been raised pre-trial by any of his legal representatives. There were before the court psychiatric reports by Dr Judge, Dr Durkin and Dr Rogers. The court heard evidence from the applicant’s treating clinician, Dr Rogers, that he was suffering from a delusional disorder or schizophrenia of a nature and degree which made it appropriate for him to be detained in hospital for treatment, and that a section 41 restriction order was necessary for the protection of the public from serious harm. The applicant continued to hold widespread delusional beliefs, including concerning the house at 56 Ronalds Road. The applicant was sentenced to a hospital order under section 37 with restrictions under section 41, Mental Health Act 1983, without limitation of time. The judge noted that the issue of the applicant’s fitness to plead was raised post-conviction in the psychiatric reports, all of which concluded that he was unfit to plead. 71. The applicant now seeks leave to appeal against conviction and sentence on grounds which do not include the issue of his fitness to plead and stand trial. The single judge has referred this application to the full court and has proposed that the full court also consider the issue of fitness to plead and stand trial. The trial 72. When the case came on for trial at the Inner London Crown Court before HHJ Bishop on 4 August 2014, the applicant was in custody and was produced. The judge asked him if he wanted legal representation and he replied that he did not. The judge then asked that he be arraigned. At that point the applicant left the dock and went down to the cells where he remained. The judge entered a plea of not guilty. The applicant was then brought up again from the cells and the judge asked him if he wished to take part in the trial that was to take place, pointing out that the trial would proceed with or without him. However, he returned to the cells. The trial proceeded in his absence. 73. The prosecution case was that the applicant not only entered Ronalds Road, which he was prohibited from doing, but he also broke into Ms Guy’s house at 56 Ronalds Road, thereby committing a similar offence to that which had resulted in the restraining order being imposed. He had been discovered by PC Morton in the property in possession of a bag of tools and a file of documents. The applicant told the officer that he used to live in the property, that he was the lawful occupier and that it was currently occupied by squatters. He was arrested at the property and made no reply to caution. 74. The defence case was that the applicant had every right to enter the house at 56 Ronalds Road as it belonged to him and Ms Guy was a squatter. The applicant did not give evidence, having absented himself from the trial. However, the jury were told that he had been interviewed under caution with a solicitor present. His account in interview was that the house belonged to him and that the complainant had no right to be there. He asserted that the restraining order had been lifted. He admitted entering the house on 21 October 2013 through a window using a crowbar, but maintained that he had acted in the belief that he was entitled to be there as it was his house. 75. The issues for the jury were whether he entered Ronalds Road on the occasion alleged, if so whether he had a reasonable excuse, and whether he was prohibited from doing so by a restraining order imposed by Highbury Corner Magistrates Court on 28 March 2012. On 5 August he was convicted by the jury. The sentencing hearing 76. The applicant refused to be produced for the sentencing hearing on 3 March 2015. 77. The applicant was born on 9 February 1953 and had 8 previous convictions for offences of violence and dishonesty. Although the judge had ordered a pre-sentence report there was none as the applicant declined to be interviewed. Dr Jenny Judge 78. There was before the court a report by Dr Jenny Judge, consultant psychiatrist, dated 18 September 2014, which had been prepared at the request of the court. The applicant had refused to be interviewed and had left the interview as soon as Dr Judge explained her role. He did not consent to the production of the report. Dr Judge was of the opinion that he lacked the necessary capacity to give informed consent. She prepared the report believing it to be in his best interests. It was, in her opinion, clear from the material she had been able to examine that the applicant displayed delusional beliefs. In her opinion he had not been fit to plead or to stand trial. She considered that he was suffering from a mental disorder under the Mental Health Act, most likely delusional disorder (ICD-10 F22.0). She recommended referral to hospital for assessment and treatment. 79. Dr Judge was asked specifically by the court to consider whether the applicant posed a significant risk of serious harm to the public so as to justify a section 41 restriction order. She did not attempt to re-interview the applicant. In an addendum report dated 15 November 2014 she stated that she had been asked to address future risk. She considered that he was suffering from a mental disorder within the meaning of MHA, most likely delusional disorder but possibly schizophrenia (ICD F20). It warranted hospital treatment and she recommended a hospital order under section 37 MHA. It was difficult to give an opinion on the necessity of a restriction order to prevent further psychological harm to Ms Guy given that the applicant had yet to commence treatment. His ability to benefit from treatment and manage his recovery and risk without formal supervision in the future had yet to be tested. An interim hospital order under section 38 Mental Health Act would enable the court to have more information about his response to treatment. Dr Catherine Durkin 80. There was also before the court a report by Dr Catherine Durkin, consultant psychiatrist, dated 19 October 2014, which had also been prepared at the request of the court. The applicant had refused to be interviewed. He did not consent to the production of the report. Dr Durkin was of the opinion that he lacked the necessary capacity to give informed consent. She prepared the report believing it to be in his best interests. In her opinion, the applicant suffered from a mental disorder within the meaning of the Mental Health Act 1983. He displayed widespread, fixed persecutory beliefs of a delusional intensity. He also displayed an element of thought disorder (a lack of association between the topics he discusses) as well as delusional misidentification (believing that the people he has been dealing with are impersonators). These symptoms are suggestive of a psychotic illness, the most likely would be a delusional disorder (ICD-10 F22.0). His illness was of a nature and degree which makes it appropriate for him to be detained in hospital for treatment. Currently he had no insight into being unwell. He presented as being confused, thought disordered and deluded. He needed further assessment and treatment in hospital for his psychotic illness. This required an order under section 37 Mental Health Act 1983. However, in her view he did not require a restriction order. As to fitness to plead and stand trial Dr Durkin concluded: “Mr. Chitolie is not currently fit to plead. He has widespread delusional beliefs about the criminal justice system and is thought disordered. He would be unable to give evidence on his own behalf, is unable to instruct a solicitor and is unable to understand the nature and effect of the charges.” 81. Dr Durkin was asked specifically by the court to consider whether the applicant posed a significant risk of serious harm to the public so as to justify a section 41 restriction order. She did not attempt to re-interview the applicant. In an addendum report dated 15 November 2014 she considered that the applicant’s psychotic illness was of a nature and degree that made it appropriate for him to be detained in hospital for treatment. He was in need of assessment and treatment in hospital for his psychotic illness. It would be appropriate for him to receive an initial period of assessment in hospital prior to making further comments on his longer term disposal. She therefore recommended that he be transferred to hospital under section 38 Mental Health Act 1983. 82. It was on the basis of these recommendations that an interim order was made under section 38 Mental Health Act 1983 and on 15 December 2014 the applicant was admitted to the North London Forensic Service at Chase Farm Hospital. Dr. Tim Rogers 83. The report of Dr Tim Rogers, consultant psychiatrist and the clinician responsible for the applicant at Chase Farm Hospital, is dated 27 February 2015. It proceeds on the mistaken understanding that the applicant had been found under a disability in relation to his trial and that there had been a finding that he had done the act alleged. Dr Rogers considered that the applicant clearly suffered from a mental disorder within the meaning of the MHA which seemed severe and enduring. The distinction between schizophrenia and delusional disorder was academic in his case. Dr Rogers recommended treatment in conditions of low security forensic care under a section 37 hospital order. With regard to the question of a section 41 restriction order, Dr Rogers observed that the applicant refused to accept the diagnosis or to engage in treatment. Taking into account his antecedents and the nature of the index offence, on balance he considered that the risk of serious harm to the public from him was moderate in magnitude but that this risk clearly existed. It would be difficult to manage his violence risk in future without a restriction order. Accordingly he recommended a restriction order under section 41. The appeal 84. The applicant now applies for leave to appeal against conviction and sentence and for bail pending appeal. He also seeks an extension of time to apply for leave to appeal against conviction. The grounds of appeal, which have been prepared by the applicant himself, do not include any grounds relating to fitness to plead. His applications have been referred to the full court by the single judge, Wyn Williams J., who observed that the full court should also have the opportunity to consider whether the defendant was not fit to plead at the time of his trial and conviction. 85. The grounds of appeal of the applicant’s own composition may be summarised as follows: (1) The applicant maintains his defence: the house belongs to him and he was entitled to enter it; the complainant is a squatter. (2) The applicant refers to an amended version of the restraining order, of unknown provenance, where the words “must not” are omitted. He submits that by going to the house in Ronalds Road he in fact complied with the terms of the order. (3) He makes various complaints about the fairness of the trial proceedings and about the way in which his application has been processed by the Registrar. (4) He maintains that he has never received a copy of an order from the Crown Court stating that he was convicted. (5) Regarding his sentence, he submits that a hospital order with restrictions and without limit of time is manifestly excessive in view of the nature of the offence and the maximum penalty available for it. He makes complaints about Dr Tim Rogers, the clinician responsible for his psychiatric treatment. He makes complaints about the drugs that he is prescribed. (6) He does not accept that there is an issue concerning his fitness to plead and does not accept the experts’ diagnosis. 86. The Registrar of Criminal Appeals was unable to convince the applicant that it would be in his best interests to be represented by counsel for the purpose of these proceedings. The applicant was adamant that he wishes to argue his own grounds, wanted the opportunity to address the court himself, and did not wish to advance a ground concerning his fitness to plead. He complained when the Registrar proposed assigning counsel on his behalf and maintained that he wished to exercise his right to represent himself. In this regard there has been extensive correspondence between the applicant and the court. 87. A letter from Dr Rogers to the Criminal Appeal Office, dated 25 March 2015, raises the question of how this court should deal with an applicant where it becomes apparent post-conviction that they may have been unfit to plead, in circumstances where the applicant refuses to be represented and refuses to accept the possibility that they are suffering from, or have suffered from, a mental illness. 88. Having regard to the expert evidence which is now before this court, we consider that we have to address the question whether this applicant was fit to plead and to stand trial. In these circumstances, we have granted the applicant’s application for leave to attend the hearing and to address the court. He has done so with restraint. However, in order to ensure that all aspects of this matter were fully considered by this court we have also asked the Solicitor General to nominate an amicus curiae . The Solicitor General nominated Mr. Louis Mably of counsel who has attended the hearing and who has put a number of questions to Dr Rogers. We are grateful to Mr. Mably for his assistance. 89. In a respondent’s notice, the Crown submit that the applicant’s grounds disclose no proper basis for challenging either the conviction or the order made. However, the Crown accepts that the psychiatric evidence before this court which was not available at the trial does provide a basis on which this court would be entitled to conclude that the applicant may have been unfit to plead. It submits that if this court concludes that there should have been such a finding, pursuant to section 6, Criminal Appeal Act 1968 it should determine whether to make a hospital order and a restriction order. Dr Rogers 90. On the hearing of this application, there was before the court a further report by Dr Rogers dated 14 December 2015. Dr Rogers considered that the applicant’s condition is an enduring, severe psychotic mental illness that has appeared relatively resistant to treatment with antipsychotic medication. He lacks any understanding of his mental disorder which is best described as a persistent delusional disorder. There are still a significant number and amount of positive symptoms of psychosis in him. Dr Rogers stated that the applicant still challenges Ms. Guy’s lawful ownership of 56 Ronalds Road and does not accept the authority under which he has been convicted or detained in hospital. There is a high likelihood of future attempts to contact or challenge the victim without the continuation of his treatment, supervision and risk management in hospital. Furthermore, the applicant makes it plain that, without compulsion, he would not continue with any aspect of treatment or monitoring for his psychotic mental illness. This would be likely to result in a worsening of his condition, of the risk of harm to hi m through misadventure and a heightening of the risk of recidivism also. This would be likely to be dangerous to Ms. Guy in particular, including to her psychological wellbeing. 91. In Dr Rogers’s opinion the risks the applicant presents could not be managed effectively in the community. He suffers from a mental disorder of both a nature and degree to require his treatment under the Mental Health Act 1983 in the interests of both his own health and the safety of others. Dr Rogers recommends a hospital order under section 37. With regard to a restriction under section 41, Dr Rogers states that while the applicant has long since desisted from making any overt threats to or about Ms. Guy, his underlying grievance and key beliefs about the ownership of the house remain the same. Despite the passage of time and much professional input, it is Dr Rogers’s view that the magnitude and nature of the risk of serious harm to the public posed by the applicant remain substantially unchanged. 92. Dr Rogers gave evidence before us on the hearing of the appeal on 17 December 2015. He confirmed that the applicant suffers from a persistent delusional disorder. It is a severe enduring psychotic illness. It has a severe effect on his ability to distinguish fact from non-reality, on his ability to consider facts in the world as it really is. He has fixed delusional beliefs which are firmly held. He was unfit to plead throughout the proceedings in the Crown Court. His symptoms are likely to have been present for a very long time including throughout the proceedings. He still has these symptoms. 93. Dr. Rogers’s opinion is that this is not a disorder where comprehension is affected. It is possible to have a lucid conversation with the applicant. Its main impact is that, when he is required to make decisions, his ability to distinguish between reality and non-reality impedes him. This would be a real disability in giving instructions. One of his delusional beliefs is that there is a conspiracy against him by the judiciary and the police. He has dismissed lawyers and is unwilling to be represented. His delusions prevent him from having a relationship with a lawyer and giving instructions. Also he has no awareness of this problem. This has an affect on his ability to understand proceedings and to give evidence in his own defence. So far as challenging jurors is concerned, he could form a persecutory idea in relation to a juror. So far as giving evidence is concerned he would not be able to accept the authority of the court given his delusional beliefs about the fairness and identity of judges. 94. It is Dr. Rogers’s current view that the applicant still requires treatment under the Mental Health Act. Clinicians have spent many months attempting to treat him. At first his physical health impeded this but he is now on the appropriate treatment. However his condition is very resistant to treatment. Although there have been not recent episodes of aggression on the ward, his symptoms have not changed a great deal. He still does not accept that Ms. Guy owns the property. He still believes that he owns it. Here the risk is not just of physical harm but of psychological harm to the victim. It is difficult to say that the risk he poses to her has reduced significantly. In his view there was a risk of serious harm. Accordingly he considers that a restriction order under section 41 is required. Discussion 95. In R v. Padola [1960] 1 QB 325 the principles stated by the Court of Criminal Appeal in relation to fitness to plead included the following: “2. If the contention that the accused is insane is put forward by the defence and contested by the prosecution, there is, in our judgement, a burden upon the defence of satisfying the jury of the accused’s insanity. In such a case, as in other criminal cases in which the onus of proof rests upon the defence, the onus is discharged if the jury are satisfied on the balance of probabilities that the accused’s insanity has been made out. 3. Conversely, if the prosecution alleges, and the defence disputes, insanity, there is a burden upon the prosecution of establishing it.” (at p. 350) 96. In the present case the applicant does not maintain that he was unfit to plead; on the contrary he asserts that he was fit to plead. Equally, in the present case the prosecution does not allege that he was unfit to plead; it simply does not contest that conclusion. Here, we note that section 4, Criminal Procedure and Insanity Act 1964 applies where the question arises at the instance of the defence or otherwise. Similarly, Criminal Procedure Rule 25.10(1) refers to the court acting on its own initiative. In these circumstances, we have proceeded as if the prosecution had alleged that the applicant was unfit to plead and as if that were contested by him. Accordingly, the court has to be satisfied to the criminal standard that the applicant is unfit to plead. 97. We admit the evidence of Dr. Judge, Dr. Durkin and Dr. Rogers under section 23, Criminal Appeal Act 1968. 98. We accept, on the basis of the evidence of Dr. Judge, Dr. Durkin and Dr. Rogers, that the applicant suffered at the time of his trial and continues to suffer from a severe, enduring mental illness which is best described as persistent delusional disorder. This illness affects his ability to distinguish reality from non-reality and results in firmly held delusional beliefs. In his oral evidence Dr. Rogers focused on how this might affect his ability to participate in a trial. Dr. Rogers considers that its main impact would be that when required to make decisions his inability to distinguish reality from non-reality would impede him. This would disadvantage him in giving instructions. Furthermore, he has a delusional belief that he is the victim of a persecutory conspiracy by judges, lawyers and the police which has resulted in his dismissing lawyers and refusing representation. His delusional beliefs would affect his ability to understand the proceedings and to give evidence. Accordingly, we are satisfied to the criminal standard that at the time of his trial the applicant was unfit to plead. 99. At the time of the trial there was before the Crown Court none of the material which has led us to this conclusion. Moreover, his refusal of legal representation and his refusal to take any part in the proceedings may explain why the judge was not alerted to his condition and why he failed to raise the matter of his own motion. The defendant had no legal advisers who might have been alerted to his mental condition. The court received evidence of the applicant’s mental state only after his conviction. By that stage of the proceedings the judge had no alternative but to proceed as he did. 100. So far as the grounds of appeal drafted by the applicant are concerned, we are satisfied that these grounds are totally lacking in merit and have no prospect of success. In particular, we are satisfied that no variation to the order, as contended by the applicant, was made by the magistrates’ court or the Crown Court. In addition, these include muddled and bizarre grounds which provide further evidence of the applicant’s mental illness. There is no merit in any of the grounds. None would have any prospect of success and none of the matters raised could have prevented the Crown Court from arriving at a finding that the applicant did the acts charged against him. Accordingly we refuse leave to appeal on these further grounds. 101. We are satisfied on the written evidence of Dr. Judge and Dr. Durkin and on the written and oral evidence of Dr. Rogers that the case is not one where there should have been an acquittal but that there should have been findings that the accused was under a disability and that he did the acts charged against him. 102. In these circumstances we are required to make an order under section 6(2) Criminal Appeal Act 1968. We are satisfied on the evidence of the three clinicians referred to above that the applicant is suffering from a mental disorder of a nature and degree which makes it appropriate for him to be detained in a hospital for medical treatment, that appropriate medical treatment is available for him and that this is the most suitable method of disposing of this case. In this regard we note that the most recent written evidence of Dr Judge and of Dr Durkin is in each case dated 15 November 2014. However, in view of Dr Rogers’s evidence as to severity of the condition and its duration, that it is very resistant to treatment and that the applicant’s symptoms have not changed a great deal, we consider that it is open to us to rely on these earlier reports. 103. It was the evidence of Dr. Rogers that the applicant still retains his delusional beliefs that he is the owner of Ms. Guy’s house. Indeed, that was apparent from the submissions made by the applicant when he addressed the court in person. In these circumstances, Dr. Rogers was unable to say that the risk the applicant poses to Ms. Guy has reduced significantly. In this regard, he drew our attention in particular to the risk of psychological harm which the applicant in his present condition poses to Ms. Guy. In these circumstances, we are satisfied that it is necessary, in order to protect the public from serious harm, for the applicant to be subject to restriction order under section 41, Mental Health Act 1983. 104. Accordingly, we grant an extension of time and permission to appeal against conviction. We quash the conviction and substitute a finding that the applicant did the acts charged against him. We make a hospital order with a restriction order without limit of time pursuant to section 6(2) (a), Criminal Appeal Act 1968.

```yaml citation: '[2016] EWCA Crim 14' date: '2016-02-24' judges: - LORD 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: [2019] EWCA Crim 685 Case No: 201800921/B5 & 201800924/B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/02/2019 Before : LORD JUSTICE COULSON MRS JUSTICE CUTTS DBE and HIS HONOUR JUDGE PAUL THOMAS QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : REGINA - and - DANIELLE GILLIAN PERRETT - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss S Bennett-Jenkins QC appeared on behalf of the Applicant Hearing date: Thursday 14th February 2019 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Coulson : 1. The applicant is now 60. On 31 January 2018, in the Crown Court at Ipswich, she was convicted of six counts of indecent assault of a boy under 16, contrary to s.15 of the Sexual Offences Act 1956 (“the 1956 Act”). On 27 February 2018, she was sentenced to a total of 4 years and 9 months imprisonment. She renews her applications for permission to appeal against both conviction and sentence following their refusal by the single judge. 2. The victim in this case was a boy under 16 years of age. Because of that, and because of the nature of the offences, the usual statutory restrictions apply to any reporting of this case. There can be no reporting which would or might allow the identity of the victim to be revealed. We have anonymised him for the purposes of our judgment. 3. In the early 1980s, the complainant, M, was a pupil at a school in Suffolk. Richard Barton-Wood was a teacher at the school and at the time was in a relationship with the applicant, a renowned harpist. She was about 25 at the time of the offences. Starting in 1983, Barton-Wood sexually abused M. In 1984, when M was 14, Barton-Wood took him to London to see the applicant in concert. They then both went back to her London flat. After M had gone to bed, the applicant came into his room, got undressed and got into bed with him. She got on top of him, put his erect penis into her vagina and had sex with him (Count 9). He ejaculated inside her. Subsequently, Barton-Wood joined them in the bed. The following morning, M and the applicant took a shower and she performed oral sex upon him (Count 10). 4. On a second visit to her flat, a similar pattern was followed, namely full intercourse (Count 11) followed by oral sex (Count 12). There was a separate allegation of oral sex being performed on M by the applicant at the Suffolk cottage owned by BartonWood (Count 13). There was also a further allegation that the applicant masturbated M in a bath at the cottage (Count 14). It appears that the offending ceased when the applicant separated from Barton-Wood. M had not considered the sexual activity as abuse at the time and referred to it in his evidence as “lovely” and “brilliant”. He later made persistent efforts to contact the applicant and Barton-Wood in order to confront them about what they had done. 5. The applicant denied the allegations and said that M had made them up for financial reward. In addition, she claimed that, on the first occasion at her London flat, she was in the shower when M came into the bathroom and grabbed her wrists and thrust his erect penis against her pubic bone. This was therefore an allegation of attempted rape made by the applicant against M. 6. On counts 9 and 10 – those involving the first visit to the applicant’s London flat – the applicant was convicted by a majority of 11 – 1. In relation to counts 11 and 12, relating to the second visit to the London flat, the applicant was convicted by a majority of 10 – 2. She was convicted by a similar majority on counts 13 and 14, relating to the oral sex and the masturbation in the bath at the cottage in Suffolk. 7. When he came to sentence the applicant, HHJ Overbury had regard to the fact that the maximum term for offences under s.15 is 10 years; that under the Sexual Offences Act 2003, the legislation now in force, the equivalent offence was s.9, which carried a maximum of 14 years imprisonment; and that he should have regard to the current Sentencing Guidelines, but always bear in mind that difference in the maximum sentence. 8. For sentencing purposes, the judge focused on the most serious offence, namely Count 9, the first occasion of sexual intercourse at the applicant’s London flat. The judge found that this offence, as well as the other count involving sexual intercourse and the three counts of oral sex, fell within the highest category of harm identified in the sentencing guidelines, and involved a number of factors demonstrating the applicant’s culpability. In consequence, the judge took the 5-year starting point recommended by the guidelines, increased that to a notional 5 and a half years to reflect a number of aggravating factors, and then made a reduction for mitigation, in particular the applicant’s good character, to arrive at an overall term of 4 years and 9 months. 9. As we have said, the applicant sought permission to appeal against both conviction and sentence. Those applications were refused, in brief terms, by the single judge. Those are the applications renewed before this court today. We deal with the application in respect of conviction first, and then sentence. Conviction 10. The first complaint which, so it is said, goes to the safety of the applicant’s conviction is the suggestion that, although the trial took place on the basis that M was at least 14 years old at the time of the relevant events, the judge during his sentencing remarks suggested that M “was 13, 14” at the time of the offence. Ms Bennett-Jenkins submits that, if M had only been 13 at the time of the offending, the presumption of incapacity under common law would have applied. M would then not in law have been considered capable of penetrative sexual intercourse, and the counts could not have succeeded. 11. In our view, this submission is misconceived. At the trial, everyone proceeded on the basis that M was at least 14 at the time of the relevant events. The case was prosecuted and defended on that basis. Indeed, during the summing up, the judge’s chronology pointed to the first event at the applicant’s London flat occurring at a time when M was 14 and a half. Accordingly, capacity was never an issue at the trial. 12. It seems clear to us that the judge’s reference when sentencing to M being “13, 14” when the abuse by Barton-Wood began was a slip of the tongue. It had no relevance to the convictions. It was irrelevant to the allegations against the applicant in any event. There is therefore nothing in the age point. 13. The other argument in relation to conviction is rather more elaborate but, so it seems to us, no less difficult. It runs something like this. If the applicant had been a male, and M had been a girl under the age of 16, then this would have been an offence of unlawful sexual intercourse under s.6 of the 1956 Act, and there would have been a time bar for prosecution of 12 months after the offence. Accordingly, it is submitted that, by analogy, the Crown’s use of s.15 in this case, for what is in reality a charge of unlawful sexual intercourse, amounted to an abuse of process of the court to get around a time bar. There is also a related submission that to charge a female defendant with indecent assault, when what is actually being alleged is sexual intercourse, is both impermissible and even discriminatory on the basis of gender. 14. These might be regarded as rather ambitious submissions. In our view, they are a long way from the established criminal law in this area. The proper analysis is as follows. 15. Section 6 of the 1956 Act makes it unlawful to have sexual intercourse with a girl under 16. For an offence to be prosecuted under s.6, proceedings have to be commenced within 12 months of the offence (see s.37). In R v J [2005] 1 AC 562 , the only issue for the House of Lords was whether, because there had not been a prosecution within the 12-month period, the Crown could use s.14 of the 1956 Act (indecent assault on a woman) to prosecute the unlawful sexual intercourse. The House of Lords found that they could not because there was a clear and unambiguous statutory provision – the time bar - to which the court had to give effect. Thus, if it was only evidence of sexual intercourse with a girl under 16 that was relied upon in support of a prosecution under s.14 of the 1956 Act, the defendant could not be prosecuted for indecent assault after 12 months had elapsed. 16. Of course, in the present case, neither s.6 nor s.14 of the 1956 Act has any application or relevance at all. There is no equivalent offence of unlawful sexual intercourse with a boy in the 1956 Act. There is therefore no statutory time bar, and no basis on which it could be said that in this case the criminal process had been manipulated by the prosecution. In the present case, there is a prosecution only under s.15 (indecent assault of a male). 17. The remaining point of principle is whether sexual intercourse comprised an indecent assault by a woman on a male in contravention of s.15. There is significant authority in support of that proposition. In R v McCormack 53 Crim. App R(S) 514, this court concluded that penetration of the vagina with something other than a penis (in that case, a finger) was an indecent assault unless done with valid consent (which could not arise here because M was under 16). As the judge in this case noted in his ruling on this issue, “no rational distinction can be drawn between the different sorts of penetration for this purpose”. 18. More significantly, Faulkner v Talbot [1982] 74 Crim. App R(S) 1 was a case with considerable similarities to this one. The victim was a 14 year old boy; the defendant a woman who placed his penis inside her vagina. In the Divisional Court, Lord Lane, then Lord Chief Justice, said: “I read a passage from the judgment of the Court delivered by Fenton Atkinson L.J., pp. 517, 518 and p. 455 of the respective reports: “Then there followed an argument by Mr. Hunt, which he has repeated to this Court and put very attractively before us, whether in view of the girl's consent, there could be a conviction of indecent assault, there being here a willing girl and no evidence of any compulsion or hostility: and he referred to a line of authorities such as FAIRCLOUGH v. WHIPP (1951) 35 Cr.App.R. 138 ; [1951] W.N. 528 and DIRECTOR OF PUBLIC PROSECUTIONS v. ROGERS (1953) 37 Cr.App.R. 137; [1953] 1 W.L.R. 1017 , cases which have shown that where the accused adult invites a child, for example, to touch his private parts, but exercises no sort of compulsion and there is no hostile act, the charge of indecent assault is not appropriate. But, in our view, that line of authorities has no application here, and, in the view of the members of this Court, it is plain beyond argument that, if a man inserts a finger into the vagina of a girl under sixteen, that is an indecent assault, in view of her age, and it is an indecent assault however willing and co-operative she may in fact be." Finally, so far as authorities are concerned, I turn to SUTION (1977) 66 Cr.App.R. 21; [1977] I W.L.R. 1086. In that case the facts were that the appellant took three boys, all under the age of 14, to his home and photographed them partially clothed and in the nude. He remained fully clothed. He neither touched or fondled the boys, except to touch them on the hands and legs and bodies in order to arrange their poses for the purpose of photography. The boys consented to these acts. The appellant was charged with indecently assaulting the boys contrary to section 15(1) of the Sexual Offences 1956 Act. The jury were directed that any touching without consent was an assault and the law did not permit persons under 16 to consent to the touching, if it was accompanied by circumstances of indecency. The jury convicted. On appeal it was held by the Court of Appeal (Criminal Division) that they had been misdirected. The holding in 66 Cr.App.R. 21 was: “that whereas section 15 (2) of the Sexual Offences Act 1956 bars consent from preventing an act with a boy under 16 from being an indecent assault-i.e. if the act alleged to constitute the assault is itself an indecent act-and thus the defence of consent will not avail a defendant; in the present case the touching of the boys by the appellant. which was merely to indicate a pose, was not of itself indecent. was consented to and was not hostile or threatening, the consent of the boys to the acts complained of prevented such acts being an assault. and, therefore. an indecent assault; thus the question of indecency did not arise; accordingly, the jury had been misdirected and the appeal would be allowed and the conviction quashed." One turns, in the light of those authorities, to the present case. First of all what is an assault? An assault is any intentional touching of another person without the consent of that person and without lawful excuse. It need not necessarily be hostile or rude or aggressive, as some of the cases seem to indicate. If the touching is an indecent touching, as in this case it plainly was because the defendant took hold of the boy's penis, then the provisions in section 15 (2) of the Sexual Offences Act 1956 come into play, “A boy under the age of sixteen cannot in law give any consent which would prevent an act being an assault for the purposes of this section." Consequently, the touching undoubtedly being indecent, the boy in this case, being aged 14, could not consent to it. It was intentional touching; it was touching without lawful excuse, and in view of section 15(2) it was a touching to which the boy could not in law consent and therefore did not consent. Accordingly, as I see it, one has all the necessary ingredients of the offence of indecent assault, and the consequence is that the learned recorder was correct in the conclusion to which he came. The question which is asked by the case is as follows: “Whether the acts of the defendant to which the complainant consented in pulling him on top of her and touching his penis immediately before sexual intercourse by him with her were an indecent assault by the defendant on the complainant contrary to section 15(1) of the Sexual Offences Act 1956?" The answer I would give to that is “Yes, it was an indecent assault." In my judgment the decision of Veale J. in MASON (supra) to which reference has been made was wrong, and in so far as it is necessary to refer to the matter, where Wien J. in UPWARD (supra) was making explanation to the jury. he was likewise in error. For these reasons I would dismiss this appeal.” 19. It seems to us that this is unambiguous authority in support of the proposition that sexual touching by a woman of a boy under 16, even as part of or preliminary to an act of sexual intercourse, is an offence contrary to s.15. Boreham J in the same case said: “Where in a charge of indecent assault on a person under the age of 16 the act complained of is indecent and that act would, if it were done without consent be an assault, then the offence is made out.” Again as Judge Overbury correctly concluded, it could not be said that the insertion of the penis of a male under 16 into the vagina of an adult woman is not an indecent act. 20. On this basis there is the highest possible authority for the basic proposition that what happened here comprised an offence under s.15 of the Sexual Offences Act 1956. Counts 9 – 11 were indeed offences under that Act. Although we accept that, in those days, Parliament did not think it necessary to legislate expressly for other offences which might be committed by a woman rather than a man, it has been clear at least since Faulkner v Talbot in 1982 that this kind of offending by a woman was plainly caught by s.15. 21. Thus, it is wrong to suggest, as Ms Bennett-Jenkins does, that the use of s.15 in this way is discriminatory. On the contrary, it is designed to ensure that the predatory sexual offending, particularly on those under 16 years of age, can be appropriately dealt with by the courts, regardless of whether the offender is man or a woman. 22. Accordingly, we are in no doubt that the application for permission to appeal against conviction is hopeless. It is refused. 23. We then turn to the sentence in this case. In Ms Bennett-Jenkins’ grounds of appeal against sentence, no fewer than 18 separate complaints are raised. We deal with each and every one in turn, although we have slightly reordered them so as, we hope, to provide greater clarity. (i) There Should Have Been a PSR/Psychiatric Report 24. The judge concluded that it was unnecessary to adjourn the sentencing hearing in order for a PSR or a psychiatric report to be prepared. That was a matter within the judge’s discretion. We can see no particular reasons, on the facts of this case, which made a report of either type a necessity. The judge had heard lengthy evidence from the applicant and had heard character evidence. He rightly concluded that custody was inevitable and therefore a PSR and a psychiatric report was going to be of no assistance in the sentencing exercise. 25. Indeed, in some ways, the proof of that pudding is in the eating. For the purposes of this appeal we have been provided with a psychiatric report. This deals in some details with the difficulties that the applicant has faced at the start of her present sentence. Sadly, none of those points can come as any surprise to anyone with a knowledge of the prison system. We acknowledge that the effects on the applicant of her custodial sentence has been profound. It almost always is on offenders who go to prison late in life in relation to offences that occurred 30 or more years ago. But this court has said repeatedly, albeit in the context of male defendants, that the age of the defendant is not a reason for them avoid what would otherwise be the appropriate prison sentence. 26. Accordingly, we consider that, even if there had been a report, it could have made no difference to the sentencing exercise in this case. (ii) Two Years Maximum 27. In her written grounds Ms Bennett-Jenkins suggests that “authority indicated that the sentence should be treated as being limited to a maximum of two years imprisonment”. We asked Ms Bennett-Jenkins about this during the course of argument, because it was common ground that the maximum sentence for this offence under the 1956 Act was 10 years imprisonment. That was the term that the judge had in mind. She explained that the 2 years related to s.6 of the 1956 Act. That of course has no application in the present case for the reasons we have already explained. (iv) The Reference to M Being “13, 14” 28. We have already dealt with this point in the context of the application for permission to appeal against conviction. It was plainly just a slip of the tongue. In any event, there is nothing in the grounds which indicates that this could or should have had any relevance to the sentencing exercise. (v) The Length of M’s cross-examination (vi) The Nature of the Applicant’s Defence 29. The complaint is that the judge wrongly regarded as an aggravating feature the points raised by the applicant and Barton-Wood in their defence, and thus the length of time that M was cross-examined. 30. That is not an entirely accurate summation of what the judge said. He said: “Since your arrests in 2016 both of you have continuously denied the allegations, each of you has sought to blacken [M’s] character either with fictitious accusations of blackmail or with counter allegations of the most serious sexual misconduct, the attempted rape in the shower at Miss Perrett’s London flat. Each of you has sought to diminish his credibility as a witness through an extensive examination of his medical and mental health history. No stone has been left unturned in your attempts to undermine his entire integrity, resulting in him not only having to relive the horrors of his early teens, but also the various tribulations of his later life. Counsel are not responsible in any way for the length of his time in the witness box. You bear that responsibility because of the nature of the defences you presented. I am satisfied that your false accusations as to M’s character and behaviour are significant aggravating features of this case.” 31. In our view, no complaint can be made about that passage. On the contrary, the judge was entitled to regard as an aggravating factor the nature of the applicant’s defence, and in particular the fact that an allegation of attempted rape was made as part of it. That was a gratuitous allegation, and one which the jury, by their verdict, emphatically rejected. It was in our judgment inevitable that the making of such a serious false allegation would play a part, albeit a modest one, in this subsequent sentencing exercise. (viii) Failure to Take Account of the Investigative Process 32. The complaint is that the judge failed to take any proper account of the length of the investigative process before trial and its effect on the applicant. We reject that complaint and the premise on which it is based. The investigative process in this case was not overlong. And if it was longer than it might have been, that was at least in part because of the nature of the applicant’s defence and, in particular, the false allegation of attempted rape to which we have already referred. There is therefore nothing in this point. (ix) The Finding that M was Vulnerable 33. The complaint here is that the judge was wrong to find that M was particularly vulnerable. Again, that is not an entirely accurate depiction of what the judge said. The relevant part of the sentencing remarks was as follows: “You [the applicant] were the first person with whom M had any sexual contact. He was in many ways a shy teenage boy and even thought the sexual experience afforded to him by you were in his mind ‘brilliant’ he wasn’t even mentally or legally capable of participating in a sexual relationship with you. Children in the 1980s were not exposed to sex as they are today, particularly on social media. He would therefore in my judgment have been more vulnerable and mentally unprepared for sexual contact than would perhaps a teenage boy today. But that in fact matters little since no child of 13 or 14 whether male or female should have their childhood violated by premature sexual experiences and even more so when it involves an adult.” 34. That was in our view a measured conclusion reached by the judge who had heard all the evidence in the case and seen M subjected to extensive cross-examination. It is not possible to raise a substantive complaint about that passage. 35. Unhappily, as it seems to us, Ms Bennett-Jenkins prayed in aid on this point a much later Facebook entry in which M boasted of his many sexual conquests by the time he was 21. Not only does a much later boast of sexual conquests have no bearing on the issue of whether, when he was 14, M was vulnerable or otherwise, but there will be those who would draw a direct link between the assaults which M suffered at the hands of the applicant when he was 14, and the hollow boasting of his later years. (x) Failure to Differentiate Between the Assaults by Barton-Wood and the Consensual Sex with the Applicant (xi) Failure to Differentiate Between M’s Views of His Relationship with Barton-Wood on the One Hand and M on the Other 36. The complaints here are rooted in the same point, namely that, because M remained positive about his sexual relationship with the applicant, whilst he had a high degree of animus towards Barton-Wood, this difference should somehow have been reflected in the sentencing. We disagree. One of the principal purposes of the criminal law is to protect people who are too young to form a reliable opinion or make a considered decision. We have already noted that the judge expressly referred in his sentencing remarks to the fact that M regarded his sexual experiences with the applicant as “brilliant”. But that is not point. As the judge correctly noted, what mattered was that M was not “either mentally or legally capable of participating in a sexual relationship” with the applicant. Thus, the fact that he now retains a more positive view of one of his abusers as opposed to the other is irrelevant. 37. Finally on this point, some of Ms Bennett-Jenkins’ submissions really went to the suggestion that Barton-Wood was treated leniently by the judge. We are of course unable to form a view about that and it is in any event irrelevant to the exercise before us. What we have to do is consider whether the sentence given to the applicant was in all the circumstances manifestly excessive. (xii) Failure to Take Account of the Limited Nature and Number of Occurrences of Sexual Contact 38. We consider that this criticism is misplaced. The important thing from the sentencing judge’s perspective was that these were not isolated events. As the judge said, the three separate counts of oral sex demonstrated “a persistence” in the applicant’s offending. He was right to say that that was an aggravating feature. It also gave rise to a finding of premeditation. (xiii) Failure to Reflect the Fact that the Applicant Had Voluntarily Desisted in Her Conduct 39. Again, the framing of this submission in this way demonstrates the applicant’s ability to ignore inconvenient elements of the evidence at trial. That evidence was clear that the applicant and Barton-Wood ended their relationship in 1985. Since Barton-Wood was the only way in which the applicant came into contact with M, her assaults of M were naturally going to desist. There is again nothing in this point. (xviii) Failure to Consider Suspended Sentence for a Woman of Exemplary Character 40. It cannot be said that the judge failed to take into account the applicant’s exemplary character: he heard evidence about it and his sentencing remarks are peppered with references to it. As to the possibility of a suspended sentence, that was always an unrealistic submission in the circumstances of this case. As we shall see when we turn in a moment to the sentencing exercise itself, the sentencing guidelines, applied flexibly and with common sense to offences under the 1956 Act, indicated a custodial term far in excess of two years for just one assault, let alone the six separate assaults for which the applicant was convicted. The judge concluded that this was a case in which only an immediate and lengthy term of imprisonment was appropriate. We respectfully agree with that conclusion. 41. That leaves the sentencing exercise itself. There are a number of grounds raised which seek to criticise the mechanics of this. Some of them are internally contradictory. We identify the grounds that have been raised and we then go on to consider the sentencing exercise by reference to the guidelines. 42. The six separate grounds are: (iii) It was contrary to the interests of justice to apply the sentencing guidelines; (vii) The judge failed to take account of the ability of the court to move outside the guidelines; (xiv) There was an over-rigid application of categories of harm; (xv) The judge was wrong to find an abuse of trust; (xvi) The judge erred in finding a significant disparity of age; (xvii) The judge erred in taking a starting point of 5 years. 43. The first issue is whether the guidelines should have been applied at all. That is the norm in cases like this because the principal purpose of the guidelines is to promote consistency and uniformity in sentencing. No cogent reason has been offered as to why the guidelines should not have been considered when the applicant was sentenced. This is not, as was suggested by Ms Bennett-Jenkins, a unique case. The only potentially unusual feature that was proffered was the fact that, in this case, the defendant was a female. It is certainly right that it is more common in these sorts of cases for the defendant to be a man, but that is not to say that female defendants are facing allegations of sexual offending are unknown to the courts. In any event, the guidelines are applicable in principle whatever the sex of the offender. They are gender-blind guidelines to assist judges in all cases of sexual offending. 44. The next question is how the guidelines should have been applied. The decision of this court in R v Forbes [2016] 2 Crim. App R(S) 44, sets out the correct approach to sentencing for historic sexual offences and the interplay between the law as it then existed and the current sentencing guidelines. In essence, the sentencing judge has to adopt a flexible and common-sense view of the current guidelines when applied to the offending for which the defendant has been convicted. This required a number of steps. 45. Step 1 : this required the judge to identify the equivalent offence in the modern legislation. The judge said that the modern equivalent to s.15 of the 1956 Act in the present case was s.9 of the 2003 Act (sexual activity with a child, that is to say, someone under the age of 16). In our view he was right to do so. Section 9 carries with it a maximum of 14 years imprisonment (rather than 10 years for s.15 of the 1956 Act), a difference which the judge again rightly noted and bore in mind for his sentencing exercise. 46. Step 2 : The judge needed to identify the principal count for sentencing purposes. He chose Count 9. Again we consider that was the logical choice as the focus of the sentencing exercise: it was the first count of assault against the applicant, and it involved the first occurrence of sexual intercourse at her London flat. 47. Step 3 : The judge had to identify the correct category of harm. As set out in the guidelines, category one is the only appropriate category for anything involving penetrative sex or oral sex, which covered Count 9 (and Counts, 10, 11, 12 and 13). It is a dangerous fallacy to say, as Ms Bennett-Jenkins did, that this was an unfair characterisation of harm because M enjoyed it; that misses the point which we have already explained, that the law is there to protect people like M because they are underage. A court would be surprised to be told by a defence advocate that the top category of harm was not appropriate because the underage female victim had enjoyed the experience, and there is no reason to react differently merely because, in this case, the victim was male. 48. Step 4 : Culpability. The presence of one of the statutory factors indicating culpability justifies categorisation in category 1A. Here the judge correctly found a number of culpability factors. The most obvious was the significant disparity in age. M was 14. The applicant was 25 or 26. Although Ms Bennett-Jenkins endeavoured to argue that the disparity was not significant, we consider that to be a hopeless submission. Another way of putting the disparity in the present case is that the applicant was almost twice the age of M. That is on any view significant, a conclusion confirmed by the knowledge that M was just 14. 49. In addition, the judge found other culpability factors, including elements of grooming and a significant degree of planning. In our view, the judge heard the evidence and was entitled to make those findings. 50. Ms Bennett-Jenkins argued that the judge was wrong to find one last culpability factor, namely an abuse of trust. However, the judge was careful to differentiate between the clear abuse of trust by Barton-Wood, as M’s teacher, and the more nuanced position of the applicant. He said expressly that she did not hold the same position of trust as Barton-Wood. He did say that he was satisfied that the applicant was “acting in loco parentis , as M was away from home and in your charge and care as a responsible adult”. That finding may have been sufficient to justify the judge’s subsequent reference to the abuse of trust. But even if, in the light of Forbes , it was not, it makes no difference to the sentence. There were a large number of culpability factors here, so the presence or absence this one factor could have made no difference to the sentencing exercise overall. 51. Step 5 : Overall categorisation. In terms of harm and culpability, Count 9 was plainly in category 1A as described in the sentencing guidelines. The recommended starting point for a single offence is five years imprisonment. That is the figure the judge took as his starting point. 52. It is right just to pause at this stage and note that the five years properly reflected Count 9 alone. On that basis, it might be said that a term of five and a half years for a total of 6 separate assaults was relatively generous to the applicant; by reference to the guidelines, even taking into account totality and the difference in the maximum sentence, it would have been possible to reach a starting point of six or even six and a half years. We do not consider that the applicant can have any complaints about the judge’s starting point of 5 years. 53. There were then other aggravating features noted by the judge, including the fact that M ejaculated, and the period of offending. That latter consideration obviously took into account the other offences. The judge was clear that these factors would increase the starting point, before considering mitigation, to one of five and a half years. 54. Step 6 : Mitigation: This was principally advanced by reference to the applicant’s good character. Taking that into account, the judge reduced the overall sentence to one of four years and nine months imprisonment. No complaint is or could be raised about that reduction. 55. In our view, this was an exemplary sentencing exercise in which the judge adopted the flexible and common-sense approach outlined in Forbes . He did not slavishly follow the various categories and factors, but demonstrated, by reference to the sentencing guidelines, how and why a sentence of 4 years and 9 months was appropriate. Not only was the sentence not manifestly excessive, and not only was it not wrong in law, but it was the product of real thought and appropriate compassion. We commend it. We refuse the renewed application for permission to appeal against sentence. 56. We are conscious that, because of the importance to the applicant of the points raised, and because of their sheer number, this has been a relatively lengthy judgment. We should therefore express our thanks to Ms Bennett-Jenkins for her help. In our view, it would have been better if the single judge had dealt in detail with the points that she raised in her written advice and grounds, in order that the applicant could see that they had been fully considered. For that reason, although a number of the arguments raised were, in our view, hopeless, they deserved a fuller answer than the one they first received. Accordingly, we do not make a loss of time order in this case. We would also ask that a transcript of this judgment, once it has been prepared and approved, be provided to the applicant so that she can see the answer to the points that have been raised.

```yaml citation: '[2019] EWCA Crim 685' date: '2019-02-14' judges: - LORD JUSTICE COULSON - MRS JUSTICE CUTTS DBE - HIS HONOUR JUDGE PAUL THOMAS 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: [2018] EWCA Crim 2639 No: 2018 03089 A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 16 November 2018 B e f o r e : LORD JUSTICE BEAN MR JUSTICE NICOL MR JUSTICE PEPPERALL - - - - - - - - - - - - - - - - - - - - - R E G I N A v CORY AGUILAR - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - 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. 1. MR JUSTICE PEPPERALL: On 24 April 2018 in the Crown Court at Sheffield the appellant pleaded guilty to an offence of converting criminal property, contrary to section 327 of the Proceeds of Crime Act 2002. He was sentenced by His Honour Judge Kelson QC to two-and-a-half years' imprisonment and now appeals against sentence with leave of the single judge. FACTS 2. The appellant's offending involved frauds against a company called Sheaf Power Ltd. The company trades internationally in high value generators. Sheaf Power received an email from a genuine and well-known customer to its then chairman, Bob Linley, asking if he could borrow £4,000 from the company by a transfer to his bank account which he would later repay. That email must have been intercepted by fraudsters because they then sent emails to the company's financial controller, purporting to come from the chairman, asking for various amounts of money to be transferred to specified bank accounts. The financial controller did not notice the difference in the email addresses and believing them to be genuine instructions from the company's chairman, she actioned nine transfers to five individuals. The total amount transferred was £100,000. One transfer was in the sum of £40,000, and the others were all between £5,000 and £15,000. 3. In the case of the appellant, a transfer of £15,000 was made on 23 February 2015 to an account in the name "Williams Roberts". While not in his name, the appellant accepted that this account was registered to him. 4. On 23 and 24 February 2015, various sums were withdrawn from the appellant's account: £2,600 was withdrawn in cash and almost £11,000 was transferred out to various third parties, including £1,500 to his father and brother. 5. By the end of 24 February, there was just £1,462 left in the account. On discovery of the fraud, the account was frozen and the balance was subsequently recovered by the complainant company. According to the managing director of Sheaf Power Ltd, the money recovered overall was just under £17,000, so that the total loss to the company was £83,000. 6. The appellant was arrested in April 2016 and interviewed. He made no comment. 7. The appellant initially pleaded not guilty to this indictment and the case was adjourned for trial. The appellant changed his plea to guilty shortly before trial and, while his initial basis of plea was not acceptable, ultimately he pleaded guilty on the following basis: First, that on 23 February 2015, £15,000 was transferred into his bank account. Secondly, having seen the money arrive into his account, he made some transfers knowing that the money was not his. Thirdly, he accepted that he knew that he should not have transferred the money and that he had acted dishonestly in doing so. Fourthly, he played no role in stealing or defrauding the complainant and could not offer any explanation as to how the money came to arrive in his account; he was not expecting the money and there was no prior arrangement to receive it. Fifthly, his criminal culpability began only from the point at which he saw that the money had arrived in his account. 8. A victim personal statement by Bob Linley, the managing director of Sheaf Powell Ltd, was read. He told the court that Sheaf Power was a small company, with only fifteen employees, and that the fraud had had a profound effect on the company and its employees. One employee had to be made redundant as the company struggled in the immediate aftermath of this fraud. In addition, the financial controller felt responsible for failing to spot the fraud and resigned her position. Plainly she felt a great weight of responsibility to her colleagues; but it is clear that she was an entirely innocent victim of this fraud. In addition, Mr Linley told the court that, tragically, the then managing director had a heart attack and died about three months after the fraud at the age of 46. He was under stress in any event but, Mr Linley observed, the fraud added to his stress. SENTENCE 9. In passing sentence, Judge Kelson referred to Mr Linley's statement and observed that people's lives had been affected by this fraud. The judge referred to the guidelines issued by the Sentencing Council for this offence and identified that this was a culpability B case, namely a case of medium culpability where the appellant had played a significant but neither a leading nor a lesser role in the fraud. As to harm , he put the offence in either Category 5 or 6. Category 5 is for offences involving sums of £10,000 to £100,000, whereas Category 6 cases are for sums of less than £10,000. 10. The judge recorded that the appellant was 19 at the time of the offence and 22 at the date of sentence. He observed that he had no previous convictions and that the offending was out of character. He also took into account that the appellant had health issues. 11. As to credit for the late plea, the judge said that the appellant was entitled to credit of 15%, which, he observed, was approximately one-sixth. 12. In passing sentence, the judge said: "The damage that has been caused to this company was relatively easily occasioned by the sophisticated criminals at the head of this whole operation; but just as burglars need handlers so fraudsters need bank accounts, and those who lend their services to fraudsters and the use of their bank accounts to fraudsters are facilitating grave crimes by taking their part. This is a cyber crime with a very real human effect." 13. The judge sentenced the appellant to two-and-a-half years' imprisonment. APPEAL 14. In his helpful written submissions Mr Foster, counsel for the appellant, argues that, given that the judge indicated that he was giving credit of around one-sixth, he must have had a sentence in mind, before credit for the late guilty plea, of three years. By reference to the guidelines, he concedes this was a Category 5 case, but points to the fact that the sum involved in the appellant's case fell significantly nearer the bottom of that category range than the top. As to culpability, Mr Foster suggests that the case lay somewhere between B and C. 15. Mr Foster submits that the judge took too high a starting point. He does not challenge the credit for the appellant's plea, but argues that the judge gave insufficient credit for the other mitigating features in this case. The sentence should, he submitted, have been significantly less than two years' imprisonment, meaning that the judge could, and in Mr Foster's submission should, have passed a suspended sentence. DECISION 16. While primarily structured around value, the Sentencing Guidelines call for a broader evaluation of harm. Indeed, the guidelines expressly provide that, after initial consideration of value, the sentencing judge should take into account "the level of harm associated with the underlying offence to determine whether it warrants upward adjustment of the starting point within the range or, in appropriate cases, outside the range". 17. In our judgment, Judge Kelson was right in assessing harm to take into account the impact of this and associated offending upon the complainant company. This was, as the judge rightly observed, fraud with real consequences. We consider that the judge was right to have particular regard to the fact that two people had lost their employment in the circumstances already described. 18. As counsel concedes in his written submissions, the judge was right to consider Category 5. Here the monetary value involved in the appellant's offending was, as counsel submits, towards the bottom of the range for Category 5 offences. Nevertheless, the judge was right to take a broader view of harm and to move up within the sentencing range. 19. We do not accept counsel's submissions that this case fell into the lesser culpability bracket, although we do accept that it was not the most serious case of medium culpability. 20. The guideline for a Category 5B offence provides a starting point of eighteen months' imprisonment on the basis of an offence involving £50,000, with a sentencing range of 26 weeks to three years. Plainly a case involving a little over £10,000 with no additional evidence of harm might attract a starting point towards the bottom of the sentencing range. Here, however, the evidence of harm justified the judge in taking a significantly higher starting point. Bearing in mind value, the evidence of actual harm and the appellant's culpability, we consider that the correct starting point was around eighteen months' imprisonment. 21. We turn then to consider the aggravating and mitigating features of the case. The guidelines rightly indicate that damage to a third party, for example through loss of employment, is an aggravating feature. Having, however, taken this into account in assessing harm, we must not double count this aspect of the offence. 22. As to mitigation, we take into account that the appellant was 19 at the time of the offence; that he was a working man of good character; that he had health difficulties; and the fact that, through no fault of his own, he had to wait for two years before this matter came to court. We say two years rather than three because he cannot complain about the further delay caused by his initial not guilty plea. Finally, we remind ourselves that the sentencing judge was required not to pass a custodial sentence unless he was of the opinion that the offence was so serious that neither a fine alone nor a community sentence could be justified, and that, in fixing the length of any custodial sentence, the judge was required to pass the shortest sentence that was commensurate with the seriousness of the offence. 23. We consider that the judge was right to find that a custodial sentence was justified, but in our view the proper sentence after trial was around sixteen months' imprisonment. As counsel concedes, the judge was right to allow credit of around 15%. Indeed, we consider that, in circumstances where there was a late change of plea shortly before trial and, even then, the initial basis of plea was unacceptable, there could be no complaint as to the credit given by the judge. In our judgment, after credit for the late plea, the proper sentence was thirteen months' imprisonment. 24. Plainly a sentence of this length would have allowed the judge to consider suspension. We do not, however, accept that this was an appropriate case for a suspended sentence. In our judgment the appropriate punishment for this offending was an immediate custodial sentence. 25. For these reasons, while we agree with the learned judge that the offending was seriously aggravated by the very real harm that it caused, we consider that the appellant should have been sentenced differently. Accordingly, we allow this appeal. We quash the sentence of two-and-a-half years' imprisonment and, in its place, substitute a sentence of thirteen months' imprisonment. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.

```yaml citation: '[2018] EWCA Crim 2639' date: '2018-11-16' judges: - LORD JUSTICE BEAN - MR JUSTICE NICOL - MR JUSTICE PEPPERALL ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical 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 201 Case No: 2020/02425/B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM NORWICH CROWN COURT HHJ MOORE T.20190082 Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/02/2021 Before : LADY JUSTICE MACUR MR JUSTICE LAVENDER and SIR ALAN WILKIE - - - - - - - - - - - - - - - - - - - - - Between : REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION UNDER S.9 OF THE CRIMINAL APPEAL ACT AHMED MOHAMMED Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Dominic Thomas (instructed by Brett Wilson Solicitors) for the Appellant Mr Dominic Connolly for the Crown Hearing date: 12 February 2021 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lady Justice Macur: 1. This appellant’s two convictions of indecent assault on 19 February 2004 are referred by the Criminal Cases Review Commission (CCRC) pursuant to section 9 of the Criminal Appeal Act 1995 on the basis that ‘fresh’ DNA evidence undermines the reliability of the identification evidence upon which the prosecution case rested entirely. The appellant is represented by Mr Thomas. The prosecution, who resist the appeal, are represented by Mr Connolly. 2. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences and to the other alleged offences to which we will refer. No matter relating to either victim of the assaults shall, during that person’s lifetime, be included in any publication if it is likely to lead members of the public to identify them as a victim of the offences or alleged offences. This prohibition will continue unless waived or lifted in accordance with section 3 of the Act. 3. The appellant is a Somalian who, then aged nearly 18, entered the United Kingdom on 2 July 2001 to join his parents, who were refugees and then living in the Tooting area of London. He had significant mental health problems and was subsequently to be diagnosed with early onset schizophrenia. 4. The appellant first came to the attention of the police in the early hours of 24 August 2001, when his family reported him missing from the family home. On 5 September 2001 he was arrested in respect of an indecent assault on JJ, who had been attacked shortly before midnight on 23 August 2001. The appellant was suspected of being responsible for that assault because it was thought that his appearance was similar to the description that JJ had given of her assailant, although details of that description are not now available. He was released without interview and bailed to return to the police station a week later . When the appellant answered his bail on 12 September 2001, he was arrested for five further indecent assaults committed in similar circumstances and within a similar location and at similar times of night between 5 July 2001 and 30 August 2001. The complainants were KF, AD, EM, JJ, ZH and MJ. 5. He was interviewed with the aid of a Somalian interpreter. His father was present as an appropriate adult. His solicitor indicated at the outset that the appellant would remain silent. The appellant’s responses were predominantly “no comment”, but he denied ownership or possession of a bicycle or mobile phone and explicitly denied the assault upon KF, details of which complaint were read out to him. His father said the appellant had been in the country since 2 July 2001 and confirmed that he did not own a bicycle or mobile phone and that he did not speak English. 6. The first descriptions of the assailant provided by five of the six victims had obvious similarities. That is: KF: 5’10 ft, 20-25, thin build, dark wavy hair, dark eyes, dark olive skin, foreign accent, no facial hair. AD: 5’10 ft / 6 ft tall, 20-30 medium build, black hair sun bleached at the top, top longer than the sides, afro style, small, neat features, brown eyes, pale tanned skin, short “tash”, foreign accent. EM: 20, medium build, short wavy black 1 ½’ hair, round face, Mediterranean complexion, Spanish / Italian / Olive skinned, clean shaven, broken English, Italian lilt. ZH: 6ft, 25, medium build, short black hair, dark skinned or Arabic. MJ: 5’9” / 5’10”, early to mid-twenties, thickish build, short hair dark, thick wiry hair, pock marked skin olive colour, unshaven [stubble], eastern European country. 7. The first of the indecent assaults of which he was convicted occurred on 5 July 2001 (in relation to KF) and the second on 8 August 2001 (in relation to EM). The convictions were based solely upon identification evidence; that is, the appellant was picked out by the complainants KF and EM on an identification parade held on 31 October 2001, of which procedure there has been no complaint. Of the other complainants, the three who attended at the identification parade made no positive identifications and the appellant was not prosecuted in respect of their allegations. 8. On 5 November 2001, the appellant was interviewed again. Apparently, he had been assessed by a police surgeon to be fit to be interviewed, although, as later and more focused psychiatric examinations were to reveal, and as some of the incongruent answers he did give in the interview demonstrate, this is at least doubtful. As it was, a prepared statement was read on his behalf in these terms: “I suffer from a mental illness and do not feel able to cope with a police interview. I therefore make this statement as an alternative to answering questions in interview. I deny any involvement in an indecent assault on either 5 July 2001, outside Dewar Close, Tooting, or on 8 August 2001, in Church Lane, Mitcham, or on any other occasion. I agree to provide a sample of DNA and deny ever owning a mobile phone or a bicycle. I entered the UK on 2 July 2001 and could not speak any English on my arrival. On both 5 July and 8 August 2001, I was at home with my family. I would not normally leave the house without a family member. I was very confused during the first interview and would therefore like to submit this written statement in order to deny the offences that I am suspected of committing.” 9. On 16 October 2002, the appellant was found unfit to plead. In a subsequent hearing in which the appellant played no part, the jury heard from his father that the appellant spoke Somali and some Arabic, had arrived in the UK on 2 July 2001 and had not gone out of the family home until 9 July 2001. There was a family get together on 8 August, from 6pm to 6am, at which the appellant was present the whole time. On 23 August, the appellant had gone out to buy cigarettes and had got lost; he had returned home at 5am. It appears that two statements were also read to the jury evidencing, amongst other things, the appellant’s lack of English and inability to communicate. 10. The appellant was nevertheless found to have carried out the two indecent assaults. He was sentenced to a Hospital Order with Restrictions under section 41 of the Mental Health Act 1983. 11. An application for leave to appeal against the finding-of-fact verdict, on the basis that the identification evidence had not been strong enough for the judge to leave the case to the jury, was refused by the single judge and it was not renewed. 12. The appellant’s health recovered sufficiently for him to stand trial in June 2004. He was convicted. Again, he was sentenced to a Hospital Order with Restrictions under section 41 of the Mental Health Act 1983 and required to comply with the notification requirements of Part 1 of the Sex Offenders Act 1997 for an indefinite period. 13. Regrettably, there are no transcripts available from the June 2004 trial. However, we agree that reliance can reasonably be placed upon the transcripts that are available from the October 2002 finding-of-fact hearing and the summing up that was delivered on that occasion, taken together with the contents of the manuscript court log that is available from 2004. 14. The transcripts of the earlier finding-of-fact hearing indicate that the defence advanced was mistaken identification. There is no reason to think that the complainants’ evidence at the full trial would have differed in any material respect from their evidence at the finding-of-fact hearing or from their statements. Neither is it likely that defence counsel at the 2004 trial would have adopted a different strategy from before. It is probable, although not certain, that the appellant himself gave evidence at trial. 15. It is not known for certain whether the jury at the 2004 trial were told about the four additional allegations and, if so, that only two of the five victims who attended the identification parade identified the appellant as their assailant. The jury at the 2002 finding-of-fact hearing was not told about them and they were not mentioned in the application for permission and draft grounds of appeal. We consider it unlikely that the jury were told of these matters. Both Mr Thomas and Mr Connolly refer to this possible defence strategy in terms of it being a ‘double edged sword’. We agree that on the state of the evidence in 2002 and 2004 it may reasonably have been thought to be a high-risk strategy to engage upon. 16. The appellant did not apply for permission to appeal his conviction and applied to the CCRC in June 2017 in respect only of the finding-of-fact verdict. It was not until August 2019 that it became clear to the CCRC that, after the finding-of-fact hearing, the appellant had been convicted at a full trial, but had not sought permission to appeal. However, the CCRC is permitted to refer ‘no appeal’ cases to the Court of Appeal in exceptional circumstances pursuant to section 13 of the Criminal Appeal Act 1995 and submits that it is justified in doing so in this case. That is, the CCRC has determined that it is highly unlikely that it would have been possible for the appellant or his representatives to readily obtain all the information on which the reference is founded, namely the information obtained from the Police National Computer and Database relating to another man, whose DNA profile is a good match for that found on a potentially incriminating article found at the scene. 17. We agree with the CCRC that, for the reasons it gives, this is an exceptional case and that it is in the interests of justice for this Court to entertain the appeal despite the fact that the appellant has not previously applied for permission to appeal conviction. Relevant details of the indecent assaults 18. At about 12.15am on 5 July 2001 KF was walking home. A male rode past her on a mountain bike and said, “Hello darling”. After attempts to evade him she had no choice but to walk past him. She “glanced” at him and said he appeared very calm. The male grabbed her around the neck with his right arm from behind and had his left arm around her waist. She feared she was going to be raped. She said the male was holding something against her throat. He started to touch her breast and bottom. He tried to kiss her and continued to grope her. She lost her shoes. The male pulled her away from a fence that she had hold of, dragged her to some nearby bushes and forced her to the ground, face first, and continued to touch her body, breast, bottom, and leg area. She shouted for help, but the male continued to hold her tightly and tried to pin her arms to the ground. She screamed and the male then pushed her back to the ground and ran off. 19. In the immediate aftermath of the attack KF’s brother, TF, found a mobile phone in bushes near the place where the attack had taken place. He had gone looking for her shoes and a few feet off the path into the bushes saw a mobile phone lying face down in the dirt. He pointed it out to the police when they arrived. It was found to be charged. The text it showed transpired to be Turkish. 20. In her witness statement KF referred to her attacker having a mobile phone and said, “I then realised that it must have been the male’s mobile phone held against my neck, because the object felt flat and hard.” It is apparent that the police believed that the mobile phone found by TF might be associated with KF’s attacker, as they questioned the appellant about the ownership of a mobile phone and put KF’s complaint to him in interview that she believed that a mobile phone was held against her neck. 21. When cross-examined at the finding-of-fact hearing in 2002, KF said, “I don’t know if it was the mobile phone. All I know is he had something flat and hard pressed against my throat.” When reminded of her statement she said, “I assumed it was the phone when they showed it to me, and it was found at the scene. I assume that’s what he held against my throat.” When told by defence counsel that the phone contained Turkish text, KF accepted, in terms of, “I guess”, that this was consistent with the appearance of the man who attacked her. 22. EM was walking home just before midnight on Wednesday 8 August 2001 when she became aware of a person on a bike directly behind her. The male rode alongside her and started saying, “Hello, how are you?” She ignored him, but the male continued to follow her. She said, “I’m fine thank you” and he then started saying, “Lovely lady”. She felt a hand brush her bottom and began to walk faster, but the male kept riding along side. He then touched her bottom again and then swerved his bike across in front of her and trapped her against a hedge. The male grabbed her bottom again. She managed to get away, but the male followed her and grabbed her bottom again. She eventually managed to get away. She described the bike as a bright yellow adult mountain bike. CCRC Investigation 23. The CCRC obtained the relevant file and the only evidential material retained by the Forensic Archive, a sample swabbed from the mobile phone that was found at the scene of the assault on KF on 5 July 2001. The sample had been DNA-tested as part of the police’s initial investigation, which showed only that the DNA sample did not come from the appellant, but it did not show whose DNA it was, or could have been. The CCRC arranged for further DNA testing of the sample. A profile was obtained which, though partial, was sufficient for submission to the National DNA Database (NDNAD). 34 potentially matching DNA profiles were identified. All but one of these were SGM profiles (focussing on six areas of DNA), but the other one had been generated using the more discriminating SGM+ system (focussing on eleven areas of DNA). In the opinion of the reporting scientist, that profile “appeared to be a good match” for the partial profile obtained from the mobile phone swab and related to a male, S. 24. The CCRC investigation into S’s background reveals him to be Turkish. He entered the UK in 2000. Significantly, as we indicate below, he was cautioned by the police in January 2003 for committing an act outraging public decency by behaving in an indecent manner, a consensual sexual offence with a sex worker, committed on Tooting Common at 10:30pm at night. Police records show that S had a mountain bike with him at the time of his arrest. There was also information that showed he had come to the attention of the police in respect of other matters, although he was never questioned regarding these two offences or the other four offences for which the appellant was initially arrested. Since our determination of this appeal has not relied upon those other matters, we consider it is unnecessary and inappropriate to refer to details of them in a public judgment. 25. However, by virtue of the caution and a non-related conviction shortly thereafter there is a verbal description and photograph of S which is sufficiently contemporaneous with the 2001 offences to be of interest and from which a comparison between the appellant and S can be made. 26. S is described as of white southern European “ethnic appearance”, he is two or three years older than the appellant, of the same height, same colour eyes and same colour hair, with an “other foreign” accent. A black and white photograph taken in custody confirms most of the physical description and, most particularly, we consider, the fact of his appearing to be of Turkish ethnic origin. 27. The appellant’s photograph was circulated in 2008 when he was missing from hospital. The photograph confirms his ethnic appearance as “black”. We do not consider that he could reasonably be described as having either “dark olive skin” or a “Mediterranean appearance” or as being “Spanish/Italian/olive skinned” or “olive skinned”. 28. In the draft grounds of appeal against the verdict at the finding-of-fact hearing, counsel listed several features which suggested mistaken identification, including the description by both women of a Mediterranean male; the fact that no bicycle was found at the appellant’s home address; and the fact that, while there were only a few words uttered by the attacker in both cases, there was a sufficient exchange, in particular in KF’s case, to suggest that the attacker could not have been the appellant. The police had obviously taken the view that the six offences were sufficiently similar in location, date, manner of commission and description of offender to give rise to the suspicion that one man was responsible for all of them. This was unsurprising and we note that the descriptions of complexion and likely ethnic origin of their assailant given by the three other complainants have obvious parallels to the descriptions provided by KF and EM. The significance of the mobile phone 29. We do know that Counsel deployed the fact of the mobile phone in the finding-of-fact hearing. As indicated above, KF’s brother, TF, had found it in bushes near to where the attack had taken place. His witness statement was read at the finding-of-fact hearing, but the 2004 Crown Court case log records that he gave evidence at trial. What cross examination took place in 2004 is unknown, but it would have been impossible for Counsel for the appellant to put a positive case as to ownership. At the finding-of-fact hearing, KF “assumed” it was a mobile phone that was held to her throat. Taken at its highest, it was not connected to the appellant by DNA evidence or by the language it displayed. 30. In the summing up in 2002 the phone was given little prominence. The judge reminded the jury that KF “was shown a mobile phone, she said it was not hers and we know that the enquiries that [the OIC] made led him to kebab shops, Turkish is the language on it.” Subsequently, the judge reminded the jury that the appellant had denied having a mobile phone and denied losing one recently. There is no reference in the summing up to the DNA evidence available at the time, which showed that the DNA found on the phone was not that of the appellant. Significantly, in terms of fresh evidence, it would have been impossible to match S to the phone in 2001, for his DNA would not appear on the NDNAD data base until 2003. Submissions 31. The mobile phone was clearly of considerable interest to the police investigation, and understandably so. Mr Thomas summarises its significance to the assault against KF in general terms as: (1) location – at the scene of the offence: (2) situation – an item not usually to be deliberately discarded and apparently discarded at or near the time of the offence by virtue of: (3) condition – in working order and charged. He argues that, since the available DNA evidence at the time did not associate the appellant to the phone, and supposing this to have been utilised by the defence, it would suggest that the jury did not regard the mobile phone as associated with the assault. 32. Mr Thomas suggests that the situation now is entirely different. The ‘fresh’ evidence relating to DNA comparisons and the background detail of the ‘good match’, S, have transformed the landscape. S’s ethnic origin matches the language used on the mobile telephone and corroborates the DNA match. His physical characteristics match the initial descriptions given by all five of the complainants far better than do those of the appellant. He is known to have had use of a mountain bike at the time of the incident on Tooting Common that led to his police caution in 2003. His use of English, albeit with a ‘foreign’ accent was likely to be better than that of the appellant, and the language used prior to the assaults was idiomatic. 33. There was an obvious similarity in respect of all six complaints. The police suspected them to have been committed by the same individual. They were ‘clustered’ by location, timing and description of assailant. What had been an understandable forensic decision by defence counsel not to highlight the fact of four other complaints and the apparent association between them would now almost certainly be different considering the significant ammunition that the ‘fresh’ evidence provides. 34. Mr Thomas argues that these factors alone undermine the safety of the convictions without the need to consider whether the evidence relating to S’s character, including, but not limited to, the caution in 2003, would be admissible at trial. Noting that the prosecution in the Respondent’s Notice place reliance upon R v Braithwaite [2010] EWCA 1082 in support of the principle that “mere allegations” are unlikely to bear “substantial probative value”, he relies upon R v Erwood [2016] EWCA Crim 896 and R v Dizaei [2013] EWCA Crim 88 for the proposition that this would be a matter for the “careful, fact sensitive assessment” of the trial judge as to whether the information relating to S which did not result in police action would nevertheless be admissible. In this case the overall circumstances might result in a favourable outcome to an application to admit such evidence. 35. Mr Connolly does not seek to challenge the admissibility of the fresh evidence but argues that it provides no basis for appeal. He makes realistic concessions that the evidence now available links S to the mobile phone found at the scene and that S’s description resembles that of the initial descriptions of the assailant. However, he submits that generic descriptions are by their very nature generalised and the more significant identification evidence in this case is that arising from the positive identifications made by KF and EM on the identification parades. S and the appellant are “totally different in appearance” but two complainants had independently identified the appellant on the parade. The jury had been appropriately directed in accordance with Turnbull in 2002 and, in the absence of any appeal in 2004, may be taken to have received a similar warning in 2004. Nevertheless, both juries had convicted the appellant. 36. Mr Connolly submits that the ‘cluster’ of six offences was known to defence counsel in 2002/2004. There were wider considerations in play. Two of the offences took place on “either side of midnight” 23/24 August during a time when it was clear that the appellant was at large in the vicinity and alone. 37. Mr Connolly argues that S’s caution in 2003 would not be admissible as evidence of his propensity to commit sexual offences in 2001, or at all. The nature of the offence he committed in 2003 was completely dissimilar to the facts of the assaults before the jury. The other information that the police held concerned “mere allegations” and carried no substantial probative value, which was necessary to render them admissible pursuant to Criminal Justice Act 2003, section 100(1)(b) (non-defendant’s bad character). 38. In short, Mr Connolly submits that the mobile phone does not take the matter any further forward. The defence had made use of the fact that the mobile phone was not connected to the appellant in 2002/2004 to no avail. There was no conclusive factor with which to associate it to the offence. Analysis 39. We have been struck by the great disparity between all the initial descriptions and details of the assailant in 2001 and the actual appearance of the appellant. Nevertheless, we acknowledge Mr Connolly’s argument that a verbal articulation of an offender’s appearance may well fall short of a subsequent certain recognition on an identification parade and two complainants did independently identify the appellant and convinced two juries of the reliability of their identification. Against this, and what we find to be certainly established, is the fact of the greater similarity of S’s physical appearance to all the initial descriptions provided in 2001, which would not have been known to either the complainants or the juries. Undermining Mr Connolly’s ‘wider considerations’ point, this includes one of the complainants assaulted around midnight on 23/24 August, during which time the appellant was ‘lost’, and who attended at the identification parade and did not identify him as her assailant. 40. This factor certainly would not be sufficient to upset the safety of the conviction and we understand the reason why the single judge considering the application for permission to appeal in 2002 would reject it as a basis for doing so in the context of what was to all intents and purposes a textbook Turnbull direction. Nor do we regard it as conclusive proof that S was responsible for the assaults. However, we find it implausible to regard the question of identification as distinct from the mobile phone. 41. We agree with Mr Thomas’s submission that its location, situation and condition rendered the mobile phone significant in the investigation, which is obviously how the police regarded it contemporaneously to the assault upon KF. The physical description and other known details of its likely recent handler/user make it the more so. In 2002/2004 it is understandable why the jury could dismiss the presence and potential import of the mobile phone that had been found; the gender, age and ethnic origin of its owner were unknown. However, the DNA evidence matching it to S now provides that information and makes it a crucial part of the identification process. If the present information had been accessed by the police in 2003, at a time when S’s profile became available for comparison, we would be astonished if he had not been interviewed and relevant further inquiries made. 42. The information regarding the character of S is further grist to the mill of this appeal. We make clear that we do not consider that it is, of itself, determinative of S’s likely involvement in the assaults or propensity to commit assaults such as those complained of by KF and EM. What is more, whilst we agree with Mr Thomas that Braithwaite does not establish that non-proven allegations will inevitably be regarded as without the necessary substantial probative value, this, and the issue of ‘satellite litigation’, would need to be argued at trial in relation to certain aspects of the information that has come to light and, as Mr Thomas frankly concedes, would not necessarily be determined in the appellant’s favour. 43. However, we have come to the certain conclusion that the details of the police caution which S received in 2003 would be admissible. As Mr Thomas adopted the point, and Mr Connolly reasonably conceded it when Lavender J posited the issue, this evidence goes not to propensity, but to rebuttal of a coincidence. That is, the coincidence that another man matching the description of the assailant, who in 2003 was known to have ridden a bicycle late at night in the same area of the 2001 assaults and engaged in unlawful (in that it had the tendency to offend public morality), albeit consensual, sexual activity out of doors, just happened to drop his mobile phone, at the scene of, and proximate to the time of, the assault upon KF, who accepted that the mobile phone might have been used in the assault. This ‘bad character’ evidence does have substantial probative value. Moreover, S must have admitted the offence to receive a caution. The gateway for admissibility is pursuant to section 100 (1)(1)(b) of the Criminal Justice Act 2003. 44. For the purposes of this appeal, we consider it necessary in the interests of justice to admit the evidence relating to the further DNA analysis of the mobile phone and its match to S pursuant to Criminal Appeal Act 1968, section 23(1). The evidence was not available to be produced before the intervention of the CCRC and affords a ground for allowing the appeal. It would have been admissible in the proceedings. It does completely transform the landscape. The evidence that was available is given an entirely different and ‘fresh’ perspective. 45. We are satisfied that the uncertainty created by the fresh evidence related to the mobile phone and its probable user significantly weakens the reliability of KF’s identification of the appellant and taints the reliability of EM’s identification. That is, the similarities in the nature, timing and location of the assaults are overwhelming, and were relied on as such by the prosecution. The likelihood of different assailants being responsible for the two attacks is remote. 46. This important evidence was not in front of the jury. Consequently, we are not satisfied of the safety of either conviction; both will be quashed. 47. We have considered the question of retrial. We are told by Mr Connolly that no further investigation of any of the assaults is likely to occur in the interim but, nevertheless, there is said to be a public interest in trying the appellant for the offences again. We do not agree, when seen in the light of the circumstances we describe above, the age of the offences, and the fact that, although the appellant was released from the restrictions of the Hospital Order made in the criminal proceedings in 2015, there are continuing welfare issues arising from his medical condition. We refuse the application.

```yaml citation: '[2021] EWCA Crim 201' date: '2021-02-23' judges: - HHJ MOORE - LADY JUSTICE MACUR - MR JUSTICE LAVENDER - SIR ALAN WILKIE - 'Lady Justice Macur:' ```

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No: 2007/2268/D2 Neutral Citation Number: [2007] EWCA Crim 3019 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 22 November 2007 B e f o r e : LORD JUSTICE HUGHES MR JUSTICE WYN WILLIAMS HIS HONOUR JUDGE RICHARD BROWN DL (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v BENAISSA AMROUCHI - - - - - - - - - - - - - - - - - - - - - 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 O'Callaghan appeared on behalf of the Appellant Mr R Spencer-Bernard appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE HUGHES: This appellant was tried in his absence for offences of violence to prison officers. He was in prison at the time of his trial. The trial judge proceeded in his absence on the basis of information from the prison via the officer in charge of the cells at court to the effect that the defendant was refusing to come to court. The appellant now contends that the judge proceeded on the basis of inadequately secure information and in any event that he should have acceded to an application which was made on the absent prisoner's behalf to adjourn for 24 hours in order to ensure that it was clearly established that he was refusing to attend. 2. The chronology has taken a little disentangling and we are grateful to counsel on both sides for their help in doing this, but the critical dates appear now at least to be reasonably established. How far they were established in front of the trial judge is perhaps less clear. 3. The alleged offence in prison against the prison officers had been on 22nd June 2005. The case was initially listed for trial at Aylesbury Crown Court on 19th June 2006. The defendant failed to attend on that day, but did attend on the following day, 20th June, when the case was listed once again for mention. The upshot of that hearing on 20th June 2006 was that the case remained in the then current warned list. In fact, however, it was not reached during the then current period and the trial was subsequently given a fixed date on 12th July 2006. The date that it was given was Monday 16th October 2006, which date held fast thereafter. 4. The defendant's solicitors wrote to him to tell him of the date of his trial on 18th July and again on 21st August. They wrote, it is plain, to the address which the defendant had provided them with and the letters were not returned. They had, however, as it would appear, no direct or indirect contact with their client, the defendant, at any time between 12th July when the fixed date was given and the first day of the trial on 16th October. As it now appears, in between the dates of those two letters the defendant was due to appear at a different Crown Court at St. Albans on 10th August. That was for an entirely different matter - there was an alleged breach of a community order which had been made upon him for something quite different in the past. On 10th August he failed to appear. A warrant was issued at St. Albans for his arrest. At the time of the trial nobody knew when he had been arrested. The prison records produced to us today appear to show, and Mr O'Callaghan on the defendant's behalf asserts that they show, that he was in fact arrested on 29th August and it was because he had been arrested on 29th August that he was in custody when the time came round for his trial on 16th October. 5. On 16th October he was not at court. The judge, as one would expect, made enquiries as to why not. His own counsel and solicitor's clerk who were there were not able to help, understandably. The judge made enquiries of the officer in charge of the Crown Court cells. That was in this case, as in many others, not an officer from the prison where the defendant was currently in custody. Even if it had been an officer of the Prison Service it would not necessarily have been from the same prison but in this case, as often happens, the cells officer in the Crown Court was a representative of the escort contractors. The judge had the cells officer come into the witness box and give evidence on oath. She explained that she had telephoned the prison just a few moments before coming into court, she had spoken to a representative of the discipline office at the prison where the defendant was then held and she had been told that the defendant had been asked to come to court, ie to make himself available to the escort contractors. He had said, so the cells officer reported "No" and in response to a further enquiry "No, he could not be bothered". 6. The judge also heard evidence from the solicitor's clerk from the solicitors instructed by the defendant. He gave evidence of the writing of the two letters to which we have already referred. He made it clear that there had in fact been no contact from the defendant at all since the case had been given its fixed date and that nobody knew when or indeed really why the defendant was now in custody, as he plainly was. 7. The judge was asked on behalf of the absent defendant to adjourn the case for 24 hours. The submission was made to him that the evidence that the judge had was all indirect and might not be accurate, but that even if it was the defendant might not know what kind of court hearing he was absenting himself from. The judge ruled that the appellant must have known from the letter of 21st August (that is the second solicitor's letter) that his trial was to take place on the date that it was due to take place, he accepted that the cells officer was accurately stating the fact that the defendant had refused to present himself to the escort and he concluded accordingly that the defendant was deliberately absenting himself. Having come to that conclusion, he proceeded to the next question which was whether the trial should take place immediately and in the absence of the defendant. He correctly identified the principles to be applied from the House of Lords' decision in R v Anthony Jones [2003] 1 AC 1 and he worked through the factors which are there enumerated and which are conveniently set out in Archbold at paragraph 3-197 and following. He concluded that because the defendant was absenting himself (on his finding) deliberately, an adjournment would make no difference because there was no reason to suppose he would change his mind. He concluded that there was some disadvantage to the defendant in not being present at his trial, but in some circumstances arguably, at least possibly, also an advantage and he reached the conclusion that the public interest was that a trial should take place immediately. 8. The single judge, Mitting J, gave leave to argue in this court first the proposition that the judge erred in not seeking the production of the defendant by making an order under the Crime (Sentences) Act 1997 , Schedule 1 paragraph 3. That statutory provision enables a court to ask the Secretary of State to produce a prisoner when the prisoner is needed at court and it gives the Secretary of State power to direct that the person be taken to court. That, however, as has emerged in the discussion before us, is not an arguable basis for challenging the conviction in this case. First, it is not a power in the court to compel attendance. It is a power to request the Secretary of State, and through him the Prison Service, to produce the prisoner. It follows that it is a power which adds nothing if the Prison Service is perfectly willing to produce the prisoner. On the evidence of the escort contractor's records in this case, it is accepted on the appellant's behalf that the Prison Service was perfectly willing to produce him. They had him on the manifest to be taken to Aylesbury on the day of the trial. This power in the Crime (Sentences) Act is designed principally, in our experience, for use when the prison authorities will not otherwise know of the occasion for the prisoner to be at court. A simple example is if the prisoner is required as a witness or a party to civil proceedings. By contrast, in the normal case of a prisoner in custody whose trial is scheduled to take place at any criminal court in the jurisdiction, there are well-established standing arrangements for the prison to be notified of the need for the production of the prisoner and for the prison to make arrangements for transport and production. A request under the Crime (Sentences) Act, Schedule 1, is wholly unnecessary in any ordinary case. It could have added nothing in the present case. We need say no more about that ground of appeal. 9. The principal ground of appeal which has been argued before us is that the judge erred in accepting indirect or hearsay evidence of the prisoner's refusal and in refusing to wait for at least 24 hours to see whether the prisoner changed his mind. The appeal has been conducted purely on the basis of the record of proceedings in the Crown Court. We should record that there is in our papers a witness statement from Mr Amrouchi. We understand it to say that he was never asked to go to court on either the first or any subsequent day of the trial. We have not been asked to rely on it and we would not have been prepared to rely on it without Mr Amrouchi being called and his evidence being tested. In the same way we have in front of us a transcript of a subsequent hearing in the St. Albans Crown Court when the still continuing matter of his alleged breach of a community order finally came before Her Honour Judge Plumstead after the trial in the present case. We are aware that in the course of that hearing, which was by video link, the appellant asserted that he had never been aware that he was required at Aylesbury. For the same reason we are not prepared to act upon that in the absence of Mr Amrouchi's evidence, properly tested. There are, as Mr Spencer-Bernard properly reminds us, good reasons to require such investigation of this appellant's evidence before accepting what he says at face value and we do not do that. 10. To proceed in the absence of a defendant is sometimes necessary. It is accepted in this case that one of the situations in which it is necessary, and perhaps the principal situation in which it is necessary, is where a defendant has deliberately absented himself. If the trial judge is sure (a) that the defendant has deliberately absented himself and (b) that there are no reasonable steps that can be taken to get him to court, then a trial in his absence is permitted by law. It is, however, a serious step to take and we respectfully endorse the proposition at the forefront of R v Anthony Jones that it is a decision to be made with "great caution and close regard to the overall fairness of the proceedings." It is a step which ought normally to be taken only if it is unavoidable. 11. The practical consequences for a defendant who wishes to contest the allegations, whether for good, bad or indifferent reason, are enormous. He cannot give evidence and he cannot even respond to changes or subtleties in the evidence as it comes out. The jury, however carefully directed, is at least at risk of concluding that if he is not attending it must be because he has no confidence in his case. Even if they do not come to that conclusion, it is undoubtedly very much more difficult to weigh up the case which has been put on his behalf if he is not there to make it. This, moreover, was a case in which, good, bad or indifferent, the defence was self-defence. Sometimes it is no doubt true that self-defence can be established through the evidence of independent witnesses but very often it depends almost entirely on the evidence of the defendant and this was certainly such a case. 12. There are a number of features of the judge's approach to the question of the trial in the defendant's absence which, with great respect, we are unable to endorse. Considering the extent of the disadvantage to the appellant in not being able to present his own case, the judge directed himself that there would be, as he put it, the usual disadvantage in relation to those who are tried in their absence. There is no sign that he gave any consideration to the fact that the potential defence was self-defence or to the fact that it would depend entirely upon the defendant's own evidence. Moreover, the judge in assessing the extent of disadvantage to the defendant said this: "... he is not at risk of either going into the witness box and being cross-examined, and making, dare I suggest, a fool of himself, or not going into the witness box and hearing the judge and the Crown comment on his absence and invite the jury to draw an adverse inference from the fact that he fails to go into the witness box. So, on one view there is in fact an advantage to a defendant in not attending his trial." Those are no doubt two of the possible consequences of a defendant entering the witness box, but there is not very much sign of the judge adverting to the third at least possible consequence, namely that he might give convincing evidence. 13. Secondly, the judge had had the submission made to him that whatever might be happening back at the prison no one could really be sure that the defendant knew what kind of court appearance it was that he was being required to attend. This is a defendant with a large and prolix series of previous convictions for all manner of offences and at any particular point in his criminal career it looks from his antecedents as if it would be likely that he might very well be the subject of a number of current series of court proceedings. It is certainly known that there were then current also the breach proceedings in relation to the community order. It may be of course that his only appointment at Aylesbury was for this trial, although how far that had impacted upon the defendant personally is a matter of uncertainty. However, when that submission was made to the judge, the judge clearly directed himself that it did not really matter whether the defendant knew the reason why he was required at court or not. He directed himself that if he was in any doubt about it he could have asked. That, as it seems to us, is an error of principle. It did matter whether the defendant was deliberately absenting himself from his trial on these allegations or not. 14. Thirdly, the judge reached the conclusion that the defendant must have known from the letter of 21st August of his trial date. The difficulty about that is that on the evidence before the judge no one knew whether the defendant had been in custody on 21st August or not, in which event the letter would not have got to him. As it turns out we now know that he was not, but the judge did not and indeed said so. On that basis it is a little difficult to see quite how the judge came to the conclusion that that letter must have been received. That is a less significant point because on the history as we have related it and on the material which we now have it is quite apparent that he was not in custody on the occasion of the sending of either of the two solicitor's letters and accordingly, although not for the reasons that the judge gave, the judge's conclusion that he at the very least ought to have known of the date of the trial was a justified one. 15. Lastly, and most importantly, the judge directed himself that an adjournment of 24 hours simply could not make any difference because if the defendant was saying that he could not be bothered to come to court there was no reason to think he would change his mind. That, as it seems to us, was wrong. First, it was wrong for the reason we have just given, namely that there was at least the possibility of doubt about whether the defendant knew precisely what kind of proceedings they were. But secondly, it was wrong in any event. Our universal experience is that in this kind of situation the proper course is to adjourn for 24 hours and to ensure that an explicit warning is delivered to the defendant that his trial is going to take place without him if he is not there tomorrow morning. There are a number of ways in which that might be done. It does not require, necessarily, the hearing of the evidence of the Prison Officer who delivers the message. It does not require sending for the Prison Governor, which tends in any event to disrupt the administration of the prison. But the judge needs to satisfy himself that the explicit warning that he gives is delivered. We would suggest that most Crown Court judges would require written confirmation from the prison that the warning had been delivered and preferably in writing. 16. For all those reasons we are satisfied that the judge's approach to the question of whether to proceed with the trial was on this occasion flawed. 17. We have addressed the question of whether nevertheless it is sufficiently clear that the defendant was refusing to attend for it to be plain in this court that whatever the judge had done could have made no difference. It is on the face of it powerful evidence that the defendant was refusing, that he not only failed to attend on the first day of the trial but that he failed to attend on three successive days, including the last day for sentence. We have a letter written quite recently from the prison service suggesting that they had been told on the first day of the trial that the defendant was required, that their record showed that he was refusing and that he refused subsequently on the ensuing days. That letter is not entirely without its problems. For example, it contains the assertion that the prison was supplied with a warrant for the second day, whereas it is absolutely clear that no warrant was issued and indeed there would be no point in doing so with a prisoner in prison. Moreover, whilst we do not for a moment accept any assertion unsupported by evidence on oath to the effect that Mr Amrouchi was unfit to attend court because he had a bad back, we do pay attention to the fact that when he raised that assertion and said that he had seen the prison doctor on the first day of the trial, the initial response of the prison was a letter positively asserting that he had done no such thing. Further investigation of the records show that for whatever reason he did in fact attend the surgery on 16th October. That evidence falls many miles short of establishing that he was unfit to attend, but it does demonstrate that the initial prison response was, for whatever reason, inaccurate. 18. We also observe that when the defendant was due to appear at St. Albans in front of Her Honour Judge Plumstead on the subsequent occasion which we have already mentioned, that judge too was told that he was refusing to attend, whereas when she then set up a video link the appellant asserted that he had never refused at all. Of course he might have changed his mind or changed his evidence, we do not know, but there is certainly for all those reasons some scope for doubt about the accuracy of the records and the response based upon them. Whether that is so or not, it does not follow even if the defendant refused for whatever reason in the early morning of 16th October to get on the prison van that he would have continued in his refusal if given the kind of explicit warning which we are all satisfied he should have been given. It is one thing to say first thing in the morning that you are not going to cooperate with those who come to collect you; it is another to do that knowing that your trial is going to happen in your absence if you do. 19. We are quite unable to say what would have happened if that explicit warning had been given, as we are sure it should have been, and in those circumstances whilst we entertain considerable doubts about the accuracy of Mr Amrouchi's assertion that he was never asked, we are not prepared to say that the conviction is safe. In those circumstances this appeal against conviction must for those reasons be allowed. 20. Mr Spencer-Bernard, where do we go from there? 21. PROSECUTION: My Lord, I would invite you to direct that the matter be retried. 22. LORD JUSTICE HUGHES: Yes. Mr O'Callaghan? 23. MR O'CALLAGHAN: Mr Amrouchi was made aware that that is the likely course of events and we are content. 24. LORD JUSTICE HUGHES: We have addressed that in our own minds and we have absolutely no doubt that the public interest requires that he be retried. If it is proved this was an unpleasant assault on prison officers in the course of their duty. 25. We allow the appeal. We quash the conviction. He is to be retried on the counts which appeared in the original indictment. A fresh indictment containing those counts must be preferred and he must be arraigned upon it within two months of today, unless this court directs otherwise. He is to be tried at Aylesbury Crown Court unless the Presiding Judges of the South Eastern Circuit say otherwise. 26. What about his position in the meantime, Mr O'Callaghan? 27. MR O'CALLAGHAN: My Lord, there has been some difficulties, as you are aware, of Mr Amrouchi seeking bail. We had hoped to have his sister here to give more details, but I do not see her. 28. LORD JUSTICE HUGHES: No. On his own account he was in Morocco when he should not have been and he appears to have been in breach of a community order. 29. MR O'CALLAGHAN: I appreciate that and so does Mr Amrouchi. 30. LORD JUSTICE HUGHES: No, Mr O'Callaghan, he must remain in custody until his trial. Thank you very much.

```yaml citation: '[2007] EWCA Crim 3019' date: '2007-11-22' judges: - LORD JUSTICE HUGHES - MR JUSTICE WYN WILLIAMS - HIS HONOUR JUDGE RICHARD BROWN DL ```

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Neutral Citation Number: [2023] EWCA Crim 40 Case No: 202201795 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM HER HONOUR JUDGE MONTGOMERY KC T20197069 Royal Courts of Justice Strand, London, WC2A 2LL Date: 25 January 2023 Before : LADY JUSTICE CARR MR JUSTICE CAVANAGH and HIS HONOUR JUDGE CONRAD KC - - - - - - - - - - - - - - - - - - - - - Between : BRP Appellant - and – REX Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms Paramjit Ahluwalia (instructed by Philippa Southwell of Birds Solicitors ) for the Appellant Mr Andrew Johnson ( instructed by the Crown Prosecution Service) for the Respondent Hearing date: 13 January 2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 10am on Wednesday 25 January 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. Lady Justice Carr: Anonymity 1. We make an anonymity order in this case in order to protect the interests of the proper administration of justice. We bear in mind that the normal rule is open justice, but an anonymity order on the facts of the present case is strictly necessary, pursuant to the principles identified in R v AAD and others [2022] EWCA Crim 106; [2022] 1 WLR 4042 (“AAD”) at [3] and [4] and summarised in Human Trafficking and Modern Slavery Law and Practice (2nd ed) (at 8.103-8.108). The risk to the applicant of being the subject of forced labour in the United Kingdom (“UK”) is real. Introduction 2. We have before us an application for leave to appeal against conviction, together with an associated application for an extension of time (of almost three years). Both applications have been referred to the full Court by the Registrar. 3. The applicant, who is Chinese, is now 31 years old. On 10 June 2019, in the Crown Court at Birmingham before HHJ Montgomery KC, he pleaded guilty to a single count of conspiracy to supply Class B drugs. On 16 August 2019, alongside six other Chinese co-defendants, he was sentenced by HHJ Drew KC (“the Judge”) to 18 months’ imprisonment. 4. He now seeks to challenge his conviction on the ground that he was not advised, as it is said he should have been, of the possibility of a defence under s. 45 of the Modern Slavery Act 2015 (“s. 45”) (“the Act”). At the time of the alleged offending he was a victim of forced labour and relevant exploitation. The contention is that a s. 45 defence would quite probably have succeeded and that, applying the test in R v Boal [1992] QB 591 (“ Boal ”), the conviction is unsafe. 5. We consider the appeal to be arguable. As for delay, the applicant’s new solicitors have served two witness statements setting out the relevant timeline. Given that the appeal is arguable, that the delay has been explained and justified in large measure, and the nature and importance of the issues raised, it is in the interests of justice to grant the necessary extension of time. We therefore grant leave for the appeal to be heard in full and proceed accordingly. The facts 6. In the afternoon of 22 January 2019 police attended the Southside Apartment Complex, a complex set in a gated and affluent part of Chinatown in Birmingham. One of the appellant’s co-defendants arrived in a taxi carrying a large cardboard box. He was approached and informed that he was to be the subject of a drugs search, to which he responded that he would tell the police everything, and was taking the box to “Flat 324” (“the Flat”). He indicated to the police that the box contained cannabis. 7. The appellant was then seen to exit the Flat. He smelt strongly of cannabis. He was detained, along with five other co-defendants who were either also leaving or found within the Flat. The Flat contained two bedrooms. Police found and seized multiple mobile telephones, several Chinese passports and other documentation, English and Scottish bank notes, and approximately 50 kgs of “skunk” cannabis. The value of the drugs was estimated to be over £200,000. 8. The appellant and his co-defendants were charged with conspiracy to supply on a single day, namely 22 January 2019. The guilty plea and sentencing process 9. All but one of the defendants pleaded guilty. The appellant entered his guilty plea at the pre-trial review on a signed written basis dated 20 May 2019 (“the basis of plea”) which stated: “1. That he was illegally resident in the UK; he did not have any family or support basis in the UK. 2. That he was induced through exploitation by others and his own naivety into “the Conspiracy”. 3. That he made no financial gain from any profits of drugs supply. 4. He was made to live with several others in a small flat and had to share one room. 5. His passport was taken away from him. 6. All his personal belongings were contained in one small suitcase. 7. He had no influence over any other person. 8. His involvement in “the Conspiracy” falls just short of Duress. 9. Whilst he was aware that Cannabis was being held in the flat he took no part in the packaging or processing of the same. 10. His involvement did not exceed being an “extra body” in the flat.” 10. On 15 August 2019 the Judge posted a note on the Digital Case System as follows: “All parties should be aware of the following: the bases of plea will need to be supported by evidence from the defendants if they intend to maintain them, as will any other similar basis of plea advanced orally in mitigation.” 11. It appears that the appellant did not pursue his basis of plea. No evidence was called and there was no Newton hearing. The Judge did not refer to any basis of plea in his sentencing remarks. 12. The Judge indicated that “this was a commercial operation, run in an efficient and well-organised way in which drugs came into the UK, were re-packaged and then prepared for onward supply either in this country or elsewhere”. Although there was a clear connection to a more widespread operation, the Judge did not sentence the appellant on that basis. He placed the appellant’s offending in category 2/lesser role for the purpose of the relevant Sentencing Council Guideline. He took a term of 21 months’ imprisonment after trial, which he then reduced by 15% by way of credit for guilty plea. Fresh evidence and developments following conviction and sentence 13. The appellant seeks leave pursuant to s. 23 of the Criminal Appeal Act 1968 to introduce fresh evidence as follows: i) A positive Reasonable Grounds decision of the Single Competent Authority (“SCA”) dated 21 February 2020 (“the RG Decision”); ii) A positive Conclusive Grounds decision of the SCA dated 8 February 2022 (“the CG Decision”); iii) A report of Professor Katona, consultant psychiatrist, dated 8 September 2021; iv) An OASys report dated 7 April 2021 (“the OASys report”); v) Two witness statements from the appellant dated 22 July 2021 and 6 June 2022. 14. This evidence self-evidently post-dates the appellant’s conviction. We entertained it for the purpose of the appeal hearing de bene esse . We also permitted the appellant to give oral evidence and for his evidence to be tested in cross-examination. 15. The following facts and chronology of events emerge. The appellant’s entry into the UK in 2010 16. The appellant had entered the UK on a Tier 4 (General) Student Visa (valid from 18 December 2009 to 6 November 2012) in 2010 in order to study English at Bournville College. In his oral evidence he stated that the course involved around three to five hours’ study a day, and that the annual cost of the course was around £4,000. The fees were paid by his parents in China into his UK bank account (with the Bank of China). His visa was curtailed in March 2012 when he ceased to study. He remained thereafter as an overstayer. He had many jobs thereafter, including cleaning, washing and working for takeaway restaurants. The appellant’s arrests in 2014 and issue of a bench warrant 17. The appellant was arrested on suspicion of attempted kidnap in June 2014 and served with immigration papers notifying him of his overstayer status. In September 2014 he was arrested for production of a controlled (class B) drug. In May 2015 a bench warrant was issued for his arrest in relation to the drugs matter. The appellant’s asylum claim: 2014/2015 18. In October 2014 he claimed asylum. In his screening interview on 23 October 2014 he stated that he came to the UK by air to study. His father had been arrested by the government for religious reasons. He did not know whether his father was alive and believed that he would be persecuted as his father was, were he to be returned. He stated that he could not produce his passport because it had been lost in a burglary. He stated that he had been arrested in the UK and released without charge, because he (and his friend) had done nothing wrong. In interview in March 2015 he stated that he had a girlfriend and a child in the UK; he and his girlfriend were living together but not married. 19. His asylum claim was refused in November 2015. He had failed to attend a follow up interview and had failed to attend his trial in the Crown Court. He was now listed as “wanted” on the Police National Computer. Events of 2019 20. The appellant’s bench warrant remained in place until March 2019 when it was withdrawn. No evidence was ultimately offered on the drug charge and on 2 May 2019 a verdict of not guilty was entered under s. 17 of the Criminal Justice Act 1967. 21. Following the appellant’s conviction in June 2019, the Secretary of State for the Home Department decided (on 29 August 2019) to deport him. On 24 December 2019, having completed his sentence and been further detained in immigration detention, he was granted immigration bail. Events of 2020 and the RG Decision 22. On 17 February 2020 the Salvation Army referred the appellant to the National Referral Mechanism (“NRM”). 23. On 21 February 2020 he was the subject of the RG Decision. The appellant’s account, as recorded in the RG decision, included the following: i) In November 2018 he was an illegal overstayer living with a friend in Birmingham. He did not have a job and was “sofa-surfing”. In December 2018 his friend was not happy with him staying, so he started looking for jobs online. He found an advert on a Chinese website called “Yingniao” for a cleaner’s job, paying £25 a day with accommodation and food. He applied successfully; ii) The next day he was picked up by a man called “Big Bing” (also referred to as “Da Bing”) (“Bing”) and taken to an apartment near the south side of Chinatown. He was told to clean the Flat and to cook, although he was not allowed to go into the bedrooms or open their doors. He would sleep on the floor of the lounge; two men would also sleep in the apartment. He told Bing that he had a partner and a son, and showed him a picture of his son; iii) At the house he smelt a distasteful smell from a box. When he asked about it, he was slapped and kicked by Bing. He was told that it was cannabis and not to ask questions and do his job. He was to clean, get rid of the smell and any mess, to dismantle the boxes and dispose of the rubbish. He never touched the cannabis. When he objected to being involved in any illegal activities, Bing put his foot on the appellant’s chest/heart and threatened to kill him if he told anyone. Bing said he would tell the police about his illegal overstayer status and threatened the appellant’s family. The appellant was very scared as Bing said that he was part of a gang. The appellant was told not to think of escaping as they would take his partner and child. The appellant felt like he had no choice but to abide by their instructions. There were no further threats because he did as he was instructed; iv) He did all the cleaning and cooking. He would sometimes have to go out to buy things when visitors came, and to serve them; v) The police raid was about a month after he started. Boxes would come once a week, although sometimes there would be no deliveries. 24. Two of the appellant’s co-defendants were named by the appellant as individuals who had exploited him. Events of 2021/2022: the OASys report, the appellant’s witness statement, the report of Professor Katona and the CG Decision The OASys report 25. The OASys report completed by the National Offender Management Service (“NOMS”) recorded the appellant stating that he applied for a cleaning job at a flat and was then forced to be involved with the index offence. He stated that those actually in charge of the operation were not arrested. The report also recorded that the appellant was currently living with his partner and child in Coventry. They had been living together since 2016. The child is not the appellant’s son but the appellant had requested that his name be put on the child’s birth certificate. He relied on his partner for financial support and also received a stipend from the Red Cross. The appellant’s witness statement 26. In a very lengthy witness statement dated 22 July 2021, the appellant gave details of his background and relationship with his girlfriend and her son. He described how in 2011 he helped his girlfriend use another woman’s identity to get pregnancy care. They became a couple in May/June 2011 and the child was born in August 2011. The appellant treated him like a son. His girlfriend left him in October 2011 but came back to him in January 2012. He then left her in the summer of 2012. He went briefly to Manchester but then to Birmingham. In 2014 he re-made contact with her, when she was living in Coventry with her son. He visited but did not stay with her permanently because the accommodation was not suitable. But, in 2016 his girlfriend moved to a different council house. By this time they were a couple again. The council rules meant that he could not stay there permanently so he only stayed occasionally. He would otherwise sleep with different friends and occasionally on the streets, working odd jobs. 27. In relation to the circumstances leading up to and surrounding his arrest in January 2019, he repeated the account recorded in the RG decision, with added detail. For example, when Bing put his foot on the appellant’s chest, he had also called over three other individuals who started to beat the appellant. Bing also kicked the appellant and, having threatened to go to the police and find the appellant’s family, said “Are we clear?” The appellant stated that Bing said that he was a Triad, and if the appellant tried to run away he would be able to find him or go after his family. Although the appellant never saw Bing again, Bing would call through to check where he was and that he was working. Two other Chinese males were always present in the Flat. Even when the appellant was allowed to leave the Flat, he said that he could not really escape or go to the police or anyone else, because he was scared as a result of being told of the Triad connection and potential repercussions. He was never paid any money and was too scared to ask about this. He was very intimidated by those coming into the Flat and continuously received threats. He stated that he was kept in custody with some of his co-defendants. He felt scared and was threatened. He described telling his solicitor everything upon his release in December 2019, which led to his referral into the NRM. 28. The appellant addressed his asylum claim in 2014. He also sought to clarify events relating to the day when he took a child to the Home Office, namely 22 October 2014. He was attending for reporting or an interview. He states that he had been asked that day to look after a friend’s son, aged four or five years old. When asked who the child was, he panicked and gave the details of his girlfriend’s son. He also said that he was the father, since he knew that his name was on the boy’s birth certificate. He continued the lie the next day in a screening interview. In March 2015 he falsely stated his partner’s identity; he says he did so because that was the name on the boy’s birth certificate. He responded to the refusal of his asylum and human rights claims and mentioned his arrest in June 2014. 29. In his oral evidence before us he repeated that he could not leave the Flat after the first day because he had been threatened by Bing, who was a gangster. He denied knowing how to get help from the authorities, despite having lived in the UK for some nine years. He only met Bing once. The extent of what Bing knew about his family was the area in which they lived, and the bus route that was closest to their home. He was allowed to leave the Flat, but only when given money to buy food. He admitted that he could have contacted the police but said he was afraid; the police could not provide 24-hour protection. He did not know if the two people in the Flat with him worked for Bing. He did not think about running away. He denied making up his account now to find a way of avoiding the consequences of his actions. When asked what had changed, so that he could speak about Bing now, he stated that Bing did not know his whereabouts anymore. The environment was different. He stated that he is currently living with his partner and son in her council house. The report of Professor Katona 30. In his report dated 8 September 2021, following two remote interviews with the appellant and with an interpreter present, Professor Katona opined that the appellant fulfils the criteria for post-traumatic stress disorder (“PTSD”). He based his diagnoses on the presence of the following clinical features: i) The appellant’s description of experiencing significant stressors (being threatened, beaten, confined and forced to work); ii) The appellant’s description of intrusion phenomena in the form of intrusive thoughts and nightmares; iii) The appellant’s description of avoidant behaviour in the form of trying to suppress his intrusive thoughts and not going to Birmingham’s Chinatown; iv) The appellant’s description of significant alterations in arousal and reactivity in the form of disturbed sleep, irritability and being easily startled; v) The appellant’s description of having quite prominent negative alterations in cognitions and mood in the form of low mood and loss of interest; vi) The fact that the appellant’s PTSD symptoms had lasted for more than a month, had considerable functional significance to the extent of substantially impeding his day-to-day activity and could not be explained in terms of alcohol, medication, illicit drugs or other health problems. 31. In Professor Katona’s view, the appellant’s depressive and anxiety symptoms were best understood as “secondary to his PTSD”. 32. Professor Katona recognised that it was not for him to come to any conclusions regarding the appellant’s credibility. However, he stated that nothing in the appellant’s account was “not clinically plausible”. Further, in his opinion, the appellant was not feigning or exaggerating his symptoms. The CG Decision 33. The CG Decision was made on 8 February 2022. The SCA accepted that the appellant was a victim of “modern slavery in United Kingdom during December 2018-January 2019 for the specific purposes of forced labour”. 34. The SCA commented: “The [appellant] has given a generally detailed, plausible and relatively consistent account in relation to his claimed exploitation through his NRM referral and witness statement. Furthermore, it is noted that the account is also consistent with external information from the US State Department Trafficking in Persons Report 2021 in relation to the UK. The report stated that traffickers force adults to work in cannabis cultivation…” 35. It gave weight to the views of Professor Katona, including as to credibility, and to a trafficking assessment report dated 9 September 2021. It stated that there were no significant credibility issues in the appellant’s account. The SCA went on: “Looking at the evidence in the round, it is considered the [appellant’s] account has met the required threshold, namely “on the balance of probabilities” it is more likely than not to have occurred.” 36. The SCA concluded: “Overall, it is considered that the [appellant] was recruited through an online job advert. The [appellant] was then transported from Chinatown (Birmingham) to a flat in the south of Chinatown (Birmingham). As a result of the recruitment and transportation the [appellant] meets part “a”. The [appellant] was beaten and was subjected to death threats towards himself and his family, thus meeting part “b”. Lastly, it is considered that [the appellant] was forced into providing labour against his will, in which he received no pay, therefore meeting part “c”.” (References to parts “a”, “b” and “c” are references to the “action”, “means” and “purpose” elements of trafficking). Responses from the appellant’s previous lawyers 37. According to the appellant’s new solicitors, they received “some immigration and some trafficking material” from Lisa’s Law Solicitors on 5 March 2020. The appellant instructed them to advise on appeal against conviction on 16 March 2020. There is a chronology of the steps taken between April 2020 and January 2022 to obtain relevant paperwork from the court, the SCA, immigration solicitors and his previous legal team, alongside obtaining legal aid. 38. In a statement dated 6 June 2022 the appellant stated that he was relieved when arrested because this meant that he was “no longer under the control of [his] traffickers”. He did not tell the police about his treatment because he had been told that “they were a triad of gangsters and had powerful connections”. He was not referred to the NRM, or advised of a s. 45 defence at any stage during the criminal proceedings. 39. Draft grounds of appeal were sent to the appellant’s previous legal team on 17 May 2022 in accordance with the procedure identified in R v McCook [2014] EWCA Crim 734; [2015] Crim LR 350. 40. The original solicitors’ files record the appellant’s instructions at the police station on 23 January 2019 as follows: “I was arrested outside flat. I have a friend…I didn’t go inside. Said busy so I left. I don’t know anything about the drugs…” 41. The solicitor advocate representing the appellant at the time of his guilty plea stated that it was “very likely the case” that the appellant was not advised in relation to the availability of a s. 45 defence. The basis of plea would have been typed up during the course of a meeting with the appellant. Whilst there is reference to “duress”, the solicitors’ file contains no record of the potential availability of a s. 45 defence being mentioned. 42. The application for leave to appeal conviction was lodged on 10 June 2022. Grounds of appeal and response 43. Ms Ahluwalia for the appellant submits that his conviction is unsafe and should be quashed. At the date of the index offence the appellant was a victim of forced labour, and subject to relevant exploitation. The basis of plea included clear indicators of relevant exploitation, including inducing the appellant into the conspiracy and making him live with several others in a small flat, sharing one room. At no stage did anyone instigate a referral into the NRM. The appellant was never advised as to the availability of a s. 45 defence; he was deprived of a defence which would quite probably have succeeded. There is no challenge by reference to abuse of process. 44. In terms of the appellant’s credibility, Ms Ahluwalia emphasises the consistency of the appellant’s account since the OASys report and the fact, for example, that the police noted the appellant to be “extremely nervous” when they apprehended him. The appellant had not exaggerated his case in the witness box. 45. Ms Ahluwalia recognised that the weakest part of the appellant’s case related to the test in s. 45(1)(d). But, the appellant was in a real predicament. He had been the subject of actual violence on the first day and thereafter Bing had mechanisms of control, keeping an eye on the appellant. 46. For the respondent, Mr Johnson submits that the appellant’s account should not be accepted. But even if that account were to be considered credible, the necessary ingredients of a s. 45 defence are not made out. This was not in any way a “typical trafficking” case. A reasonable person in the appellant’s position would have walked away at or immediately after the first encounter with Bing, or when leaving the Flat to go shopping. The relevant legal principles 47. The relevant legal background and principles were summarised most recently in R v AFU [2023] EWCA Crim 23 at [81] to [99]. For present purposes, it is sufficient for us to repeat the following summary only. S. 45 48. The UK provides protection for victims of forced labour through s. 45, which came into force on 31 July 2015 and applies to all (relevant) offences committed after that date. S. 45 provides materially: “(1) A person is not guilty of an offence if: (a) the person is aged 18 over at the time of the act which constitutes the offence; (b) the person does that act because he is compelled to do it; (c) the compulsion is attributable to slavery or to relevant exploitation; and (d) a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act. (2) A person may be compelled to do something by another person or by the person’s circumstances. (3) Compulsion is attributable to slavery or to relevant exploitation only if- (a) it is, or is part of, conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or (b) it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation…. (5) For the purposes of this section- “relevant characteristics” means age, sex and any physical or mental illness or disability; “relevant exploitation” is exploitation…that is attributable to the exploited person being, or having been, a victim of human trafficking.” 49. S. 1 of the Act provides, amongst other things, that a person commits an offence if they require another person to perform forced labour and the circumstances are such that they know or ought to know that the other person is being required to perform forced labour. S.3 of the Act provides, amongst other things, that a person is exploited if they are the victim of behaviour which involves the commission of an offence under s. 1. 50. It is for the defendant to raise evidence of each of the elements in s. 45(1), and for the prosecution to disprove one or more of them to the criminal standard: see R v MK; R v Gega [2018] EWCA Crim 667; [2019] QB 86 at [45]. 51. Decisions of the SCA are not admissible at trial, but are admissible on appeal when it is contended that a person’s trafficking status has been overlooked or inadequately considered (see R v Brecani [2021] EWCA Crim 731; [2021] 1 WLR 5851 at [40] and [41] and AAD at [79] to [89]). Whilst not binding, the decisions will usually be respected, unless there is good reason not to do so. However, there may be cases where it is necessary for an appellant’s account to be tested independently for the purposes of safe resolution of the issues on appeal; for example, where a finding of trafficking is based on unsatisfactory evidence (see AAD at [108]). 52. As confirmed in R v V [2020] EWCA Crim 1355 at [25], a s. 45 defence does not arise automatically on proof that a person was a victim of forced labour. Whether or not a s. 45 defence exists is entirely a question of fact for a jury to decide. The degree of compulsion on the defendant, and the alternatives reasonably available to them, are “critical features” of the analysis: “the offence must be committed as a direct consequence of or in the course of trafficking or slavery and the criminality must be significantly diminished or effectively extinguished because no realistic alternative was available but to comply with the dominant force of another.” Appeals against conviction following a guilty plea 53. The court should be cautious when overturning convictions following guilty pleas. As Lord Hughes made clear in R v Asiedu [2014] EWCA Crim 567; [2014] 2 Cr App R 7 (“ Asiedu” ) at [19] to [25], and [32], it will ordinarily be difficult to overturn a voluntary confession. The defendant, having made a formal admission in open court that they are guilty of the offence, will not normally be permitted to change their mind. The trial process is not to be treated as a “tactical game”. 54. Broadly, there are three categories of case in which a guilty plea may be vitiated, as summarised in R v Tredget [2022] EWCA Crim 108; [2022] 4 WLR 62 (“ Tredget ”) at [154] to [180] and Archbold (2023 ed) at 7-43 to 7-46. The relevant category for our purposes is that of cases where the guilty plea is vitiated. This can occur in several circumstances, including the appellant being under the influence of controlled drugs when they entered their plea ( R v Swain [1986] Crim LR 480); a plea compelled by an adverse or incorrect ruling as to the law ( Asiedu ); improper pressure ( R v Nightingale [2013] EWCA Crim 405; [2013] 2 Cr App R 7); or incorrect legal advice that deprived the defendant of a defence which quite probably would have succeeded such that a clear injustice has been done. 55. An appeal can succeed if the guilty plea is vitiated by erroneous legal advice or a failure to advise as to a possible defence, even where the advice may not have been so fundamental as to have rendered the plea a nullity. In this case, the effect of the advice must be to deprive the defendant of a defence which would probably have succeeded: Tredget at [158]; R v Kakaei (Fouad) [2021] EWCA Crim 503; [2021] Crim LR 1079 (“ Kakaei” ) at [67]. 56. This test derives from Boal , where the court emphasised that in such situations a conviction should be overturned only “exceptionally”, where “a clear injustice has been done” (see 599-600). This passage was cited with approval in R v PK [2017] EWCA Crim 486; [2017] Crim LR 716 (“ PK ”) at [12]. The exceptionality of the defence was further emphasised in Tredget at [158] and R v PBL [2020] EWCA Crim 1445 at [23]. 57. The Dastjerdi checklist (see R v Dastjerdi [2011] EWCA Crim 365 at [9]), applicable when determining whether a conviction following a guilty plea should be overturned, was subsequently applied in PK at [13]. On the facts in this case, as set out above, it requires: i) That the appellant should have been advised about the possibility of availing himself of the [s. 45] defence; ii) That the appellant was not so advised; iii) That, had [the appellant] been so advised, it was open to him to advance the defence; iv) That the prospects that [the appellant] would have been able successfully to advance such a defence were good. Analysis and findings 58. The central issue on this appeal is whether or not the appellant had a good s. 45 defence. If he did, he was deprived of the opportunity to advance it through the failure of his legal advisers to advise adequately, including at the time that he entered his guilty plea, and there will have been a clear injustice. 59. As set out above, the respondent’s position is that the appellant’s account is not credible but that, in any event, even if credible, the necessary elements of compulsion and a lack of realistic alternatives for a successful s. 45 defence are not made out. The appellant, on the other hand, contends that he had a good s. 45 defence, and that the prosecution would not probably have been able to disprove any of the necessary elements of such a defence. 60. In order to resolve this dispute, we consider it necessary and expedient in the interests of justice to admit the fresh evidence identified in [13] above, together with the appellant’s oral evidence before us. Neither the fact of the NRM referral, nor the RG or CG Decisions, were available before conviction. Although not all of the material is necessarily reliable, it is relevant to the strength or otherwise of a s. 45 defence and/or the advice given to the appellant during his trial and the sentencing process. 61. The following factors point towards the appellant’s central account relating to the events of December 2018 and January 2019 being credible: i) The CG Decision; ii) The fact that he mentioned being “induced through exploitation” and “duress” in his basis of plea; iii) The fact that his account of events has remained largely consistent since the OASys report; iv) The fact that the appellant did not exaggerate his evidence in the witness box. Thus, for example, he confirmed that his face-to-face contact with Bing was limited to the first day when they met. He also stated that he was not sure whether the two men who remained in the Flat with him were associated with Bing. He did not suggest that he had given Bing details of his family’s whereabouts beyond the broad area where they lived and the relevant bus route; v) Professor Katona’s diagnosis of PTSD and his view that the appellant’s symptoms are clinically plausible. 62. That said, there is real scope to doubt the appellant’s credibility: i) The CG Decision is based essentially on an acceptance of the appellant’s account, relying on the consistency of his version of events since 2021. That account was not tested by reference, for example, to the instructions given by the appellant to his solicitors upon arrest (which made no reference to any form of forced labour or exploitation). There was no reference to any of the more general and serious credibility issues affecting the appellant referred to below. Further, there is force in the respondent’s submission that this was not a case requiring the application of the particular trafficking expertise of the SCA. There was no clear international dimension; rather this was, on the appellant’s case, a case of domestic forced labour; ii) As for consistency, by the time that the appellant was speaking to NOMS in 2021 for the purpose of the OASys report (and subsequently), he was well aware of the context, having been referred under the NRM, and that it was in his interests to contend that he had been the subject of forced labour. This would also have been the position at the time of his lengthy witness statement of July 2021, which appears to have had the heavy input of lawyers; iii) The appellant is someone capable of grave deception when he considers it to be necessary - either in his own interests or the interests of those for whom he cares. He has a striking history of deception in circumstances where there could be no excuse by reference to improper pressure, forced labour or trafficking concerns. We refer, by way of example, to the appellant’s introduction in 2011 of his then pregnant partner to another lady whose identity his partner could steal for the purpose of facilitating access to pregnancy healthcare in the UK. This was at a time when the appellant was lawfully resident here under his student visa. In October 2014 he passed off another boy as his son when attending the Home Office. His explanation is that he feared being arrested for kidnap. The following year, in 2015, he gave the Home Office false details of his partner, with whom he said he was living and in a relationship; iv) Further, making all due allowances for linguistic difficulties, the statement in the appellant’s basis of plea that he “had no family…in the UK” was, at best, misleading. It suited the appellant at that stage to deny having any family in the UK; when it came to his asylum and human rights claims, he said quite the opposite. On any view, his statement that he had no “support basis” in the UK was false, given the support available to him from his partner; v) The appellant’s account is not inherently plausible. The suggestion is that one or more drug dealers would advertise on an open platform for assistance which would involve bringing a complete outsider into an environment that was obviously unlawful from the outset – a highly risky recruitment strategy. It is to be noted that the appellant was arrested on a Class B drug offence in 2014, albeit that the charge was later dropped. The circumstances surrounding the appellant’s arrest for attempted kidnap earlier in the same year are difficult to understand. It is also far from obvious why it was necessary to hold the appellant in the Flat under any form of compulsion: he had no real function in the conspiracy, beyond clearing up the boxes that carried the drugs. He was not a cannabis gardener, or a courier, for example. 63. In the end result, we have not found it necessary to resolve the question of whether or not it is likely that the prosecution could have proved the appellant’s account of the events of December 2018 and January 2019 to be fundamentally untrue. That is because, even accepting his account for present purposes, we consider it clear that the prosecution would have been likely to prove to the criminal standard of proof that at least one of the necessary ingredients of a s. 45 defence was not made out. 64. It is essentially common ground that, on the basis of the appellant’s account, the requirements of s. 45(1)(a) and (c) would be made out. However, it is not accepted that the necessary degree of compulsion would be established and, most fundamentally, that a reasonable person in the same situation as the appellant and having his relevant characteristics (age, sex, physical and mental illness or disability) would have no realistic alternative to doing the act in question. 65. At the material time the appellant was 27 years old and an overstayer in the UK. He had no physical or mental illness or disability. (There is no evidence from Professor Katona that he would have had any mental illness in the immediate aftermath of his arrival in the Flat.) He spoke at least some English: he had studied it for two years between 2010 and 2012 (reaching ESOL level 2) and lived in the UK since then, working in multiple jobs over the years. Before us it was clear that he could both understand and speak basic English reasonably well. He had had considerable experience of interaction with the police and the Home Office. He was alive to how the NHS worked (and how to gain access to it, albeit through dishonest means) and, for example, council housing rules. He had a female partner (and someone he regarded as his child) living not far away in this country, in a council house in Coventry. He had a wide network of friends and contacts in the UK, as evidenced by his lifestyle and occupations between 2012 and 2018. He had demonstrated his resourcefulness over this period, holding down various jobs. This is all consistent with his demeanour in court, which was of someone well capable of fending for himself. 66. The only reason given by the appellant for not leaving the Flat permanently was fear of Bing, whom he believed to be part of a gang, and what Bing (or others at Bing’s behest) would do to him or his family. 67. Set against the background above, and even bearing in mind the appellant’s immigration status and any related disinclination to go to the police, the respondent would have been able to prove that the reasonable person in the appellant’s position would have felt able to leave, despite Bing’s threats. 68. The threats were made only on the first occasion. Bing did not visit the appellant again. The appellant did not know if the others in the Flat worked for Bing or not. The appellant had given only very limited details of the whereabouts of his partner and son. Whilst it is important not to apply impermissible hindsight, the appellant confirmed that Bing has never contacted (or threatened) his family. More relevant, perhaps, is the fact that there is no obvious good reason why the appellant felt able from 2020 onwards to name and accuse Bing, but suggested that he was too scared to leave the Flat in 2019 because of Bing’s threats. 69. Further, there is no suggestion that the appellant was held forcibly against his will within the Flat, for example, or controlled when he went out alone. He had his own telephone at all material times, and was able freely to make and receive calls, and did so. Unlike in a typical trafficking situation, the appellant had a well-established network of unconnected contacts in the UK and, most importantly, a partner living in the UK in settled accommodation to whom he could turn. In basic terms, he had somewhere to go, and many different people from whom he could have sought help, beyond and in addition to the authorities. It is notable that the author of the OASys report considered that the appellant had “acted recklessly in allowing himself to become involved with this offence and took a risk in continuing to do so rather than walking away from the crime”. As Mr Johnson put it for the respondent, a reasonable person in the appellant’s situation could realistically have walked away at the very outset or at least on one of the occasions when he was alone and away from the Flat. 70. In short, a s. 45 defence advanced by the appellant would quite probably have failed, in particular by reference to s. 45(1)(d). The objective reasonableness test would probably not have been satisfied: the respondent would probably have been able to prove to the criminal standard of proof that a reasonable person in the appellant’s situation and with his relevant characteristics had a realistic alternative to being involved in the conspiracy. Conclusion 71. In conclusion, and for the reasons set out above, the appellant was not deprived of the opportunity of advancing a good s. 45 defence. Although he should have been, but was not, advised of the availability of a s. 45 defence before entering his guilty plea, there has been no clear injustice and his conviction is not unsafe. The appeal is dismissed.

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No: 200805910/A7 Neutral Citation Number: [2009] EWCA Crim 982 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 2nd April 2009 B e f o r e : LORD JUSTICE DYSON MR JUSTICE IRWIN MR JUSTICE SWEENEY - - - - - - - - - - - - - - - R E G I N A v ROBERT MALCOLM ENGLISH - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Mr I James appeared on behalf of the Appellant - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE DYSON: On 12th September 2008 at Ipswich Crown Court the appellant pleaded guilty to kidnapping (count 1), false imprisonment (count 2), sexual assault (count 3), assault by penetration (count 4) and two offences of rape (counts 5 and 6). On 3rd October he was sentenced to concurrent terms of life imprisonment on counts 1, 2, 4, 5 and 6 and no separate penalty was imposed in respect of count 3. Accordingly the total sentence was one of life imprisonment with a minimum term of 7 years and 6 months less 81 days already served. He appeals against sentence by leave of the single judge. 2. The facts are these. On the afternoon of 14th June 2008 the victim, who was a 21-year-old woman, returned to her car in Tesco's car park on London Road in Brandon. As she did so the appellant, who was standing by his own vehicle, called out to her. He said that he had had bad luck and asked for help putting a heavy bag into the back of his car. The victim did so and then the appellant produced a knife. He told her to shut up and forced her into the back of the car. There he tied her up with a rope. He tied her hands and feet and put the rope around her neck twice. She was left helpless. The appellant said to her: "If you dare move or scream, I'll stab you." When she struggled he slammed her head down and said: "Get down or I'll slash you here and now." He then partly covered her with a sleeping bag and covered her head with a T-shirt. He then drove off and drove for about 20 minutes to an isolated spot where he had a caravan. He then untied the victim's feet and walked her into the caravan. Inside the caravan he said to her that he wanted to make love to her and: "If you don't do that and if you're not good to me, then this is what will happen" and he drew back a curtain and showed the victim a depression in the ground. He said: "That's your grave if you don't do what I want." The appellant then proceeded to sexually assault and to rape her. Throughout her ordeal she pleaded with him to let her go home. He licked and kissed her breasts and touched various parts of her body. He performed oral sex on her and penetrated her mouth with his penis. He also raped her vaginally from the rear and from the front. Throughout the ordeal the victim believed that she was going to be killed. 3. After the appellant had raped her, she asked to be allowed to go home. He allowed her to dress, covered her head and guided her to his car. He then drove her back to Brandon where he dropped her off. When he removed the covering from her head, he said: "If you turn round I'll come back and kill you." He then drove off. She ran through the town to the address of her boyfriend's parents and raised the alarm. 4. Using information given by the victim about the time spent in the car and various other matters, the police put up a helicopter and located the caravan. The appellant was arrested. 5. There are two victim personal statements from the victim. She described feeling vulnerable and having flashbacks. She said that she suffered from panic attacks. She had been prescribed medication by her general practitioner to help her to cope. She was afraid to be alone and had to sleep with the light on. The appellant had been responsible for her loss of self-confidence. She had been left feeling dirty and ashamed. Her partner and family had also been affected. She was convinced that she would be subjected to violent behaviour again. In short, she said that the appellant had ruined her life. There were also medical consequences flowing from the assaults to which she had been subjected. 6. The appellant is now 59 years of age and is a man of previous good character. There was a pre-sentence report before the court which we have now read. The author of the report said that the appellant sought to minimise and deny his actions but he appeared to be remorseful. He had difficulty in providing an explanation for his behaviour. The writer of the report assessed the likelihood of reconviction as being low to medium and the risk of future sexual offending as low. The writer said that until the appellant was able to understand what contributed to the offences, he would be considered a high risk of serious harm to the public. 7. In passing sentence the judge said that he was giving the appellant full credit for his pleas of guilty and also his previous good character was taken into account. The judge described this as a well thought out plan to kidnap a young woman to satisfy the appellant's lust and depravity. He had humiliated and raped the victim in total isolation, and a particularly chilling aspect was the threat about the grave outside the caravan. The impact on the victim, as detailed in her personal statements, was also taken into account. The judge said that the court had to consider whether the appellant posed a significant risk of serious harm and concluded unhesitatingly that he did. The judge continued (page 10A): "I then, having found you to be dangerous, have to determine the appropriate sentence for you. Effectively, I have two choices. It is either an indeterminate sentence for public protection, or it is a life term. A life term is imposed if the court considers that these offences taken together are so serious to justify such a sentence, over and above a term of imprisonment for public protection. The very clear nature of these offences, all the aspects that I have referred to in the sentencing remarks, my desire also that if you are ever to be released from custody, it should be on a life licence persuade me, despite the helpful submissions I have had, that the balance of the argument is in favour of the life term, rather than a term of imprisonment for public protection. I have considered alternative views of that, and that is my judgment, having regard to the points not, of course, because of the bare facts of this case, because when one makes an assessment as to dangerousness, one looks at prospective behaviour in the future. The absence of any sort of explanation for conduct of this sort, together with the factors in the pre-sentence report to which I have eluded, make me think that this is not only a case of dangerousness, but a case of real gravity and seriousness, and a life term must be passed for it." Having referred to the appellant's good character, the judge then went on to fix a determinate sentence of 15 years and a minimum term of seven-and-a-half years, as we have already described. 8. There are two grounds of appeal. The first is that a sentence of life imprisonment was manifestly excessive and wrong in principle. The second is that a determinate element corresponding with a term after a trial of twenty-two-and-a-half years' imprisonment was manifestly excessive. 9. As regards the life imprisonment, Mr James submits that even if, as the judge held, the appellant satisfied the criteria of dangerousness, that of itself did not justify life imprisonment. Dangerousness could be adequately met by passing a term of imprisonment for public protection. Reliance is placed on what this court said in the case of R v Kehoe [2008] EWCA Crim 819 , at paragraph 17: "When, as here, an offender meets the criteria of dangerousness, there is no longer any need to protect the public by passing a sentence of life imprisonment for the public are now properly protected by the imposition of the sentence of imprisonment for public protection. In such cases, therefore, the cases decided before the Criminal Justice Act 2003 no longer offer guidance on when a life sentence should be imposed. We think that now, when the court finds that the defendant satisfies the criteria for dangerousness, a life sentence should be reserved for those cases where the culpability of the offender is particularly high or the offence itself particularly grave." Accordingly life imprisonment should be reserved for those cases where the seriousness of the offence or offences is such as to justify a sentence of life imprisonment. That is the statutory test (see section 225(2) (b) of the Criminal Justice Act 2003 ). 10. In our judgment, in deciding to impose a sentence of life imprisonment, the judge seems to have decided that imprisonment for public protection was insufficient, both because of the seriousness of the offending and because, in his view, a life sentence provided a greater degree of protection against dangerousness. We consider that the first was in principle a good reason for imposing a life sentence, but the second was not. The question for us is quite simply whether these offences were so serious as to justify the imposition of a sentence of life imprisonment. Grave though they undoubtedly were, in our view, this was not a case for the imposition of a sentence of life imprisonment. 11. We acknowledge that this was a truly horrific experience for a 21-year-old victim, who will be almost certainly haunted by the memory of what happened to her for the rest of her life. But, as we say, grave though these offences were, we do not think that they justified the imposition of life sentences. In reaching this conclusion, we have taken into account the fact that the appellant was 58 years of age at the time of the offending and was a man of previous good character. But of greater importance is the fact that, terrifying though the ordeal must undoubtedly have been for the victim, the appellant did not in fact use the knife on her, nor did he strike her. The gravamen of the offending here was the threats and, of course, the serious sexual offences. 12. As for the second ground of appeal, it is submitted that a starting point of twenty-two-and-a-half years after a trial was too high. It is said that the judge did not sufficiently take into account the appellant's age at the time of his offending, the fact that he was a man of previous good character and the fact that the pre-sentence report stated that there was a low risk of his committing sexual offences in the future. More importantly, it is submitted that twenty-two-and-a-half years was far too high having regard to the range of offences of 6 to 11 years custody for contested cases involving abduction and rape suggested by the Sentencing Guidelines Council. In our judgment, there is some force in this submission. But this was a very bad case indeed. There were serious aggravating features, not the least of which was the threats to kill the victim; the pointing out to her of the depression in the ground which she described as her grave, if she did not comply with his demands; and the medical consequences for her of the sexual assault. But, as we have said, the appellant did not in fact use the knife, nor did he use violence on the victim over and above the sexual acts themselves. 13. In all the circumstances, in our judgment, the correct concurrent determinate sentences to have passed in this case, after a trial and before the discount for the pleas of guilty, would have been 16 years' imprisonment. To that there would have to be applied the one-third reduction. That leads us to 10 years and 8 months for the concurrent determinate terms. Passing sentences of imprisonment for public protection, we are required to fix the minimum term which the appellant must serve before he can be considered for possible release at half the determinate terms that we have just mentioned. Accordingly, we fix the minimum term at 5 years and 4 months. We emphasise that the significance of the 5 years and 4 months is that it is the earliest date at which the appellant can possibly be considered for release. That is the exercise that we are required by Parliament to perform and we have explained how we reach that figure. To that extent, therefore, this appeal is allowed. 14. MR JAMES: I am most obliged to my Lord. I wonder if I could, for the avoidance of doubt, confirm whether it is the case that my Lord would intend that the 81 days served-- 15. LORD JUSTICE DYSON: I should have said that. The 81 days already served continues to count.

```yaml citation: '[2009] EWCA Crim 982' date: '2009-04-02' judges: - LORD JUSTICE DYSON - MR JUSTICE IRWIN - MR JUSTICE SWEENEY ```

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

Neutral Citation Number: [2008] EWCA Crim 2030 No: 200802561/C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 21st August 2008 B e f o r e : MR JUSTICE GAGE MR JUSTICE TREACY MR JUSTICE BEAN - - - - - - - - - - - - - - - - - - - - - R E G I N A v KHALID RABANI - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr M L Harrison appeared on behalf of the Applicant Miss C Howell appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE GAGE: On 23rd August 2007 at Aylesbury Crown Court this appellant was convicted of two offences. The first was an offence of religiously aggravated inflicting grievous bodily harm (count 1) and the second an offence of intimidation (count 2). On 31st March 2008 he was sentenced to 30 months' imprisonment, less 355 days spent on remand, for the offence of religiously aggravated inflicting grievous bodily harm and nine months' imprisonment consecutive for the offence of intimidation. On the same date he was sentenced to three months' imprisonment consecutive for an offence of racially aggravated common assault, the subject of an earlier indictment and trial. No issue arises in respect of the latter offence in this appeal. 2. The appellant appeals against his convictions in respect of the first two offences by limited leave of the single judge. 3. In respect of these two offences in summary the evidence was as follows. We deal first with count 1, the offence of religiously aggravated inflicting grievous bodily harm. The complainant, Ram Duggall, said that on the morning of 9th June 2006, having just had breakfast at the Green Cafe, Denham, he left the cafe and walked towards Fine Food Store. He saw the appellant, a man whom he knew, standing against a hairdresser's window. The appellant called him a "Hindu bastard". Mr Duggall observed that the appellant's speech was slurred, causing him to believe that the appellant was intoxicated. The appellant acted in a loud and aggressive way, and, as Mr Duggall tried to move past him, the appellant tried to kick him on his left leg. Mr Duggall put his leg up to try and ward off the blow, but he said that the appellant caught him on the shin and stamped on his other leg. In the course of the incident Mr Duggall was pushed over a sandwich board outside the hairdresser's salon immediately adjacent to the incident and was wrestled to the ground. Mr Duggall said that the appellant stamped on his leg and during the course of the attack swore at him, mumbling and saying "Hindu bastard". Eventually staff came out of the hairdresser's shop and rendered assistance to Mr Duggall. In due course he was taken to hospital where his injuries were seen to and an X-ray taken showing he had a broken leg. 4. In the course of cross-examination Mr Duggall agreed that he told the police officers after the event that the appellant had a can of beer in his hands at the time of the attack and that he had been kicked to the head, ribs and legs. He agreed that this was inconsistent with the evidence which he had given in court. He also appeared to agree that the appellant had fallen on top of him during the altercation. He said that he had known the appellant for two to three years and there had been a time when they both had been friends. 5. The prosecution called a number of witnesses who had either seen the incident or became involved in it. One, Seyfi Gookmenn, a waiter in the cafe, said that he had heard two people fighting outside. He said that he saw the two people outside the cafe. He went outside and tried to separate them. He agreed in cross-examination that in some respects his evidence was inconsistent with his witness statement. Before us today Miss Howell for the prosecution very fairly told us that he was in many ways an extremely bad witness. 6. Another, Maria Ann Knight, worked at the hairdressing salon close to where the incident took place. She said that at 10.00 a.m. that morning she heard voices outside the hairdresser's. She heard the sandwich board scraping along the pavement and realised that a fight was going on. She looked out of the window and saw two Indian men fighting. One of the men was being attacked by the other. She saw that that man had his legs swept beneath from him and the other man then punched while he was on the ground. She said that the man on the ground was trying to protect himself, but the man on top continued lashing out with his fist. She later attended an identification procedure but picked out a man who was not the appellant. In cross-examination she said that she had not heard any racist remarks during the altercation and did not think it was possible that the appellant fell accidentally onto Mr Duggall. The prosecution case was that because she was a witness to this incident she was subjected to intimidation which became the basis of the second count in the indictment to which we will turn later in this judgment. 7. Two further eye witnesses were called. They were Maria Knight's husband and her son, both of whom worked in the hairdresser's shop and were involved to some extent in the incident. 8. A police officer, PC Parry, made a statement which was read to the court. He attended the scene of the incident and obtained a description of the attacker which fitted that of the appellant. 9. Finally the evidence of a medical practitioner was read to the jury. His evidence was that Mr Duggall was admitted to hospital complaining of a swollen right leg, bruising and abrasions to his elbow and chest pains. As we have already said, a X-ray was taken which showed a fracture to the part of the tibia which joined the knee. His evidence was that on admission Duggall was shouting and abusive. 10. The appellant gave evidence in respect of this incident. His case was that he had acted at all times in lawful self-defence, alternatively that the injury had been caused by accident. He said he had known Mr Duggall for some years as a neighbour. By June 2006 they were on bad terms. On the morning of 9th June 2006 he said he was standing outside the hairdresser's salon when he saw Mr Duggall walking towards him. He asked Mr Duggall to return a tape which he had previously lent to him. Duggall's response was to tell him that he did not have it and to leave him alone. An argument ensued in which each swore at the other. The appellant admitted calling Duggall a "fat fucking bastard" to which Duggall said "come on then". It was the appellant's case that Duggall was the aggressor in the ensuing altercation. Duggall lent backwards and both fell to the ground. The appellant said that he landed on top of Duggall and held his arms to the ground. At that point Mr Knight, Maria Knight's husband, came out of the hairdresser's shop and pulled him off Duggall. In cross-examination he denied being drunk on the occasion of this incident. He had denied tripping Mr Duggall and denied calling him a "Hindu bastard". 11. So far as the offence of intimidation was concerned, as we have said it concerned Mrs Maria Knight. She said that on 23rd September 2006 she was working at the hairdresser's salon with her daughter, Corinne. During the course of the afternoon as she was attending to a customer she saw the man who had been involved in the previous incident looking through the door into the salon. The man walked away but returned a little later. She thought he was looking for a customer so she went to the door and asked, "Can I help you?" She said as soon as she looked into the man's face she realised that at the identification parade earlier she had picked out the wrong person and it was the man standing before her who had attacked the other Indian man. Her evidence was that the appellant called her a "fucking bitch". He asked if she was Maria and said that she had "stitched him up". By then her daughter had come to her side. The man was angry and shouting. He kept calling Mrs Knight a "fucking bitch". He said that he would bomb the shop and "do her". She told Corrine to telephone the police and pushed the door of the shop shut. The man stood outside before walking away towards the station. 12. Mrs Knight's evidence was supported by evidence given by her daughter Corrine. In addition, a customer, Victoria Pearce, said that as she was having her hair cut on 23rd September she heard a man using the F word at Maria and making threats towards her. 13. The police officer was called. His evidence was that following a telephone call he went to the salon. Mrs Knight gave him a description of the man who had intimidated her. As a result, the police officer was able to identify the appellant and arrest him for a public order offence. At the police station the appellant was abusive and appeared to be under the influence of alcohol. He complained he had been "stitched up". Significantly, in our judgment, this was the same phrase as we have said that Mrs Knight and her daughter Corrine said was used by the man who had confronted them earlier on that day. 14. The appellant's defence given in evidence was the same as that which was in a prepared statement given to the police officers at interview. He accepted that on 23rd September he had passed by the hairdresser's salon. His case was that nothing had happened. He went to the Fine Food Store and purchased two cans of cider before returning past the hairdressers. On his way back a woman (whom he thought was Corinne) was standing in the doorway of the salon and she gave him a dirty look. He said he gave her a dirty look back but nothing else happened. 15. Subsequently he was stopped by police officers and arrested. He told the police that he had guests at home and one of these guests might have been involved. In cross-examination, he agreed that he knew that Maria Knight was a witness in the case (count 1) and that she worked at the hairdresser's salon. He agreed that he had walked past the salon four times on 23rd September. He said that he had told his guests that he had had an altercation (the incident in respect of the first incident) and that one of his guests, Ajad Khan, had, hearing on this information, walked out. He said that Khan was of similar appearance and build as him and that the two of them had drunk cider together. He agreed that his defence case statement made no mention of Mr Khan but he said that he expected the CCTV footage of the street would exonerate him. 16. On this evidence the appellant was convicted of both counts. 17. There are a number of grounds of appeal. The appellant has leave to appeal in respect of four grounds. They are as follows. First, it is submitted that the judge erred in giving the jury a Lucas direction in relation to lies alleged to have been told by the appellant without hearing argument from the appellant or adjourning for him to obtain legal advice. Second, complaint is made that in giving a section 34 adverse inference direction the judge failed to tell the jury that the appellant's case was that he had told his solicitors of the existence of Ajad Khan, alternatively it is complained that the judge failed to inform the appellant that he might wish to call evidence and equally that he failed to give reasons to the appellant as to why he was going to give the adverse inference direction. Thirdly, it is submitted that the judge failed to enquire of the appellant whether he was going to call witnesses. Fourthly, complaint is made that prosecuting counsel was wrongly permitted to make a closing speech. 18. There are a number of further grounds of appeal in respect of which leave was refused by the single judge. Mr Harrison, who appears on behalf of the appellant in this appeal, addressed us first in relation to those grounds and we shall deal with them before turning to the grounds upon which the appellant has leave. We shall deal with each of these grounds comparatively shortly. 19. In ground 1 it is complained that the judge failed to allow the appellant to transfer his legal representation order to other solicitors. This is in two parts. The first refusal to transfer the representation order was made by Judge Connor on 6th June 2007. At that stage the appellant faced other charges not on the same indictment. From the transcript of the hearing, which we have read, it seems that the appellant was quite happy for his current solicitors to represent him in relation to the other charges. That appears from page 6 of volume 1 of the transcript. The judge indicated that he was troubled by amending the representation order to solicitors just to act in relation to this matter. When he made this clear to the appellant, the appellant responded that he would represent himself. The judge pointed out the extra work and cost involved in instructing other solicitors. At the end of that hearing, the judge said that he would leave the representation order as it was for the appellant to reflect upon it. 20. The next time that this matter was raised, so far as we can see, was at the hearing before Judge Cripps on 3rd August 2007. The submission is that he ought to have broken the fixture for this trial, which was fixed for 20th August, so that the legal aid representation order could be transferred to fresh solicitors. Both the appellant's current solicitors and the proposed new solicitors were present at that hearing. 21. In the course of his submissions today Mr Harrison concentrates upon the fact that in his submission there were a number of defects in the way in which the current solicitors were preparing the case for trial. Looking at the transcript, as we have, of that hearing, it is quite clear that the judge explained the position to the appellant and went quite carefully through with him complaints which the appellant had made in a letter to the court. 22. Counsel who was then instructed on the appellant's behalf, Mr Orsulik, sought to explain to the judge that everything was in hand. The judge at the end of the discussion between himself and counsel on behalf of the appellant, as well as the appellant himself, came to the conclusion that there was no substantial compelling reason for him to discharge the current representation order and transfer it to the solicitors. He explained this quite clearly as can be seen from volume 2 at page 12 to the appellant, saying: "Because I am afraid, again, it is the same position. I am not with you. I cannot see that there is a substantial compelling reason, I am afraid. Any reaction to that? Anything I have missed, do you think? The Defendant: Only the main reason, the trust I have lost in IBB and I trust Mr Dunlop." The judge said he was not prepared to transfer the representation order and the appellant said that he would elect to represent himself. 23. Earlier in the transcript it is clear that the judge referred to schedule 3 of the Access to Justice Act 1999 Archbold Criminal Pleadings and Practice paragraph 6-169 in which the principles in schedule 3 are set out. 24. In our judgment, it seems perfectly clear from the transcript that the judge applied his mind to the correct principles and made a decision which in our judgment cannot be challenged. 25. Subsequently, on the first day of the trial, Judge Connor asked the appellant if he was going to represent himself. The appellant said that he was. On the second day of the trial the judge again dealt with this matter with the appellant in the absence of the jury. The transcript shows that he said that he had heard a rumour that perhaps the appellant was going to seek representation. The appellant said he was not and that he was going to continue to represent himself. 26. We turn next to ground 2 which is associated with the first ground. During the course of the trial, on the third day after the principal eye witness evidence had been given by the prosecution witnesses, the stage had reached where the evidence from police officers as to what occurred at interview and the remaining evidence of prosecution would be given, followed by which the appellant was due to give his own evidence. During the course of discussion with the judge the appellant made it clear he would be giving evidence. On that day the appellant asked for legal representation to help him when he gave that evidence and with his speech. The judge pointed out to the appellant the difficulties of another freshly instructed representative coming into the trial at that stage. He invited the appellant to fill in a form seeking legal aid and asked the appellant the reason why he had changed his mind. The appellant gave no reason other than that he than he wanted help with his own evidence and with a speech. 27. Later on the same day the form, duly filled in, was presented to the judge. The judge declined to direct a transfer. At page 44B to C of the third day of the trial he said: "Next, I notice that you are unable to give any explanation at all as to why it is that you have changed your mind as to your wish to be legally represented during this trial and I am sorry to say that I am forced to the conclusion that the application must be a tactical move intended to cause delay and perhaps further confusion in the trial, and in those circumstances the application is refused." 28. On behalf of the appellant Mr Harrison submits that the judge was wrong to make that decision. He submits that the judge ought to have adjourned the case. It would not have taken long either for a representative to be appointed, nor for him to have read through the appellant's notes so that he could properly represent him in the final stages of the trial. 29. The judge had observed the appellant throughout the first two days of the trial. Initially the appellant was, as we have indicated, adamant that he wanted to represent himself. As the judge pointed out, at some stage, not at this particular stage, the appellant was not entirely unversed in criminal proceedings. He has a large number of previous convictions. 30. In our judgment, the judge was quite entitled to find that the application for representation at this stage of the trial was a delaying tactic and in the exercise of his discretion refuse to adjourn. There would have been an inevitable consequent delay. 31. Mr Harrison submits, as we have said, that the judge was wrong to take view, but he is constrained to concede that the inference that the judge drew was one which could be drawn. In our judgment it was undoubtedly one which could be drawn by the judge and it cannot be challenged for that reason. We remind ourselves in relation to both these two grounds that in the recent case of R v Ulcay 1 Cr App R [2008] 360 at 32 the President of the Queen's Bench Division said in relation to matters such as this: "Our approach is entirely consistent with the judgment of Judge Wakerley QC, then the Recorder of Birmingham, dated 10th July 2001 in R v Ashgar Khan addressing the 2001 Regulations. We pause there to say these were the regulations which the judges in this case were dealing with. "Expressing his concern at the increasing number of applications for transfer of representation in the Crown Court, he observed: '... This court will insist on strict compliance with the provisions of Regulation 16 ... The grounds of the application and full particulars need to be specified by the existing representatives. Next, the substantial compelling reason under subparagraph 2(4), if relied on, needs to be specified so that I can identify it. It will not generally be sufficient to allege a lack of care or competence of existing representative ... only in extremely rare cases, and where full particulars are given in the application, will a general ground of loss of confidence or incompetence be entertained. It must further be pointed out that it will not be sufficient simply to say that there is a breakdown in the relationship between solicitor and client. Many breakdowns are imagined rather than real or as a result of proper advice.'" That observation is, in our judgment, particularly apt for the submissions that have been made to us in respect of ground 1. 32. The third ground again is associated with the first two grounds. Complaint is made that the judge erred in failing to adjourn and order new representatives when it was clear that the appellant was not in a position to call his own witnesses. 33. In our judgment there was no stage when the appellant was not in a position to call witnesses. On the contrary, in respect of Dr Matherson and a Miss Heather Fleming, to whom we will return in a moment, the judge bent over backwards to help the appellant. He arranged for Miss Fleming to attend the court to have a statement taken from her by a police officer. As it turns out now, the ground of appeal, ground 5 in relation to the failure to allow a witness summons in respect of Heather Fleming, is not pursued. In our judgment, there was no reason why the judge should have alerted himself to the fact that the appellant was unable to deal with his own witnesses. 34. So we turn to ground 4, also upon which leave has been refused. It is submitted that the appellant was not able properly to highlight the inconsistencies in the evidence of the prosecution witnesses. Mr Harrison fairly concedes that anyone representing himself may be faced with some difficulties. However, he submits that in this particular case it ought to have been so obvious to the judge that the appellant was unable to cope that he should have taken steps to see that he was represented. 35. It is difficult for us at this stage to judge how it was that the appellant appeared before the judge when he decided that he would represent himself. However, once he had stated, as he did twice, in the course of the trial that he was going to represent himself, the judge was quite entitled to leave him to carry on as he was. When it came to the stage when he sought representation, the judge refused it because he gave no reason as to why he had changed his mind and we have already concluded that the judge was entitled to reach that decision. Accordingly, in our judgment, there is nothing in that ground of appeal. 36. Ground 5, as we have said, is not pursued. It relates to the proposed witness Heather Fleming. We need deal with it no further. 37. Grounds 10 and 11 refer to medical evidence. We have already stated that there was evidence from a Dr Matherson in relation to the injuries sustained by Mr Duggall. Dr Matherson's witness statement was read to the jury. It is clear from that witness statement that all he was able to say was what was recorded in the hospital notes of injuries sustained by Duggall on admission to hospital following the incident in relation to count 1. 38. The applicant's case was that Duggall may have been more susceptible to injury than a normal person. However none of what Dr Matherson could say carried his case in that respect any further. 39. Accordingly, before us today Mr Harrison concentrates on the second part of that ground, which in effect is ground 11, submitting that the appellant ought to have been given the opportunity, or his previous representatives ought to have taken steps, to obtain another opinion from a medical expert to show that it was possible that the fracture of Duggall's leg could have been caused as a result of an accident. 40. It seems to us that this was a matter which was, firstly, complete speculation and, secondly, one which the jury would be quite able to cope with on the basis of their own common knowledge and common sense. The question of how the injury occurred would depend to a very large extent upon the force used of which the appellant and Mr Duggall were the prime witnesses in respect of that issue. There is, in our judgment, nothing in either of these two grounds. 41. We turn to the four grounds upon which leave has been granted. The first ground is a submission that the judge was wrong to give to the jury a Lucas direction in respect of alleged lies told by the appellant. The alleged lie related to a conversation which the appellant admitted having with police officers on the telephone following the first incident. It is alleged that he said he was in Uxbridge and would meet the police officers at Tesco. He accepted in evidence that he was not in Uxbridge at that time. It is accepted that he was in fact, and he accepted in the course of his evidence, on his way to Uxbridge when he made that observation. In fact, he did not go to Uxbridge and as a result he did not meet the police officers. In the course of discussion between the judge and counsel, counsel for the prosecution made what at first sight appears to us a somewhat half-hearted suggestion that a Lucas direction be given in relation to that alleged lie. At first the judge seemed to think it unnecessary but in due course he was persuaded that he should give a direction and gave it in the following terms: "Then I turn to the question of what the defendant said to the police, two aspects of that. As I have reminded you, in his evidence the defendant conceded that when he told constable Parry on the telephone that he was in Uxbridge and would meet him in Tesco he was not being truthful. The inference is at least as indeed the defendant seemed to accept in his evidence that he was in truth seeking to avoid being arrested. You are entitled to consider whether the evidence about this supports the case against him, and in this regard if you take the view that that was indeed a lie told by the defendant, namely that he was in Uxbridge and would meet the officers in Tesco, why did he tell that lie." The following paragraph is a conventional Lucas direction given in the usual form. 42. The judge continued: "If you think that there is or may be an innocent explanation for those lies then you should take no notice of them. It is only if you are sure that he did not lie for an innocent reason that they can be regarded as evidence supporting the prosecution case." 43. Mr Harrison submits that such a direction was quite unnecessary and that, in any event, the appellant had not conceded that he had lied. It is further contended as part of a general allegation that the appellant was disadvantaged by not being represented and by being unable to understand the discussion between counsel and the judge and unable to contribute to whether or not a direction should be given. 44. The prosecution in a skeleton argument submit that the appellant did admit telling a lie about where he was and that the Lucas direction was necessary. 45. In our judgment, having read the transcript of what the appellant said (we do not cite it in this judgment, volume 5 page 53 and pages 73 to 75) it seems quite clear to us that the appellant was at some stage conceding that he had not told the police officers the truth. In any event, in the course of his direction the judge made it clear that the jury could only act upon it if they were satisfied that the lie had been told. Whether or not the appellant lied to the police about being at Uxbridge this was clearly a comparatively minor matter in the overall context of the case. 46. Some judges might not have given a Lucas direction; others undoubtedly would. We do not think that the judge can possibly be criticised for doing so. It was done on the instigation of prosecuting counsel and done no doubt with the motive of providing a fair direction to the jury so far as the appellant is concerned. In our judgment, this is not one of those cases in which giving such a direction adversely affects the appellant's case. Accordingly, we think there is nothing in this ground of appeal. 47. We turn to the next ground of appeal, which is ground 7 in the original notice of appeal but the second ground upon which leave has been given. The judge gave the jury a section 34 direction in relation to the appellant's failing to mention before trial his evidence that a guest of his, Mr Ajad Khan, might have been the person who threatened Mrs Knight. It is quite clear from the cross-examination of the appellant in volume 5 pages 83 to 88 (we do not cite the whole passage). The question is put to him at the bottom of page 83: "So it is another person who you had spoken to on that day that must have committed this offence? A. Not spoken to on that day. It was like it was one of my mates." 48. The cross-examination continued, in the course of which the appellant stated that it must have been Ajad Khan, a guest of his on that day, namely 23rd September. He went on to accept that he had not mentioned Khan's name in his police interview, nor was it put in his defence statement. When it was suggested to him that it was a recent invention he disagreed. However, he insisted that he always raised the matter with his solicitors. 49. In our judgment, the matter having arisen as it did during the course of the appellant's evidence, it was inevitable that the jury should be given by the judge a section 34 direction. It is not now suggested by Mr Harrison that the judge was wrong to give such a direction. So far as we can understand the submissions that are made to us on this point, Mr Harrison submits that the matter was not properly explained to the appellant in the discussion between himself and counsel. In fact, when one reads the transcript of the discussion that took place, it is quite clear that the judge did ask the appellant for his comments and we see no reason to criticise him in any way for having given that direction. 50. In our judgment, this criticism is unfounded. In giving his direction to the jury on this aspect of the case the judge again gave, again, what is a conventional and entirely fair direction. Furthermore, in our view, he went rather further than he needed have done because he told the jury that if they thought that the appellant had not mentioned this matter, because of advice given to him by his solicitors, they should not hold it against him. That in fact was never quite what the appellant said in evidence. 51. There is an associated ground on which he has leave, namely ground 8 or ground 3 on which he was given leave, in which it is complained that the judge did not inform the appellant that he was entitled to give evidence and to call witnesses in support. It is in that regard correct that the judge did not give the standard practice direction before the appellant himself gave evidence as to the inference that might be drawn if he did not give evidence and did not call witnesses. However, it is quite clear from what we have already said that at all stages the appellant proposed to give evidence and made that clear. Accordingly, in our judgment, there is nothing in the point that the judge failed to give any kind of warning to the appellant before he himself gave evidence. 52. So far as witnesses are concerned, again it is perfectly clear from the transcript that once the appellant's evidence had been completed the judge in terms told him of his right to call witnesses. It may not have been in the precise form that would have appeared had he given the practice direction form at the outset of the appellant's evidence, but it was, in our judgment, nevertheless quite sufficient to alert the appellant to his right to call witnesses to give evidence on his behalf. 53. In his final submission Mr Harrison submits that the judge should specifically have identified the appellant's solicitor as one whom he might wish to give evidence. In our judgment, that would have been going beyond the duty of any judge in the circumstances. We see nothing in that point either. 54. We turn, therefore, to the sole ground of appeal in which, in our judgment, there is some force and which we have considered with some care. At the close of all the evidence prosecution counsel, Miss Howell, made a speech on behalf of the prosecution. Miss Howell does not concede that necessarily in every case where a defendant is unrepresented and gives only evidence on his own behalf that prosecuting counsel cannot make a speech. However, for the purposes of this appeal we take the view that the prosecution had no right through counsel to address the jury at close of the evidence. 55. There is no doubt that the general rule is that prosecuting counsel is not allowed a second speech where a defendant has called no witnesses apart from himself. This derives from section 2 of the Criminal Procedure Act 1885, Lord Dennam's Act, which starts off in the following terms: "If any prisoner or prisoners, defendant or defendants, shall be defended by counsel but not otherwise, it shall be the duty of the presiding judge at the close of the case for the prosecution to ask counsel for each prisoner or defendant so defended by counsel whether he or they intend to adduce evidence." We do not need to repeat the rest of that section. It is the words "but not otherwise" which in our judgment provide a prohibition in respect of a speech in such circumstances. 56. This matter was referred to in R v Mondon (1968) Cr App R 695. Giving the judgment of the court, Edmund Davis LJ said (page 2 of 3 in the bundle of authorities put before us by prosecuting counsel): "The practice is now well established that in circumstances such as these, where an accused person is professionally unrepresented and calls no witnesses, other than giving evidence for herself or himself, the Crown is not entitled to make a second speech. That has long been a rule of practice. In Harrison [citation given] Salter J said ... 'we desire to point out very clearly that the rule about counsel in such circumstances not addressing the jury a second time is one which ought to be carefully observed, and it might be that in another case this Court would have to hold that a conviction, in a trial where such an irregularity occurred, must be quashed.' In that particular case the Court, applying the proviso to section 4(1) of the Criminal Appeal Act 1907 , came to the conclusion that despite the irregularity there had been no miscarriage of justice, and the conviction was accordingly affirmed and the appeal dismissed." 57. More recently in the case of R v Stovell Rose LJ, Vice President as he then was, referred to Mondon . At paragraph 27 of the judgment, having referred to counsel's reference to the case of Mondon , he continued: "It is to be noted that, in that case, the appellant had been unrepresented throughout her trial. It is also to be noted that the case was decided at a time when the proviso applied under the Criminal Appeal Act 1968 , whereas the determinative test which this Court now has to apply is as to the safety of the conviction. It is also to be noted that, even under the 1968 Act , it was by no means the inevitable consequence of prosecuting counsel having improperly and inappropriately made a final speech in relation to an unrepresented defendant, that the conviction would be quashed. (see R v Pink 55 Cr App R 16)." We pause there to say that in Pink in the final paragraph the court dealing with the proviso again said this: "In the view of this court, no reasonable jury, unaided by a second address on behalf of the prosecution but with the benefit of a full and fair summing-up such as they had in this case, could have failed to bring in a verdict of guilty. Accordingly, this appeal is dismissed." 58. In Stovell the court went on to deal with the facts of that case before announcing the conclusion in relation to this matter at paragraph 36: "So far as the prosecution's second speech is concerned, in the light of the procedural and evidential changes which have taken place since the decision of this Court in Mondon , we are by no means satisfied that in all cases, particularly when a defendant has been represented substantially throughout the trial and there are issues arising during the defence upon which the jury would be assisted by comment from prosecuting counsel, it is necessarily inappropriate for prosecuting counsel to make a second speech. But it is unnecessary in the present case to reach a conclusion with regard to that matter, because, for the reasons we have already given, even the old authorities would not, as it seems to us, lead to the quashing of this conviction." As is pointed out in the commentary in the Criminal Law issue that observation was _obiter_. 59. It is accepted by Mr Harrison that in certain circumstances it might be that even where a defendant is unrepresented counsel for the prosecution might be entitled to make a closing speech. However, for the purposes of this appeal we shall deal with it on the basis, as we have said, that the prosecution had no right to make a speech. We also see no sensible difference between the test of safety of the conviction in these circumstances and that which is propounded in Pink as we have set out earlier. 60. We have to decide, therefore, whether the verdicts in this case are safe, notwithstanding the fact that prosecuting counsel made a speech which she was not entitled to do. 61. Having considered the whole matter carefully, we have concluded that the convictions are nevertheless safe. We give reasons for this. First, to far as count 2 is concerned the appellant admitted knowing Maria Knight had witnessed the earlier incident. He admitted that he knew that she had provided a witness statement. He accepted that he had walked past the hairdressing salon on 23rd September four times. It was not suggested that Mrs Knight had concocted her evidence of a confrontation between a man who called her a bitch and endeavoured to intimidate her. It would therefore have been a very substantial coincidence if someone other than the appellant had sought to intimidate her in relation to what she had seen of the incident which had occurred in June. In addition, the appellant at a very late stage, namely when he was giving evidence for the first time, said that a guest of his, Ajad Khan, could have been the person who had confronted Mrs Knight on that occasion. As already observed, we regard it as significant that when he was seen by the police he used the same expression, namely that he had been stitched up, as Mrs Knight said had been used by the person who confronted her. 62. In our view, in the case of count 2 the prosecution case was really overwhelming. There can be no question about the safety of that verdict. We are entirely satisfied that is is. 63. We turn next to count 1. In our judgment, the evidence against the appellant on that count was also strong. Although Mr Duggall's evidence contained inconsistencies and the witness from Rooster was conceded to be a very poor witness, the Knights were independent witnesses. Again it is fair to point out that independent they were, but they all came from the same family. All three were quite clear that the appellant was the aggressor in the incident which related to count 1. This in our judgment was in effect the real issue in the case. The appellant conceded that he had called Duggall a "fucking bastard". He did not concede that he had called him a "Hindu bastard". Of course, it was necessary for the prosecution to prove the religious motive for the offence. As we have said, not all witnesses said that they heard the appellant call Duggall a Hindu bastard. However, Steve Knight, Maria Knight's husband, made it plain that he had heard the appellant state this in clear terms. Either he or his son observed that he thought it was odd since both men were of Asian extraction. 64. In our judgment, the jury were quite entitled to disbelieve the appellant's evidence in respect of count 2. Working backwards from that to count 1 and in view of the matters to which we have already referred, in our judgment they were quite entitled to reject the appellant's evidence on that count as they clearly did. They were equally quite entitled to be sure that Mr Knight was correct when he stated that the appellant had called Duggall a "Hindu bastard". 65. Finally, the summing-up of the judge was in our judgment scrupulously fair. Many of the points made by Mr Harrison in his submissions to us about the inconsistencies in some of the prosecution evidence were made by the judge in the course of his summing-up. Towards the end of the summing-up the judge cautioned the jury in respect of Duggall's evidence. He directed the jury to approach his evidence with some care and look for supporting evidence. It is quite clear in the end that the jury must have been satisfied as to the truthfulness and accuracy, at any rate, of the Knights' evidence and in our judgment the verdict in relation to count 1 is also safe. 66. In the circumstances, we are quite satisfied that whether the test of safety is expressed in the terms used in Pink or simply on the basis of the current statutory test of safety, we are left in no doubt that both these verdicts are safe. The appeal against conviction must be dismissed.

```yaml citation: '[2008] EWCA Crim 2030' date: '2008-08-21' judges: - MR JUSTICE GAGE - MR JUSTICE TREACY - MR JUSTICE BEAN ```

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

Case No: 200706336/D3-200802252/D3 Neutral Citation Number: [2009] EWCA Crim 86 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 28th January 2009 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE BEAN HIS HONOUR JUDGE PAGET QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v MOHAMMED KHAN - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr T Cray appeared on behalf of the Appellant Miss C Knight appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE BEAN: On 16th November 2007 in the Crown Court at Maidstone, following a trial before His Honour Judge Michael Lawson QC and a jury, the appellant was convicted of three counts of rape. He appeals against those convictions by leave of the single judge. 2. Mr Cray, in his concise and forceful submissions on the appellant's behalf, challenges two rulings of the learned judge in relation to the admissibility of evidence which he says either separately or in combination render the convictions unsafe. 3. The complainant was a prostitute. She gave evidence that on the evening of 1st April 2007 she had been pursing her profession on the streets of Chatham in the area of New Road and City Way. She was given a lift there by her cousin's boyfriend who dropped her off at about 10.45 pm. A potential customer pulled into City Way and she started to walk across the park, Jackson's Field. She saw a man approaching from the tennis courts. At the junction of the pathways he grabbed her and began dragging her. She struggled but could not grab onto anything. He said he did not want to hurt her and told her to stop struggling. At the tennis courts she managed to hook her arm over the frame of the court netting. He held her, one arm around her front and the other holding her left arm. Her face and body were pushed against the netting. She heard people walking and she shouted "get him off" but no one came to help. He turned her round and put his hand up her skirt. He fiddled with her, as she put it, but did not touch her under her clothing. 4. She then recognised him, she said, as a man who had paid her £40 for straightforward sexual intercourse about a month previously. She later discovered the £40 was in counterfeit bank notes. He had asked for vaginal and oral sex but she told him that would be £60. She got into his car. He gave her two £20 notes which looked like they had been photocopied. He did not have an accent. It was only after she got home that she had a proper look at the bank notes. In cross-examination she conceded that she could not say whether on the previous occasion when she had been paid with forged notes she and the man concerned had had full vaginal sexual intercourse or whether she only performed oral sex on him. 5. Reverting to the events of 1st April, she gave evidence. It is not necessary to go into it in detail on this appeal because it does not affect the two points which Mr Cray raises: it is enough to say that she gave evidence of her being penetrated in a number of ways and with very serious violence. The applicant told her that he had a knife. He said he had murdered other people and did not want to add her to the list. 6. One witness for the prosecution whose evidence was adduced despite submissions to the contrary from the defence, was another prostitute, AW. She gave evidence that on two occasions prior to 1st April 2007 a man paid her for her services as a prostitute with counterfeit notes. The man was Asian (as is the appellant) and had short dark hair and was about 5 feet 5 or 5 feet 6 in height with a Manchester accent. She recognised his accent as Mancunian because she was from Lancashire. The first occasion was around the end of 2006. She had performed oral sex on the man and had vaginal sexual intercourse with him. She could not attend an identification procedure for reasons of health. 7. The appellant gave evidence in his own defence. It is not necessary to outline all of it. As to forged bank notes, he said that in mid-March 2007 he and a friend had been, as he put it, messing about, scanning some bank notes on a computer and trying to print them off on a printer. He produced 20 to 30 of them. It was more or less his idea. They decided it would be funny to buy drugs for the appellant's friend, who was a drug user, with the counterfeit money. They spoke to three women who frequented the alleyway beside the house. The appellant thought it was possible they were prostitutes based on their dress. He had seen prostitutes in the area but did not know where they worked. He gave one of the women two counterfeit £20 notes for a quarter of an ounce of cannabis. Several days later the women came to his door. They were dissatisfied and he had to give them more counterfeit notes and also £70 in genuine money. 8. As for the evening of 1st April 2007, he did not dispute that he had had sexual intercourse with the complainant in the park. He said that that intercourse was consensual and also that he had never had sexual intercourse with her before. He had been revising work as a student earlier in the evening and about 10.45 was walking along New Road when he came across the complainant, whom he had never met before, and she asked for a light. They struck up a conversation. He asked her whether she would like a drink to which she said "when and where", to which he replied "why not now". He had vodka in his pocket. They sat on the grass in the park. She told him she was breaking up with her boyfriend. He offered her some vodka. He did not see whether she drank it. She said she was a business woman but was not getting many customers. He did not really believe she was a prostitute. She asked how much money he had. He asked her why and she replied: "Just asking." He thought she wanted to go for a drink and have a good time. He told her he had £40. She asked where he lived and whether he had alcohol there. She mentioned a party. She was emotional about breaking up with her boyfriend. She kissed him and touched him on the groin. She said: "Do you want to go somewhere more private for a quick one?" He agreed. They went to the tennis courts. She performed oral sex on him without a condom. After approximately two minutes he said: "Are you going to bend over?" She replied: "Okay." He put on a condom. Matters proceeded from there, he said, in an entirely consensual way. After the intercourse and oral sex they got dressed. He said he was tired and was going home. She asked about money. He gave her £20 for a taxi or something, not realising it was a counterfeit note. He had forgotten the counterfeit notes were in his pocket. She said: "Are you taking the piss, this is a fake". After an exchange of insults they parted. 9. The defence sought to adduce a witness statement by CS, another prostitute, in evidence under section 114(1) (d) of the Criminal Justice Act 2003 . The statement was taken only two days after 1st April 2007. It indicated that at approximately 11.30 pm Ms CS was working in the same area as the complainant and saw her in the vicinity of City Way and New Road. It had been raining or was just about to rain and the complainant had an umbrella. They stood together and spoke for approximately 45 minutes. When Ms CS left at 12.15 the complainant seemed quite happy. Ms CS went home for a short time and then returned in a car at about 1.00 am and saw the complainant speaking to a man. The complainant did not appear to be distressed. 10. This evidence was potentially of considerable value to the defence but it was clear, indeed, perhaps almost common ground, that some aspects of it must have been inaccurate, for whatever reason. 11. As to timing, there was ample and undisputed evidence that at approximately 11.40 pm the complainant was with police officers in a police car, making her complaint. There was also, we understand, no support from any other witness for the proposition that it was raining at or just before the material time. 12. The appeal is brought on two grounds. Firstly, that the learned judge ought to have allowed the evidence of CS contained in the statement to the police to be admitted in its hearsay form without the witness being called. Secondly, that the judge erred in allowing the application by the Crown to adduce the evidence of AW. 13. CS was available to give evidence. The Crown had offered, in the usual way, to use the services of the local police to bring her to court and there was no suggestion that she had disappeared. The learned judge, having refused the application to admit the statement as hearsay, noted that he was leaving it to the defence to assess whether they wished to make use of the Crown's offer and apply for an adjournment until that afternoon or the following day for the purpose. They did not. But the defence were reluctant to call her, firstly because she was a friend of the complainant as well as being a fellow member of her profession, and secondly, because the complainant had indicated in cross-examination that Ms CS, as she put it, did not want anything to do with the defence. 14. Because the witness was available it was accepted before the judge and it is accepted before us that section 116 of the 2003 Act was inapplicable. The hearsay evidence could not be admitted as of right. It therefore fell to the learned judge to assess, under section 114(1) (d), whether it was in the interests of justice for the written statement to be admitted. In doing so the judge was bound to have regard to the factors enumerated under section 114(2) and, as the preamble to that subsection makes clear, to any others considered relevant. The learned judge gave consideration to subsection (2)(a): "how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings or how valuable it is for the understanding of other evidence in the case" and to subsection (g) "whether oral evidence of the matter stated can be given and if not why it cannot". He also noted that the defence case was not that the statement was true and accurate in every particular, and that it was accepted that Ms CS must have got the time wrong, must have got the place wrong and may well have made an error about the weather. The learned judge considered that the evidence was of no value because of the manifest inaccuracy to do with the timing. 15. We consider that a very important factor in assessing whether it was in the interests of justice to admit the statement as hearsay was the fact that Ms CS was available to be called. That, coupled with the manifest inaccuracies in the statement, pointed clearly, in our judgment, to it being desirable in the interests of justice that the witness should be called. Mr Cray says that it is not right that the defence should be required to call a witness who might well prove hostile when there was a written statement made to the police within two days of the events in question. But it seems to us that had Ms CS been brought to court and had she given oral evidence, one way or another the defence would have been able to get the contents of the statement before the jury. If she had given evidence broadly consistent with the statement but perhaps with some failure of recollection of detail, the statement would have been admissible under section 120 of the 2003 Act as a previous consistent statement. If she had turned hostile and the judge had granted an application under the Criminal Evidence Act 1865, section 3, for her to be treated as hostile, the statement could have been put to her in cross-examination by the defence. If, however, she had simply given coherent evidence in chief for the defence and then to a greater or lesser extent contradicted that and the contents of the statement in cross-examination, then the statement could perfectly properly have been put to her in re-examination if not earlier. Given that there were some inaccuracies in the statement, it was much more desirable that they should be explored in front of the jury, so that the jury could make their own assessment about the value of the statement, rather than that the jury should have been left in the unsatisfactory position of having a written statement, some of which was clearly inaccurate, and having to work out what to make of it. The judge was right to reject the application. 16. We turn to the issue concerning the evidence of AW. It was part of the defendant's case that he had never used the services of prostitutes, had never previously met the complainant, still less had sex with her and that he believed that the complainant was an ordinary business woman who consented to have sex with him. 17. We see no reason why, in those circumstances, the Crown should be prevented from calling Miss AW, another prostitute, to say that she had had him as a client twice, and that on at least one of those occasions he had paid her with counterfeit notes. We accept that her evidence of visual identification was in some ways unsatisfactory, but more telling was her evidence that she had been paid on those previous occasions by a young Asian man who used counterfeit notes. Her evidence was thus capable of supporting the prosecution case that he was someone who used the services of prostitutes and sometimes paid them with forged notes; that he had done that on a previous occasion with the complainant that therefore his story that on 1st April 2007 he believed that the person he encountered in the park was an ordinary business woman was untrue; and that the complainant so far from consenting to sexual intercourse with the defendant, would not have gone anywhere near him if she had realised that he was the man who had defrauded her as a customer on a previous occasion. 18. For those reasons, we think that the learned judge was plainly entitled to exercise his discretion as he did in allowing the prosecution's application to call AW. It follows that both the grounds of challenge to the conviction fail and the appeal against conviction must be dismissed. (Submissions re: sentence) 19. MR JUSTICE BEAN: We have just dismissed Mr Khan's appeals against conviction on the charges of rape. 20. We turn now to his renewed application for permission to appeal against sentence in respect of the rapes and also of an earlier unconnected incident in Manchester, which led to his being charged with and pleading guilty to two counts of witness intimidation. 21. Dealing with that incident first: the applicant was involved in a traffic accident with a cyclist. He became aggressive towards the cyclist and also towards a member of the public, a Mr F, who attempted to give the cyclist assistance. To the independent witness he said: "I've seen you around before. You've fucked with the wrong guy. You're going the get done for this you know." To the cyclist he said: "I'm going to see you again. I'm going to fuck you up". 22. We have already set out some of the facts of the rapes and it is now necessary to set out some more in the words of the learned sentencing judge. He said: "Miss [S]... was crossing the park to meet a customer when she was grabbed by you and held against the tennis court netting. You demanded her co-operation and while you held her against that netting, you touched her under her skirt and that general area. You then dragged her to a low wall and bent her over, face down on it. You penetrated her backside with your fingers of one hand and covered her mouth with your other hand to prevent her shouting out to people in the area. To protect you, you took her further into the darkness and put her on her back on the ground and tried to force her legs apart. You told her that you had a knife, that you had murdered 20 people and you did not want her to be the 21st. Eventually you forced her legs apart and started to undo your zip and your belt. You had, at that stage, inserted your fingers into her vagina and tried but failed to have vaginal sex when you were forced to move by the sound of people nearby. You took her to a further area deeper into the park near the bowling green. You had with her then vaginal sex and then you turned her over and had anal sex. That was not a service that she offered to customers and when she cried out in pain, you grabbed her by the throat and threatened her again. Finally, you forced her to give you oral sex. You ejaculated in her mouth and you held her chin and mouth together so that she was forced to swallow your semen. No doubt that was to prevent detection. You made her show you that she had. You warned her again not to report the matter or you would find her... 'in two seconds flat' and that you knew where she lived. Throughout this period, you had not worn or sought to wear any form of protection." 23. The learned judge had before him a psychiatrist report, a probation report and references. The reports indicated, not unsurprisingly in the light of what it has been said about the facts, that the applicant's attitude towards women was far from satisfactory. 24. The application for leave to appeal is brought on two bases: firstly, that the sentence of imprisonment for public protection which the judge imposed was wrong in principle and that a determinate sentence would have been sufficient; secondly, that the minimum term was too long. 25. The judge considered that the appropriate notional determinate sentences were 18 months' imprisonment for the witness intimidation and 12 years for the offences of rape, making a total of thirteen-and-a-half years and thus resulting in a minimum term to be served of 6 years and 9 months, less 316 days served on remand in custody before the applicant could be considered for parole. Mr Cray, rightly, does not criticise the structure of the sentencing. He concedes that the intimidation episode was bound to add to the sentence; there was nothing wrong with making it consecutive; and nothing wrong, either, with that sentence of 18 months. 26. So the question is, firstly, was IPP justified, and secondly, was a 12 year notional determinate sentence for the rapes excessive? As to the IPP sentence, the learned judge said: "I have to consider whether you present a significant risk of causing serious harm to others on future occasions. I am satisfied that at this time, given the attitudes disclosed in the reports and your actions on that night, that you do." We agree. The very serious facts of these offences were perhaps enough in themselves and although the applicant's record prior to the commission of these offences was of very little significance, the intimidation episode indicates an ugly side to the applicant, even before one gets to the rapes. We conclude that the learned judge was fully entitled to find that the test of a significant risk of causing serious harm to others from violent or sexual offences on future occasions was met. Therefore, the sentence of imprisonment for public protection was correct in principle. 27. As to the notional determinate term of 12 years for the rapes: these were very serious offences, a series of offences which involved considerable violence as well as threats against the victim. The notional term is just above the usual Sentencing Guidelines Council bracket for this type of offence of 7 to 11 years. We are not persuaded that it was manifestly excessive or wrong in principle. Accordingly the renewed application for leave to appeal against sentence must be dismissed.

```yaml citation: '[2009] EWCA Crim 86' date: '2009-01-28' judges: - LORD JUSTICE TOULSON - MR JUSTICE BEAN - HIS HONOUR JUDGE PAGET QC ```

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No: 200406898/A9 Neutral Citation Number: [2004] EWCA Crim 3397 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday, 20th December 2004 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE MACKAY MR JUSTICE HODGE - - - - - - - R E G I N A -v- GARY HARDY - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR D SPENS QC & MR D BELL appeared on behalf of the APPELLANT MR N MEDCROFT appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: On 19th November 2004 at the Nottingham Crown Court this appellant, who appeals by leave of the Single Judge, pleaded guilty to an offence of perverting the course of justice, and on 25th November he was sentenced by His Honour Judge Cole to two-and-a-half years' imprisonment. Another count of perverting the course of justice was left on the file on the usual terms. 2. The facts were that, on 2nd August 2004, there began a trial of two men at the Nottingham Crown Court. They were charged with causing grievous bodily harm. The victim was a man called Dodd. 3. During the two days that Dodd was giving his evidence, the appellant sat in the public gallery. It appears, although this was not an offence for which the appellant was to be sentenced, that the appellant's presence made Dodd apprehensive. 4. On the second day of the trial a juror was approached by the appellant. In consequence, the following day, 4th August, the juror made a complaint to the usher about what had happened at 4 o'clock on the afternoon of 3rd August, as the juror had left court, namely, the appellant had approached him at a shopping centre immediately across the road from the court. The appellant had asked him if he was a juror and if he thought that the verdict would be guilty or not guilty. The juror refused to pass any comment on that but the appellant, who the juror commented was a large man, with a closely shaven head, said: "Find them not guilty" and shook the juror's hand. Because of what had happened and the complaint made by the juror the following day, the trial had to be aborted. 5. Thereafter, the appellant was arrested and in interview denied speaking to the juror. However, as we have indicated, the appellant pleaded guilty and he did so on a written basis of plea, which included that the encounter had been accidental rather than planned. The appellant accepted that, during his conversation with the juror, he had tried to influence the juror in relation to the case which he was trying. 6. In passing sentence, the judge said that this was a very serious offence, the jury system was the cornerstone of the criminal justice system, and jurors had to be able to go about their service without hindrance. The judge went on to say that the appellant was entitled to credit for his plea, and the judge also found that the appellant had been remorseful. The judge referred to the appellant's previous convictions, which had been a long time ago. There had been nothing since 1988. The judge also went on to refer to the fact that the trial had had to be aborted, which meant that considerable public money had been wasted. He went on to pass the sentence to which we have referred. 7. The appellant is 41 years of age. 8. On his behalf Mr Spens QC advances four submissions on the basis of which he challenges the sentence passed by the learned judge as being manifestly excessive. First, he says that this was not an offence of intimidation a juror contrary to section 51(1) of the Criminal Justice and Public Order Act 1994 . Secondly, he says there were no aggravating features and the nature of the offence placed it at the bottom of the scale of offences of this kind. Thirdly, there were a number of mitigating features, including those accepted in the basis of plea, and fourthly, the appellant had pleaded guilty at the earliest possible opportunity. 9. Mr Spens submits that, even if a deterrent element were appropriate in the sentence passed, there must still be a degree of proportionality between the sentence passed and the particular offence. Mr Spens points out that no direct threat was made and no money was offered to the juror. He also stresses the fact that the encounter was not, according to the basis of the plea, accepted by the learned judge, planned. 10. The Court has been referred to a number of authorities: R v Williams [1997] 2 Cr App R(S) 221, where 2 years was upheld on a guilty plea, in relation to an offence accompanied by a threat of violence; R v Mitchell-Crinkley [1998] 1 Cr App R(S) 368, 12 months was upheld on a guilty plea, for an offence of contempt, where the defendant had made a telephone call to a juror; R v Watmore [1998] 2 Cr App R(S) 46, a term of 4 years was upheld following a trial; R v Baxter [2003] 1 Cr App R(S) 50 , a term of 3 years was reduced on appeal to 2 years, in relation to a defendant who had followed, by car, a juror for a considerable distance before he was apprehended; R v Bowen [1996] 1 Cr App R(S) 63, a term of 3 years was imposed, consecutively, to a sentence of 9 years' imprisonment, following a trial for conspiracy to pervert the course of justice; R v Boodhoo [2002] 1 Cr App R(S) 9, a sentence of 4 years' imprisonment was upheld on a plea of guilty, by a member of a jury who had accepted a bribe. Finally, in R v Goult 4 Cr App R(S) 355, a sentence of 18 months was reduced to 9 months, in relation to an appellant who attempted to intimidate jurors by staring at them in court and accosting them outside court. 11. The submission which is made in essence by Mr Spens, by reference to principle and authority, is that a term of two-and-a-half years, following a plea of guilty to this offence, the circumstances of which we have outlined, was excessive. There is no doubt, as Mr Spens rightly accepts, that jurors are entitled to perform their public service unimpeded by threat or encounter, designed to dissuade them from the proper performance of their task in accordance with the oath which they have taken. As the authorities have repeatedly made plain, custody and sometimes substantial periods of custody is inevitable for those who interfere with jurors. 12. That said, regard must be paid to the nature and degree of inference. Fortunately, this juror resisted the implicit threats made to him and, very properly, reported the matter as soon as practicable the following day. The consequence, namely the aborting of the trial, was a serious matter to which the judge was fully entitled to have regard. 13. But taking all the other circumstances of this matter into account, including the plea of guilty, we take the view that the sentence of 30 months was too long. Accordingly, that sentence will be quashed and we substitute for it a sentence of 21 months' imprisonment. To that extent this appeal is allowed.

```yaml citation: '[2004] EWCA Crim 3397' date: '2004-12-20' judges: - (LORD JUSTICE ROSE) - MR JUSTICE MACKAY - MR JUSTICE HODGE ```

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No: 201106479/A4-201200196/A4-201107086/A4 Neutral Citation Number: [2012] EWCA Crim 665 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Monday, 19th March 2012 B e f o r e : PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR JOHN THOMAS) MR JUSTICE TREACY MR JUSTICE HADDON-CAVE - - - - - - - - - - - - - - - - - - R E G I N A v THOMAS ALAN QUINN STEPHEN CARROLL SHAUN CHRISTOPHER WILKINSON - - - - - - - - - - - - - - - - - - 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 Bloomfield appeared on behalf of the Appellant Quinn Mr M Davies appeared on behalf of the Appellant Carroll Mr A Davies appeared on behalf of the Appellant Wilkinson - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE TREACY: These appeals come before the court by the leave of the single judge. At the outset of this judgment we would like to thank counsel for their succinct but well focused submissions - it has been a refreshing change from some of the material we have had to deal with in this court today. 2. On 22nd September 2011 in the Crown Court at Newcastle these three appellants pleaded guilty: Quinn pleaded guilty to a charge of possession of criminal property, namely the sum of £5,720 in cash. That was a charge brought pursuant to section 329(1)(c) of the Proceeds of Crime Act 2002. On 21st October 2011 he was sentenced to a term of 18 months' imprisonment. Wilkinson pleaded guilty to a count alleging being concerned in the supply of cannabis. He was sentenced on 21st October 2011 to 2 years' imprisonment. Carroll pleaded guilty to three counts: count 3, conspiracy to supply a controlled drug namely amphetamine; count 4, conspiracy to supply a controlled drug namely cannabis and count 12, being concerned in supplying a controlled drug of Class C, Benzylpiperazine (BZP). He received in all a term of 2 years' imprisonment. 3. The evidence revealed a number of individuals involved in illegal drug supply in the northeast of England in 2009 and 2010. It was said that police operations had enabled over £1 million worth of drugs to be recovered. The ultimate pleas of those before the court reflected a significant withdrawal by the Crown from its initial position, as indicated in the case summary and the indictment as originally put forward. 4. The two major players before the court were McNally and Morgan. Other offenders playing different roles in the case were also to be dealt with. These appellants are lower down the chain of involvement. In the cases of Quinn and Wilkinson they have only pleaded guilty to substantive offences. As will be seen there are no counts common to these three appellants. 5. McNally was at the centre of the conspiracies to supply substantial quantities of drugs of classes A, B and C, in the northeast, between January 2009 and May 2010. He had a legitimate business, DCA Commercials, which he used as cover for his drug dealing operations. Wilkinson was an employee of DCA. McNally led a lavish life-style. His income greatly exceeded that which he declared to the Revenue. Analysis of his bank statements showed personal expenditure between 2005 and 2010 exceeding £400,000 on a declared income of only £78,000. 6. McNally was linked to a number of drug dealers including a man called Morgan. There was a web of connections and contacts between McNally, other drug dealers and appellants in this this case and other co-accused. 7. McNally pleaded guilty to charges against him and was sentenced to a total of 6 years' imprisonment, which included 1 year consecutive for an offence of dangerous driving whilst he was trying to outrun the police with some drugs in his possession. 8. In June 2009 Morgan's house was raided. Police recovered drugs paraphernalia and drugs with a street value of about £250,000. They comprised 23 kilos of amphetamine, 170 grams of cannabis, some cocaine, 2500 ecstasy tablets and 30,000 BZP tablets. BZP is a drug commonly sold as ecstasy. 9. The appellant, Quinn, lived near Morgan. He was seen driving the van later used by Morgan and his fingerprints were on a number of items found in Morgan's house. Morgan was sentenced to 7 years' imprisonment for possession with intent to supply drugs of classes A, B and C. 10. Turning more particularly to the matters concerning these appellants, we start with Quinn. His house was searched in September 2010. £5,720 in cash was recovered. Quinn accepted that the money was criminal property and that it was the proceeds of drug dealing by Morgan. He acknowledged that he had agreed to look after it on Morgan's behalf. 11. In Wilkinson's case the allegation related to 7th August 2009. On that day, acting under McNally's instructions, Wilkinson drove a van to the house of a man called Horne on McNally's behalf. The van contained a consignment of cannabis resin weighing over 23 kilos and worth £42,000. 12. That same day police raided Horne's premises and recovered the cannabis. Horne was arrested. In due course his plea to a count of possession of cannabis with intent to supply was accepted on the basis that the cannabis had been effectively dumped on him to warehouse for a matter of hours. 13. Prior to Horne's apprehension there was extensive telephone contact between McNally and Horne and then both before and after Horne's arrest there was telephone contact between McNally, Wilkinson and a drug dealer called Beck. 14. Later on that day Beck broke into a motorcar parked at McNally's business premises. He removed a large package which must have contained drugs and drove off. He drove dangerously so as to evade the police and was able to get rid of the package on McNally's behalf. Horne, at whose home the 23 kilos of cannabis had been found was sentenced to 51 weeks suspended for 12 months. 15. Carroll was involved in three counts, as already stated. They arise from offences committed on the same day, namely 8th May 2010. On that day McNally met Carroll at the Angel of the North car park. Carroll removed a box from his own vehicle and put it into McNally's vehicle. McNally then drove off. When the police tried to intercept McNally he drove dangerously to evade them. They eventually caught him and found a box in his car with 542 grams of amphetamine, 9 ounces of cannabis resin and 30,000 BZP tablets, which McNally thought was ecstasy. 16. Texts exchanged between the parties make it clear that the relationships were as follows: McNally was the customer in the north east, Nuttall was a supplier from Liverpool and Carroll was the courier bringing the drugs from Liverpool to McNally in the north east. The value of the BZP tablets was about £75,000, the amphetamine and cannabis had a value of a little over £5,000. 17. Carroll was stopped after the meeting. He was found to have £4,900 in his possession. That money was in the form of cash and had been given to McNally, who passed it onto Carroll to take over to Liverpool to Nuttall. 18. Carroll pleaded guilty with the a of plea, saying that he had been asked by Nuttall to deliver the drugs and to bring the payment back to Liverpool, and that he was to be paid £500 for his involvement in the matter. He was not an organiser or a profit taker, he was a courier on a single occasion, with no knowledge of the wider conspiracy. 19. Nuttall, at the Liverpool end of this particular transaction, also provided a basis of plea, seeking to limit his involvement to the same occasion on 8th May. He admitted the same offences as Carroll. He was sentenced to 4 years' imprisonment. Nuttall had a previous conviction for the supply of Class A drugs. 20. We need also at this point to refer to another defendant, Robinson, who pleaded guilty to count 18 on the indictment, which was a charge of arranging to facilitate the acquisition of criminal property. 21. Robinson had given McNally £4,000 to purchase what he thought were going to be some stolen television sets. He did not know, according to his basis of plea, that the money was to be used to purchase drugs on 8th May. He was sentenced to 12 months' imprisonment suspended for 2 years. He was a man of previous good character. 22. In passing sentence the judge commented in relation to Quinn's case, that the criminality of money laundering and similar offences was the encouragement and nourishment which it gave to crime. 23. As far as Wilkinson was concerned, the judge accepted that Wilkinson was not a ringleader but took account of the fact that he was prepared to transport a huge consignment of cannabis for the benefit of a drug dealer. In Carroll's case, again it was accepted that he was to be sentenced on the basis that he was acting as a courier. 24. As far as antecedents are concerned, Quinn is now 36. He has a substantial criminal record, with some 46 offences committed previously. His convictions do not involve drug related offences but concern a variety of matters including theft, burglary, public order and road traffic offences. Quinn was a married man with two children. He had a business which was said to be likely to collapse if he was sent to prison. 25. Wilkinson is aged 26. He had no previous convictions. He impressed the probation officer as anxious and ashamed of his actions and his family were said to have been devastated by what he had done. He was particularly concerned about the impact of custody on his responsibilities as the father of a 14 month old boy. 26. Carroll was 46. He has a large number of previous convictions. Only one conviction is drug related, that is a possession charge, otherwise his convictions are predominantly for offences of dishonesty. His offending was, in the assessment of the probation officer, linked to financial gain. 27. The grounds of appeal in Quinn's case submit that the sentence was manifestly excessive, particularly having regard to his family circumstances, the extent of his involvement in the offence and in comparison to the suspended sentence imposed on the co-accused, Robinson. 28. Wilkinson again asserts that his sentence was excessive, that the judge should have maintained parity in sentencing him with the co-accused, Horne, and that the judge failed to give sufficient weight to mitigating factors in Wilkinson's life. 29. As far as Carroll was concerned, again the sentence is said to be too long, on the basis that he was involved in a single day's activity. He was not a profit taker albeit the transaction was a significantly large one, and he was only to benefit to the sum of £500. There is alleged to be, as far as the written grounds are concerned, disparity with Nuttall, Wilkinson and Hutchinson. 30. Hutchinson has not yet been referred to in this judgment. He received 2 years for assisting a drug dealer called Bolam to transport 9 ounces of cocaine. He was a driver doing Mr Bolam a favour on a single occasion. His criminal record showed that his last appearances were in 1994, for offences of possession of cannabis. His basis of plea was accepted on the footing that he was unaware of the amount of drugs involved or their value and that he was to receive no benefit for what he did. 31. We will deal with each of the appellants in turn starting with Quinn. The evidence revealed that Quinn was associated with Morgan in a way which showed they had contact going beyond the date of Quinn's offence in count 9. The date of the offence was the date of the search of Quinn's house. 32. Quinn was in possession of nearly £6,000 in cash which represented some of the proceeds of Morgan's drug dealing and which he had agreed to look after. It seems to us that Quinn was thus very close to the source of the criminal property and playing a significant role in assisting Morgan. The court is entitled to have regard to the nature of the underlying offence in those circumstances. 33. Quinn's position is not truly comparable to that of Robinson. Robinson was of prior good character, unlike Quinn, who has many previous convictions albeit not for drug offences. Robinson was involved in giving McNally £4,000 to buy what he thought were going to be stolen television sets rather than drugs. The amount of money is smaller and more significantly the crime did not, as far as Robinson was concerned involve drugs. 34. In our judgment there was a clear basis for distinguishing Robinson's case from Quinn's and no tenable disparity argument arises. We are therefore not persuaded that the sentence of 18 months imposed was too long and accordingly we dismiss this appeal. 35. Wilkinson delivered a very large consignment of cannabis for McNally, whose employee he was. He had pleaded guilty. He was of previous good character and he had personal mitigation in relation to his family circumstances, as reflected in the pre-sentence report. The delivery of the consignment was apparently occasioned because McNally feared a police raid and needed to move the drugs somewhere else. Wilkinson agreed to move them. In the course of his interviews the police put to Wilkinson that he was "a numpty driver" helping McNally, presumably suggesting that he was a low-level functionary under a degree of pressure. 36. Wilkinson left his employment with McNally as a direct consequence of his arrest. He submits that he should be dealt with in the way that Horne was. Horne was dealt with on an earlier occasion by a different judge to the judge who sentenced these appellants. That judge accepted Horne's basis of plea after a Newton hearing, possibly with a degree of reluctance. We have been told that the judge had reservations about Horne's position but decided that he would give him the benefit of the doubt. To that extent Horne has possibly been lucky in the sentence he received. The judge appears to have been prepared to regard Horne as someone who was a victim of circumstances to some extent. 37. Wilkinson was clearly not an organiser or a manager, but he was prepared to give important help to McNally in keeping a large quantity of drugs away from the police. We also note the telephone traffic after Horne's arrest preceding Beck's recovery of drugs from Horne's car. Notwithstanding that feature of the case, we feel that the judge did not give sufficient weight to Wilkinson's previous good character and to his personal mitigation. Looking at the matter in the round, we feel that a sentence of 2 years' imprisonment, after a plea, was excessive in his case and that the appropriate sentence should have been one of 16 months' imprisonment. We allow the appeal in his case by substituting that term for the 2 years imposed. 38. We then turn to Carroll. He transported significant amounts of drugs on a single day for Nuttall. His reward was to be some £500. It is accepted that he is not an organiser. Mr Carroll has an appreciable criminal record but only one conviction for possession of drugs. His record is significantly worse than Hutchinson's and Wilkinson had no convictions. Both of those individuals were involved as transporters of drugs but we are wholly unpersuaded any disparity argument arises in relation to their cases, and indeed counsel representing Carroll has not sought orally to advance that aspect of his grounds before us this afternoon. 39. However, Carroll also complains with regard to the sentence imposed on Nuttall. It was Nuttall who recruited Carroll and who received 4 years' imprisonment for his involvement in the matter. Nuttall had sourced the drugs in Liverpool. Nuttall had provided a basis of plea, which was that his sourcing of the drugs in Liverpool was in response to a one-off request from McNally and he asserted that his payment for helping in that way was to be £700. 40. Objectively viewed the sentence on Carroll was by no means excessive for what he had been involved in, even allowing for his subordinate role. In this context we note that the guilty plea was relatively late and that the drugs involved were worth about £80,000. 41. After careful reflection it seems to us that whilst Nuttall may have been fortunate to some extent, what we have to consider is whether the difference between his sentence and that of Carroll was such as to come within the test of disparity as enunciated in Fawcett . After reflecting upon that, we do not consider that the necessary test of disparity is satisfied. 42. Accordingly, this appeal must be dismissed.

```yaml citation: '[2012] EWCA Crim 665' date: '2012-03-19' judges: - MR JUSTICE TREACY - MR JUSTICE HADDON-CAVE ```

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WARNING: reporting restrictions apply to the contents transcribed in this document, because the case concerns sexual offences against 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 202101174/B4-202101590/B4 NCN [2022] EWCA Crim 399 Royal Courts of Justice Strand London WC2A 2LL Wednesday 9 March 2022 LORD JUSTICE HOLROYDE MR JUSTICE JULIAN KNOWLES MR JUSTICE COTTER REGINA v MUHAMMAD HUSSAIN __________ 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 H GRAY appeared on behalf of the Applicant. _________ J U D G M E N T 1. LORD JUSTICE HOLROYDE: This case concerns sexual offences against adolescent girls. The complainants are entitled to the 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 these offences. We shall simply refer to the various complainants as "C1", "C2" etc. 2. On 6 April 2021 in the Crown Court at Manchester (Minshull Street) the applicant was convicted of two offences of rape, one of taking indecent photographs of children and one of sexual assault. He was subsequently sentenced by the trial judge (Mr Recorder Lasker) to a total of 6 years 2 months' detention in a young offender institution. That total term of detention comprised concurrent terms of 4 years in respect of each of the rape offences, 2 years consecutive in relation to the indecent photograph’s offence and 2 months consecutive in relation to the sexual assault. 3. Applications for extensions of time to apply for leave to appeal against conviction and sentence were refused by the single judge. They are now renewed to the Full Court. Mr Gray, who represented the applicant at trial, has been good enough to act pro bono in preparing and presenting the renewed applications. We are grateful to him for the clarity of his written and oral submissions. 4. The applicant stood trial together with his brothers on an indictment containing 21 counts. The charges reflected what were said by the prosecution to be sexual abuse of vulnerable girls. A number of the counts against the applicant alleged offences which required proof that he did not reasonably believe the complainant to be aged 16 or over. At the conclusion of the prosecution case the recorder ruled that there was no evidence on which the jury could be sure of that fact, and so directed verdicts of not guilty on each of those counts. 5. The victim of counts 1 and 3 was C1, who was aged 14 at the relevant time in August 2016. The applicant was then aged 16. C1 drank alcohol at a party and had consensual sexual intercourse with the applicant. She complained however that he was hurting her and, when he did not slow down as she asked, she told him to stop. The applicant instead carried on despite C1 crying and trying to get him off her. That was the basis of the allegation in count 1 (rape). C1 managed to move away from him and began to dress. The applicant abused her with foul language and demanded that she "finish me off". C1 tried to avoid doing so but the applicant threatened to tell her boyfriend that they had had sex. Feeling that she had no choice, she put his penis in her mouth until he withdrew and ejaculated onto a towel. This was the subject of count 3 (rape). 6. Both C1 and another girl gave evidence that on a later occasion the applicant apologised for what he had done. The applicant's case was that all sexual activity between them had been consensual. 7. Count 9, relating to the indecent photography, was an allegation that the applicant had filmed himself being given oral sex by both C1 (then aged 15) and C3 (a girl aged 16). C1 and C3 had joined the applicant at a local park where the accused often supplied girls with alcohol before engaging in sexual activity with them. They all went back to a house. On the way to the house the applicant filmed what purported to be the girls consenting to whatever sexual activity might occur. At the house both girls acceded to the applicant's suggestion that they together give him oral sex. No relevant film has been recovered, but C1 gave evidence that she had seen the flashlight of the applicant's mobile phone as he was filming them. The applicant admitted the sexual activity but denied that there had been any filming. His explanation for the flashlight, which he accepted was switched on, was that he had been using his phone as a torch. 8. Count 14, the sexual assault charge, related to C2, who was aged only 14 at the relevant time. She was with C1 at one of the gatherings in the park. She was anxious and uncomfortable because of the sexualised conversation around her. The applicant approached her from behind, put his hand inside the back of her leggings, pulled up her underwear and squeezed her bottom painfully. The applicant's case was that this incident had never happened and that it was a malicious fabrication by C2. 9. The applicant and one of his brothers, Hashim Hussain, were charged in counts 10 and 11 and count 16 and 17 respectively with offences of sexual activity with a child, namely C1. These charges related to what was alleged to have been an occasion when both brothers engaged in vaginal and oral sexual intercourse with C1. They were both acquitted of these charges by direction of the recorder at the conclusion of the prosecution case. The counts against the applicant were amongst those which failed for want of clear evidence that he had not believed C1 to be aged 16 or over. 10. Hashim Hussain was also charged on counts 20 and 21. The offences in those charges related to the filming of C4 (aged 17 at the material time) when she was involved in penetrative sexual activity with a group of men. Those present included, the prosecution alleged, the applicant. C4 appeared to have consented to what was happening, but the filming of it was a crime because she was under 18. The applicant was not charged with any offence in relation to this incident, but the prosecution applied to adduce the evidence relating to it as evidence of his bad character, on the basis that it was relevant to counts 10 and 11 because it showed a propensity on his part to engage in group sexual activity in which his brother was also a participant. The recorder admitted the evidence on that basis. 11. The film recorded on Hashim Hussain's phone was of short duration and indifferent quality. A transcript prepared by an expert witness indicated that in the last few seconds of the film a female voice, thought to be C4 but not clearly identified as her, said "no means no". Those words were far from clearly audible on first viewing of the video clip. Agreement was reached between counsel that when the video clip was shown to the jury, as it was agreed it would be twice in succession, it would be stopped before the last few seconds. Unfortunately that proved not to be possible, and so the clip was twice played to its conclusion. The jury were then shown a slow-motion version of the video recording, without any audio component, and a police officer explained to them who could be seen doing what at each stage. 12. Defence counsel applied to discharge the jury on the ground that the inadvertent playing of the last part of the video had caused irremediable prejudice to the applicant. The recorder refused that application. 13. A second application was made to discharge the jury at the conclusion of the prosecution case. This was on the ground that the evidence had only been admitted against the applicant in relation to charges, namely counts 10 and 11, which had subsequently been withdrawn from the jury. Again the application was refused. 14. In his written and oral submissions Mr Gray challenges each of those three rulings. He submits that the video clip should not have been admitted against this applicant because the bad character application was made out of time, one consequence of which was that an edited copy of the video with audio was not available and the inadvertent playing occurred. He goes on to submit that the alleged identification of the applicant as one of those involved was unreliable. The recording did not show any criminal offence by the applicant. At most it showed a single incident of a different kind, and therefore had no capacity to prove a relevant propensity in relation to counts 10 and 11; and in any event any probative value was outweighed by the prejudicial effect. 15. Mr Gray submits that the recorder should have discharged the jury on the first application because the words "no means no", which should not have been played to the jury, were highly prejudicial on the other charges against the applicant. Alternatively, he submits that the recorder should have discharged the jury on the second application, because as a result of the successful submissions of no case to answer on several counts the video clip was no longer of any arguable probative value in relation to any of the charges which the applicant still faced. 16. Mr Gray also submits that the recorder should have allowed a submission of no case to answer on count 3. This was put forward on the basis that in the light of answers given by C1 in cross-examination, the jury could not be sure that she had not consented to the oral sex which was the subject of that charge. 17. We are, as we have said, grateful to Mr Gray for his submissions. Having reflected on them however, we are unable to accept them. As for the first ground, the lateness of the bad character application is rightly criticised, but we are not persuaded that the admission of the video at that stage caused any prejudice to the defence. The video recording was plainly relevant and admissible on counts 10, 11, 16 and 17 and it was properly before the jury. It was in our view capable of being regarded by the jury as recording reprehensible behaviour showing a relevant propensity on the part of the applicant in relation to counts 10 and 11, and there can be no arguable challenge to the Recorder's ruling. 18. As to the two applications to discharge the jury, we see no arguable basis on which the recorder's rulings could be challenged. Although he accepted that the words "no means no" might be audible, the recorder had himself been unable to hear them even when specifically listening out for them. It was therefore uncertain whether any member of the jury would have heard them, though the Recorder rightly proceeded on the basis that it was at least possible that one or more jurors would have heard. If any member of the jury did hear those words, it was not clear who said them. In any event, there was no allegation that the applicant, or indeed any of the men involved on that occasion, had performed any sexual act without the consent of C4. Given that the nature of the defence case included positive assertions that the applicant had engaged in sexual activity with teenage girls, the fact that the video clip showed such activity could have little prejudicial effect. That continued to be the position when the second application to discharge was made. We note moreover that no criticism is made of the directions which the recorder gave to the jury and which it must be assumed the jury obeyed. Nor is any criticism made that the recorder failed to give a direction which he ought to have given. Mr Gray's submission is that the prejudicial effect of the video was such that no direction, however worded, could suffice to overcome the damage done by it. We are unable to accept that that is arguable. 19. As to the submission of no case to answer on count 3, we can deal with this briefly. In the circumstances shown by the evidence, it was beyond argument a matter for the jury whether it may have been the case that C1 had genuinely consented to the oral sexual activity which was the subject of the charge. Given the evidence that the applicant had blackmailed her by threatening to tell her boyfriend that he had just had sex with C1, it would, in our view, have been quite wrong for the recorder to withdraw that charge from the jury. 20. The single judge (Saini J) gave very detailed reasons for refusing the application for leave to appeal against conviction. We agree, essentially for the same reasons, that there is no arguable ground on which the convictions could be said to be unsafe. 21. Turning to sentence, the recorder indicated that he would impose concurrent sentences on counts 1 and 3, reflecting the overall criminality of the two rapes. He held that C1 was particularly vulnerable due to her personal circumstances and concluded that each offence fell within category 2B of the Sentencing Council's Rape guideline, with a starting point of 8 years' custody and a range of 7 to 10 years. He took a notional sentence of 9 years concurrent on each count. He reduced that to reflect the mitigating features that the applicant was a young man, facing a first custodial sentence and was effectively of previous good character. The recorder then followed the Children guideline by making a further reduction to 4 years to reflect the applicant's young age at the time of the offending. On count 9 the recorder took a notional adult sentence of 4½ years, which he reduced to 3 years because of the applicant's young age at the relevant time. He considered it appropriate to impose a sentence consecutive to the 4-year term on counts 1 and 3 but reduced the consecutive sentence to 2 years to take account of totality. 22. Finally in relation to count 14, which again merited a consecutive sentence because it involved a different victim on a different occasion, the recorder held that a sentence of 3 months would be appropriate but reduced it to 2 months for reasons of totality. Thus, he reached the total sentence of 6 years 2 months' detention to which we have referred. The recorder also made restraining orders. They have not been the subject of any oral submissions to us today and we think it unnecessary to say more about them. 23. Mr Gray submits that the overall sentence was simply too long for someone who was aged 16 at the time of the offences. In relation to counts 1 and 3, he challenges the recorder's assessment that C1 was particularly vulnerable due to her personal circumstances and on that basis he criticises the recorder's application of the guideline. He argues that count 9 was a form of offending which would be atypical when compared with the majority of such offences. He argues that it did not require a custodial sentence, and that even if it did the recorder's sentence was too long. The offence charged in count 14, he submits, did not cross the custody threshold. 24. We have reflected on the submissions. Young though the applicant was during the indictment period, he committed serious offences and a substantial total term of detention was inevitable. C1 was on the Social Services "At Risk" Register before the offending against her began and the recorder having heard all the evidence was entitled to find that she was particularly vulnerable. He was also entitled to find that it must have been obvious to the applicant that she was a vulnerable teenager rebelling against authority. 25. C2 was only 14 at the time of the offence against her and plainly uncomfortable about the sexualised atmosphere amongst the group in the park. The recorder was entitled to conclude that the sexual assault upon her by the applicant who, as we understand it, had never even met her before, was sufficiently serious to call for a short custodial sentence. 26. As to count 9, whilst we accept that in some respects that offence differed from many other such offences which come before the court, it is in our view important to keep in mind that the jury were sure that this episode of oral sex was recorded. The recording not having been recovered, both girls concerned lived with the anxiety as to whether it will one day emerge in some public forum. 27. Finally, the recorder was entitled to find that the applicant had shown no real remorse for, or appreciation of, the harm he had caused. That harm was in our view very clearly and powerfully set out in the victim personal statements provided by C1 and C2. 28. We see no basis on which the recorder's approach and conclusions can be faulted. He amply reflected the applicant's young age at the time of the offences, by making a substantial reduction from what were, in our view, appropriate notional adult sentences. The imposition of consecutive sentences was not wrong in principle, and in any event the important consideration at this stage is as to the totality of the sentencing, not its structure. The recorder had presided over the trial and was in the best position to assess culpability and harm. In our judgment the total term of detention, although stiff, was not arguably manifestly excessive. Again, we agree with the detailed reasons given by the single judge. 29. We would have been willing to grant the necessary short extensions of time if there had been merit in the grounds of appeal. As it is no purpose would be served by granting either extension because an appeal against either conviction or sentence cannot succeed. It follows that, grateful though we are to Mr Gray, these renewed applications fail and are refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2022] EWCA Crim 399' date: '2022-03-09' judges: - LORD JUSTICE HOLROYDE - MR JUSTICE JULIAN KNOWLES - MR JUSTICE COTTER ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical 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: 200406685/A9 Neutral Citation Number: [2005] EWCA Crim 1543 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Thursday, 9th June 2005 B E F O R E: LORD JUSTICE PILL MR JUSTICE OUSELEY MR JUSTICE DAVIS - - - - - - - R E G I N A -v- PAIWANT ASI-AKRAM - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR T LODY appeared on behalf of the APPELLANT MR A PEET appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. MR JUSTICE DAVIS: The appellant, Paiwand Asi-Akram, is now 18 years old but at the relevant times for the purposes of this appeal was 17. On 27th October 2004, in the Crown Court at Derby before His Honour Judge Hamilton, he pleaded guilty, on rearraignment, to three particular counts on an indictment: the first two counts, counts 1 and 2, being counts of rape and the third matter, count 4 on the indictment, being a count of attempting to choke, suffocate or strangle with intent to commit an indictable offence (being rape) contrary to section 21 of the Offences Against the Person Act 1861 . He was sentenced on each of these counts to 14 years' detention. The judge exercised his powers under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 , the appellant being under the age of 18 at the relevant time. The judge in fact expressed himself as imposing a term of imprisonment but it is plain that he intended to impose a term of detention. In addition, the appellant was recommended for deportation and it was a consequence of the sentence that he was required to register indefinitely under the provisions of the Sexual Offences Act 2003 . 2. It may perhaps be noted that in the initial stages of the argument before the judge he clearly had in mind the possibility of imposing an indeterminate sentence. The judge, however, was persuaded by counsel that, by reason of the appellant's then age, he had no power in law to impose an indeterminate sentence. It is now conceded before us that the judge did have such a power. The point now is academic. But we think it worth noting that the judge, at least initially, had that prospect in mind. 3. Against the total sentence of 14 years' detention the appellant appeals, having obtained the leave of the Single Judge. 4. The facts may be briefly stated for present purposes. They are, to say the least, disconcerting. In the early hours of the morning on a day between 26th December 2003 and 1st January 2004 a prostitute was working in Derby when she came across the appellant. He asked her how much she charged for full sex and oral sex and an agreement was reached that she would perform oral sex upon him for £10. They both went to some bushes but when she started to perform the sex act on him, he immediately became aggressive and demanded full intercourse. When she refused he became violent, forced her to the ground, placed both hands round her neck and got on top of her. He then pulled her clothes off, placed his hand over her mouth so that nobody would hear her screams and then forcefully penetrated her vagina with his penis. So violent was he that she genuinely believed she was going to die. He ejaculated inside her without wearing a condom. After that, he asked her to accompany him home but when she refused he raped her again in exactly the same manner and then ran off. 5. She did not make a complaint to the police initially, because she feared she would not be believed because of her vocation. In the end she did make a complaint when she heard on the grapevine that another woman had been assaulted in a similar way, in the same area of Derby. 6. That other victim was approached by the appellant in the early hours of the morning of 11th January 2004 as she walked towards a shop. He tried to engage her in conversation and asked her if she did business. She replied that she did not, but he followed her into the shop, followed her out again and persisted in his conversation with her, making her feel uncomfortable. When they reached some bushes, he produced a knife, grabbed her by the arm, pulled her into the bushes and pushed her to the ground. When she tried to get up, he pushed her down again and at this point she pleaded with him repeatedly to stop and told him she was frightened that he would kill her. He then pulled her trousers off and used the knife to cut away her underwear. After that, despite her kicks aimed at him, he got on top of her, pinned her down, placed one hand round her neck and pressed hard down with it so that she had difficulty in breathing. The more she struggled by trying to scratch him, the greater the pressure he exerted on her windpipe. She passed out momentarily and the next thing she recalled was him vaginally raping her, placing his finger inside her anus and trying to kiss her. He did not use any condom. He turned her over to change position, and as he did this, she grabbed her opportunity to run off, leaving most of her clothing behind. She ran to a group of her friends who were nearby and told them what had happened. 7. Both victims subsequently identified the appellant at identity parades. So far as the second victim was concerned, DNA materials in semen and also by reference to skin under her fingernails were found, implicating the appellant. 8. Shortly after this second attack, the appellant left Derby and made his way to Teesside. In the early hours of the morning on 23rd January 2004, he approached a prostitute in Middlesbrough. An agreement was reached whereby he would pay her £10 to perform oral sex upon him. They walked down an alleyway and the victim produced a condom which she placed on him and she then started to perform oral sex upon him. However, as with the previous two incidents, he became aggressive and violent and demanded full intercourse. Initially she agreed to do that for a further £10. When she asked for the extra money he became extremely violent. He grabbed her by neck and pulled her to the ground, in a headlock. She asked him to leave her alone but his response was to say that he was going to kill her if she did not do what she was told. She was terrified. He placed both hands round her neck and began strangling her as she shouted for help. She tried to poke his eye but he banged her head on the ground, knocking her unconscious. By the time she came round the police had arrived. As it happened the police had been alerted by a man who lived nearby, who had heard groaning noises in the alley behind his home. When that man went out to investigate, he saw the appellant leaning over the victim, punching her and grabbing at her with both hands. 9. When the police arrived the appellant was standing a short distance from her, with his trousers and underwear around his buttocks. The victim was initially motionless and blood was coming from her head. In the event she came round quite quickly although it is clear that she was disorientated as a result of what had happened. She was taken to hospital for treatment for her injuries. This Court has seen photographs of the injuries to the last two victims. They are unpleasant. 10. When the appellant was arrested and interviewed he said that he had beaten the third victim after she demanded that he pay for sex with her, had stolen some money from him and then attacked him. He claimed that he had beaten her in self-defence. As to the first two attacks, he maintained that he knew nothing about those at all. 11. Before the sentencing judge was a psychiatric report which had been obtained. That noted that there were certain difficulties in making an assessment because of the appellant's poor grasp of the English language (the appellant is by birth an Iraqi Kurd). The report, understandably, dealt in some detail on what appear to have been significant traumatic experiences suffered by the appellant whilst in Iraq and before he came to the United Kingdom. In the course of the report, the psychiatrist noted this: "Most vigorously and repeatedly he protested his complete innocence with regard to all the index charges." The psychiatrist noted that he presented as a very sullen young man, and that he had certainly no delusions as to guilt and, on the contrary, that he saw himself as a good person. He was distraught that no one seemed to believe in his innocence. The psychiatrist concluded that there was no evidence of any psychopathic or personality disorder, although the appellant was likely to have been traumatised by his past experiences in Iraq. We might add that since sentence was passed a prison report has been obtained. That reports on the appellant in terms which, it has to be said, are generally unfavourable and records instances of him threatening other inmates. 12. In the course of his sentencing remarks, the judge indicated that, in terms of appearance, the appellant seemed to him to be more likely to be something in the region of 22 years old or thereabouts: although the judge made it clear that he sentenced the appellant as a 17 year old and one who had never before committed any criminal acts. The judge then dealt with the mitigation, including age; referred to the psychiatric report; dealt with the facts of the case; and then said this: "You are, in my view, a very great danger to women and, as I have already said, only a very substantial term of imprisonment is appropriate." The judge acknowledged the plea of guilty that had been tendered and then proceeded to impose a sentence of 14 years' detention in total, as already noted, as well as recommending the appellant for deportation. 13. Mr Lody, who appears on behalf of the appellant today as he did in the court below, does not in the course of his realistic submissions in any way seek to minimise the seriousness of this offending, which he rightly described as "dreadful". Mr Lody does not seek to dispute the judge's finding that the appellant is a danger to women. Mr Lody expressly accepted that there is a high level risk of repeat offending. Further, Mr Lody does not dispute that a campaign of rape of this kind indicated a starting point, after a contested trial, of 15 years, having regard to the guidelines given in the case of R v Millberry [2003] 1 Cr App R(S) 25 . 14. Mr Lody, however, submits that a custodial sentence of 14 years is of an order which, he suggests, one would expect (assuming that is, as he does, that a life sentence was not to be imposed) in the case of an adult offender, even allowing for the plea. We would very much query whether a judge (assuming he passed a determinate sentence) would be restricted to a sentence of a maximum of 14 years for an adult, given the circumstances. But that, at all events, was the submission of Mr Lody. 15. In particular, Mr Lody emphasises the observations of the Court of Appeal in Millberry at paragraph 30, where in dealing with young offenders the Court of Appeal said that, like the Sentencing Panel, it concluded that a sentence should be "significantly shorter for young offenders". Mr Lody emphasises this point: although he does also add to it the point that the appellant did plead guilty at what the judge accepted was to be regarded as the earliest practical stage and thereby spared the victims from the ordeal of having to give evidence. But Mr Lody's real point is the age of this particular appellant. 16. We should perhaps add, by reference to Millberry , that a little further on in the judgment the Court of Appeal stressed that the Court should not adopt a merely mechanistic approach to guidelines and should look at all the circumstances in the round. 17. These were indeed very grave offences: in our view, amongst the very worst of their kind. The appellant showed complete disregard for the victims in each case. Extensive and gratuitous violence was used in each case. In the first case the rape was repeated. In the second, which is perhaps the most serious of all, a knife was produced and used to cut the victim's clothing. There was an attempt to strangle her. In the third case, again there was an attempt to strangle and the violence lasted for a significant period. In all cases quite significant injury was caused. Inevitably all three of the women victims were absolutely terrified; inevitably all three of them feared for their lives. 18. Quite apart from this being a campaign of rape, directed by the appellant at prostitutes, or women whom he regarded as prostitutes, there were here, therefore, significant aggravating features which by reference to the putative starting point, had also to be taken into account. Further, the appellant is, as Mr Lody accepts, a danger to women. The psychiatric report seem to indicate that he has no regard for his victims and indeed the impression one rather gets is that that appellant seems somehow to have contrived to persuade himself that it is he who is in some way the victim. There is no doubt, in our view, that the judge was justified in imposing a very significant sentence indeed given the circumstances. 19. But there remains the matter of the appellant's age. As we have said, the judge and the prosecution were prepared to accept that the appellant was 17 at the relevant times. The question then is whether that particular matter was sufficiently reflected in the total sentence which the judge imposed. 20. In our judgment, the observation of this Court in Millberry at paragraph 30, that in the rape cases the sentence should, in the case of young offenders, be "significantly shorter" than otherwise be the case of adults is a broadly general observation, which nevertheless admits of exceptions. It was not, in our judgment, designed to be one of invariable and inevitable application. In all such cases youth will always be a relevant consideration. But the extent to which it calls for a reduction (and, specifically, a "significant" reduction), by comparison to a sentence which otherwise would have been passed on an adult, nevertheless remains to be assessed by the sentencing court by reference to the circumstances of the case. There are cases of rape where the youth of the defendant can be said, in one sense at least, to play an operative part in the offence. But this most emphatically is not such a case. We bear in mind, too, that there may be greater prospects of rehabilitation in the case of younger offenders as compared to older and perhaps more hardened offenders. We do also bear in mind the point, well made by Mr Lody, that it is a particularly daunting matter, as far as a young person is concerned, if a very long sentence is imposed. 21. However, as against that, in this particular case there is to be borne in mind the very important consideration that, in the context of a campaign of particularly nasty and violent rapes, the appellant was found by the judge (and as is accepted) to be a serious danger to women. Overall, while the sentence may have been a severe one, in our view it was justifiably so. We dismiss this appeal.

```yaml citation: '[2005] EWCA Crim 1543' date: '2005-06-09' judges: - LORD JUSTICE PILL - MR JUSTICE OUSELEY - MR JUSTICE DAVIS ```

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

Neutral Citation Number: [2010] EWCA Crim 794 Case No: 200804806/B3-200804804/B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 28th January 2010 B e f o r e : LORD JUSTICE LAWS MR JUSTICE BEATSON MR JUSTICE BLAKE - - - - - - - - - - - - - - - - - - - - - R E G I N A v CONG VAN LE QUYNH VAN HUYNH - - - - - - - - - - - - - - - - - - - - - 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 Lett QC appeared on behalf of the Appellant Huynh Mr M Evans QC appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE LAWS: On 1st August 2008 before McKinnon J at the Cardiff Crown Court, this appellant was convicted by the jury, by a majority of 10 to 2, of an offence of manslaughter. That had been left to the jury as an alternative to the charge of murder which was raised in count 1 of the indictment. On 11th August 2008 the appellant was sentenced to 9 years' imprisonment. 545 days spent in custody on remand were directed to count towards sentence. 2. The appellant was jointly charged on count 1 with murder, along with five others, Bac, Phoung Nguyen, Son, Van Nhu, Paul Adrian Harrison, Thanh Van Le and Cong Van Le. Bac, Son and Harrison were acquitted of murder and manslaughter and of attempting to cause grievous bodily harm with intent, which had been left to the jury as a further alternative. Thanh Van Le and Cong Van Le were convicted of manslaughter, along with the appellant, and sentenced to 7 years' imprisonment. They had sought to appeal their convictions along with the appellant and Thanh, who for his part had also sought leave to appeal against sentence. However, Thanh has been repatriated to Vietnam and formally abandoned all proceedings in this court. As for Cong, the court has information from the prison that he was in December 2009 transferred to a holding centre and thence also taken to Vietnam, from which he originates, though we have had no formal documentation to that effect. We propose to dismiss Cong's appeal, as he is not here to pursue it. In the very unlikely event that he would seek to re-open his appeal, then in light of the conclusions to which we have come in Huynh's case, that application might well be favourably received. 3. Two further defendants were originally charged with the murder, Khai Van Tran and Ian Hoang Cai. They fell out of the picture in different ways and it is unnecessary to describe the procedures in relation to them. 4. The appellant now appeals against conviction by leave of the single judge. The following account of the facts will generally suffice for the purposes of the appeal, which in the end, as we shall show, turns only on one point. At approximate 2.00 pm on Monday 20th November 2006 an unnamed man was carried into the accident and emergency department at the Royal Gwent Hospital in Newport by two men of east Asian origin. They immediately left the hospital grounds. The injured man was unconscious, struggling to breathe. A CT scan revealed serious brain injury. Medical professionals considered him to be beyond medical assistance. He was pronounced dead at 22.10 hours the same day. It was accepted at trial, there being CCTV evidence, that the men who had brought him to the hospital were Bac and Tan Cai. 5. A postmortem revealed extensive bruising and abrasions over the whole of the dead man's head and body. He had been very badly beaten. There were many signs of serious trauma and head injury. The pathologist, Dr Leadbetter, concluded that death had been caused by a subdural hemorrhage occasioned by blunt trauma to the head. 6. At length the deceased was identified as Tran Nguyen, to whom we shall refer as "Tran", born on 5th February 1962. He was an illegal immigrant from Vietnam. Before his death he had been employed as a "farmer", tending the crop at a cannabis factory in premises at 40 Keynsham Avenue, Newport. His boss there was a man called Le Mingh Tu (we will call him simply "Tu"). Tu and Tan Cai organised a cannabis operation in Newport. At the time of Tran's death they were living with Tu's wife at a flat in Cardiff Road not far from Keynsham Avenue. 7. After the death Tu fled the country and at the time of the trial was back in Vietnam. His wife however remained in England and she was subsequently arrested in connection with the death. She gave evidence however for the Crown at the trial, by which time she was herself serving a 12-month prison sentence and awaiting deportation having pleaded guilty to offences of perverting the course of justice and money laundering. 8. Bac was also a farmer, though at a different cannabis factory in Newport. On 16th November 2006 he visited Tran at 40 Keynsham Avenue. They had a meal together. Bac stayed at the address overnight. In the early hours of the next day, Bac and Tran reported by telephone to Tu and Tan Cai that some men had entered the premises during the night, bound them up at knife point and stolen the cannabis crop. The two of them, Bac and Tran, were taken to Flat 6, 29 Cardiff Road by Tu and Tan Cai. That is where Tu was living. Tran and (it seems to a lesser extent) Bac were suspected of being complicit with the robbers they had described. 9. On the morning of 19th November Tu, Tan Cai, Bac and Tran went by car to 100 New Road, Bedfont, a place near Heathrow Airport. It was the address of yet another cannabis factory, managed by Khai (also known as Khang) and the man, Son. Son opened up the premises to admit them at Tu's request. Whether Tran realised it or not, he was from then on a prisoner at that place. Over the next few hours the appellant and co-accused and some others came and went to the address, until late in the evening and then Tran was taken back to Newport by car. Bac was dropped off near his home address. Tran was returned to Flat 6, 29 Cardiff Road. It was from there that he was to be taken to the hospital the following afternoon. 10. The prosecution case was that the killing of Tran happened against the background of a large scale commercial cannabis cultivation operation of which Huynh (the appellant) who was Tan Cai's uncle, was the principal operator. The Crown said that it was on his orders that the deceased was taken to London to be interrogated about his complicity in the robbery or alleged robbery of the cannabis crop. The Crown's position was largely based on an account given in interview with the police by Bac, who also gave evidence. It was the Crown's contention that Bac's evidence had within it, as it was put, "an essential core of truth as to what happened at 100 New Road." 11. It was alleged that Tran was held in the main upstairs bedroom at that address, guarded by Son, and over the next few hours was subjected to interrogation and serious assault by various people coming and going to and from the address. It was said he was first interrogated and assaulted by Thanh Van Le, who is referred to in the summing-up as "Toan" (he was Tu's brother) and also by Cong Van Le (Cong) who had previously worked as another farmer for Tu. The Crown said that Huynh then arrived at the address, together with Harrison. Harrison was 6 foot 9 tall. He was a hired heavy, as it was put. He weighed 20 stone. The Crown case was that he inflicted serious violence on Tran, under the directions or at the encouragement of Huynh whilst Huynh was interrogating Tran. The Crown alleged that after Huynh and Harrison left, the deceased was interrogated and assaulted some more (this time by Tu) and by others who were not apprehended, and by Toan. Later that evening, when his condition began to cause concern, he was taken back to Newport. 12. The Crown said that the injury causing the subdural haemorrhage which led to Tran's death occurred at 100 New Road on 19th November. They claimed that the prolonged violence which happened there during that day was part of an overall joint attack in which the appellant and others played their respective parts. Each of those present was a willing party to a common design to assault the deceased. Each took part in the assault or else was responsible for such matters as transporting or guarding Tran in the knowledge or furtherance of the overall plan and knowing that really serious harm might by inflicted. Nobody was there by chance. It did not matter that the appellant and others who had not been apprehended came and went at somewhat different times. 13. The Crown's case against the man, Bac, was that he was involved in assisting in the transport and guarding of Tran, knowing that others might use serious violence against him. As for Toan, the Crown said that he was involved in the cannabis operation and knew, by at least 18th November, that Tu was bringing the deceased up to London. On 19th November he took part in the joint plan by committing grave assaults on Tran himself, and together with Cong and Khai and later with two others called Lan and Bao. Son opened up 100 New Road on 19th November at Tu's request. The Crown said he knew that he was there to guard Tran, and did so knowing full well that Tran was being subjected to serious violence. So he too was part of the joint plan. He had joined in the attack by questioning Tran, while he was being assaulted, and on some evidence in the case had himself actually assaulted him. 14. As for Cong, the Crown said that like Toan he knew in advance that Tran was being brought to London, and went to 100 New Road knowing that Tran was to be questioned there. He must have known perfectly well that there was going to be serious violence. He joined in that violence at 100 New Road. 15. Coming to the appellant, Huynh, the Crown alleged that he was the one who had orchestrated the whole plan. He was contacted (following the Keynsham Road robbery) by Tu and Tan Cai, and after that he made repeated efforts to contact the heavy man Harrison. He instructed Harrison to apply violence to Tran. He did so by nods and hand signals and so forth and in all this, said the Crown, he must have intended that really serious physical harm come to Tran. 16. As for Harrison, the Crown said he was hired by Huynh to assault Tran and went to the address solely for that purpose. He inflicted serious violence on Tran which may well have caused the fatal injury, though that has not proved beyond peradventure. At any rate he must have intended really serious harm. 17. There was a common defence run by all the co-accused. It was to the effect that the Crown had failed to prove that the injury causing the fatal hemorrhage had been inflicted at the New Road address on 19th November. 18. The Crown pathologist, Dr Leadbetter, gave evidence that the subdural haemorrhage could have occurred up to and perhaps even before 72 hours prior to the death. It had occurred at least 12 hours before the death. This evidence did not exclude the possibility that the fatal injury had been sustained either during the robbery at Keynsham Road on 17th November, or after the deceased was taken back to Flat 6, Cardiff Road in Newport on the night of 19th November. The co-accused and the appellant relied upon the pathologist's evidence that he had identified bruising at least 72 hours old. They relied also on Bac's account of the Keynsham Road robbery and of what Tran had told him happened to him in the course of that robbery. They relied on this material to support the proposition that the robbery, rather than the later incidents at New Road, was the true scene of the jury causing subdural haemorrhage. 19. We very briefly summarise individual cases put forward by the defence. Bac said he had been at 100 New Road out of fear, was not party to any joint plan and inflicted no violence. Toan said he had gone there out of curiosity and slapped Tran lightly four times. It was not part of any joint plan. He had no idea that there would be serious injury. Son's case was that he had opened up the premises at 100 New Road at Tu's request but he was not a willing party to any concerted plan to detain or assault Tran. Cong said that like Toan, he went to 100 New Road out of curiosity and also slapped Cong twice, only gently. He had neither anticipated nor taken part in any serious violence. 20. Harrison's case was that he went there with Huynh as what he called a "presence", whilst Huynh conducted some business which Harrison thought was about a debt. He and Huynh were present in the room for a short period only. He was not party to any plan to assault the deceased. He inflicted no violence. 21. Huynh did not give evidence in his own defence at the trial. He relied on Harrison's denial in evidence as to the use of any violence. He said that Tu was the boss and that Bac, Son, Cong and Toan were conspiring to implicate himself and Harrison in order to protect themselves and Tu. Huynh and Harrison relied on what the judge referred to as the "Hoang/ Wong" point. That was a reference in Bac's interview to a discussion in which he, Bac, claimed that Tu had said that whoever was arrested first should deflect blame from him and themselves by telling the police that persons called Hoang and Wong were Tran's bosses. It was part of Huynh and Harrison's case that this demonstrated a determination by Tu to pervert the course of justice. 22. There is a single ground of appeal. It is to the effect that at an extremely late stage, after the jury had been in retirement for several days, the judge gave them a new direction concerning the defendants, Harrison and Huynh, which represented a volte fase compared with his earlier directions in the summing-up. It arises in the following way. Before counsel's closing speeches the judge heard submissions as to the directions he should give on murder, manslaughter and attempt to cause grievous bodily harm. The Crown's case was that the judge should only leave the murder charge to the jury. The judge had prepared three written versions of his proposed directions. After hearing argument, he indicated that he had settled on version 3, and we understand that the direction he gave in the summing-up, to which we will come in a moment, reflected that version. In consequence of the discussions between counsel and the jury, the jury were addressed in counsel's speeches upon the footing that if they could not be sure that the fatal injury was inflicted on the deceased during the time that Huynh was at 100 New Road with Harrison, they should acquit both Huynh and Harrison on count 1. On the first day of the summing-up, 23rd July 2008, the learned trial judge directed the jury as follows: "...the crown says that Quynh instructed Paul Harrison to treat Tran with violence and the instruction consisted of nods and hand signals. Quynh is silent on the matter but relies on Paul Harrison's account, that Paul Harrison used no violence and was not instructed by Quynh to use violence. If Paul Harrison's account is true or may be true, then Quynh is not guilty of anything because you would then not be sure that violence was used by Paul Harrison or, indeed instructed by Quynh." Then at 25A - B there is this critical passage: "You only convict Quynh of murder if you have already convicted Paul Harrison of murder. Thus, if you find Paul Harrison not guilty of murder you must acquit Quynh of murder and if you reject murder then, again, you can only convict Quynh of manslaughter if you have already convicted Paul Harrison of manslaughter." 23. On the second day of the summing-up, at the end, just before the jury retired, counsel for Harrison submitted a written argument inviting the judge to alter the directions we have just set out. Counsel submitted that it would be possible and proper in certain circumstances for the jury to convict Huynh while acquitting Harrison. The judge rejected that submission (see summing-up transcript 134C - 136B). It had not been supported by the prosecution. Indeed, as we have said, the Crown had in fact resisted the proposal to leave verdicts alternative to murder on count 1. Their case always was that the subdural haemorrhage causing the death was the result of the beating by Harrison, as directed by Huynh. The summing-up contains a number of references to Huynh's role in instructing Harrison (see 14C and 18C - E). So the suggestion that Huynh might be convicted where Harrison was acquitted was against the grain of the summing-up and contrary to the specific directions at 25A - B which we have set out above. 24. The jury retired in the afternoon of 24th July 2008. That was the second day of the summing-up. They continued their deliberations on 25th and 28th July -- there must have been a weekend intervening. After a jury note dealing with voting figures on 28th July the judge gave them a majority direction, shortly after 1.00 pm that day, 28th July. The signs from the transcript are that the judge seems to have expected a verdict quite shortly thereafter. But none was forthcoming on that day and the jury were sent home just after 4.15. The next day, 29th July, one of the jurors was sick, so the jury resumed their deliberations on 30th July. At 11.10 am that day a note was received from the jury. It read: "Some jurors feel that the suggestion of Harrison's guilt equalling Vin's guilt [that is the appellant Huynh] can be applied in reverse. That is, that Vin can be considered guilty without Harrison also being considered as such. Please clarify on this point?" The judge heard argument. Counsel for Huynh, not surprisingly, urged him to stand by his earlier direction. Counsel for Harrison suggested a form of words that would have reflected what the jury seemed to be suggesting. Counsel for the Crown submitted that the jury should be told that they had to look at the evidence against each defendant separately, and reach separate verdicts (see summing-up transcript 148D - E). The judge considered the submissions and produced a draft further direction, which he discussed with counsel. Despite protests by counsel for Huynh, the judge proceeded to direct the jury in line with his draft. This is what he said: "I directed you, in my summing-up, that you could not find Quynh guilty of murder unless you had already found Paul Harrison guilty of murder and the same, I said, applied to manslaughter. Namely, that you could not find Quynh guilty of manslaughter unless you had already found Paul Harrison guilty of manslaughter. However, at the end of the day, the evidence is for you and your conclusions from it are for you. You consider each defendant separately and you bring in separate verdicts in respect of each defendant and just because you find one defendant, say Paul Harrison, guilty of murder does not mean that you find another defendant, say Quynh, guilty of murder. You consider them and the evidence against and for them separately. What you are asking, really, is whether, if you find Paul Harrison not guilty of murder, you are then bound to find Quynh also not guilty of murder. The answer to that is a clear one. Earlier, I said that the answer should be 'Yes'. I wish to correct that now by saying that you consider the cases against and for Quynh and Paul Harrison entirely separately and, having done that, your verdict on one is not interdependent on your verdict on the other. So, you could find Paul Harrison not guilty of murder but find Quynh guilty of murder. So, the fact that you found Paul Harrison not guilty of murder does not mean that Quynh is automatically not guilty of murder. You have to consider Quynh separately, just as you consider Paul Harrison separately and the same applies visa versa or, to use the words of your note, 'in reverse'. So the verdict on each defendant is independent of your verdicts on the other." 25. It is no exaggeration to say that this was a volte fase in comparison with the judge's earlier direction. The earlier direction was to the effect, as we have seen, that the evidence would only justify Huynh's conviction if it justified Harrison's conviction, essentially for the reason given by the judge in the summing-up at 24F. We repeat it for convenience: "If Paul Harrison's account is true or may be true, then Quynh is not guilty of anything because you would then not be sure that violence was used by Paul Harrison or, indeed, instructed, by Quynh." That is the basis on which the defence had been run. As we have said the appellant did not give evidence. This was the basis on which the case had been closed by counsel in their speeches to the jury; and the basis on which the jury were directed to consider the case when they retired and later received the majority direction. No factual basis was ever postulated in terms or exposed or explained before the jury, on which Harrison might properly be acquitted and Huynh convicted. No such basis therefore was tested by counsel in the course of argument. Yet the jury acquitted Harrison and convicted Huynh. 26. The Crown submit (and we are indebted to Mr Evans QC for his assistance this morning) that there was indeed ample evidence against Huynh, which was not dependent on Harrison's guilt. We are very far from asserting the contrary. It may very well be that the original direction was overly favourable to Huynh as again the Crown have submitted. But the scenario in which Harrison might be acquitted and Hughes convicted, though it may well have been an available scenario on the evidence, was not examined or tested in the course of the adversarial procedures in which a common law criminal trial consists. We are in no position to say what the effect of carefully prepared submissions in closing the case might have been on the jury, if this further scenario was live in counsel's mind at the time he addressed the jury. 27. In the result, we are driven to conclude that there was a want of due process here and the verdict has to be considered unsafe for that reason. We make it clear that no criticism whatever of the jury. They initiated the judge's change of mind by their note, perhaps because they perceived that there was indeed another way of looking at the case. But it was a way of looking at the case which, as we have said, had not been subjected to the discipline of the adversarial procedures of a proper trial. 28. In those circumstances it is our duty to allow this appeal against conviction, and we do so. 29. LORD JUSTICE LAWS: Are there no applications? 30. MR EVANS: In the circumstances of this case it seems to me that on purely practical grounds it would be impossible to conduct this trial again. 31. LORD JUSTICE LAWS: I see. 32. MR EVANS: The witnesses are scattered. It would be very difficult for the Crown to articulate a case on manslaughter, which is the only matter on which he could be tried. 33. LORD JUSTICE LAWS: Of course. 34. MR EVANS: On the basis of available evidence. 35. LORD JUSTICE LAWS: Thank you Mr Evans. 36. MR EVANS: I have no direct instructions but it seems to me to be impossible to recreate a trial. 37. LORD JUSTICE LAWS: We understand and respect that. Thank you very much. We are obliged to counsel.

```yaml citation: '[2010] EWCA Crim 794' date: '2010-01-28' judges: - LORD JUSTICE LAWS - MR JUSTICE BEATSON - MR JUSTICE BLAKE ```

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WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. Neutral Citation Number: [2023] EWCA Crim 1510 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202303654/A4 Royal Courts of Justice Strand London WC2A 2LL Wednesday, 6 December 2023 Before: LORD JUSTICE EDIS MR JUSTICE JEREMY BAKER SIR ROBIN SPENCER REX V KYLE HODGSON __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR D HUGHES appeared on behalf of the Appellant _________ J U D G M E N T SIR ROBIN SPENCER: 1. This is an appeal against sentence brought by leave of the single judge. 2. On 22 September 2023 in the Crown Court at Sheffield, the appellant, who is now 23 years old, was sentenced by Mr Recorder Serr to a term of 12 months' imprisonment for an offence of dangerous driving. He had pleaded guilty at the first hearing in the Magistrates' Court and had been committed for sentence to the Crown Court. He had also pleaded guilty to associated offences of driving without insurance, driving without a licence, criminal damage and possession of cannabis, for which he had also been committed for sentence. The judge imposed no separate penalty for each of those offences, save to order appropriate endorsements for the motoring offences. On the charge of dangerous driving, the appellant was disqualified from driving for 18 months and until he passed an extended retest. 3. The grounds of appeal in short are that the judge's starting point of 18 months for the dangerous driving was too high. Although that was properly reduced to 12 months with a full one-third credit for his early guilty plea, it is said that the judge failed to give any credit for the appellant's personal mitigation. It is said that if a custodial sentence was required at all it should have been suspended. 4. We are grateful to Mr Hughes for his written and admirably succinct oral submissions. 5. The dangerous driving took place at around 10.40 am on 14 June 2023. The appellant was driving a Vauxhall Astra. He told the probation officer who prepared the pre-sentence report that the car belonged to a friend who had bought it but had no licence and had asked the appellant to drive. The appellant had no licence either and he was not insured to drive the car. 6. A police car came up behind the Astra by chance. A routine check revealed that the only person insured to drive the vehicle was female, whereas the police officer could see that the driver and the passenger were both males. Another police car began to follow the Astra with its blue lights illuminated. It attempted to stop the Astra but the appellant accelerated away at considerable speed. 7. There then followed a prolonged piece of very dangerous driving by the appellant which was captured almost in its entirety on the dashboard camera of the police car following the appellant. It lasted for some five minutes. We have watched the footage for ourselves. We agree with the judge’s description that it is extremely disturbing. 8. It is unnecessary to describe every twist and turn of the dangerous driving. Suffice it to say that it included driving at grossly excessive speeds in built-up areas where the limit was 30 mph and sometimes only 20 mph. He drove at speeds up to 70 mph. In an attempt to shake off the police car he made sudden dangerous turns into side roads, cutting corners. On occasions his path was blocked by vehicles ahead which the appellant avoided by mounting pavements. At a junction with a main road he drove across the junction without braking. For a while he lost control when attempting to make another sharp right turn before crossing two pavements to rejoin the main carriageway. He ignored attempts by the police car to get him to stop. 9. In Collinson Road he found his path blocked by a skip lorry which was stationary in the middle of the road. There was also a parked car blocking the offside carriageway of this fairly narrow road. In a desperate attempt to get away the appellant drove onto the offside pavement at speed, through a narrow gap, colliding in the process with the offside of the parked car, albeit striking it only a glancing blow. 10. We note on the footage at this point that the appellant's front seat passenger had opened the front nearside door just before passing the parked car, shutting it again just in time to avoid a far more serious collision with that car as the appellant mounted the pavement. We infer that the passenger was not expecting the appellant to be able to get past this blockage of the road and had been about to decamp from the vehicle. 11. Only a short distance further down the road the car stopped. The appellant and his passenger got out and abandoned the vehicle. The appellant climbed into the garden of a neighbouring house damaging a fence panel, hence the charge of criminal damage. The cost of a new panel was around £80. 12. The police were able to chase and detain the appellant but his passenger was not apprehended. The appellant was found to have a small amount of cannabis in his trouser pocket. The appellant told the probation officer that it was because he had this cannabis on him, and because he knew he was driving with only a provisional licence, that he panicked when the police car began to follow him on blue lights. 13. The appellant had no previous convictions but he had cautions for possessing weapons in a public place and for possession of cannabis. His last caution for cannabis was 12 months earlier. 14. There was a pre-sentence report. The appellant told the probation officer that he had been caring for his partner, who was suffering with post-natal depression, and for their two children. He was also the carer for his mother who had mental health issues and whose partner had recently died in tragic circumstances. The appellant was not in regular employment but had recently started work for his partner's father on civil engineering contracts for a probationary period. The appellant expressed to the probation officer remorse for his dangerous driving, telling her when asked about the potential victims: "It doesn’t bear thinking about." The recommendation in the pre-sentence report, if custody could be avoided, was for a two year community order with various requirements. There were glowing character references from the appellant's mother, from his partner and from his partner's mother. 15. In passing sentence, the judge concluded that the dangerous driving was a Category 1A offence under the relevant Sentencing Council guideline. It was culpability A for several reasons: this was a prolonged, persistent and deliberate course of driving; it involved obviously highly dangerous manoeuvres; it was a deliberate decision on the part of the appellant to ignore the rules of the road and there was disregard for the risk of danger to others. It was Category 1 harm because damage had been caused to property. The judge was satisfied from viewing the footage that the appellant had collided with the parked car when he went up on the pavement to get past it. Mr Hughes confirmed in his oral submissions this morning that it is accepted that contact was made, albeit the damage was not serious. 16. Under the guideline the starting point for a Category 1A offence was 18 months' custody, after trial. The judge identified as mitigating factors the lack of relevant convictions, the appellant's personal circumstances as set out in the pre-sentence report which we have outlined, and to an extent his relatively young age. He concluded that after a trial the appropriate sentence would have been 18 months which he reduced to 12 months for the early guilty plea. The judge continued: "I have considered whether this sentence can be suspended and I've considered the guideline [on] imposition of community and custodial sentences. In my view, it cannot. The offence is simply too serious and appropriate punishment can only be achieved by immediate custody given the seriousness of this driving." 17. Mr Hughes submits first that the judge was wrong to find that this was a Category 1A offence. Category 1 harm can be found only if one of the two specified factors exist, namely that the offence results in injury to others, or that damage was caused to vehicles or property. He submits that any damage to the parked car was minimal; there had been no complaint from the owner or keeper, and there was no photograph of the presumed damage. However, Mr Hughes accepts that the inference was properly drawn that some limited damage must have been caused. He points out that had the judge assessed it as Category 2A rather than 1A the starting point would have been nine months rather than 18 months. 18. Second, Mr Hughes submits that even if the judge was entitled to find it to be a Category 1A offence with a starting point of 18 months, the only reduction the judge made was in respect of the guilty plea, the full one-third to which the appellant was entitled. There was no credit for the personal mitigation which the judge had identified in his sentencing remarks. 19. Third, Mr Hughes submits (and this is the nub of his argument this morning) that any custodial sentence should have been suspended. Looking at the Sentencing Council guideline on the Imposition of Community and Custodial Sentences he submits that the appellant satisfied all three of the relevant criteria favouring suspension: there was a realistic prospect of rehabilitation; there was strong personal mitigation; immediate custody would result in significant harmful impact upon others. On the other side of the equation, he submits that two of the three factors militating against suspension were absent: it could not be said that the appellant presented a risk or danger to the public; there was no history of poor compliance with court orders. 20. As Mr Hughes put it in the grounds of appeal, the only issue to be determined was whether the offending was so serious that only immediate custody could be justified. On that issue Mr Hughes submits that the appellant was still a young man; this was his first appearance in any court; he was of good character; he had recently started employment and appeared to be doing reasonably well. There were supporting character references. 21. We have considered all these submissions very carefully. We think the judge was entitled to conclude that this dangerous driving was a Category 1A offence under the guideline. The judge was entitled to find that damage had been caused to the car with which the appellant collided, damage which could have been so much worse leaving aside the question of potential serious personal injury. The judge was therefore correct to take a starting point of 18 months. 22. The only aggravating factor under the guideline, although the judge did not mention it as such, was that other driving offences were committed at the same time as the dangerous driving. That would not in our view have merited a significant increase in all the circumstances, nor would the offences of criminal damage and possession of cannabis which would normally have been met only with a modest financial penalty. 23. However, there was some mitigation as the judge identified in his sentencing remarks. The appellant had no previous convictions and was essentially of good character. There was the personal mitigation of his domestic circumstances. We think that this mitigation called for some reduction from the starting point of 18 months before the final reduction for the guilty plea. 24. For that reason we think that the sentence of custody of 18 months reduced to 12 months was manifestly excessive. We think that the proper sentence after trial would have been 15 months, not 18 months, and with credit of one-third for plea the sentence should have been 10 months rather than 12 months. 25. As to the question of suspension, it was for the judge alone to decide whether in the exercise of his discretion the sentence could properly be suspended. Although the judge did not specifically address each of the factors in the guideline for and against suspension, which is best practice, he clearly had all of those factors in mind. As the guideline makes clear it is for the judge to weigh the factors for and against; it is not a question of numbers. We think the judge was entitled to conclude that this dangerous driving was so serious that only immediate custody could be justified. We are unable to say that his discretion was exercised wrongly. 26. The appellant has already been in custody for nearly 11 weeks. We note that he was due to be released on home detention curfew in some two weeks’ time on 22 December. In those circumstances, he will shortly have served the equivalent of the 10 month sentence we propose to substitute. 27. In view of this reduction in the sentence, we are also obliged to reduce the period of the disqualification. The judge imposed a mandatory 12-month disqualification, plus an uplift of six months, equating to half the length of the custodial sentence. Half of the custodial sentence as substituted will be five months not six months. It follows that the disqualification should be reduced from 18 months to 17 months. 28. We therefore allow the appeal. For the charge of dangerous driving we quash the sentence of 12 months' imprisonment and substitute a sentence of 10 months' imprisonment. We quash the disqualification of 18 months and substitute a period of 17 months. All other orders remain as before.

```yaml citation: '[2023] EWCA Crim 1510' date: '2023-12-06' judges: - LORD JUSTICE EDIS - MR JUSTICE JEREMY BAKER - SIR ROBIN SPENCER ```

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Neutral Citation Number: [2009] EWCA Crim 255 Case No: 200800572 C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 27th January 2008 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE BEAN HIS HONOUR JUDGE PAGET QC Sitting as a Judge of the Court of Appeal Criminal Division - - - - - - - - - - - - - - - - - - - - - R E G I N A v STEVEN BREEZE - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr M D Barlow appeared on behalf of the Appellant Mr J Hillis appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE TOULSON: On 4th July 2003 at Sheffield Crown Court before His Honour Judge Lawler QC, the appellant was convicted by a majority of rape (counts 1 to 6) and indecent assault (counts 7 to 10). He was subsequently sentenced to 12 years' imprisonment concurrent for the offences of rape and 4 years' imprisonment concurrent for the offences of indecent assault. He appeals against conviction by leave of the full court. 2. It will be appreciated from the dates recited that this is a very stale appeal. The reasons for its staleness were considered by the full court when granting leave and need not be repeated. 3. The complainant, "J", was the appellant's stepdaughter. On 1st November 2002 she told the police that he had sexually abused her on numerous occasions between 1982 and 1989 when she was aged between 8 and 14 years old. The counts on the indictment were all specimen counts. 4. The complainant was five years old when her mother married the appellant. Living also in the house from that time on were the complainant's sister and brother. She said that she did not tell anyone what happened to her during the years of abuse because she was frightened and did not want to upset her mother. 5. Her evidence was that from the age of about 8 the appellant sexually abused her on a regular basis day and night. The abuse often took place while she was in bed with her sister, but her sister never woke up. She said that the abuse stopped in 1989 when she was 14 years old because she was then able to stand up to the appellant. She carried on living at home with her mother and the appellant until she was 21 years old. In 1995 she left home. In 1998 she was married and the appellant gave her away at her wedding. In the following year, the appellant and the complainant's mother separated and the appellant began living with another woman, whom he later married and who gave evidence on his behalf at the trial. 6. In September 2000 the complainant said something to her mother about the way in which her stepfather had allegedly treated her. By now the appellant was the mother of two young children, the second of whom was just 4 months old. Under pressure from her mother, the complainant told her husband. She then underwent a period of counselling. This was two years or so before she made a complaint to the police, following which the appellant was arrested and interviewed. He denied the allegations in their entirety throughout his interview and throughout his evidence at the trial. 7. The appellant was given leave to appeal on four grounds. Ultimately, this appeal turns on one point which is short but far from easy. First, we must deal with the others. 8. The first ground of appeal was that the record of the police interviews with the appellant were not edited, as they should have been, to exclude allegations of the complainant which he she did not maintain in the witness box, and prejudicial irrelevant material about the appellant's relationship with his current wife. As to the first, in interview it had been put to the appellant that the complainant said, among other things, that he used to caress her body and kiss her in an adult fashion. That part of the alleged abuse did not emerge in her evidence, and so should strictly have been edited from the interview before it went before the jury. However, that form of abuse was much less grave than much of the abuse about which the complainant did give evidence, and it is, in our judgment, simply unrealistic to suppose that the omission to edit that part had any prejudicial effect in leading to the jury's verdicts. 9. The second part of the interview about which complaint is made was a short passage where the interviewing officer elicited the fact that the appellant's current wife was aged 18 when they met, and he suggested that this indicated that the appellant had a preference for younger women. Nobody could sensibly think that there was any relevant comparison to be drawn between an adult male entering into a relationship with a woman of 18 and engaging in paedophile activities with a stepchild of 8 to 14. The question was certainly irrelevant, but we cannot suppose that it could realistically have affected the jury's verdict. Experienced trial counsel took the view that it was too innocuous to require exersion, and that was a realistic view. 10. The second ground of appeal is that the judge failed to direct the jury as to the legal status of the evidence of the complainant having spoken to her mother in September 2000 about the appellant's alleged conduct towards her. In her evidence in-chief, the complainant was asked if, during the period of the alleged abuse, she had ever mentioned it to anyone else. She confirmed that she had not. In cross-examination, counsel for the appellant drew out the fact that she had first mentioned the matter to her mother. This was a perfectly understandable form of cross-examination. Counsel for the appellant was wanting to draw out before the jury the full length of the delay before the complainant had mentioned this matter to anybody. In order to do that, it was necessary to find out from the witness to whom she had first spoken. That then led to him developing a line of argument to the effect that the appellant and her mother had had a volatile relationship. They fell out again in relation to what she had said to her mother. At about the same time her mother was falling out with her stepfather. In short, the complainant was in a state of some emotional turmoil, and surrounded by unstable relationships, at the time when she first came out with the matter. The defence were also anxious to find out from the complainant what it was that supposedly caused her first to mention it to her mother. All this, as already mentioned, was in the context of her own change of domestic circumstances, in that she was now a young mother coping with all the emotional and physical stresses of childbirth and the aftermath. 11. There is authority, to which Mr Barlow has taken us, to the effect that whenever evidence comes out at a trial on charges of sexual offences about a complaint having been made, the judge should direct the jury about the limited relevance of such evidence. The obvious reason why this has been seen as necessary is because in cases of so-called recent complaint a jury might otherwise treat what the complainant is said to have said to others as somehow reinforcing the quality of the evidence given by the complainant herself or himself. 12. In this context, the fact of the report was brought out for entirely different reasons. It was in no sense a recent complaint, and the jury were told nothing about the details of it, because it was not material. In our judgment, it is unnecessary for this court to decide whether, under the line of authorities to which we have referred, it was incumbent on the judge to give the jury a direction about the potential significance of this evidence, in circumstances where nobody was putting it forward as evidence which in any way positively supported the prosecution's case, and, as we have mentioned, no details of what she had said had been given to the jury. If there had been such a direction, it would have been to the effect that the only relevance of what they had heard about the complainant's recounting of matters to her mother in September 2000 was in relation to the question of whether her delay in doing so undermined or weakened the jury's confidence in the accuracy of her evidence. But it is plain from the transcript of the proceedings and the summing-up as a whole that that is the way in which that issue was approached by everybody involved in the case. We can see no serious basis for supposing that the omission of such a direction can in any way have affected the result. 13. Grounds three and four are of a different ambit. It is complained that the judge failed to direct the jury in respect of the inconsistencies in the account provided by the complainant, and the judge made unfair comments during his summing-up. It is convenient to take those two together. 14. What have been described as inconsistencies in the accounts provided by the complainant were not contradictions, but were instances where the complainant said things in her evidence which she had not said in her previous statement. In each case the point was drawn to the jury's attention by the judge in the course of his narrative summary of her evidence, without further comment. But the judge gave no direction to the jury as to how they should approach those matters. 15. The real complaint is that the summing-up was unbalanced because the judge made certain remarks which were positively supportive of the prosecution's case, and could have left the jury in no doubt what he thought about the facts, and that those comments were not balanced by any reciprocal underlining of points made by the defence so as to give the jury a balanced presentation. 16. This was a case in which the trial had been short and closing speeches had been delivered on the same day as the summing-up by experienced counsel, who had made, succinctly, all the major points which were to be made on either side. Unusually, we have transcripts of those closing speeches. The task for the judge in these circumstances was essentially a simple one. All that he needed to do was give the jury the necessary directions of law and to remind them of the salient evidence and the issues in the case. It was not necessary for him to go further into reiteration of arguments in favour of the prosecution or the defence, and, in the view of this court, there was very good reason in such circumstances not to do so. He was, of course, entitled to make comments, but, if so, it was necessary to ensure that it was done in a balanced fashion. 17. Mr Barlow identified a number of the points which had been made on behalf of the appellant. The main points were these: 1. There was no independent evidence to support the complainant's account. 2. It was strange that the abuse should have carried on in the family home for six years with the regularity that she alleged but without detection or suspicion falling on the appellant. 3. It was remarkable that on the complainant's account she suffered no visible injury or bleeding, although the prosecution alleged forced intercourse at the age of 8. Had there been bleeding, her mother, who did the washing, might have been expected to wonder why her daughter's pants were bloodstained. But on the complainant's account she never did bleed until she started her periods, and that was after the abuse had finished. 4. The complainant had remained living at home until the age of 21. 5. The appellant had given her away at her wedding. 6. A number of things said by the complainant in her evidence emerged then for the first time, as we have already mentioned. 7. There was a delay of well over a decade before the complainant made any mention of the alleged abuse to anyone. 18. Mr Hillis, who had the misfortune of receiving the prosecution's brief only late last night, used the intervening hours constructively, because in his helpful submissions he analysed these various points and showed that each of them was dealt with by the judge in the course of his summing-up. They may not have been emphasised, but they were points about which argument had been presented on the appellant's behalf by his trial counsel and they were dealt with by the judge in his summing-up. It is also right to note that the judge, when he came to remind the jury of the appellant's evidence, did so largely (although not entirely) without adverse comment. 19. The problem is not in truth that the judge failed to mention any material point which the appellant says ought to have been put to the jury. The concern is the disparate treatment given to the evidence and points made on behalf of the complainant and the appellant. 20. One of the points made by counsel for the prosecution was the absence of any obvious motive for the complainant to lie. This was a fair point for the prosecutor to make, and she made it vigorously but without going over the top. In her closing address to the jury, counsel for prosecution said as follows: "Members of the jury, I would invite you to consider this question. Why on earth should the liar be [the complainant]? What on earth does [the complainant] stand to gain from telling a pack of wicked, shameless lies? Don't get me wrong, ladies and gentlemen. I am not trying to go behind that principle I told you about right at the very start, the burden and the standard of proof. Don't think for a moment that I am suggesting the defence have to provide a reason for you to believe why [the complainant] should lie, but you may think it wouldn't half help. [The complainant] has never been described in fact by anybody other than herself as a difficult teenager, a habitual liar. To be fair to her, she didn't say that about herself; she said she was a proper little madam and a bit of a rebellious teenager. But nobody has said, 'This is a girl who you could never believe a single word she said. She was always lying her head off'. It has never been suggested to her by anybody, 'Oh, you're lying for this reason, that reason or the other reason', or 'You could be lying for any of those reasons'. So why on earth should she? If we are going to tell lies we usually have a reason for it. We don't usually do it just for the sake of it. If we are telling lies, we usually don't do it in such a way that makes us look rather bad, such as describing yourself as a bit of a teenage rebel and a proper little madam. Yet [the complainant] says 'That was me as a teenager'. Bizarrely, you may think, [the appellant] is saying, 'No, she was fine. She's got a brilliant personality. I really got on with her, no problems with her'. Members of the jury, just think what [the complainant] has put herself through for the sake of these lies, as the defence would have you accept." 21. That was the closing note to the prosecution's address. The judge picked the point up. It was proper for him to refer to it, because it was a major part of the prosecution's case. But the complaint made is that in his summing up he made the same point time and again, without setting it against any other factors. At page 148 of the transcript of the trial, he said: "I now move to another area, which is when the abuse ceased. She told you that was when she was 14. The effect of her evidence was that she had gained in confidence and began to say no. [Her brother] was also at home rather more of the time. She said the defendant did stop, but he tried it on and pestered her for sex when he saw the opportunity. She resisted those advances. He did not pursue her physically or threaten her. Now, it is a matter for you, members of the jury, but you will have to ask: if she is lying about all of this, why did she choose this particular time to say the abuse stopped? She could, if she is lying about it, have said it went on for another few years. That is a matter for you." Two pages on, after referring to the delay in reporting the appellant's alleged treatment of the complainant and telling the jury that experience has shown that sometimes children keep quiet for fear of the consequences within the family setting, he went on to say: "Members of the jury, it is a matter for you, but you will have to ask whether she would have put herself through all that mental anguish if she was lying about this whole thing." Two pages on he said this: "Equally, members of the jury - and this is another matter which the Crown invite you to consider - if all was well and he was the caring stepfather, why has she not only made but followed through these allegations to this court? The defence, I remind you, do not have to establish a motive for why she should say these things. It is for the prosecution to prove their case, but the prosecution invite you to consider this matter and the absence of any motive put to [the complainant]. The Crown say to you, 'What has she to gain?'" Another three pages on, when going through the appellant's evidence, the judge made the same point again. 22. It is said that nobody on the jury listening to that repeated theme could have been left in any doubt but that the judge, for his part, was impressed by the complainant's credibility. It is said that the vice running through the way in which the judge dealt with this point, which had already been firmly made by the prosecution, was that he came back to it again and again as a refrain in between dealing with other aspects of the evidence, and that this was to unbalance the summing-up by constant repetition of the point. Furthermore, it was not balanced by reminding the jury that not all sexual complaints are necessarily true, or by inviting them in this context to consider any of the various defence points which he had mentioned at different stages when reminding the jury of the evidence, or making reference to her own circumstances at the time when she first brought these matters to light. 23. We have found this a difficult matter. It is more than likely that the judge delivering his summing-up did not realise quite how often he was repeating the point. But each member of the court, on reading the summing-up, has been troubled by the drum like repetition of the point. Cases involving allegations of historical sexual abuse are always difficult, especially where there is no material independent evidence to support either side. It is proper for the judge to remind the jury, as he did in this case, that there may be understandable reasons why child abuse does not come to light until many years afterwards, and the fact that a complaint is unsupported by other evidence is not of itself an indication that the evidence is untrue. But balance has to be preserved. We have been driven to the regretful conclusion that this summing-up was not balanced and that the resulting convictions are unsafe. We recognise that this is deeply unsatisfactory, coming some years after the event. This court will always hesitate long before overturning a conviction based on a jury's assessment of the truthfulness of witnesses whom it has seen. But there is a principle at stake. Whatever the nature of the case, the summing-up has to be balanced. As already indicated, we rather suspect that the judge may not himself have appreciated, as he was delivering this summing-up, how much he was emphasising the case advanced by the prosecution without reference to other factors which the jury had to take properly into account. For those reasons, this appeal must be allowed. 24. MR HILLIS: My Lord, for the sake of completeness we ask my Lord to confirm that my Lord does not regard this matter as suitable for retrial. 25. LORD JUSTICE TOULSON: No, the appellant has served 6 years' imprisonment. On a case of this kind it would be wholly improper for this court to express any views as to merits. We do understand that from the complainant's point of view the result is unsatisfactory because she has given her evidence and been believed and now the conviction is being quashed with no retrial, but it would be wholly wrong to order a retrial in circumstances where the appellant has served 6 years' imprisonment. 26. MR HILLIS: I am obliged, my Lord.

```yaml citation: '[2009] EWCA Crim 255' date: '2008-01-27' judges: - LORD JUSTICE TOULSON - MR JUSTICE BEAN - HIS HONOUR JUDGE PAGET QC ```

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

Case Nos: 201105372 C3, 201105575 C3, 201200232 C3 Neutral Citation Number: [2012] EWCA Crim 2823 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WORCESTER His Honour Judge Cavell T20107173 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21 December 2012 Before : LORD JUSTICE MOORE-BICK MR JUSTICE SILBER and HIS HONOUR JUDGE COOKE Q.C. (sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - JASON MURRAY and Others Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. P. Bradley (instructed by Registrar of Criminal Appeals ) for Jason Murray Mr. D. Murray (instructed by Registrar of Criminal Appeals ) for Andrew Hawthorne Mr. Michael Wolkind Q.C. (instructed by GQS Solicitors ) for Craig Clarke Hearing date : 15 th November 2012 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Moore-Bick : 1. In the summer of 2011 Alan Field, Marc Deganis, Andrew Hawthorne, Aden Maund, Craig Clarke, Kieran Murray, Jason Murray, Karl Gallagher and Jayne Morrison were all charged on an indictment containing 5 counts. Field, Deganis, and Hawthorne were charged on count 1 with conspiracy to commit a dwelling house burglary at 27 Fiery Hill Road, Barnt Green, Worcestershire, the home of a Mr. and Mrs. Dryhurst, in August 2007. Field, Maund, Clarke, Nathan Murray, Jason Murray and Karl Gallagher were charged on count 2 with conspiracy to commit robberies at various dwelling houses in the West Midlands between 25 th April and 16 th May 2010. One of those houses was 27 Fiery Hill Road. 2. The trial began on 26 th July 2011 in the Crown Court at Worcester before His Honour Judge Cavell. On 4 th August 2011 Clarke pleaded guilty on re-arraignment to conspiracy to rob. On the same day Field pleaded guilty on re-arraignment to conspiracy to burgle and conspiracy to rob and Maund pleaded guilty to conspiracy to rob. On 20 th September 2011 Hawthorne and Deganis were convicted by the jury of conspiracy to burgle. Jason Murray, Kieran Murray and Gallagher were each convicted of conspiracy to rob. 3. For reasons which are immaterial for present purposes sentencing was delayed for some months. On 16 th December 2011 Clarke, Field, Maund, Kieran Murray and Gallagher were all sentenced to imprisonment for public protection with minimum periods to be served in custody ranging from 10 years and 4 months to 8 years, less any time spent in custody on remand. Hawthorne and Deganis were each sentenced to 3 years’ imprisonment. On 20 th December 2011 Jason Murray was also sentenced to imprisonment for public protection with a minimum period to be served in custody of 9 years less time spent in custody on remand. 4. Jason Murray now appeals against sentence by leave of the single judge. Hawthorne renews his application for leave to appeal against conviction after refusal by the single judge. Clarke applies for an extension of time of approximately 8 weeks in which to renew his application for leave to appeal against sentence following refusal by the single judge. 5. Mr. Dryhurst was a gun-maker who built valuable double-barrelled shotguns which he kept in his house at Fiery Hill Road. At around 7.30 am on 7 th August 2007 Deganis and Field went to the house with a view to theft. Deganis dressed as a police officer and Field posed as a customs officer. They used false documents to support their disguises. Field told Mr. Dryhurst that they had come for the purpose of seizing handguns and illegal cash kept in the house. The object of the burglary was to steal a large sum of money which they thought was kept in a safe. Field and Deganis stayed for two to three hours and searched the entire house, including a concealed safe. While in the house they took photographs of the safe and the gun cabinets. In the event they left empty-handed. Mr. Dryhurst reported the matter to the police, who discovered that the two men had been using false identities. However, the investigation was taken no further at that stage. 6. Hawthorne was alleged to have been present at the burglary but to have stayed outside keeping contact with Field and Deganis by telephone. The men had been driven to the house by Faye Tyrell, Field’s partner at the time. 7. Count 2 related to a series of robberies carried out at 27 Fiery Hill Road and other properties in the West Midlands in April and May 2010. The robbery at 27 Fiery Hill Road was carried out by Field, Maund, Kieran Murray and Jason Murray on 26 th April. They had been recruited by Field who knew about the guns kept by Mr. Dryhurst. Clarke was also involved, although it is unclear in what capacity. At about 9.30 am the robbers forced their way into the house. They tied Mrs. Dryhurst’s wrists behind her back and forced Mr. Dryhurst to unlock the gun cabinets. They then tied his wrists and made him sit next to Mrs. Dryhurst. While the robbery was going on Mrs. Dryhurst’s sister arrived at the house. The gang tied her up as well before eventually leaving with eleven guns worth a little over £100,000. 8. The next robbery took place at a house in Hampton Lane, Solihull, the home of a Mr. and Mrs. Sheridan, on 8 th May 2010. Field, Clarke, Maund and Gallagher were involved on this occasion, although the precise nature of Clarke’s involvement is unclear. At about 2 pm a number of men forced their way into the house. There was a struggle and they demanded money and the keys to a number of valuable cars parked in the drive. Mr. Sheridan handed over £400 cash that he was carrying. The gang tied the hands of both Mr. and Mrs. Sheridan and left with the money. 9. The third robbery took place at Gayley Farm, Lichfield on 15 th May 2010. Field, Maund, Kieran Murray and Jason Murray took part. Clarke was also involved in some capacity. The robbers, who were wearing masks over their faces, entered the house through the back door at about 10 pm while the occupants, Mr. Jennings and Ms Jones, were at home. Mr. Jennings was asleep on the sofa. He woke up to find hands around his throat. The robbers tied his wrists and legs; Ms Jones’ wrists and ankles were also bound. They were both punched and threatened with being stabbed. Two of the men were carrying knives. Mr. Jennings was subjected to sustained violence. His necklace was torn from his neck and his watch taken from his wrist. The robbers left with three cars, around £1,500 in cash, some jewellery and some pieces of Spode pottery. 10. At some time after these offences had been committed Faye Tyrell separated from Field. She told the police about his involvement in the offences and in the course of doing so implicated the other accused. 11. We consider first Hawthorne’s renewed application for leave to appeal against conviction. His case at trial was that he had not been involved in the conspiracy and knew nothing of the burglary. 12. Following Field’s plea to count 1 the Crown applied for leave to amend that count (which had previously alleged that Field, Deganis and Hawthorne had conspired together) to allege that Field, Deganis, Hawthorn “and others” had conspired to commit the burglary at 27 Fiery Hill Road. The precise reason for that application is unclear, but it may have had its origin in a concern on the part of the prosecution that Field’s change of plea might lead the jury to the conclusion that Deganis or Hawthorne or both must have been parties to the conspiracy which he had admitted. The judge observed that the situation had been brought about by events that had not been foreseen at the start of the trial and held that, since there was evidence (albeit disputed) that others had been involved in the conspiracy, leave should be given to make the amendment in order to avoid any risk of prejudice to the remaining two defendants. 13. What happened next is unclear. Mr. Murray on behalf of Hawthorne told us that he and counsel for Deganis applied for the jury to be discharged, but the judge made no formal ruling on any such application, as he would have been bound to do if one had been made. In those circumstances we are left with the impression that the possibility of discharging the jury may have been raised either in the course of the argument about the amendment of the indictment, or perhaps as part of a discussion about what, if any, steps should be taken in the light of the amendment for which the judge had by then given leave. What is clear, however, is that there was an application on behalf of both defendants that they be re-arraigned on count 1, a course which necessarily assumed that the jury would not be discharged. 14. The application for the defendants to be re-arraigned was based on the submission that the amendment introduced a completely new approach on the part of the Crown. However, the judge took the view that it was unnecessary to re-arraign the defendants. He thought that the amendment was of minimal significance because it simply reproduced the original allegations in a slightly different form. The case against the defendants had not changed. 15. Hawthorne now seeks leave to appeal against his conviction on the grounds that the judge was wrong to give the Crown leave to amend the indictment, that having done so he should have discharged the jury, and that if the trial was to proceed the judge should have directed that he be re-arraigned on the amended indictment. 16. The authorities digested in Archbold 2013 , paragraphs 1-230 and 231 show that the word “defective” in s. 5(1) of the Indictments Act 1915 is to be given a liberal interpretation. It has been held to include, for example, the case where the indictment does not include as a defendant a person who might properly have been joined at the outset: see R v Ismail 92 Cr Ap R. 92. It has also been held to cover the case where a single count indictment alleging conspiracy to defraud was amended after the prosecution opening by the addition of further counts to cater for the possibility that more than one conspiracy existed: see R v Radley 58 Cr Ap R 394. In our view, if he considered it necessary or desirable to add a reference to other parties to the conspiracy in order to avoid prejudice to the applicant and his co-accused, the judge was entitled to hold that the indictment as it then stood was defective and to give leave for it to be amended. The only way in which it has been suggested that the amendment might have prejudiced the defendants was that it made it easier for the Crown to keep the trial on foot, but in reality that is no prejudice at all. Indeed, as the single judge noted when refusing leave to appeal on this ground, the amendment was to the defendants’ advantage. This ground of appeal is not capable of serious argument. Nor, for similar reasons, do we think that it is arguable that the judge should have discharged the jury once leave to make the amendment had been given. 17. As to re-arraignment, although we invited counsel to explain how the judge’s refusal to direct that the applicant be re-arraigned rendered his conviction unsafe, he was unable to do so and for our part we are quite unable to see how it could have had that effect. The amendment did no more than reflect the evidence in the case and was not of a substantial nature. It did not materially affect the case the defendants had to answer or their understanding of it. For practical purposes it would have caused less difficulty if the defendants had been re-arraigned, but that its as far as it goes. This is not an arguable ground of appeal. 18. Before the start of the summing up counsel for Hawthorne and Deganis submitted that the Judge ought to give an “accomplice” direction in relation to Ms. Tyrell, that is, he ought to warn the jury that she might for various reasons be an unreliable witness and that they should look for some independent support for what she said before relying on her evidence. After hearing argument the Judge ruled that an accomplice direction in the sense we have described it was not necessary, but said that he would remind the jury that she was a central pillar of the Crown’s case and would draw their attention to the various reasons why her evidence might not be reliable. 19. In his summing up the judge reminded the jury that the prosecution case rested essentially on the evidence of Ms. Tyrell, who had been an accomplice to the burglary of 27 Fiery Road in August 2007. He also reminded the jury at some length about her medical and drug problems, her use of alcohol, her convictions for offences of dishonesty and the fact that she had lied to the police in certain respects. Finally, in order to assist the jury in evaluating her evidence he reminded them that the police had followed other lines of enquiry that might potentially support her allegations and that, when judging her truthfulness, accuracy and her reliability, they should consider carefully such other evidence before deciding whether to convict. 20. The purpose of drawing to the jury’s attention factors that may render a witness’s evidence unreliable is to assist them in deciding whether they can rely on it and if so how much weight they should give it. The nature of the assistance that they require will obviously vary from case to case and it is for the judge to decide in each case how much assistance the jury requires. In coming to that decision he may need to consider whether it is necessary to warn them to be cautious and whether he should go so far as to point out to them the desirability of finding independent supporting evidence before relying on what the witness says. That will not be necessary in every case. 21. In the present case the reasons for approaching Ms. Tyrell’s evidence with caution were clear and were canvassed in the course of the trial. The judge decided that it was unnecessary to give a full “accomplice” direction, but he did draw the jury’s attention in some detail to the various factors that might lead them to examine her evidence with care. He also invited them to consider her evidence in the context of the other evidence that had emerged from the police investigations before reaching their decision. In our view the judge’s directions were sufficient to ensure that jury were well aware of all the factors that tended to undermine Ms. Tyrell’s credibility. We do not think it arguable that the applicant’s conviction was rendered unsafe by his failure to warn them in terms to look for corroboration before relying on her evidence to convict the defendants. 22. For these reasons Hawthorne’s application for leave to appeal against conviction is dismissed. 23. We turn next to consider Jason Murray’s appeal against sentence. When dealing with the other defendants the judge said: “In summary, their [sc. the victims’] lives are permanently and adversely affected and I have decided that in each of your cases, because of the circumstances of the robberies forming this conspiracy, apart from what I have seen in particular cases as regards previous convictions and other matters, that each of you present such a significant risk to the public of serious harm from further offending that sentences of imprisonment for public protection are appropriate and I intend to pass them on the basis that you present that danger.” 24. Specifically in relation to Jason Murray, who was sentenced on a later occasion, the judge added this: “I’m not going to repeat my lengthy sentencing remarks when sentencing your co-defendants, but they apply equally to your case. It is perfectly right that your previous convictions are not of anything like the seriousness of this conspiracy of which the jury convicted you. However, as I found in other defendant’s cases, the circumstances of the conspiracy of which you were convicted are such that you do qualify; you are a dangerous offender, in that you do pose a significant risk to the public of serious harm from further offending. I’m afraid in your case as in other cases, I’m afraid in your case, as in other cases, I’m quite satisfied that in my public duty I must pass a sentence of imprisonment for public protection and that is the sentence I pass. Had I been passing a determinate sentence I would have passed a sentence of 18 years. I’m required to halve that; that is the minimum term that you will serve . . . ” 25. The appellant is now aged 30. The longest custodial sentence he had previously served was one of 28 days. He had never before been convicted of an offence involving significant violence. The author of the pre-sentence report prepared on him assessed him as presenting a high risk of causing serious harm to the public, but, significantly in our view, considered that risk likely to be reduced by a lengthy custodial sentence. He suggested that a determinate sentence would be appropriate in his case. 26. The imposition of an indeterminate sentence is a very grave step. It always requires a subjective consideration of prospective risk and a detailed explanation of the reasons for imposing it. The judge should begin by considering whether the offender poses a significant risk of causing serious harm to members of the public by committing further specified offences. If he does, the judge should then consider whether an extended sentence, rather than an indeterminate sentence, is sufficient to manage that risk and should explain his reasons for his conclusion by reference to the specific circumstances of the case: see R v Rocha [2007] EWCA Crim 1505 , R v J.W. [2009] EWCA Crim 390 , [2009] 2 Cr. App. R. (S.) 94, R v M.J. [2012] EWCA Crim 132 , [2012] 2 Cr. App. R. (S.) 73 and Archbold 2013 , paragraph 5-512. These considerations apply with particular force in a case such as the present where the appellant does not have a long record of offending and the pre-sentence report does not suggest that an indeterminate sentence is necessary. Although the circumstances of the offences for which he is to be sentenced will often be a very important factor in assessing whether an offender is dangerous, each case calls for individual consideration. It cannot be said that particular kinds of offending automatically justify a finding of dangerousness and where the judge makes such a finding he has a duty to give reasons for it. 27. The offences committed by the appellant were undoubtedly very serious, but they were not themselves of the most violent kind, nor did he have a significant history of violence, and the judge did not explain in any detail why he found the appellant dangerous. In those circumstances, and in the light of the assessment made by the author of the pre-sentence report, we do not think there was sufficient basis for the judge’s finding that the appellant was dangerous. It follows that in our view a determinate sentence was the proper form of disposal in this case. Having said that, there is no doubt that the nature of this offence was such that a severe sentence was necessary; the Guidelines published by the Sentencing Council are of little assistance when dealing with a conspiracy to rob of this gravity. The minimum period of 9 years less the time served on remand specified by the judge is the equivalent of a determinate sentence of 18 years’ imprisonment and in our view a sentence of that length is appropriate. We therefore quash the sentence of imprisonment for public protection and substitute a sentence of 18 years’ imprisonment. The days spent in custody on remand will count against sentence pursuant to section 240 of the Criminal justice Act, 2003. To that extent the appeal is allowed. 28. We turn finally to the application of Clarke for leave to appeal against sentence and the necessary extension of time. This applicant is now 31 years of age and has 13 previous convictions for 20 offences. The most serious was a conviction at the Crown Court at Wolverhampton on 3 rd September 1998 for an offence of robbery committed on 26 th April 1998 when he would have been 16 years of age. For that offence he received a sentence of 18 months’ detention in a young offender institution. His remaining convictions are in the main for drug offences for which he received non-custodial sentences. 29. There was a pre-sentence report before the sentencing judge in which it was explained that at the time of these offences the applicant was struggling financially as he had lost his job and that his only income was the carer’s allowance which he received for being the full-time carer of his father. 30. The applicant maintained that he had no knowledge of the third robbery, despite the telephone evidence linking him to the co-defendants. Overall, he explained that he did not appreciate the enormity of what he had become involved in; he considered himself to have been a passive observer who had been ignorant of the seriousn nature of his involvement. 31. The author of the pre-sentence report assessed the applicant as posing a high risk of serious harm to the general public whilst in the community and he considered that this risk would be at its greatest when the applicant “associates with negative peers and is struggling financially”. In reaching that conclusion, the writer of the report took account of the high emotional impact upon the victims of the offences in respect of which the applicant was a conspirator and the fact that the applicant demonstrated little awareness at the time of the consequences of his behaviour. 32. When sentencing the applicant the judge referred to the very serious features of the robbery which were aimed at carefully chosen and targeted premises as a result of which those involved were expecting to make substantial gain. The robberies comprised in the conspiracy were terrifying for the victims as they were physically assaulted, restrained and separately tied up in the security of their own homes. The victims all suffered serious psychological harm. It was noted that all three pairs of victims in the three houses had either moved house or where about to move house, since they could not face living in them any longer because of what the conspirators had done to them. The judge explained that the lives of the victims had been permanently and adversely affected by the conduct of the applicant and his co-conspirators. 33. As we have explained, the judge considered that in the light of the seriousness of the offences each of the conspirators presented such a significant risk to the public of serious harm from further offending that each of them was dangerous and that sentences of imprisonment for public protection were appropriate. He also noted that the applicant had a previous conviction for robbery. 34. The only ground of appeal is that a sentence of imprisonment for public protection was wrong in principle, especially as the judge neither identified the role played by the applicant nor considered whether he had himself used any violence. 35. We have not found this an easy case, but we are very concerned about the finding of dangerousness as the applicant’s only previous conviction for an offence of violence was for a robbery committed as long ago as 1998 when he was only 16 years of age. Moreover, although the applicant by his plea admitted having been a party to the conspiracy, there is no evidence that he was actually present at any of the robberies or played any part in the use of violence. We are concerned that when sentencing the applicant the judge may well have considered the defendants as a group, assessing their dangerousness by reference to the nature of the robberies rather than considering them individually in their light of their different roles. It may well be that, if he had concentrated more closely on the part played by this applicant, he would have concluded, as we do, that there was insufficient evidence to justify a finding that he was dangerous. Accordingly, we extend time and grant the applicant leave to appeal. 36. We now turn to consider the appropriate determinate sentence. There is no challenge, nor can there be, to the judge’s conclusion that, if he had passed a determinate sentence on the applicant for this serious offending, a period of 17 years’ imprisonment would have been appropriate. We therefore quash the sentence of imprisonment for public protection and substitute a sentence of 17 years’ imprisonment. The period of 515 days spent in custody on remand will count against sentence pursuant to section 240 of the Criminal justice Act 2003. To that extent the appeal is allowed.

```yaml citation: '[2012] EWCA Crim 2823' date: '2012-12-21' judges: - LORD JUSTICE MOORE-BICK - 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} ======

Neutral Citation Number: [2018] EWCA Crim 2066 Case No: 201802961/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 18 September 2018 B e f o r e : LORD JUSTICE DAVIS MRS JUSTICE SIMLER DBE MR JUSTICE DOVE - - - - - - - - - - - - - - - - R E G I N A v ANTONIO LAWRIE - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Miss K Broome appeared on behalf of the Attorney General Mr J Swain appeared on behalf of the Offender - - - - - - - - - - - - - - - - J U D G M E N T (Approved) WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. LORD JUSTICE DAVIS: 1. This is an application on behalf of Her Majesty's Solicitor General seeking leave to refer a sentence on the ground that it is unduly lenient. We grant leave. 2. The position is this. The offender is a man called Antonio Lawrie. He is aged 22, having been born on 22 January 1996. Following a trial at the Crown Court sitting at Southampton before His Honour Judge Burrell QC and a jury, the offender was, on 15 March 2018, convicted of seven counts of sexual assault of a child under the age of 13, contrary to section 1 of the Sexual Offences Act 2003 . Count 7 had in terms been charged as a multiple incident count and alleged conduct on no fewer than 10 occasions. 3. On 21 June 2018 the offender was sentenced by the trial judge to a term of two years' imprisonment on each count concurrently, suspended for two years, with a condition of a supervision order for a period of two years and a rehabilitation activity requirement for a maximum of 60 days. In addition, the offender was made the subject of a restraining order in extremely wide terms, to the effect that he should have no contact with any person under the age of 16, directly or indirectly, except for unavoidable contact in public areas, the period of that order being stated to last for 10 years. It was also a consequence of the sentence as imposed that there be a notification requirement for a period of 10 years. 4. The background facts are these. 5. The female complainant, who may be styled "M", was born on 21 January 2009. The offender was a family friend, M's mother having been known to him since he was a teenager. It appears he used regularly to be at her home, sometimes sleeping overnight and sometimes babysitting her children. 6. On 29 May 2017, a relative of M (in fact her mother's cousin) saw the offender touching M's vagina, as she said. The mother was told and the mother sought to speak with M. M (then aged eight) burst into tears. The police were then contacted. 7. On 30 May 2017 and then again on 30 June 2017, M was interviewed by police officers. M said that the offender had touched her on the vagina, which she described as her "private areas", both under and over clothing on approximately 20 or 25 occasions since 3 January 2017. 8. The details relating to the particular counts were these. So far as count 1 was concerned, M was to say that the first time things happened was when she was aged seven - she in fact became eight on 21 January 2017. She said that it happened in one of the bedrooms at her home. She recalled the offender saying to her that it was a new beginning of the year and he needed to do something and then rubbed her private areas over her clothing with his hand. She thought it lasted for about 10 minutes. She told him to stop and then ran downstairs. 9. So far as count 2 is concerned, that related to the second or third month. On this occasion the offender, according to her, rubbed her vagina and said: "I love you, so fast and slow". M naturally enough did not know what he meant. He was on one knee and was using his hand to rub her but this time this was under her clothing. She said 'no' but he ignored her. This happened in the bedroom of her house. 10. As to count 3, M recalled another occasion when she was in bed asleep and the offender was looking after her as her mother was out. He woke her up and asked her to go downstairs, so she did. They went to the front room and here the offender rubbed her vagina. She could not recall if it was over or under clothing. 11. Counts 4, 5 and 6 related to 29 May 2017, that is to say the day before M was first interviewed by the police. M said that on that day when she was in the kitchen the offender rubbed her vagina over her underwear. She had been wearing a skirt and t-shirt at the time. She told him to stop because it was "rude" but he did not stop. He then stopped when an adult came in. It had been noticed that the offender had been giving M a lot of his attention that day. During a game M went over and a relative saw his left hand underneath M's dress. The relative thought that she saw the offender push aside her underwear and rub her vagina but could not be sure. M was to say that the offender's hand was on top of her underwear. At all events, he then removed his hand when he saw the relative looking. During another game, M was seen astride the offender in the region of his crotch area. M was also to say that when she was then in her bedroom, the offender rubbed his penis on her back over her dress. She described the sensation of wetness on the back of her dress. When the dress was subsequently forensically examined, the offender's semen was recovered from the upper back area of her dress. M was to say that the offender had also pulled down her underwear and touched her vagina. She tried to close her legs but he kept opening them. When she asked him to stop, he said: "Why do you want me to stop?" Someone was then heard coming up the stairs and the offender then desisted. 12. Count 7 was the multiple incident count relating to no fewer than 10 occasions other than the ones previously set out in the indictment. M was to say that the touching had happened around 20 or 25 times since the first occasion at the beginning of January 2017, although she could not recall the detail of each such occasion. She was to say that there was one occasion where the offender said that he would hurt her if she told anyone and on another occasion when he had started to do something the offender had put his hand over her mouth to stop her calling out. 13. The offender was in due course arrested and interviewed by the police. In short he said he had hugged M from the front, but he denied any sexual activity. When interviewed on a second occasion, he produced two prepared statements denying the allegations and thereafter answered no comment to all questions asked. He was charged on 27 September 2017. 14. The mother of M put in a victim personal statement describing the effect on her daughter M. It is the mother's perception that the offender has completely damaged M: "She is not the same little girl". The mother is disgusted by what the offender has done and is concerned that he should not have any chance to do this again to any other child in the future. In addition, there is a recording relating to M's own reaction to what happened. As the judge described it, she appeared "quite chirpy in the video" but also described M's reaction to the events which had happened to her. Of course, as is well-known, sometimes the impact of such matters can have a delayed and long term reaction; on other occasions sometimes not. 15. When the trial was concluded and the verdicts of the jury delivered, the judge, who of course had had the benefit of seeing and hearing the evidence as it unfolded, indicated that an immediate custodial sentence could be expected. However, quite rightly he adjourned sentence for reports and in due course a report was obtained from a consultant psychologist and also from an experienced probation officer. 16. These reports loomed large at the sentencing hearing. The report of the clinical psychologist is dated 18 May 2018. It was based on one interview with the offender. It is to be noted that the offender was still denying all responsibility for the offending. The psychologist referred in some detail to the family background of the offender and also to his educational history. As to his personal relationship history, it appears that the offender has had one previous sexual relationship of a rather limited nature with an adult, but otherwise reported himself as being "not that interested in sex". 17. It appears that in educational terms the offender had struggled significantly. It appears that he had speech difficulties when a child and also suffered from dyslexia. There was a detailed appraisal of his intelligence rating. The psychologist assessed that fully and recorded a full IQ score as measured at 71. This was at the bottom of the average range and was on the border of the learning disability ranges. 18. The psychologist was to say, and the judge was to accept, that the offender had had significant difficulties with his intellectual functioning and that would have impacted upon his wider functioning. The psychologist also recorded the view that the offender "appears naive and somewhat vulnerable from same age peers ..." It was noted that he had had very limited relationship experiences as an adult, his only relationship having lasted for four weeks. The psychologist then said this: i. "It is therefore my opinion that [the offender's] borderline learning disability is, at least in part, a contributing factor in the aetiology of his offending behaviour. A lower level of intellectual functioning, developmental delay and increased level of general vulnerability, can be seen as both a risk factor and also a mitigating factor within his offending behaviour." 19. The psychologist went on to say, and again the judge plainly accepted, that the position of the offender as a vulnerable and somewhat naive young man impacted upon what he had done and upon his general functioning. 20. The pre-sentence report was dated 19 June 2018. That also records the offender's disinclinations to accept responsibility for the offences of which the jury had convicted him. Amongst other things, the detailed report of the probation officer said this: i. "The defendant presents as someone who on the surface is a capable young man. However underneath the surface he has a range of intellectual disabilities which affect how he thinks and behaves." 21. It was noted that after his conviction the only response of the offender had been to the effect: "Which prison will I go to?" However, it was said that although he may have appeared unperturbed at the prospect of going to prison, that masked the reality and it was said that his immature outlook as well as his learning difficulties hampered his ability to comprehend the impact and consequences of his offending. 22. The report set out further matters in great detail. So far as risk of re-offending was concerned, it was assessed that there was a low risk of general offending but a medium risk of further sexual offending with a medium risk of causing serious harm to children. 23. Whilst the writer of the report acknowledged the likelihood of an immediate custodial sentence, various recommendations were made as to how the problems of the offender could be addressed. 24. So far as the sentencing guidelines are concerned, it was agreed before the judge that the appropriate categorisation was that of Category 2A for offences of sexual assault of a child under 13. That would suggest a starting point of four years' custody with a range of three to seven years' custody. We stress that relates to one offence. However, before us today it is rightly accepted that Category 2A only would relate to the offending involving touching of naked genitalia under the clothing. Therefore, for the other offences involving touching over the clothing, Category 3A would be in point. That connotes a starting point for one offence of one year's custody, with a range of 26 weeks to two years' custody. Of course in the present case there were numerous offences of which the offender had been convicted. 25. The matter was debated at some length before the trial judge. When he came to pass sentence, the judge recorded the facts. The judge noted that the offender had a low IQ with the assessment being put at 71. The judge referred to the fact that the offender had been convicted of serious assaults "largely involving rubbing of a child's vaginal area over clothing", although as we have said there were also at least other incidents involving rubbing under clothing. 26. The judge referred to the guideline and then later on said this: i. "Now in my own view, it was a very significant factor [that is to say borderline learning disability being in part a contributory factor in aetiology of the offending behaviour]." 27. The judge then went on to say this: i. "I can put it another way in layman's language. He himself was of a childlike mentality when these offences were committed and that lack of mental awareness and lack of intellectual awareness reduces the culpability ... " 28. It should be noted that the phrase "childlike mentality" is that of the judge himself. It finds scant reflection in either of the two reports of the psychologist or of the probation officer. 29. The judge went on to refer to the details of the offender having difficulty forming relationships and the like, and the judge then went on to state that owing to the offender's low IQ and very limited intellectual functioning, he would not meet the criteria for an accredited sex offender's treatment programme and also that "there is no doubt in my mind he will be a very vulnerable person in prison." 30. The judge then later said this: i. "On the guidelines, if he were of 'normal' intellectual ability, then he should go to prison for at least three years or so, possibly more with the aggravating factors. On the other hand he is, as I have said, very vulnerable and these offences arose, at least in part, as a result of his low IQ and lack of maturity, and borderline intellectual functioning and developmental delay..." 31. The judge then asked whether it was just to step outside the guidelines and expressed the view that in all the circumstances it was just to step outside the guideline. He said: i. "Sending this young man to prison would not reduce whatever risk he posed to the community. The supervision being referred to is much more likely to protect the public than a period of time in prison where there is no guarantee of any treatment or counselling." 32. The judge then proceeded to impose the sentence we have indicated, including the restraining order which seems to have been an order proposed by the judge himself in the course of discussion with counsel. It had not been sought by prosecuting counsel himself. 33. It is in those circumstances that it is said by Miss Broome, on behalf of the Solicitor General, that this sentence was unduly lenient. It is said by her that the overall sentence involved an unwarranted departure from the sentencing guidelines and could not be justified by the intellectual and other difficulties referred to by the judge, which it is said were in any event overstated. There is no suggestion whatsoever that the offender was not able to function in such a way as to know full well the difference between right and wrong and indeed his intelligence quotient is not even at the level of learning disability, even if on the borderline of it. It is said that the judge simply was not justified in reaching a figure of two years' imprisonment and moreover it is said in any event was not justified in suspending such a sentence. 34. On behalf of the offender, it is said by Mr Swain that whilst this sentence can certainly be accepted as being lenient, it is not, he said, to be regarded as unduly lenient. He said that this was an experienced trial judge, as indeed he was, who had full grasp of the facts; and if this sentence was a merciful sentence designed to reform and rehabilitate then that was well within the province of the judge and this court should not interfere. His alternative argument was that even if, contrary to his main submission, this sentence is to be regarded as unduly lenient, then the court still should not interfere but leave matters as they currently stand. 35. One thing is clear, this judge was clearly alive to the fact that he was departing, and significantly departing, from the definitive guideline set by the Sentencing Council. He plainly had in mind that, by reference to section 125 of the Criminal Justice Act 2003 , he could only depart from the guideline if the interests of justice so required. This therefore is not a case where a sentencing judge has departed from the relevant sentencing guideline without explaining why he or she has done so. Here the judge had in terms explained why he had done what he had done. In essence, that was because of the offender's learning and other difficulties and because of his immaturity which overall the judge had regarded as a "very significant factor" in terms of the causative effect on the offending. Furthermore, the judge spelt out his concerns that the offender would be very vulnerable in the prison environment and moreover given his circumstances there were very limited or even perhaps no prospects of reform and rehabilitation whilst he was under a prison regime. 36. We certainly accept that a sentence does not necessarily become unduly lenient simply and solely because it involves a departure, even a significant departure, from a relevant sentencing guideline. The appellate court must and will have respect to a trial judge's carefully articulated reasons for departing from the relevant sentencing guideline. But all that said, we do here have significant concerns with the judge's reasoning and approach. 37. Although the judge had, as we have said, described the offender as having a "child-like mentality", that barely reflects the actual conclusions of the reports. It cannot moreover be said that the offender had a very significant learning disability and, as we have said, everyone agrees that he knew the difference between right and wrong. Whilst it may be that he was "somewhat naive" and had "an immature outlook", that cannot be altogether exculpatory for what he had done. He was 21, the victim was only seven and eight at the time and he was well able to appreciate the gravity of what he was doing. Moreover, in terms of rehabilitation, one might query just how effective what the judge had in mind might be, given that the offender was then, and as we gather from the latest reports still is, not accepting responsibility for his guilt. Quite apart from that, the judge had in terms stated that the appropriate sentence in his view, had the offender been of "normal" intellectual ability, would have been in the region of three years or so, possibly more. In our judgment, by reference to the guideline, that of itself very significantly understates matters. As we have said, this guideline applies to one offence and here there were numerous offences spanning several months. There were at least two incidents of touching M's genital area under clothing and many more offences besides of touching her over her clothing, as well as the unpleasant incident of him ejaculating over her dress. The judge's sentencing remarks seem, with all respect, somewhat to have downplayed the sheer totality of the offending: offending moreover which had been sustained over a period of several months and involved, as was agreed and as is reflected in the categorisation for guideline purposes, an abuse of trust and an element of grooming, and furthermore, involved assaults on a 7/8-year-old victim in her own home at the time. Moreover, there is the effect on her. 38. It seems to us that, by reference to the guideline and taking someone of "normal" intellectual aptitude, one would have expected a sentence of not less than five years and quite possibly in the region of six years having regard to the totality of this offending and having regard to the circumstances. Accordingly, we think the judge's remarks on this aspect of the matter were, with respect, misplaced and that in turn has impacted upon his then reducing the sentence to as low as two years before then suspending it. 39. Having carefully considered the matter, we simply do not think that the reports of the psychologist and of the probation officer relating to the offender's intellectual, emotional and personal difficulties could justify a sentence after trial of two years' imprisonment, which then furthermore could be suspended. This offending is altogether too grave for that; and the judge was not justified in our judgment in using the reports so as to bring the sentence down so radically. 40. In our judgment, the judge's approach was, with all respect to him, flawed. We do of course accept that he had had the benefit of the conduct of the trial; but even there it is perhaps of some note that at the immediate conclusion of the trial his reaction was that immediate custody would be inevitable. 41. We do of course acknowledge that a sentence ordinarily has to involve a balance between retribution on the one hand and rehabilitation on the other hand. How that balance is to be struck will depend upon a trial judge's assessment of the circumstances of each case. We here do understand the judge's concerns as to the offender's potential vulnerability in prison and to his lack of prospects of rehabilitation there. But such considerations cannot justify in this case such a departure from the guideline as occurred here. We say that with all respect to and giving all due weight to the explanations provided by this experienced judge. 42. Consequently, our conclusion is that there was and is no sufficient basis for a sentence covering the totality of these various offences of as low as two years. Any sentence greater than that cannot, of course, by law be suspended. We will nevertheless respect as much as we can the contents of the reports and we will respect as much as we can the evident desire of the trial judge for leniency. We think that the very least sentence that could be imposed (and bearing in mind also that the offender had left court after the sentencing hearing not facing immediate custody) would be one of three years' immediate imprisonment. 43. Mr Swain did submit that if that were to be the court's view, then the court should refrain from increasing the sentence. It is true that the court does have power not to increase a sentence notwithstanding a finding of undue leniency. But that is only very rarely done and it is sufficient to say that it would not be justified in this particular case. 44. Finally, we should deal with the restraining order. That was imposed in far too wide terms. Indeed, it is not clear by reference to what statute the order was made, be it by reference to the Prevention of Harassment Act or by reference to the Sexual Harm Prevention Order regime. On either basis so wide an order could not be justified. It is sufficient to say that such an order should in any event be quashed. 45. Consequently, we will allow the appeal. We will substitute concurrent sentences of three years' imprisonment immediate on each count. We will quash the restraining order. All other elements of the order will stand, including of course the requirement for registration under the Sexual Offences Act. The offender is to surrender to his local police station no later than 11 o'clock tomorrow morning. The local police station is, Mr Swain? 46. MR SWAIN: I imagine it would be Southampton Central, my Lord. 47. LORD JUSTICE DAVIS: Southampton Central Police station. Are there any other points arising? 48. MR SWAIN: No, I do not think so. 49. MISS BROOME: Thank you, my Lord. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.

```yaml citation: '[2018] EWCA Crim 2066' date: '2018-09-18' judges: - LORD JUSTICE DAVIS - MRS JUSTICE SIMLER DBE - MR JUSTICE DOVE ```

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No: 200404425/A5 Neutral Citation Number: [2005] EWCA Crim 218 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 28th January 2005 B E F O R E: MR JUSTICE BEATSON HIS HONOUR JUDGE PAGET QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - R E G I N A -v- PETER MICHAEL BENNETT - - - - - - - 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 JONES appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T 1. Mr Justice Beatson: On 27th May 2004, in the Crown Court at Liverpool, the appellant pleaded guilty to supplying a class A controlled drug, heroin. He was also in breach of licence relating to a sentence of four years' imprisonment imposed on 4th July 2000 also for supplying class A controlled drugs. On that occasion there were 11 counts. On 5th July 2004 he was sentenced as follows by His Honour Judge Holloway: to 502 days' imprisonment for the breach of licence under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 and to three years' imprisonment for the current offence to be served consecutively. The total sentence was four years and five months' imprisonment. 2. He appeals against the sentence for breach of licence by leave of the single judge. The single judge refused leave in respect of the three year sentence for the current offence and Mr Jones does not renew that application. 3. In those circumstances we can state the facts very briefly. The current offence arose as a result of an undercover police operation in Liverpool targeting street dealing in drugs. The previous offence had involved similar drug dealing. The position in respect of the earlier sentence was complicated, but this Court has the benefit of an agreed chronology (agreed that is by the prosecution and defence), which contains information not available to the sentencing judge when he imposed the 502 days' imprisonment for the breach of licence. 4. It is clear from the transcript of the prosecution's opening of the facts that there was then before the court no accurate account of the period served on administrative recall. Mr Astbury, who appeared at trial, and who has agreed the chronology and information from HMP Liverpool to which we will return, stated that, given the pattern of releases on licence and recalls, it was not possible to be precise. He stated it was very difficult to be specific as to exactly how many months the appellant had served as part of a recall period. Only those who have currently detained him would be able to work that out with accuracy. The judge was invited, in effect, to do the best he could and to take account of the approximate period that was served. 5. The decision of this Court in Sharkey [2000] 1 Cr App R(S) 409, however, states that normally the court will want to give full account of periods served on administrative recall because the prison service do not do so for reasons explained in Sharkey and the cases based on it to which we will return. The learned judge then imposed the sentence. 6. We return to the agreed chronology. On 30th June 2000 the appellant was sentenced to four years' imprisonment. He was released on licence on 5th November 2002. The current offence was committed on 11th February 2003 while on licence. He was recalled to prison for breach of licence on 18th February, but was not returned to custody until 11th April 2003, having spent 52 days unlawfully at large. On 18th July 2003 he was again released on licence. On 9th December 2003 he was recalled for breach of licence. Again, he spent time unlawfully at large, on this occasion 43 days, and returned to custody on 21st January 2004. On 19th February 2004 he was sentenced to three months' imprisonment for driving whilst disqualified. The agreed chronology assumes that he was not released thereafter. He was sentenced for the current offence by His Honour Judge Holloway on 5th July 2004. 7. Mr Jones calculates that the total number of days that the appellant has spent on administrative recall is 205, taking account of half the period in respect of the three month sentence on 19th February 2004. The days spent unlawfully at large postponed the appellant's sentence expiry date until 29th August 2004 for the earlier offence. Mr Jones was unable to provide information as to the effect of that on his licence expiry date, which is the crucial date for these purposes because after then the period of administrative recall under section 39 of the Criminal Justice Act 1991 ends. The information from the prison states that the licence expiry date was 29th August 2004. Mr Jones submits that, applying the principles in Sharkey , the 205 days should be doubled, and he submits that the learned judge should accordingly have not sentenced this appellant to more than 92 days for breach of licence. 8. The difficulty as stated in Sharkey and the cases based on it, including Stocker [2003] Crim LR 293, Teasdale [2003] Crim LR 657 and Rady [2004] EWCA Crim 3297 , is that the regime in section 39 of the Criminal Justice Act 1991 , governing the terms upon which a prisoner released on licence may be recalled to prison administratively, differs from the power of the court in section 116 of the Powers of Criminal Courts (Sentencing) Act to order such a person to be returned to prison for the unexpired part of his sentence. Where a person is held in custody in part on remand for further offences, but also pursuant of the revocation of his licence under section 39 , the prison service does not treat the period as counting towards either the period of the unexpired part of the earlier sentence, or in respect of any sentence imposed in respect of the later offences. This is so until the licence expiry date for the first sentence. After that date the period of administrative recall under section 39 ends and the individual is held solely on remand for the later offences so that time thereafter on remand would count towards his sentence for the later offences. 9. The difficulty for sentencing judges, as the facts of this case show, is that they are not always informed of the correct position. In the present case the prosecution was only able to put approximate dates and periods before the learned judge. The fact that the appellant had been released on licence on two occasions and then recalled further complicated the calculation the judge had to make. 10. Mr Astbury on behalf of the prosecution, as we have noted, invited the judge to exercise discretion as to the sentence imposed and to take account of an approximate period. That, as we have said, is not what this Court has stated a sentencing court should do. In the present case, in the absence of information about the effect of the periods unlawfully at large on the appellant's licence expiry date, the sentencing Court was in some difficulty. 11. As we have stated, after the licence expiry date the prison service will treat time towards the sentence for the later offence in the normal way, so the sentencing judge does not have to do so. In principle, therefore, but for his breaches of licence and time spent unlawfully at large the appellant would have time after 27th May 2003 deducted by the prison service against the current sentence. The information from the prison is that the effect of the breaches put the licence expiry date back to 29th August 2004. This is the basis of Mr Jones's calculation. He calculates 205 days on administrative recall, which has to be doubled because a day spent in custody following the revocation of a parole licence is the equivalent of two days in respect of which a defendant is ordered to return to custody under section 116 . This is because a period of custody under section 116 is treated as an independent sentence for which an offender will in normal circumstances be released after serving half the period. The result is 410 days. Mr Jones submits the period of imprisonment for breach of licence should have been 92 days. 12. In principle if the period of unlawful absence from custody did not affect the licence expiry date, the period in custody after 27th May 2003, i.e from 21st January 2004, should not have been deducted by the judge. This Court accepts the calculation put forward by Mr Jones based as it is on the information from the prison service. It therefore sets aside the period of 502 days and substitutes for it a period of 92 days. Should, however, it emerge that the licence expiry date ended before the appellant's return to custody on 21st January 2004, then we would invite the matter to be brought back on paper so that a new calculation can be done which would, in fact, lead to a longer sentence for breach of licence. 13. It is unsatisfactory that, when a case comes to the Court for sentencing, the Court is not in a position to know the precise position. We observe that there is a cottage industry in appeals resulting from sentencing judges not being in a position to make an accurate deduction from a period of imprisonment for breach of licence because the information is not available to them. In the present case it was also not available to the prosecution. The prosecution recognised that accurate information could be obtained from the prison service. This has now been obtained. 14. In view of the pressure on the work of this Court and the expense of appeals, prosecutors should consider carefully how to obtain accurate information from the prison service as to the days in custody consequent on administrative recall prior to the licence expiry date before the Crown Court has to consider what the sentence under section 116 should be for breach of licence. If necessary, there should be liaison with the court office to ensure that this information is before the judge. It may be that it will be necessary for the court to request it. If such information is not available, a sentencing judge cannot, as the learned judge in this case and the Recorder in Rady did rely, on the prison authorities to make the appropriate reduction. 15. This appeal is allowed to that extent and subject to the caveat to which we have referred.

```yaml citation: '[2005] EWCA Crim 218' date: '2005-01-28' judges: - MR JUSTICE BEATSON - HIS HONOUR JUDGE PAGET QC ```

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

Neutral Citation Number: [2010] EWCA Crim 835 Case No: 2009/5139/D1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 9 March 2010 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE RODERICK EVANS MR JUSTICE COULSON - - - - - - - - - - - - - - - - - - - - R E G I N A v ANTHONY RICHARDS - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - Mr F O'Toole appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE THOMAS: On 15th July 2009 in the Crown Court at Maidstone before His Honour Judge O'Mahoney and a jury, the appellant was convicted by a majority verdict of breach of a non-molestation order. He was subsequently sentenced to 24 weeks' imprisonment suspended for 24 months with an unpaid work requirement for 150 hours to be carried out within 12 months. He appeals by leave of the single judge on a short point of law in relation to the burden of proof in relation to the relevant legislation. It is necessary very briefly to set out the facts. 2. A non-molestation station order was made in July 2008 at the Dartford County Court. It specified the appellant should not go within 25 metres of premises in Wilmington, Kent, and he should not contact the complainant with whom he had had two sons. 3. On 11th January 2009 the appellant made several telephone calls to the complainant and subsequently went to the premises to which he was prohibited from going. The appellant said that he had a reasonable excuse for going. He had telephoned and, as the phone was not answered, he was concerned about the safety of his sons. His concern arose out of the fact that on his case the complainant was an alcoholic and drunk at the time. 4. The criminal offence he would have committed was an offence under section 42A(1) of the Family Law Act 1996 . That legislation made it a criminal offence to breach the terms of such an order without reasonable excuse. As he admitted going to the house the sole issue was whether he had a reasonable excuse. The judge summed up the case to the jury on that sole issue in terms which made it clear that the burden was on the appellant to establish that it was more probable than not that he did have a reasonable excuse for doing what he did. 5. The issue therefore on which leave has been given is whether that direction on that piece of legislation was correct. The Crown accepts in written submissions made to the court that the relevant authorities are R v Edwards [1952] 1 QB 27 , R v Hunt [1987] 1 AC 352 , R v Dorothy Evans [2004] EWCA Crim. 3102 and, finally, R v Charles [2009] EWCA Crim. 1570 . 6. The Crown also accept that, as section 1(10) of the Crime and Disorder Act 1998 , section 5(5) of the Harassment Act 1997 and section 42A of the Family Law Act 1996 are all in materially the same terms, the decisions of this court that deal with the Crime and Disorder Act and the Harassment Act should be applied to section 42A . As it is clear from the decisions particularly those in Charles and Evans to which we have referred, that the burden is on the Crown, it is accepted that that should apply to section 42A of the Family Law Act 1996 . 7. In those circumstances, as the judge plainly misdirected the jury on the sole issue in the case, the conviction cannot be regarded as safe and must accordingly be quashed. It is to be hoped that this decision will now make it clear to all courts where the burden of proof lies in these cases, so that cases of this kind are dealt with in accordance with what are now clearly established principles.

```yaml citation: '[2010] EWCA Crim 835' date: '2010-03-09' judges: - LORD JUSTICE THOMAS - MR JUSTICE RODERICK EVANS - MR JUSTICE COULSON ```

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

No: 200900391/B3 Neutral Citation Number: [2010] EWCA Crim 988 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 16th April 2010 B e f o r e : LORD JUSTICE MAURICE KAY MR JUSTICE ROYCE MR JUSTICE NICHOL - - - - - - - - - - - - - - R E G I N A v SHANE PETER DELANEY - - - - - - - - - - - - - - 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 E Bindloss appeared on behalf of the Applicant - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE MAURICE KAY: Shane Peter Delaney, who is now aged 38, stood trial in the Crown Court at Hull for two offences of burglary and four offences of taking vehicles without consent. All the offences related to two incidents of ram- raiding. He was unanimously convicted by the jury. The sentences he received were ones of 4 years and 8 years consecutive for the burglaries, with concurrent sentences of 6 months for the taking of vehicles without consent. There was an appropriate order for disqualification. He now appeals against those sentences which of course total 12 years' imprisonment. We have today granted leave for his appeal and we turn immediately to the facts. 2. Two ram-raid burglaries of commercial premises took place in August and November 2007. The first was at Misterton in Nottinghamshire and the second Kirton in Lindsey in Lincolnshire. In each case automatic telling machines (ATMs) were ripped away from buildings and taken away. On each occasion a stolen JCB was used to attack the building and a further stolen vehicle was used to effect a getaway. Just over £10,000 was stolen on the first occasion and approximately £88,000 on the second occasion. In addition considerable damage was done to the fabric of the building. 3. The conviction of the appellant was on the basis that he had carried out the offences with at least two accomplices having stolen the JCBs and the other vehicles specifically in order to do so. 4. The Misterton ram raid occurred in the early hours of 20th August 2007. A white Transit van had been stolen from commercial premises in Sheffield over the previous weekend, 20th August being a Monday. A JCB had been stolen from a site in Misterton over the same weekend. Shortly after 4 o'clock in the morning a milkman was delivering in Grovewood Road when he saw a white Transit van being driven in a suspicious manner. He then heard a loud crash and the sound of breaking glass and he saw at the Co-op premises a JCB with a metal object suspended from the jib which was swaying wildly from side to side. The JCB was moving fairly quickly and revving highly. The milkman had to move his milk float rapidly to avoid being hit by the swaying object. He then saw a Transit van speeding as if to catch up with the JCB. He observed that the front entrance doors to the Co-op had been completely smashed and he called the police. The entire incident was captured on CCTV but the perpetrators were heavily disguised. 5. Another witness was awoken by the noise. He looked out and saw the JCB being driven off and two men running after it before getting into the white Transit van. Soon after that, the Transit van stopped. Two occupants got out and fled. A police officer, who had received a radio call, gave chase but the offenders escaped. 6. The Transit van was searched. Smoked cigarette butts were found in the driver's footwell and nearby within the vehicle. These were not sent for forensic examination until 20th December 2007 but when they were, they were found to contain the appellant's DNA. 7. A crucial witness in the case for the prosecution was the appellant's ex-wife who bravely gave evidence. She described how following the arrest of the appellant on 19th December 2007, she had taken police officers to some woods about 10 minutes away, to show them where a ATM machine was hidden. She informed them that it was the one that had been stolen from the Co-op in August. The appellant had told her all about it and how the money had been shared out among the three offenders. He had described the use of the JCB and the Ford Transit van. A few days after the burglary she and the appellant had gone for a walk in the woods and he had shown her the whereabouts of the ATM at a time when it was covered up with leaves and bracken. She said he had spent his share of the proceeds on cocaine. 8. She also provided evidence about the second offence, which had occurred at the HSBC bank in Kirton in Lindsey. She said that the appellant had told her he was going to have the ATM machine from that bank. He had told her the night before the offence that he was going to steal it and, after the offence had been committed, he told her that he had indeed carried it out. He had made some preparations. He was in possession of a JCB key and there were balaclavas in the kitchen drawer. She knew about the use of a stolen Toyota vehicle which she had seen. The appellant had told her that the safe from the HSBC bank was in a field somewhere near her mother's home. He also told her that each of the offenders had received a third of the proceeds, referring to the sum of £27,000. 9. So far as the Kirton in Lindsey HSBC offence is concerned, the JCB used on that occasion had been stolen from a building site in Gainsborough over the preceding weekend and a Toyota vehicle had been stolen from a private address in Sheffield. The offence was committed soon after 4 o'clock on the morning of Monday 19th November. A nearby resident was awoken by loud thudding noises. She looked out and saw the JCB being driven backwards and forwards, ramming the front of the premises. The JCB then reversed out, dragging the ATM into the street. There were other witnesses whose attention had been attracted but, again, no one was able to identify the perpetrators. 10. The JCB was abandoned on Spar Hill, from where it was recovered by the police. The burglars drove off with the ATM on the back of the Toyota. It contained £87,000. It had been filled up on the previous Thursday, but by the Friday afternoon the card slot had been put out of action by being blocked up, no doubt so as ensure the maximisation of the amount of money that would be in it at the time of the burglary. Again the burglary was captured on CCTV television but that could cast no light on the identification of the offenders. The damage on that occasion was very substantial, estimated at some £40,000 or more. As on the previous occasion a cigarette butt was recovered from the cabin of the abandoned JCB and was found to contain the appellant's DNA. 11. When his home was searched on 19th December, a camera and a drill were seized. These had been in the Toyota at the time when it had been stolen. Also a key which was capable of starting any JCB was seized from the kitchen cupboard, together with a copy of a newspaper reporting the burglary. In addition a newspaper report of a similar type of burglary committed at Dronfield in Derbyshire in 2006 was recovered. The Toyota was hidden in undergrowth in woods near where the safe compartment of the ATM from the Misterton burglary had been found. 12. At his trial the appellant gave an extremely dishonest account of his movements and activities and it was emphatically rejected by the jury. 13. The appellant had a substantial number of previous convictions, including convictions for burglary, theft, handling and taking vehicles without authority. But it is right to say that his previous offending came nowhere near the level of seriousness which was attained in the present case. The judge proceeded to sentence on the basis of carefully expressed sentencing remarks, based upon her conduct of the trial. It is plain that she had formed a very dim view of the appellant and we can well understand why. She described the burglaries as being carefully planned, professionally planned and professionally executed. She referred to many of the facts which we have just recounted as being indicative of professional planning and execution, adding: "The only mistake you made was smoking in the vehicle." 14. She based some of her observations on what had been said by Lord Taylor CJ in the case of R v Burn & Ors (1995) 16 Cr App R(S) 140. We do not need to repeat those remarks. They are highly relevant to offences of ram raid and these particular offences were particularly sophisticated examples of such offending. The judge said: "It is a kind of military operation against whatever security precautions may be applied and the fact that you were well practised in it is shown by the fact that the whole operation was concluded in a matter of some 20 minutes." Again, reflecting the words of the Lord Chief Justice, she referred to the aggravating feature of the breach of peace involved in the middle of the night and how offences such as this are "an affront to civilized society". She referred to the appellant's previous record as "deplorable", but did not exaggerate it because she added that it was "not the worst." She said, in our view entirely appropriately: "...since you have committed those offences [that is the other offences] you have crossed the line from being a small-time thief into being a professional burglar and I propose to mark the sentences which I am going to pass by reference to that fact." She then said that the sentences to be passed would be consecutive because two offences were completely different offences and were separated by a period of 3 months. She also said that she would have regard to the principle of totality. Having said all that, she passed the sentences to which we referred, passing the longer sentence on the second offence where the amount taken and the damage caused were more extensive. 15. In support of the appeal, Mr Bindloss first invites us to conclude that it was inappropriate for consecutive sentences to be passed in this case. We do not agree. There was no error in principle in passing consecutive sentences for two very serious offences of considerable sophistication, separated by 3 months. It is true that the appellant was not on bail at the time of the second offence but being on bail is not a prerequisite to sentences being ordered to be served consecutively. 16. Mr Bindloss then submits that the total sentence of 12 years is simply too long, having regard to the principle of totality. He suggested that the appropriate total in this case was 7 or 8 years. We unhesitatingly disagree with that quantification. In Attorney-General's References Nos 45, 46, 47, 48 and 49 of 2007 (Carl Kevin Callaghan & Ors) [2008] 1 Cr App R(S) 88 , this court carefully reviewed the cases in which ram-raiding had been considered, going back to R v Percy (1993) 14 Cr App R(S) 10 and Burn & Ors , to which we have already referred. At paragraph 40 of the judgment in the Attorney-General's Reference, the court said that the previous authorities: "...suggest that in the context of a single ram raid offence, a starting point in the region of or approaching 7 years, following a trial, is implicit in all of them." 17. This is not a case of a single ram-raid offence. Moreover, it is a case where both offences were ones of high sophistication and professionalism. This appellant is a considerably more accomplished and ruthless criminal than were the younger and more reckless offenders who were before the court in the Attorney-General's Reference. We therefore reject Mr Bindloss' submission about the appropriate level of sentence. Nevertheless, we do accept that the total of 12 years for two offences of this kind, following a trial, was excessive. In our judgment, the judge approached the case on an entirely appropriate basis but simply erred in pitching the sentences as high as she did. We do not disagree with any of her comments or descriptions and we certainly do not disagree, as I have said, with the imposition of a consecutive sentence. 18. What we propose to do is to quash the sentences of 4 years and 8 years in this case and substitute for them sentences of 3 years and 7 years, those sentences to run consecutively and concurrently with the unappealed sentences of 6 months on the other counts. Accordingly the total sentence becomes one of 10 years' imprisonment, with the same order for disqualification and the same order for time spent on remand. To that extent the appeal is allowed.

```yaml citation: '[2010] EWCA Crim 988' date: '2010-04-16' judges: - LORD JUSTICE MAURICE KAY - MR JUSTICE ROYCE - MR JUSTICE NICHOL ```

You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical 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 673 No: 201901991/A4, 201901915/A3 & 201901227/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday 21 May 2020 B e f o r e: LORD JUSTICE HOLROYDE MRS JUSTICE ANDREWS DBE MR JUSTICE MARTIN SPENCER R E G I N A v PETER ASHFORD R E G I N A v STEPHEN KING R E G I N A v TOBY ROGERS Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS, Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Miss K Walton appeared on behalf of the Applicants King and Rogers (via videolink) Mr S Dyble appeared on behalf of the Applicant Ashford ( via video link ) Mr P Grieves-Smith appeared on behalf of the Crown ( via videolink ) J U D G M E N T (Approved) 1. LORD JUSTICE HOLROYDE: Breach of a sexual harm prevention order ("SHPO") or a sexual offences prevention order ("SOPO") is an offence punishable with imprisonment. It is not however an offence listed in either schedule 3 (sexual offences) or schedule 5 (other offences) to the Sexual Offences Act 2003. A court dealing with an offender for breach of an SHPO or SOPO therefore does not have the power to make a new SHPO. The consequences of that limitation upon the court's powers, and the scope of the court's power to vary an existing SHPO, arise for consideration in each of these three cases. It is for that reason that, although otherwise unconnected, they have been listed for hearing together. 2. We express at the outset our gratitude to all counsel for their written and oral submissions. 3. Peter Ashford, now aged 67, was sentenced on 14 May 2019, in the Crown Court at Ipswich to a total of six years' imprisonment for two offences of breach of a SOPO and three offences of breach of a SHPO. He was also made subject to a SHPO. His grounds of appeal challenge the length of his prison sentence and the lawfulness of the SHPO. His application for leave to appeal against sentence has been referred to the full court by the Registrar. 4. Stephen King, now aged 70, was sentenced on 24 April 2019 in the Crown Court at Croydon to 14 months' imprisonment for one offence of breach of an SHPO. He was also made subject to an SHPO. His grounds of appeal challenge the lawfulness of that order. His application for leave to appeal against sentence has been referred to the full court by the Registrar. 5. Toby Rogers, now aged 26, was sentenced on 4 March 2019 in the Crown Court at Warwick, to a total of three years' imprisonment for one offence of breach of a SHPO and one offence of failing to comply with notification requirements. The judge also ordered that an existing SHPO of five years' duration be extended by 10 years from the date of sentence. His original grounds of appeal challenged the extent of the credit he received for guilty pleas. Leave to appeal was refused by the Single Judge. He now seeks leave to renew his application for leave to appeal on the basis of fresh grounds of appeal which challenge the lawfulness of the extension of the SHPO. 6. Before going into more detail about the individual applications, it is convenient first to set the statutory framework and then to make some general observations. 7. Provision is made in respect of SHPOs by sections 103A – 103K of the Sexual Offences Act 2003, which replaced (with effect from 8 March 2015) earlier provisions relating to SOPOs. 8. Section 103A(1) and (2), so far as material for present purposes, give a court the power to make an SHPO where it "deals with" a defendant for an offence listed in schedule 3 or schedule 5 and is satisfied that it is necessary to make an SHPO for the purpose of protecting the public or any particular members of the public from sexual harm from the defendant. As we have indicated, the offence of breach of an SHPO is not included in either schedule. That fact was overlooked in each of these three cases and, we understand, has been overlooked in other cases as well. Perhaps that is because many would assume that the offence of breach ought to be, and therefore is, included when in fact it is not. That, however, is a matter for Parliament. 9. There is a separate power under subsections (3)-(7) for a magistrates' court, on application by a chief officer of police or by the Director General of the National Crime Agency, to make an SHPO against a "qualifying offender" who has "acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made". Where an application under subsection (4) has been made but has not yet been determined, section 103F gives the court a power to make an interim SHPO for a fixed period specified in the order. 10. By section 103C, an SHPO prohibits the defendant from doing anything described in the order. It has effect for a fixed period specified in the order of at least five years, or until further order. Subsection (6) provides: i. "(6) Where a court makes a sexual harm prevention order in relation to a person who is already subject to such an order (whether made by that court or another), the earlier order ceases to have effect." 11. It is necessary to quote in full the provisions of section 103E: i. " 103E SHPOs: variations, renewals and discharges (2) A person within subsection (2) may apply to the appropriate court for an order varying, renewing or discharging a sexual harm prevention order. (3) The persons are— (a) the defendant; (b) the chief officer of police for the area in which the defendant resides; (c) a chief officer of police who believes that the defendant is in, or is intending to come to, that officer's police area; (d) where the order was made on an application by a chief officer of police under section 103A(4), that officer. (4) An application under subsection (1) may be made— (a) where the appropriate court is the Crown Court, in accordance with rules of court; (b) in any other case, by complaint. (5) Subject to subsections (5) and (7), on the application the court, after hearing the person making the application and (if they wish to be heard) the other persons mentioned in subsection (2), may make any order, varying, renewing or discharging the sexual harm prevention order, that the court considers appropriate. (6) An order may be renewed, or varied so as to impose additional prohibitions on the defendant, only if it is necessary to do so for the purpose of — (a) protecting the public or any particular members of the public from sexual harm from the defendant, or (b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom. ii. Any renewed or varied order may contain only such prohibitions as are necessary for this purpose. (7) In subsection (5), 'the public', 'sexual harm, 'child' and 'vulnerable adult' each has the meaning given in section 103B(1). (8) The court must not discharge an order before the end of 5 years beginning with the day on which the order was made, without the consent of the defendant and— (a) where the application is made by a chief officer of police, that chief officer, or (b) in any other case, the chief officer of police for the area in which the defendant resides. (9) Subsection (7) does not apply to an order containing a prohibition on foreign travel and no other prohibitions. (10) In this section, 'the appropriate court' means – (a) where the Crown Court or the Court of Appeal made the sexual harm prevention order, the Crown Court; (b) where an adult magistrates' court made the order, that court, an adult magistrates' court for the area in which the defendant resides or, where the application is made by a chief officer of police, any adult magistrates' court acting for a local justice area that includes any part of the chief officer's police area; (c) where a youth court made the order and the defendant is under the age of 18, that court, a youth court for the area in which the defendant resides or, where the application is made by a chief officer of police, any youth court acting for a local justice area that includes any part of the chief officer's police area; (d) where a youth court made the order and the defendant is aged 18 or over, an adult magistrates' court for the area in which the defendant resides or, where the application is made by a chief officer of police, any adult magistrates court acting for a local justice area that includes any part of the chief officer's police area. ii. In this subsection ‘adult magistrates' court' means a magistrates' court that is not a youth court." 12. Section 103I, so far as material for present purposes, makes it an offence for a person, without reasonable excuse, to do anything which he is prohibited from doing by an SHPO, an interim SHPO or an SOPO. A defendant guilty of such an offence is liable on summary conviction to imprisonment for a term not exceeding six months and/or a fine and, on conviction on indictment, to imprisonment for a term not exceeding five years. 13. As we have noted, this offence of breach of an SHPO, etc, is not one of the offences listed in schedules 3 and 5 to the Act. There is therefore no power to make a fresh SHPO where a court is dealing with a defendant solely in respect of an offence of breach of an SHPO, etc, or in respect of an offence of breach and another offence or offences, none of which are listed in schedules 3 and 5. In R v Hamer [2017] EWCA Crim 192 , [2017] 2 Cr App R 13 this court confirmed that that was so, and went on to consider whether the same prohibitions could have been imposed by amending the existing SOPO. The then provisions of section 108 of the 2003 Act made provision for variation of SOPOs in terms which are materially identical to the present section 103E. It was held that there had been no valid application complying with the requirement that the application be made by a chief officer of police. There was, therefore, no power to vary the existing order. 14. It may be noted that in R v Hamer there had been other procedural deficiencies, including a failure to give the defendant notice of an application to amend the existing SOPO: rule 31.5 of the Criminal Procedure Rules, applicable both to magistrates' courts and to the Crown Court, requires service of a written application, and the application cannot be granted unless the persons required to be served have had at least 14 days in which to make representations. In view of its decision that the application had not been made by a person entitled to apply, the court did not need to reach any conclusion about those other deficiencies. It is not clear from the judgment whether any point was taken as to whether, in any event, the Crown Court would have jurisdiction to vary an SOPO made by a magistrates' court. 15. Section 103E, which we have quoted in full, is prescriptive as to the only persons who may make an application for a variation of an SHPO, and as to the court to which any application must be made. 16. In R v Ashton [2006] EWCA Crim 794 , [2007] 1 WLR 181 this court considered the legal consequences of an irregularity in the way an accused came to be sentenced in the Crown Court. It referred to the earlier decisions in R v Sekhon [2003] 1 WLR 1655 and R v Soneji [2006] 1 AC 340 and concluded [at 4, 5] that: i. "... it is now wholly clear that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised ('a procedural failure'), the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, then the court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceedings to continue. ii. 5. On the other hand, if a court acts without jurisdiction - if, for instance, a magistrates' court purports to try a defendant on a charge of homicide - then the proceedings will usually be invalid." 17. The court accepted a submission that the approach to such issues is to avoid determining cases on technicalities when they do not result in real prejudice and injustice and to ensure that they are decided fairly on their merits. 18. It does not appear that R v Ashton was cited to the court in R v Hamer . It is however clear that the court in R v Hamer regarded a contravention of the statutory provision as to who might make the application as going to the jurisdiction of the court. We respectfully agree. In our view, it is to be inferred from the terms of section 103E that Parliament intended that a court should only have jurisdiction to vary an existing order if the application was made by one of the persons whom the section permits to make it, and made to the court prescribed by the section. If Parliament had intended otherwise, it could easily have legislated in more permissive terms, to the effect (for example) that a court may vary an SHPO on application by the prosecutor. We think it significant in this respect that when SHPOs replaced SOPOs in 2015, Parliament chose to enact section 103E in materially the same terms as the predecessor legislation. 19. We take a different view, however, of Parliament's intention in respect of the requirements of section 103E(3) as to the form of the application and as to strict compliance with all applicable rules of procedure. A failure to comply with one of those requirements can in our view be regarded as a procedural defect, not intended to invalidate the proceedings, and to be addressed in accordance with the principles stated in R v Ashton at [4]. 20. It follows from what we have said that the Crown Court does not have power under section 103E to vary, renew or discharge an SHPO which was made by an adult magistrates' court or a youth court. It does not, however, follow that in such circumstances there must always be a separate hearing in the magistrates' court or youth court. By section 66 of the Courts Act 2003 a Circuit Judge or Recorder has the powers of a District Judge (Magistrates' Courts) in relation to criminal causes and matters. Provided that an application under section 103E has been made to the prescribed court by one of the persons who is permitted to make it, a judge or recorder dealing with the defendant in the Crown Court may be invited to exercise the power of a District Judge (Magistrates' Courts) sitting in that prescribed court to grant a variation pursuant to section 103E. 21. The final situation which we must consider is that of an offender who has previously been sentenced for an offence listed in schedule 3 or schedule 5 and was made subject to a suspended sentence of imprisonment and an SHPO. If he is subsequently convicted of a breach of that SHPO and consequently falls to be dealt with for breach of the suspended sentence order, but is not also before the court for any offence listed in schedules 3 and 5, can the Crown Court make a fresh SHPO? In our view, it cannot. Where an offender is convicted of an offence committed during the operational period of a suspended sentence, the court is required to deal with him in one of the four ways specified in paragraph 8 of schedule 12 to the Criminal Justice Act 2003. In doing so, the court is not "dealing with the defendant in respect of an offence listed in schedule 3 or 5" for the purposes of section 103A: it is imposing upon the defendant the consequences of his reoffending during the operational period of the suspended sentence. An SHPO made when the suspended sentence was imposed remains in force unless and until action is taken to revoke or vary it. 22. We now turn to consider the individual cases. 23. Mr Ashford had been made subject to an SOPO by a magistrates' court on 2 August 2010. He had been released in March 2010 from a lengthy prison sentence and his behaviour had caused the police to apply for an SOPO. He was quickly in breach of the order and on 13 January 2011 was sentenced to three years' imprisonment for four offences of breach. 24. On 9 January 2019 he was sentenced by a magistrates' court to a suspended sentence of 16 weeks' imprisonment for offences of failure to comply with notification requirements and sending an obscene communication. The latter offence is listed in schedule 5 to the Act, and the magistrates' court exercised its power to make a new SHPO to continue until further order. He was prohibited from, amongst other things, "contacting or communicating with any female child under the age of 16 years by any means". Paragraph 7 of the SHPO prohibited him from "loitering within 20 metres of playgrounds, parks or designated play areas where children under the age of 16 may be present". We are surprised that it was thought appropriate to use such an imprecise term as "loitering" to define the prohibited conduct. 25. Almost immediately, Mr Ashford breached that new order. It appears that he regularly walked his dog in a particular area at a particular time of day, and he had since September 2018 had a number of meetings with a woman and her six-year-old daughter who were walking their dog. He had given the girl gifts of painted stones and sweets. He continued to talk to the girl (always in the presence of her mother) on at least six further occasions between the new SHPO being imposed on 9 January, and 24 January when he was seen by a police officer. These events were charged on indictment as two offences of breaching the SOPO of August 2010 and two offences of breaching the SHPO of January 2019. 26. On 30 January 2019, Mr Ashford was seen near the playing field of a primary school. He was there for about half an hour in company with another man who had a camera with a zoom lens, which was said to be used to photograph wild flowers. On 16 April 2019 he was convicted by a magistrates' court of an offence of breaching paragraph 7 of the SHPO and was committed to the Crown Court for sentence for that offence. The breach of the suspended sentence order was to be dealt with by the magistrates' court. 27. On 14 May 2019 in the Crown Court, Mr Ashford pleaded guilty to the offences charged on indictment. 28. The judge was faced with a more difficult sentencing process than he should have been. It appears that much of the relevant material had not been uploaded onto the Digital Case System or had only been uploaded at a very late stage. Perhaps for that reason, the prosecution opening of the facts lacked clarity. In the course of it the judge, on learning of the terms of the SHPO of 9 January 2019, suggested that the terms of paragraph 7 were ambiguous and invited the prosecution advocate to redraft it so that defence counsel could decide whether to "consent to that amendment". An amended draft was later agreed between counsel. 29. Mr Ashford has previous convictions as a young man for offences of dishonesty, but more importantly he also has convictions over many years for offences reflecting his sexual interest in children. Those convictions include offences of unlawful sexual intercourse with girls aged under 16, offences of indecent assault on a female and offences of buggery and attempted buggery. A pre-sentence report assessed a very high risk of sexual recidivism and a high risk of harm to children. It noted that when supervised in the past, Mr Ashford had sought to minimise the seriousness of his offending and had denied any sexual intent. 30. The judge commented in his sentencing remarks that Mr Ashford had continued to reoffend despite the sentences and orders imposed by the courts and assessed him as being unable to avoid communicating with very young children, despite the courts' attempts to prevent him from doing so. The judge placed each of the offences in the highest category of the relevant definitive guideline, with a starting point of three years' custody and a range up to four-and-a-half years. He concluded that there was no prospect of reform or rehabilitation, that Mr Ashford was a danger to young children and that his primary duty was to protect the public from further harm. As to the suspended sentence imposed on 9 January 2019, which he mistakenly said was a term of four weeks, the judge said: i. "If I'm required to sit as a district judge under section 66 of the [Courts] Act, then I do so. And I will send that suspended sentence breach to myself and deal with it at the same time. But I emphasise that Mr Dyble had no objection to me doing that in any event, to provide a speedy resolution to your criminal course of conduct. And therefore, I sentence you for those matters on the indictment for which you pleaded guilty, the committal for sentence in respect of loitering within 20 metres of the play area. And for the breach of the suspended sentence order." 31. The judge had regard to totality. He sentenced Mr Ashford to concurrent terms of three years' imprisonment for each of the two breaches of the SOPO. He also imposed sentences of three years' imprisonment for each of the two breaches of the SHPO charged on indictment and for the third breach which was the subject of the committal for sentence. Those sentences were concurrent with each other but consecutive to the other sentences. As to the breach of the suspended sentence, the judge said this: i. "... there's absolutely no reason why that shouldn't be activated in full, making a four-week sentence to be imposed but that too will run concurrently with all other sentences." 32. Thus, the total prison sentence was six years. 33. The judge was satisfied with the amended terms which counsel had agreed in relation to paragraph 7 of the SHPO and said: i. "The sexual harm prevention order, which continues to run indefinitely, will be amended in paragraph 7 so that it reads that you are prohibited from being within 20 metres of playgrounds, parks or designated play areas." 34. The grounds of appeal are that the total sentence was manifestly excessive in length, in particular because the judge placed the offences in too high a category when applying the guideline and wrongly imposed a consecutive sentence, and that the variation of the SHPO was unlawful. The respondent submits that the total sentence was just and proportionate to the seriousness of the offending. 35. We consider first the challenge to the length of the sentence. In terms of the Sentencing Council’s definitive guideline, we agree with the judge that each of the breaches of the SOPO and the SHPO fell into Category A culpability. We see some force in Mr Dyble's submission that the harm fell short of Category 1 and should have been in Category 2, so that the starting point for a single offence would be two years with a range up to three years. We are however unable to accept that the total term of six years was manifestly excessive. There were repeated offences which continued even after the fresh SHPO had been made, and each offence was seriously aggravated by the many previous convictions for sexual offences against young children. Even if the judge had taken the Category A2 starting point for any one offence, he would have been entitled to adjust that starting point upwards to reflect the aggravating features; and there was no error of principle in making one group of sentences consecutive to the other. The Totality guideline requires the court to impose a total sentence which, whatever its precise structure, reflects all the offending behaviour and is just and proportionate. The total sentence was stiff, but there is, in our view, no ground on which it can be argued that it was disproportionate. 36. As to the suspended sentence, there was no power to commit that separately to the Crown Court for sentence and therefore the course suggested by the judge, in the remark which we have quoted, could not have been taken. The judge was, however, empowered by section 66 of the Courts Act 2003 to exercise the powers of a District Judge and so to deal with the breach of that suspended sentence as a magistrates' court. The judge clearly fell into error as to the total length of the suspended sentence which had been imposed on 9 January 2019. Nonetheless, the order which he pronounced was that the suspended sentence should be activated in full. The effect, in law, was that he activated the total term of 16 weeks but ordered it to run concurrently with other sentences. 37. As to the SHPO, it follows from our general observations that the judge had no power to make a fresh SHPO. He had no power as a Crown Court judge to vary the SHPO made by a magistrates' court. No application under section 103E to vary the SHPO had been made to the appropriate magistrates' court and the judge therefore could not exercise the power of a District Judge in that regard. In any event, given that the offence of breach of the SHPO had been the subject of a committal for sentence, there was, as we have said, no power for a magistrates' court or a District Judge to commit the breach of the suspended sentence order alone to the Crown Court for sentence. In those circumstances the judge could not make the purported variation of the SHPO, which was accordingly of no effect. 38. It follows that the SHPO continued in the terms ordered by a magistrates' court on 9 January 2019. We agree with the judge that the terms of paragraph 7 are ambiguous and inappropriate. Any variation of them must however be the subject of a separate application properly made to the appropriate magistrates' court. 39. In the result, our order in Mr Ashford's case is as follows. We grant leave to appeal. We allow the appeal to the limited extent that we quash the order purporting to vary the terms of the SHPO of 9 January 2019. The sentences of imprisonment remain as before. We direct that the Crown Court record be amended to show that the total suspended sentence of 16 weeks, not 4 weeks, was activated in full but ordered to run concurrently with other sentences. 40. We turn to the case of Mr King. Originally, his grounds of appeal were limited to a challenge to the width of one of the prohibitions contained in the SHPO. Additional grounds have however been prepared as a result of the Registrar’s alerting the parties to other issues. Leave is now sought to rely additionally on those amended grounds, which argue that there was no power to impose a new SHPO and no power to vary the existing order. 41. Mr King has convictions over five decades for many offences, the majority being for sexual offences. His previous convictions include offences of sexual intercourse with a girl aged under 13, gross indecency with a child, indecent assault on a female aged under 14 years and offences relating to indecent images of children. 42. On 3 December 2016 an interim SHPO was made by a magistrates' court. A final order, to continue until further order, was made on 15 December 2016. It prohibited Mr King from, amongst other things, having contact with "any other registered sex offender" without prior approval from the local Public Protection Unit. In June 2017, and again in September 2017, he was sentenced to terms of imprisonment for offences of breaching the order. One of his breaches involved his having contact with his friend Mr Cater, a registered sex offender. 43. Whilst serving the sentence imposed in September 2017, he continued to have contact with Mr Cater, by phone calls from the prison. On 20 March 2019 he pleaded guilty before a magistrates' court to that offence of breach of the SHPO and was committed for sentence to the Crown Court. On 24 April 2019, in the Crown Court, he was sentenced to 14 months' imprisonment for the offence of breach. As we have indicated, there is no challenge to the length of that sentence, and it is therefore unnecessary for us to say anything more about that. We focus on the SHPO which the judge purported to make. 44. It appears that a Detective Constable had made a statement or written submission seeking a variation of the terms of the existing SHPO. That was not an application by a chief officer of police, and it was made to the Crown Court rather than to the magistrates' court which had made the existing SHPO: it therefore failed to comply with the requirements of section 103E. Prosecution counsel nonetheless put forward this application to the judge and it appears to have been the subject of some discussion during the hearing. In his sentencing remarks, the judge said: i. "You will be subject to the Sexual Harm Prevention Order, a new one. That is the one we have just discussed, with those amendments suggested by your counsel, and that will last for an indefinite period of time." 45. The SHPO which the judge purported to impose included, at paragraph 13, a prohibition on contact with "a registered sex offender or convicted sex offender". The original ground of appeal challenges that part of the order on the basis that it would unfairly prevent Mr King from having contact with his friend even if Mr Cater's name is removed from the sex offender register and would thereby improperly subvert the notification regime. 46. In the additional grounds of appeal, it is submitted that the judge clearly stated that he was imposing a new SHPO, but he had no power to do so. Nor was there any power to vary the existing SHPO because no proper application had been made to the appropriate court by a person entitled to make it. 47. The respondent accepts these submissions. It follows from the observations which we made much earlier in this judgment that we too accept the submissions as correct. The judge had no power either to make a fresh SHPO or to vary the existing one. 48. The respondent – understandably anxious that the consequence of quashing the SHPO made by the judge might be to leave Mr King free from any SHPO - draws attention to the magistrates' court's record for 20 January 2019. This shows that the District Judge who committed Mr King to the Crown Court for sentence purported to grant an application to discharge the SHPO made on 15 December 2016 and revoked that order; and purported to make an interim SHPO "for 6 weeks or until the main application is determined". This interim order prohibited Mr King (subject to the usual savings) from having contact of any kind with "any other registered sex offender or convicted sex offender". 49. In our judgment, the District Judge had no power to make either of those orders. As we have noted, section 103E(7) limits the circumstances in which an order may be discharged before it has been in force for five years: those circumstances could not apply in Mr King's case because there was no application by a chief officer of police. The power to make an interim SHPO only arises where a valid application to vary has been made but not yet determined; and, as is now common ground, there was here no valid application to vary. 50. In those circumstances, the respondent invites this court either to make no order on the application for leave to appeal, or to reconstitute as a Divisional Court and quash the orders purportedly made by the District Judge on 30 January 2019, thus restoring the SHPO made on 15 December 2016. It is implicit in this second invitation, and counsel Mr Grieves-Smith confirmed in his oral submissions, that if there was an application for judicial review of the District Judge's orders, it could not and would not be resisted by the defendant magistrates' court. 51. We do not think it appropriate to take the first of the two proposed courses. We do not accept the submission that the making of no order could be justified by reference to the decision of this court in R v Reynolds [2007] EWCA Crim 538 , [2008] 1 WLR 1075 . The court there was dealing with a very different situation where a judge had passed a sentence which was valid and effective but was less severe than the sentence which should have been imposed in accordance with mandatory sentencing provisions. The court was unable to substitute the sentence required by those provisions, because to do so would breach the restriction in section 11 of the Criminal Appeal Act 1968, but was able to respect the judge's finding of dangerousness by leaving in place the sentence which had been imposed. Here, in contrast, the procedural history which we have briefly summarised has involved a succession of errors, culminating in an order which we have found to have been made without jurisdiction. In all the circumstances of this case, it would not be right to take a course which would leave that order in place. 52. We are however persuaded that the second course is appropriate. 53. For those reasons, my Lady Andrews J and I reconstitute ourselves as a Divisional Court of the Queen's Bench Division, Administrative Court. We treat the Form NG1 and amended grounds of appeal as an application by Mr King for judicial review of the District Judge's orders of 30 January 2019. We dispense with service, dispense with the need for an acknowledgment of service and waive all time limits. We are satisfied that the District Judge's orders on 30 January 2019 purporting to revoke the SHPO of 15 December 2016 and to make an interim SHPO were unlawful. We quash those orders. 54. Returning to a constitution of three judges of the Court of Appeal, Criminal Division, we grant leave to appeal. We allow the appeal to the extent that we quash the SHPO purportedly made by the judge. The sentence of imprisonment remains as before. 55. The consequence of our orders is that Mr King remains subject to the SHPO of 15 December 2016. Any application to vary the terms of that order must be made to the appropriate magistrates' court by a person who is permitted to make it. 56. We turn finally to the case of Mr Rogers. On 20 March 2015, having been convicted of a number of sexual offences, he was made subject by the Crown Court to an SHPO for five years. The terms of the SHPO prohibited him from seeking, or being in, the company of any child under the age of 16 "other than that which is inadvertent and unavoidable in the course of the defendant's lawful daily activities or with the prior written permission of the relevant child's parent or guardian (who has been informed of the defendant's convictions) and the prior written permission of the social services or the chief constable for the area concerned." Within months, he began a relationship with a woman who had children aged six and four. He pleaded guilty in January 2017 to four offences of breach of the SHPO and one of breach of the notification requirements. He was committed for sentence to the Crown Court where, on 24 March 2017, he received a total of 20 months' imprisonment. The SHPO remained in force. 57. He was released on licence from that sentence in September 2017, but recalled to prison a year later. He had formed a relationship with a woman who had children aged 10 and eight and had on a number of occasions stayed overnight in her home. He resumed that relationship upon his release in October 2018. 58. On 12 October 2018 he pleaded guilty before a magistrates' court to an offence of breaching the SHPO by staying overnight with his partner on five occasions and an offence of failing to comply with notification requirements. He was committed for sentence to the Crown Court, where on 4 March 2019 he was sentenced to three years' imprisonment for the breach offence and 12 months' imprisonment concurrent for the notification offence. In addition, the judge purported to extend the duration of the existing SHPO. 59. The judge held that the breach offence fell into Category A1 of the guideline. Having regard to the aggravating features of the offence, the appropriate total sentence after trial would have been 45 months' imprisonment. The judge gave credit of one-quarter for the guilty pleas. 60. The original grounds of appeal did not challenge the length of the notional sentence after trial but argued that the level of credit was insufficient. Leave to appeal on that basis was refused by the single judge, and that application has not been renewed to the full court. Instead, leave is sought to add a fresh ground of appeal to the effect that the judge had no power to make the SHPO. 61. Prosecuting counsel in his opening address had said that the current SHPO "needs addressing". He apologised for the fact that he had not had time to draft "a fresh order", but indicated that there was nothing in the existing order which needed to be amended except the end date. 62. The judge in his sentencing remarks said: i. "I am going to extend the sexual harm prevention order; it is going to last from ten years from today, ten years from today. The sexual harm prevention order in the same terms that it was made on the earlier occasions as are uploaded will be in existence." 63. It is common ground between the parties, and we agree, that the judge had no power to make a fresh SHPO. However, we accept the submission that the judge in his sentencing remarks did not purport to do so, but rather to vary the existing SHPO by extending its duration. The order which was drawn up in the Crown Court was in ambiguous terms, apparently referring both to a new order and to an extension of the existing order; but the order of the court is that which was pronounced by the judge. 64. As to whether the judge had power to vary the existing order, the respondent submits that there was substantial compliance with the requirements of section 103E, such that it would be appropriate for this court to make no order on the application for leave to appeal, thus permitting the SHPO, as extended in duration by the judge, to remain in force. The respondent relies on the fact that at an early stage of proceedings a Detective Sergeant who compiled a form MG5 case summary noted the following in a section of the form headed "Application for order(s) on conviction": i. "Order applied for: SOPO ii. Application for extension of sexual harm prevention order (SHPO) iii. Conditions: continuation of current conditions". 65. It is submitted that the intention of the prosecution to seek an extension of the SHPO was thus made clear to Mr Rogers at an early stage and there was ample time for him to make representations. 66. We see the force of that argument by the respondent and we acknowledge the practical convenience of approaching the matter in that way. We are conscious that the SHPO of 23 March 2015 has by now expired and that accordingly, if the judge's order is quashed, there will be no SHPO in force unless and until a fresh application is made. We are not however able to accept the submission. Just as there was ample time for the defence to consider the prospect that an extension might be sought, so there was ample time for the prosecution to ensure that any application was correctly made by the appropriate person. If the only deficiencies were those relating to compliance with the Criminal Procedure Rules, the position might be different, though even then it would be necessary to give careful consideration to the facts that no written application for an extension was ever made to the Crown Court (or any court) and that the first formal indication of any such application was given orally by counsel towards the end of his opening, in the muddled terms to which we have referred. But, consistently with the decision in R v Hamer and with our observations earlier in this judgment, there is in our view no escape from the fact that the application was not made by a chief officer of police. We accept that in principle a chief officer of police may authorise one or more junior officers to make written applications for variations on his behalf and in his name; and we accept that when the application has properly been made, it can be presented in court by the prosecution advocate. But there is no suggestion in this case (or indeed in Mr King's case) that there was in fact authorisation of r junior officer to make an application on behalf of and in the name of the chief officer. All that happened here was that the prospect that an extension of the SHPO would be sought was mentioned by the Detective Sergeant in the case summary. The only application was that made orally by the prosecuting advocate. 67. For those reasons, the order which we make in Mr Rogers' case is as follows. We grant leave to vary the grounds of appeal and leave to appeal. We allow the appeal to this extent: we quash the order purporting to extend the SHPO. The prison sentence remains as before. 68. As these three cases illustrate, sentencing in cases of breach of an SHPO can give rise to a number of difficulties. We are very conscious of the pressures on busy judges and advocates, and that these are matters which may fall to be dealt with at the last stage of proceedings, often following shortly after the verdict of a jury. We hope that this judgment will alert them to some of the potential pitfalls. 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 673' date: '2020-05-21' judges: - LORD JUSTICE HOLROYDE - MRS JUSTICE ANDREWS DBE - MR JUSTICE MARTIN SPENCER ```

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

Neutral Citation Number: [2006] EWCA Crim 3061 Case No: 2005 00704 B4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM HARROW CROWN COURT MR RECORDER MITCHELL QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/12/2006 Before : LORD JUSTICE RIX MRS JUSTICE DOBBS DBE and SIR CHARLES MANTELL - - - - - - - - - - - - - - - - - - - - - Between : Regina - and - Samuel Uwankonyemma Nwangoro Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr S. Connolly & Mr J. Wing (instructed by Crown Prosecution Service) for the Crown Mr N. Valios QC & Miss P. Rose (instructed by Messrs Fisher Meredith ) for the Appellant Hearing date : 20 October 2006 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Rix : 1. This appeal arises out of confiscation proceedings following a plea of guilty to a single count of conspiracy to defraud made by the appellant, Samuel Uwakonyemma Nwangoro, at the Crown Court at Harrow on 2 April 2004. On 7 January 2005 those confiscation proceedings concluded in a confiscation order made by Mr Recorder Mitchell QC whereby the appellant was ordered to pay £240,000 under the Criminal Justice Act 1988 with 35 months imprisonment in default of payment. That, if served, would be consecutive to the sentence of 9 months imprisonment which the appellant received for the substantive offence. Issues concerning jurisdiction, fairness, benefit and realisable property arise. 2. The background to the sentence can be briefly stated. Over a nine year period between 1995 (starting with 20 November 1995) and 2003 (ending with 26 January 2003) the appellant had made false claims to the London Borough of Brent (the “council”) in respect of housing and council tax benefit. He failed to declare that he owned his own house or that he was in receipt of rent by letting it out. As a result he had obtained accommodation from the council, most recently at 15 Tillett Close in Neasden, where he lived, and substantial discounts on the rent which he would otherwise have been charged for living there. The direct benefits thus wrongly obtained amounted to £48,899.73. The long period of offending only came to light following his application in April 2002 to purchase his council flat under the right to buy scheme. 3. Checks then made revealed a string of property transactions which had begun in June 1975 when he and his wife had jointly purchased 61 Pendle Road in Streatham with the aid of a mortgage. By the end of the confiscation proceedings the following facts had emerged. Pendle Road had been purchased as a matrimonial home. However, by August 1994 the appellant had started to rent it out. By then he was living in another property, 61 Conifer Gardens , which he had purchased in his own name on 10 August 1993, almost entirely with the aid of a mortgage, putting in a deposit of only £2,850. He claims that this was also a matrimonial home shared with his wife. From 25 October 1995, however, having moved (or being just about to move) into council accommodation, he was able to rent out Conifer Gardens. On 14 December 1998 he sold Conifer Gardens and personally received the net equity, after all expenses, in the sum of £80,767.67. The next year, on 24 September 1999, the appellant purchased his third property at 66 Stag Lane . Again he did so almost entirely with the aid of a mortgage, this time putting in a deposit of only £6,200, and for these purposes using part of the proceeds of sale of Conifer Gardens. He rented out Stag Lane from 29 November 1999. He still owned Stag Lane at the time of the confiscation proceedings. His fourth purchase, in December 2001, was of 74 Frithwood Crescent , again almost entirely with the aid of a mortage: his deposit on this occasion was only £7,750 (but that was funded out of an additional mortgage obtained on Stag Lane). This too he rented out. 4. Thus at the time of the confiscation proceedings, the appellant still owned the matrimonial home at Pendle Road, and also the properties at Stag Lane and Frithwood Crescent. He had meanwhile sold Conifer Gardens at a substantial profit. What has happened to that profit is not clear: the subsequent properties were purchased almost entirely with borrowed funds, but the appellant claims to have spent the sale proceeds on buying and renovating Stag Lane and on his children. 5. Following his arrest, the appellant sought to dispose of his property or conceal his interest in it in an attempt to protect himself from just such proceedings as have occurred. Thus on 22 June 2004 he gifted his 50% interest in Pendle Road to his wife. He has maintained that Stag Lane was jointly owned with another, but the recorder found that the transfer into joint names which he relied upon was a forgery. He has also maintained that Frithwood Crescent was purchased by him for another and that he has no beneficial interest in it. The recorder, however, said that there was no evidence to support that contention, a fortiori where its deposit had been financed out of the further mortgage on Stag Lane. Benefit and realisable property 6. In these circumstances the recorder found that the appellant had received benefits and/or pecuniary advantages as a result of or in connection with the commission of his offence and that his realisable property was more than sufficient to support a confiscation order in the amount of £240,000. We think there is no need to burden this judgment with unnecessary detail about the make-up of the figures concerned. However, the essence of the matter is as follows. 7. The recorder found benefit obtained in the sum of £369,740.97. This was made up of (a) the direct benefit of £48,899.73 referred to above (“the £49,000”); (b) the rental income on the various properties which had been let following the commencement of the appellant’s offending, totalling about £81,000; and (c) the capital appreciation on Conifer Gardens, Stag Lane and Frithwood Crescent (about £240,000). 8. The recorder next found realisable property in the sum of £317,943.15. This was made up of the appellant’s equity in Pendle Road, Stag Lane, and Frithwood Crescent, plus some modest amounts of cash in the bank. 9. On the basis of these sums, the recorder then took account of £40,000 which the appellant had already borrowed and paid by way of compensation to the council, and of an additional compensation order in the sum of £8,889.73 which the recorder made in order to compensate the council entirely for its direct loss, so as to arrive, in his discretion, at an overall figure for the confiscation order in the sum of £240,000. In effect, the recorder discounted the maximum sum in which he might have made an order by some £28,000 (if allowance is also made for the compensation payments). He gave the appellant 15 months to realise his assets, and fixed a term of imprisonment in default of payment of the confiscation order of 35 months. 10. Finally, the recorder sentenced the appellant to 9 months in prison for the offence itself. This sentence was heavily discounted by reason of personal mitigation, including ill health. 11. The prosecutor’s statements served for the purpose of the confiscation proceedings had summarised its findings as follows: (i) direct benefit of £48,889.73, (ii) a pecuniary advantage of £386,027.58, (iii) realisable property of £365,214.61, and (iv) compensation of £81,747.40. 12. The appellant served reports prepared by Mr Maurice Faull, a forensic accountant, in which Mr Faull submitted that (a) a causal link between the criminal activity and the rentals received was accepted albeit on one house only, in the sum of £69,216.05; (b) that that sum should be rebated as to 50% to £34,608.03 on the ground that, even if the appellant had not had subsidised housing from the council, he would have lived in only a few rooms of his house and let out the rest; and (c) that no causal connection between the offending and the capital appreciation on the appellant’s properties had been shown, since he would have been able to support his mortgages on the basis of his rental income, his wife’s income, and other legitimate benefits. It was conceded, however, that there was no need to take into account the cost to the appellant of servicing his mortgages. 13. The appellant did not give evidence on his own behalf at the confiscation proceedings. Criminal Justice Act 1988 14. Since the course of offending went back to 1995 the relevant provisions for the conduct of the confiscation proceedings were those of the Criminal Justice Act 1988 as amended by the Criminal Justice Act 1993 (the “1988 Act”). However, the further amendments introduced by the Proceeds of Crime Act 1995 (“ POCA 1995”) did not apply. For relevant purposes it should be noted that under the 1988 Act, as distinct from POCA 1995, the court did not have a discretion of its own to institute confiscation proceedings, which were in the hands of the prosecutor, who was required to give to the court notice that, were the court to make a confiscation order it would be able to do so in the sum of a minimum amount of at least £10,000 (section 72). This was a procedure designed to ensure that sentencing was not delayed or the court’s time wasted on confiscation proceedings which would ultimately be of little financial consequence. Another important difference between the 1988 Act regime and that regime as amended by POCA 1995 was that under the latter, once it seemed appropriate either to the prosecutor or to the court to undertake confiscation proceedings, it was the court’s duty to do so and to make an order where it could in an amount equal to either the benefit or the amount that might be realised, whichever is the less; whereas under the 1988 Act, the undertaking of confiscation proceedings or the making of any order always remained entirely in the court’s discretion, even where the prosecutor had initiated matters by serving its minimum amount notice. Consistently with these changes, the requirement of the prosecutor’s minimum amount notice was also dispensed with by POCA 1995. When years later in 2004 in this case the recorder came to consider the question of confiscation proceedings, the fact that the 1988 Act and not the POCA 1995 regime applied was initially overlooked. As will be seen, this has caused complications and given rise to issues on this appeal. 15. A full account of the relevant provisions of the 1988 Act and the changes wrought by POCA 1995 can be found in the judgment of this court (Lord Woolf of Barnes CJ) in R v. Sekhon [2002] EWCA 2954, [2003] 1 Cr App R 575 . For present purposes it will we think suffice to set out the following sections of the 1988 Act: 16. Section 71 is headed “Confiscation orders”: “71. (1) The Crown Court and a magistrates’ court shall each have power, in addition to dealing with the offender in any other way, to make an order under this section requiring him to pay such sum as the court thinks fit. (2) The Crown Court may make such an order against an offender where – (a) he is found guilty of any offence to which this Part of this Act applies; and (b) it is satisfied – (i) that he has benefited from that offence…and (ii) that his benefit is at least the minimum amount… Subsections (1) and (2) were replaced by POCA 1995. In particular the new section 71(1) said that “it shall be the duty of the court” to conduct confiscation proceedings if either the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to do so or the court considers, even in the absence of such a notice, that it would be appropriate to do so. (4) For the purposes of this Part of this Act a person benefits from an offence if he obtains property as a result of or in connection with its commission and his benefit is the value of the property so obtained. (5) Where a person obtains a pecuniary advantage as a result of or in connection with the commission of an offence, he is to be treated for the purposes of this Part of this Act as if he had obtained as a result of or in connection with the commission of the offence a sum of money equal to the value of the pecuniary advantage. (6) The sum which an order made by a court under this section requires an offender to pay [must be at least the minimum amount, but must not exceed] The language of the 1988 Act. [shall be equal to] As amended by POCA 1995. (a) the benefit in respect of which it is made; or (b) the amount appearing to the court to be the amount that might be realised at the time the order is made, whichever is the less. (7) For the purposes of this Part of this Act the minimum amount is £10,000…” Deleted by POCA 1995. 17. Section 72 is headed “Making of confiscation orders” and provides: “72.(1) A court shall not make a confiscation order unless the prosecutor has given written notice to the court 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… (4) If the court determines that it ought to make such an order, the court shall [before sentencing or otherwise dealing with the offender in respect of the offence or, as the case may be, any of the offences concerned] Taken out by section 72A(8)(a) of the 1988 Act (by virtue of section 28 of the Criminal Justice Act 1993) . determine the amount to be recovered in his case by virtue of this section and make a confiscation order for that amount…” Section 72(1) to (4) was repealed by POCA 1995 (section 15). 18. As Lord Woolf said in Sekhon (at paras 7, 8 and 30/31) – “7…Thus, by reason of s. 71, before a Court had power to make a confiscation order the Court had to be satisfied that the defendant had benefited by at least £10,000. This followed a recommendation made by the Hodgson Committee which had been in favour of limiting the power to make confiscation orders by reference to a sum of money so as to prevent its operation in impracticable small cases… 8…Under s 72(1) and (2) the procedure for making an order was dependent on the prosecution giving notice that there were likely to be sufficient assets to meet it… 30. Having set out this general approach, it is convenient to return to the procedural requirements themselves. Here it is important to note that s.71 is dealing with the jurisdiction of the court. It does contain provisions which undoubtedly have to be complied with to give the court jurisdiction to make an order. The defendant must have been found guilty of the required offence. In addition, the court must be satisfied that the offender has benefited from the offence to the required extent. Section 72, on the other hand, is dealing with the procedure and procedural requirements do not usually go to jurisdiction. 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…” 19. Section 72A was introduced into the 1988 Act by the Criminal Justice Act 1993, is entitled “Postponed determinations”, and was designed both to give the court time to enable the information necessary to consideration of the making of a confiscation order to be assembled and to enable sentence otherwise to be dealt with in the meantime. Postponement can only exceed six months from the date of conviction if the court is satisfied of exceptional circumstances. Thus: “72A.(1) Where a court is acting under section 71 above but considers that it requires further information before – (a) determining whether the defendant has benefited as mentioned in section 71(2)(b)(i) above; (b) determining whether his benefit is at least the minimum amount; or (c) determining the amount to be recovered in his case by virtue of section 72 above, it may, for the purpose of enabling that information to be obtained, postpone making that determination for such period as it may specify. (2) More than one postponement may be made under subsection (1) above in relation to the same case. (3) Unless it is satisfied that there are exceptional circumstances, the court shall not specify a period under subsection (1) above which – (a) by itself; or (b) where there have been one or more previous postponements under subsection (1) above or (4) below, when taken together with the earlier specified period or periods, exceeds six months beginning with the date of conviction… (7) Where the court exercises its power under subsection (1) or (4) above, it may nevertheless proceed to sentence, or otherwise deal with, the defendant in respect of the offence or any of the offences concerned.” 20. Section 74 is headed “Definition of principal terms used”. It reads in relevant part: “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 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.” 21. Section 102 is an “Interpretation” section and extends the definition of benefit and pecuniary advantage under section 71(4) and (5) so as to make it clear that it does not avail to break the connection between offending and the obtaining of a benefit or a pecuniary advantage that the offending is only a contributing cause or connection. Thus: “102. (5) References in this Part of this Act to property obtained, or to a pecuniary advantage derived, in connection with the commission of an offence include a reference to property obtained or to a pecuniary advantage derived, both in that connection and in some other connection.” The grounds of appeal 22. The first ground of appeal on which Mr Valios QC, on behalf of the appellant, seeks to discharge the confiscation order relates to jurisdiction. It is submitted, in essence, that the prosecutor failed to institute confiscation proceedings by serving a notice on the court that if it chose to make a confiscation order it would be able to do so in the sum of at least £10,000 (see section 72(1) and (2)); that in error, thinking that he was dealing with the proceedings under the 1995 Act , the recorder entered on the proceedings on his own initiative and in the absence of a prosecutor’s notice; that when he purported to postpone the proceedings under section 72A, and even beyond six months from the date of conviction on the basis of exceptional circumstances, the recorder was still acting under that misapprehension; that when at last the prosecutor served a minimum amount notice on the court, but not before 6 January 2005, the six months had expired and it was too late to enter on confiscation proceedings; therefore all that had happened up to that time had been done without jurisdiction and the confiscation order that the judge proceeded to make on that day was for the same reason invalid and ineffective. 23. The appellant’s second ground of appeal relates to the unfairness of the proceedings. The point is also put in terms of abuse of process, on the basis that the appellant had been led to believe that there would be no confiscation proceedings. In the alternative it is said that the recorder wrongly failed to exercise his discretion in connection with making a confiscation order, because of his erroneous belief that he had no discretion but to do so (as if he were acting under the 1995 Act ). At times the submission had some appearance of amounting to an allegation of bias, on the basis that the recorder was determined in any event to make a confiscation order: although the word bias was never used, it was submitted that the recorder had from beginning to end approached the question of a confiscation order with a closed mind. Ultimately, we regard this rather protean range of submissions as being essentially encapsulated by the concept of unfairness, and we therefore refer to this ground under that heading, but not to the exclusion of any part of the submissions that we have heard. 24. The third ground relates to the benefit found to have been obtained by the appellant. Mr Valios submits that the judge was wrong to have accepted the prosecutor’s case that there had been a causal connection between the commission of the offence and the increase in capital values of the appellant’s properties. 25. The fourth ground attacks the judge’s findings as to realisable property, on the basis that no or insufficient allowance was made for the appellant’s wife’s interest. In particular it was submitted that, even beyond any strict legal or beneficial interest the wife had in the properties, the judge ought to have made a general 50% allowance on the basis that the appellant and his wife shared their property equally, in part because of his wife’s contributions, through her own income, towards the meeting of mortgage obligations. 26. In order to enable these grounds to be better understood and discussed, it is first necessary to refer in greater detail to the course that the confiscation proceedings took. The confiscation proceedings 27. The appellant pleaded guilty, as stated above, on 2 April 2004. At the same time, the prosecution said that it would in due course offer no evidence against Mrs Nwangoro, who had been jointly charged with her husband. Sentence was then adjourned for reports and for questions of compensation, and its quantum, to be considered. Counsel for the prosecution (Mr Space) specifically referred to the adjourned hearing as dealing with “(a) sentence; and (b) the question of amount of money and compensation”. The judge at that hearing was HHJ Black. 28. On 4 June 2004 the adjourned sentence hearing came before HHJ Mole. There appears to have been some difficulty in the preparation of a pre-sentence report, and as a result it proved necessary to adjourn the hearing a second time. Nevertheless, the appellant had come to court with “cheques for nearly £33,000” for the purpose of compensating the council. A final compensation figure, however, had not yet been agreed, although Mr Heimler, on behalf of the appellant, spoke of the total amount being “about £48,000”. He said that he proposed making a virtue out of necessity in that over the adjournment the compensation should be agreed: if agreed, the agreed figure would be paid; if not agreed, the appellant’s figure would be offered to the court in any event, in a sum which would be “above £33,000”. He submitted that with a further adjournment “we will be able to resolve this completely by then financially”. Judge Mole said that the total benefits involved seemed to him to be almost £100,000 (including the value to the council of the housing improperly obtained by the appellant). Mr Heimler disputed that latter element, saying there was no evidence for it and that it represented a “classic civil claim for the value of the loss of an opportunity”. He said – “for the record that I have been advising my client on the basis of my understanding of the law regarding criminal compensation and the £48,000, which is a direct financial loss”. 29. Sentence was adjourned on that basis. There was no suggestion from the Crown that confiscation proceedings were being contemplated. 30. Before the matter returned to court, on 20 June 2004, the appellant transferred to his wife his half-interest in Pendle Road, so that title to that property was now entirely in her name. 31. On 9 July 2004 the matter came back for sentence, this time before Mr Recorder Mitchell QC, who retained essential control of it thereafter. The appellant came to court with a cheque for £40,000. Prosecution counsel, on this occasion Mr Connolly who appears again for the Crown on this appeal, introduced the matter as being a question solely of sentence and compensation, thus: “The case was, after his plea, adjourned because there were some concerns about how much money was involved…and what the proper claim for compensation should be.” He mentioned the (now established) benefits figure of £49,000 and said “I am assuming the case is ready to be dealt with and I should now open the case”. However, as he did so, the recorder raised the question of a confiscation order. It first arose in the context of Mr Connolly telling the recorder about another aspect of the council’s claim for compensation, for a further £50,000 in respect of the value of the accommodation provided. The recorder said: “But that is more likely to impact upon a confiscation order, is it not?”, to which Mr Connolly assented. The recorder then probed the facts, suggesting that the appellant had benefited not only from housing benefit but also from the rental income on his own properties. 32. The recorder then asked this (R for the recorder and C for Mr Connolly): “R. What is the Crown’s position on confiscation? C. Well, I have only just [been] instructed last night. It seems that although there was a request for the Police to carry out a financial investigation, that has not been done. So there is no statement dealing with the question of confiscation. R. And here is a man who owns property, who has benefited from renting out those properties by being able to live in council accommodation, which he has pretended that he is entitled to, and at the same time claimed housing benefit. What are the public going to think if steps are not taken to recoup from him that which he can properly afford to pay, namely his benefit from his criminal conduct. Over, what, seven or eight – nine years I think. What is the answer to that? C. Well it seems to me that there certainly should have been and still can be, a financial investigation into his benefit. R. It seems to me that I have the power, do I not, to institute such an enquiry of my own volition?... C. Yes.” 33. Mr Connolly then proceeded to go through the facts of the case, with the recorder asking many questions. There came a point when the following further exchange took place: “R. But has a forensic accountant been instructed to look at this? C. No he has not. The first step would normally be for a specialist officer from the Police Financial Investigation Unit to make enquiries and that has not been done. R. Why has it not been done? C. I think the police were asked to, but I they think they balked. Can I get specific instructions? I have not had a chance to speak to the officer. I have only spoken to the Benefit Agency. R. I have a horrible feeling that we are about to allow to slip through the net a decade of dishonesty that has accumulated a small empire of property or value, at the expense of the taxpayer, without actually finding out whether that is right or wrong…” 34. There was then some inconclusive discussion as to whether the case fell under the POCA 1995 amendments to the 1988 Act or not, with the recorder saying that if it did not “there will be an element of discretion available to the Court, which was taken away in 1995”. He also said: “I could postpone sentence, if necessary, to allow for the enquiry”. The judge was told that the value in the three houses still owned by the appellant was “probably close to £1m”, subject to mortgages. The recorder said that “there has to be a proper financial enquiry” and expressed the view that it would be a scandal for the court to condone the absence of one. Mr Connolly agreed, saying that it appeared to him, on first sight, to be crying out for an investigation. Later in the discussion Mr Connolly was able to tell the judge that on one property alone, Pendle Road, there was equity of about £300,000. 35. Counsel for the appellant, on that occasion Ms Evans, was asked for her views. She said that everything was in dispute as far as the properties were concerned: she was instructed that the appellant no longer had an interest in any of them: one had gone to his wife, described as his “ex-wife”, another was in the hands of relatives, but on precise details her instructions were opaque. She herself asked for the matter to be adjourned “so that it can be properly dealt with on the next occasion”, and suggested that the recorder might like to consider reserving it to himself. She had earlier expressed her concern for the appellant’s health and “his terrible tearfulness this morning”, submitting that it was no fault on his part that an investigation for the purposes of a possible confiscation order had not taken place in the three months since conviction. She took instructions from the appellant, and concluded by asking the recorder not to deal with the case that day, and submitted that, as a matter of fairness to the appellant, the facts should be explored before the case came back to court. As for the £40,000 cheque which the appellant had brought to court that day, in fact a banker’s draft payable to the council, that was, again on instructions, handed to the prosecution. The recorder said that it would be taken into account in any order that the court subsequently made. 36. The recorder therefore postponed (or adjourned) sentence so that an investigation for the purposes of confiscation proceedings could be made. He said “I am going to adjourn it until the 9 th August at 10 o’clock”. (It was at one time submitted on behalf of the appellant that the recorder’s use of the word “adjourn” rather than “postpone” was significant.) He gave directions for a statement from the Crown by 30 July 2004, to which the appellant could respond up to 6 August. He explained to the appellant that the court sought to put him back in a position that he should have been in if he had not taken advantage of the state, and he asked him to cooperate. 37. On 22 July 2004 the appellant made a statement, in which he said: (1) as to Pendle Road, that it had been purchased jointly with his wife in 1975, and was now occupied by her (he said nothing about any subsequent transfers); (2) as to Conifer Gardens, that he had purchased it in August 1993 and subsequently sold it in December 1998 with net proceeds of £80,767.69; (3) that those proceeds were in part used in the purchase and renovation of Stag Lane, and in part spent on the education and relocation of his children; (4) as to Stag Lane, that he had made nothing from its rental; (5) as to Frithwood Crescent, that he had purchased it on behalf of a relative living abroad and had transferred it to its true owner in October 2003, without any personal profit; and (6) that the £40,000 handed to the prosecution had been borrowed from a bank and a finance company. 38. On 30 July 2004 the prosecutor’s statement was served on the court. It referred to the Criminal Justice Act 1988 as amended not only by the 1993 Act but also by POCA 1995. It defined the direct (section 71(4)) benefit obtained in the form of housing and council tax benefit as £48,889.73 and the pecuniary advantage (section 71(5)) benefit as totalling £362,989.24, made up of rentals and the increase in the equity of the houses over the relevant period. For this latter purpose, no increased value benefit was asserted as flowing from Pendle Road, since it had been owned since 1975. There was a compensation claim from the council in the total sum of £81,747.40. Realisable property, mainly in the form of the equity in Pendle Road, Stag Lane and Frithwood Crescent, was assessed at £365,214.61, including the £40,000 borrowed by the appellant and represented by the cheque, which the council had banked. Reference was made to some 30 bank accounts of the appellant, not all of which had been investigated. (By a supplementary prosecutor’s statement dated 9 September 2004, these figures were slightly amended: the section 71(5) benefit had risen to £386,027.48 and the realisable property to £365,214.61). On this appeal, the Crown rely on the service of the 30 July 2004 statement as amounting to a section 72(1) notice to the court that a confiscation order, if made, could be made in at least the minimum sum of £10,000. 39. On 9 August 2004 the proceedings returned to court, before the recorder. Mr Connolly continued to represent the prosecution, and on this occasion Ms Hayne appeared for the appellant. It was common ground that the confiscation proceedings could not be completed that day, and in any event the appellant wanted Mr Heimler, his original counsel, to represent him for the purpose of confiscation and sentence. The recorder therefore had to consider a further postponement or adjournment, and, in that connection, whether there were exceptional circumstances which entitled him to go beyond the period of six months from the date of conviction. In a ruling given that day, he concluded that there were. It appears from that ruling that the recorder considered the court to be acting under the 1988 Act as amended by POCA 1995. He said that in July he had determined that it was appropriate for there to be a confiscation enquiry, and that he had accordingly “adjourned” the case for such an enquiry as there was no doubt that the appellant had benefited to some extent. The 30 bank accounts still needed investigation. He concluded the circumstances to be exceptional and adjourned the proceedings to 12 November 2004. 40. Subject to the submission that the proceedings as a whole were incompetent in the absence of a prosecutor’s notice under section 72(1), and that it was too late to rectify that omission after the six months period had expired, no complaint is made about the recorder’s finding of exceptional circumstances. 41. On 15 October 2004 there was a hearing before HHJ Madge to adjourn the 12 November fixture at the appellant’s request. The appellant was represented by Mr Heimler, who explained that there had been delay in the obtaining of legal aid for a forensic accountant. Mr Heimler flagged up a possible argument as to jurisdiction, telling the judge that the confiscation proceedings had not been initiated by the Crown but by the court, and that there had not been a postponement under the 1988 Act, but an adjournment at common law. In due course, on 22 November 2004 the recorder gave further directions including a new fixture date for 6/7 January 2005. 42. On 3 December 2004 the appellant served a forensic accountant’s report prepared by Mr Faull. His main points were concerned with (1) the causal connection between the offending and the pecuniary advantage asserted of the rise in the capital values of the houses; and (2) the failure of the prosecutor’s statement to take account of the cost of mortgage payments. As to the latter, he estimated that a total mortgage debt of £342,850 would have been costing the appellant some £1,571 per month (at an average of 5.5%); as to the former, he observed that there were sources of income available to the appellant and his wife other than the monthly value (which he put at £461 per month) of his housing and tax benefits, such as the wife’s income (on a gross salary of over £20,000 per annum) and rental income and other benefits, such as incapacity benefit. His submission was that if such other income enabled the appellant to maintain his mortgage payments, then the capital appreciation of the appellant’s houses over the relevant period could not be connected with his offending; and that in any event, the cost of ownership of the property in the form of mortgage payments should be debited from any rise in the value of that property. In an addendum to that report, dated 5 January 2005, Mr Faull made two concessions. The first was that there might be a causal link between the offending and rental income received, albeit he submitted that that link operated only in respect of one house. However, he failed to acknowledge the consequential relevance of the importance of such rental income in support of the maintenance of the mortgage payments. The second concession was that the cost of mortgage payments could not be taken into account as a debit from any benefit obtained. As stated above (at para 12), he conceded a rental income benefit in total of only £34,608.03. The first judgment, on jurisdiction 43. On 6 January 2005 the matter came back before the recorder for argument and decision. On behalf of the appellant it was argued that the court lacked jurisdiction because there had been no written notice from the prosecutor for the purposes of the 1988 Act and it was now too late, after the six months from the date of conviction had expired, for such a notice to be served (as it had been that day). 44. In his first judgment during that hearing the recorder rejected that submission. He acknowledged that, as had at last become clear, the 1988 Act unamended by POCA 1995 was the relevant regime; that his own intervention had originally triggered an enquiry for the purposes of confiscation proceedings; and that it was only under the POCA 1995 amendments that the court could itself initiate a confiscation hearing. Nevertheless, he considered that he had had power under section 72A to postpone the proceedings to enable enquiries to be made, even in the absence of a minimum amount notice. Such a notice was only required ultimately as a condition of his power to make a confiscation order (see section 72), and the notice had now been served. In any event, there had never been any dispute that the appellant had benefited by more than £10,000. The second judgment, on benefit 45. The recorder later that day gave a second judgment on the subject matter of benefit. As stated above, he found a primary benefit in the sum of the £49,000, and further benefit by way of pecuniary advantages to be found in rental income and the increase in value of the Conifer Gardens, Stag Lane and Frithwood Crescent properties. He recognised the issue as to the need for a causal connection between the offending and that income and increase in value, but he made detailed findings that the offending had enabled the appellant to obtain rental income from his own property at Conifer Gardens, that that income had enabled him to make mortgage payments which he would otherwise have been unable to pay, and thus to save that property from being repossessed, and/or upon the successful sale of that property to enable him to purchase further properties, which he was thus in turn in a position to rent out. Thus the renting out of Conifer Gardens had saved that house from repossession; when it was sold, it generated a substantial equity, which enabled him to purchase Stag Lane; the increase in the value of Stag Lane enabled him in due course to take out a further mortgage on it to help finance the purchase of Frithwood Crescent; and in the meantime he had benefited from rental income from all three properties. He found the total benefit figure to be £369,740.97. The third judgment, on realisable property 46. The recorder dealt with the subject of realisable property in a third judgment. As stated above, he found that the appellant had a half-share in Pendle Road and that the June 2004 transfer of that half-share to his wife was a gift for the purposes of the Act and therefore caught by the relevant provisions relating to gifts: it remained to be counted as realisable property. As for Stag Lane and Frithwood Crescent, he rejected the attempts to say that the true ownership in them was wholly or in part in other people. He found the total figure for realisable property to be £317,943.15, made up entirely of the equity in those three houses save for an additional £10,000 in the appellant’s bank accounts. The fourth judgment on discretion 47. The recorder next turned to the question whether, in his discretion, he should make a confiscation order, and if so in what amount. He concluded that the facts of the case clearly indicated to him that he should: the appellant had over many years made cynical use of council accommodation, obtained at heavily discounted rates, to enable him to profit from not only rental income but also, with the help of further false representations to lending institutions, capital appreciation on his properties. 48. As for the amount of a confiscation order, the recorder, having pointed out that the upper limit was the benefit figure of £317,943.50, and having taken into account the £40,000 already provided to the council by way of compensation, resolved on a somewhat discounted figure of £250,000. The fifth judgment on sentence 49. In sentencing the appellant to a term of imprisonment of 9 months, the recorder made it clear that for the offending itself, he would have had in mind a sentence of 25 months on a conviction, or 20 months on the plea of guilty in the case. However, he took into account the appellant’s previous good character, his age (at 64), his medical condition, and the anxious time that the appellant had suffered over the extended course of the proceedings. He found that no delay was to be laid at the appellant’s door. That was in response to a submission from Ms Rose, then representing him, that back in June his expectations had been that compensation was all that the Crown were asking for, and that he would have been sentenced in the previous year. In the event, the judge reduced his sentence to one of only 9 months. The final ruling, a revised confiscation order 50. Finally, when the Crown came to revisit the question of compensation, because of the outstanding sum of £8,889.73 claimed by the council (£48,889.73 less the £40,000 already paid), the recorder indicated that he was unwilling to add to the appellant’s obligations. Therefore, in ordering further compensation to the council in the sum of £8,889.73, he revisited his confiscation order and revised it down by a round £10,000 to £240,000. This served to re-emphasise that, in selecting the final amount of his confiscation order, the recorder had taken full account of the compensation already paid or payable to the council and had in addition discounted the total benefit figure by some £28,000. The first ground: jurisdiction 51. We therefore turn to the appellant’s first ground of appeal, to the effect that the recorder lacked jurisdiction to make any confiscation order. In the written material before us, this ground was presented as the most significant of the arguments before the court, essentially on the basis which had been argued before the recorder. However, at the hearing of this appeal Mr Valios, while taking this ground first, was willing to accept that it was not his best point, and that the point that he really wished to stress on the facts of this case was that of unfairness (see the second ground below). 52. Thus Mr Valios accepted that even though the statute visualised a prosecutor’s section 72 notice as the trigger for confiscation proceedings under the 1988 Act, and he relied for these purposes on what Lord Woolf had said in Sekhon at para 8 (cited at para 17 above), he nevertheless acknowledged that the essential reasoning of that case (now reaffirmed by other authorities, see below) was to the effect that a timely prosecutor’s notice, although part of the procedure contemplated by the statute, was not essential to the court’s fundamental jurisdiction in entering upon confiscation proceedings: see Sekhon at paras 27/31 and the distinction there made between the court’s jurisdiction under section 71 and the procedural requirements dealt with under section 72. On the facts of this case a prosecutor’s notice in the terms of section 72(1) had been served on the Harrow crown court by at latest 6 January 2005, before the recorder made his confiscation order. Therefore the terms of section 72(1) were fulfilled and we do not have to decide whether the absence of any notice before the making of a confiscation order would have deprived the court of all jurisdiction, even in circumstances where everyone knows that, if a confiscation order is made, it can be made in the sum of at least £10,000. 53. Indeed, on the facts here it may well be the case, and we are inclined to think that it is, that the prosecutor’s statement dated 30 July 2004 was already a written notice which fulfilled all the requirements of section 72(1). That subsection does not stipulate for any particular form other than writing, and it was clear from the prosecutor’s statement that it appeared to the prosecutor that the court would, if it thought it right to do so, be able to make an order in at least the minimum amount of £10,000, since both the alleged benefit and the appellant’s alleged realisable assets vastly exceeded that sum. On that basis, all that happened thereafter was entirely within the contemplated procedure under section 72, and the only error was that the recorder thought that, because the amendments of POCA 1995 applied, he had power to initiate confiscation proceedings himself. It is true that that error appears to have persisted until 6 January 2005 and was shared by the prosecutor himself: but in the circumstances it had no substantive effect on anything, other than in galvanising the prosecution into action at the initial stages. After all, on 9 July 2004 it was already clear to everyone that, at the very least, the appellant had benefited directly to the tune of around £48,000 and was possessed of various properties of value, of which Pendle Road alone had an equity (even if shared with his wife, and even if the appellant’s interest had arguably now been transferred to her) greatly in excess of £10,000; moreover the appellant had brought to court a cheque in the sum of about £40,000 (see paras 30, 33/34 above). In the circumstances, even though there was no formal notice in writing from the prosecutor, it would have appeared to everyone, as it certainly appeared to Mr Connolly, counsel for the Crown on that day, that a confiscation order for the minimum of £10,000 could be made, if it seemed appropriate to the court to make one. Moreover, it would seem from section 72A(1)(b) that the court might be able to postpone the proceedings even for the purpose of “determining whether his benefit is at least the minimum amount”: although it might be argued that formally speaking even that presupposed a prosecutor’s notice, but one that may have led to some dispute. 54. In any event, on the facts of this case it is plain to us, and not strongly disputed by Mr Valios, that, despite the error made by the judge in thinking that he had power of his own initiative, in the absence of a prosecutor’s notice, to embark on confiscation proceedings, there was nothing which should lead us to conclude that that error by itself destroyed the court’s jurisdiction either to postpone sentence or to make a confiscation order on 6/7 January 2005. Mr Valios did not press any point which depended on the use of the term “adjourn” instead of “postpone”. There was no complaint that the postponement beyond the six months was wrongly made because exceptional circumstances were lacking. 55. Moreover, the pre-1995 need for a prosecutor’s notice was simply to protect the court (and defendants) from being overwhelmed by a multiplicity of wasteful confiscation proceedings where the prospects of making an order in a worthwhile amount were dim: see the general note by Professor Martin Wasik on section 1 of POCA 1995 in the publication of that Act before the court. 56. Since Sekhon , other decisions have emphasised the importance of the distinction between errors of procedure, which do not by themselves invalidate proceedings, and matters which undermine the court’s jurisdiction as a whole: see R v. Simpson [2003] EWCA Crim 1499 , [2004] QB 118 , R v. Soneji [2005] UKHL 49 , [2006] 1 AC 340 , and R v. Knights [2005] UKHL 50 , [2006] 1 AC 368 . In effect, the submission under this first ground seeks to resurrect the error of this court (my error) in R v Palmer (No1) [2002] EWCA Crim 2202 , [2003] 1 Cr App R (S) 112 , despite that decision being disapproved or overruled in the subsequent jurisprudence cited above. 57. For these reasons we dismiss this appeal on the ground of jurisdiction. The second ground: unfairness 58. For Mr Valios, this was the principal ground argued on behalf of the appellant. It does not figure at all in the appellant’s written notice of appeal. It was only introduced at the original hearing fixed for this appeal, which resulted in an adjournment and directions, on 20 June 2006. We are told that this court (Lord Justice Moses presiding) then extended leave to appeal for this fresh ground, that of unfairness or abuse of process. We have not been able to confirm that by reference to the partial transcript of the proceedings from that day, but Mr Connolly on behalf of the Crown does not dispute it. 59. This ground, as a separate basis of appeal, appears first to have been briefly raised in Ms Rose’s skeleton argument on behalf of the appellant dated 14 June 2006, albeit it also figured within the argument on jurisdiction. On 20 June 2006 this court granted the appellant representation by leading counsel, hence the entry on to the stage of Mr Valios. He then prepared a new skeleton argument dated 4 August 2006 which dealt with this new ground as follows: “Abuse of process, prejudice and/or Article 6 ECHR (i) It was an abuse of process to instigate and/or permit the Crown to seek confiscation at such a late stage, when the appellant and all parties had believed that, save for sentence in respect of the offence admitted, the Crown were seeking compensation of the actual loss of the local authority and sentence was expected to take place on 9 July 2004. (ii) The appellant in the belief at (i) above borrowed £40,000 towards repayment of the sum of £48,000 lost by the local authority in housing benefit and council tax and thereby suffered prejudice by reason of the Crown thereafter seeking confiscation at the Court’s suggestion. (iii) The appellant was prejudiced by reason of delay and the proceedings were in breach of article 6(1) of ECHR: sentence had been adjourned twice for pre-sentence report and an agreed figure for compensation and final disposition of the case was expected on 9 July 2004 and by reason of the learned recorder’s intervention and ‘instigation’ of confiscation proceedings on that later date the disposal of the appellant’s case was delayed for a further six months and he faced a new and unexpected investigation of his affairs and risk both as to financial consequence and imprisonment that he was not aware of at the time of his considering and entering his plea of guilty. (iv) The learned recorder failed to exercise his discretion under the 1988 Act properly or at all, consequently the appellant was prejudiced and/or there was an abuse of process and/or a breach of the said Convention; his remarks in the course of the hearing on 9 July 2004 showed that he was intent on making a confiscation order in a substantial sum and gave from the start the perception of unfairness. (v) Consequently the court…on appeal has jurisdiction to quash the confiscation order or reduce the same.” 60. In developing this ground before us, Mr Valios has emphasised different strands of the argument as follows. Most seriously, and going even beyond his skeleton argument, he has submitted that the recorder’s remarks on 9 July, cited above, demonstrate that, quite irrespective of his error in thinking that he had a right himself to initiate confiscation proceedings, he was determined to make an order, and in the highest possible amount. It was his intention to make an order, whatever the facts turned out to be. It was rather like lack of good faith in bringing a prosecution. Thus, any appearance of exercising a proper discretion at the hearing on 6/7 January 2005 was mere lip service: his mind was made up. Although the word bias, or even the appearance of bias, was not used, we think that this aspect of this ground amounted to a direct attack on the recorder’s judicial good faith. 61. Alternatively, Mr Valios emphasised a different aspect of unfairness, which he described as an abuse of process, consisting in the prosecution misleading the appellant into thinking that he would be sentenced and be made subject to a claim for compensation, but would not have to face confiscation proceedings. That, he submitted, was the prosecution’s attitude to the offence, as plainly shown by what had occurred up to and on 9 July 2004. But for the judge’s intervention, however legitimate his error as to his right to initiate might have been, especially in the light of the changes already effected by POCA 1995, the appellant would have been sentenced on 9 July and would never have had to face confiscation proceedings. In the result, however, the appellant’s legitimate expectations had been disappointed, and he had suffered prejudice by the delay in sentencing, by borrowing the £40,000, and by the anxiety involved in the confiscation proceedings themselves. Indeed, it was even suggested that the appellant had pleaded guilty on the basis that he would only have to face a compensation order. 62. In either event, Mr Valios submitted that there was unfairness in the process of the confiscation proceedings and a breach of article 6(1) of the European Convention on Human Rights. 63. In this connection Mr Valios relied on the following citations from the authorities. He referred in the specific context of confiscation orders to the acknowledgments by Lord Steyn, Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood at paras 24, 42 and 80 of Soneji that the courts could remedy any undue prejudice arising from excessive delay or lack of good faith by means of the abuse of process jurisdiction and perhaps in other ways. Similarly, he referred to Lord Woolf’s remarks at paras 37 and 48 of Sekhon to the effect that the court could always ensure that, if justice demanded, a confiscation order procured in unfair circumstances could be quashed on appeal, when this court would look beyond technicalities to concentrate on the substance of what had occurred. More generally, he referred to R v. Bloomfield (1997) 1 Cr App R 135 as an example of how the abuse of process jurisdiction has been employed, albeit in a different context, to quash unfair process. However, he accepted that the recorder had never been requested to stay the proceedings for abuse or anything such; and indeed that no complaint of any kind was made to the judge save finally in the context of sentencing on 7 January 2005 (see at para 49 above). 64. In Bloomfield the defendant was charged with possession of a class A drug. At a plea and directions hearing the prosecution indicated to the defendant that it would offer no evidence as it accepted that the defendant had been the victim of a set-up. The judge was so told. Subsequently, following a change of prosecuting counsel, the defence was informed that the prosecution would continue. An application to stay for abuse was rejected, and the defendant pleaded guilty. His appeal was allowed. Lord Justice Staughton, giving the judgment of this court, referred to the Code for Crown Prosecutors for its provision that “People should be able to rely on decisions taken by the Crown Prosecution Service. Normally, if the Crown Prosecution Service tells a suspect or defendant that there will not be a prosecution, or that a prosecution has been stopped, that is the end of the matter and the case will not start again. But occasionally there are special reasons…” Lord Justice Staughton said that no special reasons had been shown to the court. He concluded (at 143): “Looking at the case in the round, it seems to us that this an unusual and special situation. The decision to defer the trial on December 20 was taken for the benefit of the prosecution in order that they would not be embarrassed when it was said in court that no evidence was being offered. The statement of the prosecution that they would offer no evidence at the next hearing was not merely a statement made to the defendant or to his legal representative. It was made coram judice , in the presence of the judge. It seems to us that whether or not there was prejudice it would bring the administration of justice into disrepute if the Crown Prosecution Service were able to treat the court as if it were at its beck and call, free to tell it one day that it was not going to prosecute and another day that it was.” 65. However, he added – “we are not seeking to establish any precedent or any general principle in regard to abuse of process. We simply find that in the exceptional circumstances of this case an injustice was done to this appellant.” 66. On behalf of the Crown, Mr Connolly on the other hand submitted that at the time of the early hearings in 2004 the prosecution were still in the dark as to the true factual position. Meanwhile, they said nothing to the appellant to mislead him. In any event, it could only have been after the hearing of 4 June 2004 that the appellant could have formed any view that matters would proceed without confiscation proceedings – and within the space of five weeks, the appellant knew better. During the whole of this time, only the appellant knew his true financial situation – and he was presenting himself to the court, through his pre-sentence report interview, as impoverished, scrabbling to raise the £33,000 brought to court on 4 June from friends and relations (in fact it was borrowed from commercial lenders). On 20 June 2004, despite what the appellant now said, he had sought to protect himself and/or his wife by transferring his half-interest in Pendle Road to her; and that was not the only purported protective transfer. It was unlikely that he had not received advice from his legal representatives about the possibility of confiscation proceedings – even if it looked for a while that he might, if he kept his head down, get away with only a compensation order against him. There was no evidence that he had been advised that he had nothing to worry about in the shape of confiscation of his benefit through his realisable property. In any case, on 9 July 2004 he was still protesting financial embarrassment while facing a compensation claim in the sum of the £49,000 as a minimum: and any financial investigation would have opened up the can of worms which was already coming into view as the facts were opened to the court that day. The judge was entitled to ask the prosecution to get at the truth of the matter. 67. It may be, Mr Connolly continued, that the judge had erred in thinking that he could initiate confiscation proceedings himself: but that did not mean that he had failed to exercise his discretion. Patently, he had done so at the hearing in January 2005. The material on which he had done so fully justified his order, and in any event this court could exercise its own discretion, if necessary. A fortiori, there was nothing to support a case that the recorder had been in judicial bad faith or paying mere lip service to the need for a properly considered exercise of his jurisdiction. There was no abuse of process. As for Bloomfield , that was a special and different case. There had been an express representation made there, not only to the defendant but also to the court. The calling of no evidence was entirely a matter for the prosecution. In the absence of a prosecution, no question could arise as to any trial of the defendant’s guilt. In the present case, however, what the court was concerned with was the sentencing process of a defendant whose guilt had been established. That process had to be gone through, and it was primarily for the court and not the prosecution. Although the 1988 Act contemplated that a prosecution notice would be the trigger for confiscation proceedings, the substance of that was only in the need for the £10,000 minimum. Finally, if nevertheless there was any unfairness at all, a remedy could be given in the court’s discretion by discounting to some degree the recorder’s order. 68. Over the whole breadth of this ground our mind has wavered somewhat, but of one thing we are sure: that there was no lack of judicial good faith. On the basis of what the judge was told and what he read in his papers for the purposes of the 9 July 2004 hearing, and on the basis that he considered himself, albeit in error, to be sentencing under the 1995 regime, the judge was entitled to be concerned that the prosecutor appeared so far to have ignored the large-scale profiteering that lay behind the abuse of housing and council tax benefit. For the best part of a decade the appellant had falsely presented himself to the council as indigent: he received emergency housing assistance, and secured a five-bedroom house which must have been much in demand by those truly in need. In the meantime, and from the very beginning of his offending, he had owned two houses. He was subsequently to sell one, at a substantial profit, and buy two further houses. His rental income supported the mortgages, so that over the years he had used his offending not only to secure housing and housing benefit to which he was not entitled, but to raise income with which to support and create the opportunity to make capital appreciation out of the growing value of his properties. 69. As for the recorder, despite the strength of his language on 9 July, as to which more below, his subsequent conduct of the confiscation hearings demonstrates that he gave careful consideration to the matters which were then put before him. We say this in any event, albeit subject to the points which are raised before us under the third and fourth grounds of this appeal as to the recorder’s findings on benefit and realisable property. Thus the recorder (a) declined to give effect to the claim to compensation for more than the £49,000; (b) found both benefit and realisable property in total sums less than those put forward in the prosecutor’s statements; (c) deducted the £49,000 paid or payable to the council as compensation from any sum payable under the confiscation order; (d) discounted the maximum sum in which he could have ordered confiscation by a further £28,000; (e) gave to the appellant a merciful sentence of only 9 months, which expressly took account of the submissions made on his behalf concerning inter alia the delay and anxiety involved in the protracted confiscation proceedings. In sum, we think that the submission calling in question a lack of judicial good faith should not have been made. 70. When, however, we turn to the broader submission of unfairness, we conclude on balance that Mr Valios’s submissions are justified. We would not say that there was an abuse of process in the sense in which that term has been used, where applicable, to require a stay or quashing of proceedings. We think that this case is not like Bloomfield , essentially for the reasons put forward in Mr Connolly’s submissions: the recorder here was already seized of sentencing, for an admitted crime. There was never any application to stay the confiscation proceedings; the delays were at each stage accepted by the appellant; and any prejudice he suffered, and we acknowledge that there was some, was inherent in the process itself. We do not, moreover, acknowledge any prejudice by reason of his plea of guilt, nor by reason of his borrowing of funds for the purposes of compensation: for there is nothing whatsoever to suggest that his plea was based on any holding out to the effect that there would be no confiscation proceedings, and his attempts to improve his position for the purposes of sentencing by offering compensation (out of his ill-gotten gains) were tactically understandable and also ultimately assisted him. Moreover, we agree that it was likely that he had been advised by his legal representatives of the dangers of confiscation proceedings. 71. Nevertheless, we think that the prosecution did allow the appellant to think for a while, between 2 April and 9 July 2004, that he would not be pursued for confiscation purposes, only for compensation. We agree that there was no open representation to that effect, but it was implicit in the express mention of compensation without reference also to confiscation, and we think it possible that the implication would have been explained to him by his own legal representatives. 72. Moreover, and this is a matter of real concern to us, we think that the recorder’s remarks on 9 July 2004 were unfortunate. On the basis that he thought that he had the power to initiate confiscation proceedings himself, he had no need to put the matter as strongly as he did, even if he may not at that time have contemplated that he would be requested, by defence counsel herself, to reserve the matter to himself – as a recorder, he was not a permanent judicial member of Harrow crown court. On the true basis that he needed the prosecutor’s cooperation for confiscation proceedings, it was all the more unfortunate that he should have spoken so strongly in demanding that cooperation. The substance of the matter is that, although on the one hand the appellant thoroughly deserved to be required to open up his property dealings to scrutiny for the purposes of a confiscation enquiry, on the other hand but for the recorder’s intervention it seems likely that that enquiry would never have occurred. 73. In sum, while rejecting any necessity to say that the confiscation proceedings should never have taken place, we conclude that there was an element of unfairness in what happened on 9 July 2004. We therefore think that there is a real need to look carefully at the outcome of those proceedings, to enquire whether there is any suggestion, despite what we have said above about the recorder’s apparent exercise of his discretion, of anything going amiss in his findings, and also for the purpose of considering whether, in the exercise of our own discretion, some remedy for the consequential breach of article 6(1) should be granted to the appellant. First, however, it will be necessary to consider the third and fourth grounds of appeal. The third ground of appeal: benefit obtained 74. Mr Valios’s submission under this heading was limited to the complaint that the recorder’s finding of a causal connection between offending and the increase in capital value of the properties was not proven, in particular in relation to Frithwood Crescent. It appears to have been contemplated by the recorder that this last acquired property was “a different creature to the earlier properties”. This was apparently because it was bought with the aid of a further mortgage on Stag Lane, which provided the funds for the deposit of £7,750. However, in our judgment there was no difference in principle between the three properties, even if the causal connection became somewhat weaker over the appellant’s series of purchases. Conifer Gardens’ mortgage was directly supported by the rental income the appellant was able to derive from it as a result of obtaining accommodation from the council at a discounted rental. The subsequent sale of Conifer Gardens provided capital for the purchase of Stag Lane, which was likewise rented out; and the rise in the value of Stag Lane allowed for the further borrowings which supported the purchase of Frithwood Crescent. The only difference, we suppose, was that while the council accommodation directly freed one house for the opportunity of rental income it did not do the same for two. However, without the success which the offence allowed the appellant to make of Conifer Gardens and Stag Lane, he would never have been able to purchase Frithwood Crescent. We think that the recorder was fully justified in finding the necessary causal connection, as to which the statute does not lay down a demanding test: see sections 71(5) and 102(5). 75. There is a different point, however, from that which Mr Valios has presented on this appeal, which relates to the mortgage payments. Should Mr Faull have conceded that the mortgage payments need not be taken into account for the purpose of computing benefit? Although this point was conceded before the recorder, and not raised as a ground of appeal here, our concern about the fairness of the proceedings under the second ground has led us to look at this issue. Indeed, on behalf of the Crown, Mr Connolly was inclined to concede himself that the mortgage payments should have been taken into account. 76. In the absence of adversarial argument, we would be inclined to be cautious. We do not hold that the mortgage payments ought to have been taken into account for the purpose of computing benefit. In any event, the matter was conceded before the recorder. We do consider, however, that the point is capable of debate. The relevant increase in value of the properties was found to be a pecuniary advantage under section 71(5). For these purposes the statute requires the pecuniary advantage to be valued (“as if he had obtained as a result of or in connection with the commission of the offence a sum of money equal to the value of the pecuniary advantage”). What is the value of the pecuniary advantage of an increase in the value of a property the mortgage of which has been paid with the help of rental income which the offence in question has facilitated and which has itself been accounted as a benefit under the statute? It seems to us that it is arguable that the cost of preserving the mortgage and thus possession of the house in that way should be brought into account. It is not as though the pecuniary advantage here in question is a direct benefit, as in R v. Smith [2001] 1 WLR 54 (HL), or in the way in which the housing and council tax rebates were. In Smith the pecuniary advantage was obtained once and for all at the moment of importation of the smuggled cigarettes and constituted the benefit obtained as a direct result of the criminal offence; whereas in the present case the value of the pecuniary advantage is being taken at the time of the confiscation order itself and represents the proceeds of prima facie legitimate activity, viz investing in property. If the mortgage payments had not been regularly paid but had accumulated on the mortgage account, the value of the equity would clearly have been struck after the mortgage liability had been taken into account. 77. However, whatever be the correct view of that question, the amount of a confiscation order under the 1988 Act is ultimately a matter for the court’s discretion: see section 71(1) (“such sum as the court thinks fit”). It would have been open to the recorder, even though the value of the pecuniary advantage had been conceded to have been in the full amount of the then current equity in the relevant properties, to have modelled his confiscation order so as to take into account the financial cost of the mortgages which had, by a process of gearing, produced the capital appreciation in question. However, the point does not appear to have been made to the recorder. We bear these matters in mind, but in the meantime visit the fourth ground of appeal. The fourth ground of appeal: realisable property 78. The question of realisable property raises different issues. For this purpose, the fact of the houses’ current equity value at the time of the confiscation order was all that mattered, so far as value was concerned. That represented “the amount that might be realised” under sections 71(6)(b) and 74(3). Under this heading, however, different questions might arise, namely whether the property in question belongs to the defendant or another. 79. In this connection, Mr Valios’s submissions did not seek to revisit the disputes debated before the recorder, such as whether or not the appellant’s half interest in Pendle Road which he had transferred to his wife in June 2004 could be treated as “a gift caught by this Part of this Act” for the purpose of section 74 of the 1988 Act and thus part of what the Act calls realisable property (see section 74(1)), or whether or not Stag Lane or Frithwood Crescent were partly or wholly owned by other persons. His point was rather concentrated on the judge’s unwillingness, in the exercise of his ultimate discretion, to discount the value of the appellant’s realisable assets so as (a) to make it possible for her to retain her home at Pendle Road in which she had in any event a half interest, and (b) to take into account her general prospective interest in 50% of her husband’s property, as being property brought into the marriage and effectively shared, in part because of her role in contributing towards the mortgage outgoings by means of her own income. For these purposes Mr Valios referred in his skeleton argument, but not in his oral submissions, to some of the jurisprudence in recent years relating to the court’s concern to balance the public interest in stripping offenders of the proceeds of their crime together with a recognition of the wife’s and wider family’s interest in the preservation of a matrimonial home. 80. We were not impressed, however, with this submission. There was in effect no evidence before the court as to Mrs Nwangoro’s position, and she did not give evidence in the confiscation proceedings. Although sometimes referred to as the appellant’s ex-wife, it appears that she and the appellant are separated rather than divorced. It is said that the separation occurred in 1997 and that that was after the purchase of Conifer Gardens, but that is not established by any documentary evidence. In any event, Stag Lane and Frithwood Crescent were both bought after that separation. Her half-interest in Pendle Road was taken into account, so that only half of the equity in that property counted towards the realisable property assessed by the recorder. To the extent that she claims any further interest, and the claim sketched out by Mr Valios was somewhat unfocused, she is entitled to advance that claim in the High Court: see In re Norris [2001] UKHL 34 , [2001] 1 WLR 1388 and Customs and Excise Commissioners v. A [2002] EWCA Civ 1039 , [2003] Fam 55 . Remedy and discretion 81. We revert therefore, in the light of the matters discussed under the third and fourth grounds of appeal, to our conclusion as to the consequences for the appellant of the unfairness which we have found to have occurred in discussing his second ground of appeal. 82. We conclude that that element of unfairness can and should be remedied by discounting the final amount in which the recorder made his confiscation order. In any event that was essentially a matter in the recorder’s discretion, and now in ours. For the reasons which we have discussed above, we think that the judge was careful in the exercise of his ultimate discretion, and it may be that he cannot be criticised, in the absence of a direct submission to the appropriate effect, in not considering whether he should make any allowance for the cost to the appellant of maintaining his mortgage borrowings on the three houses through which he obtained both rental income and capital appreciation. In any event, the recorder made an unallocated allowance both in respect of the compensation payments and in respect of a further £28,000. Moreover, he expressly took account of the effect of delay and anxiety on the appellant in subsequently sentencing him to only 9 months imprisonment. In all these circumstances, we think that the appellant can have no complaint if we provide him with a remedy for the breach of article 6(1) which we have found to have occurred by discounting the amount of his confiscation order by a further £40,000 so as to arrive at a substituted confiscation order in the sum of £200,000. The effect is that, whereas the appellant remains liable to disgorge the capital appreciation which he has managed to secure by means of his offending, he is spared the double effect of repaying in addition the great majority (£68,000 out of £81,000) of the rental income he secured on those properties. That probably fairly reflects, for our current purposes, the mortgage cost or a large part of it of earning that income. Conclusion 83. For these reasons, we would allow the appeal to the extent indicated above, by quashing the confiscation order made by the recorder in the sum of £240,000, and substituting for it a new order in the amount of £200,000. Subject to any further argument which might be addressed to us, we would be disposed to say that the period of imprisonment in default, which under the quashed order was 35 months, should instead be a period of 2 years and 3 months.

```yaml citation: '[2006] EWCA Crim 3061' date: '2006-12-05' judges: - LORD JUSTICE RIX - MRS JUSTICE DOBBS DBE - SIR CHARLES MANTELL ```