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You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	Neutral Citation Number: [2017] EWCA Crim 822 Case No: 201701164/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/06/2017 Before: LORD JUSTICE TREACY MRS JUSTICE WHIPPLE DBE and HIS HONOUR JUDGE PICTON (sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - Between : ZAYDENE SHAHADAT Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Isaacs ( instructed by Sakhi Solicitors) appeared on behalf of the Appellant The Crown did not appear and was not represented Hearing date: 13 June 2017 - - - - - - - - - - - - - - - - - - - - - Judgment Approved Mrs Justice Whipple: 1. On 10 November 2016, in the Crown Court at Leicester, the appellant pleaded guilty to one count of supplying Class A drugs (heroin) and a second count of possession with intent to supply Class A drugs (heroin). He was sentenced to 3 years’ imprisonment on each count to be served concurrently. 2. He appeals against sentence by leave of the single judge. 3. The facts, in summary, are these. On 7 February 2016, prison officers were monitoring the exercise yard of HMP Leicester via CCTV. The prison officers saw the appellant pass a package to another inmate and as a result of that, the appellant was stopped and searched by prison officers before he was taken back to his cell. During the course of the search the prison officers found two separate clear plastic bags. One of the bags contained 1.04 grams of diamorphine at 63 % purity and the other bag contained 13 small wraps of diamorphine weighing 0.94 grams also at 63 % purity. The 13 wraps were made using prison documentation. The value of the drugs in prison was around £2,800. The appellant was arrested. The appellant answered “no comment” to the questions he was asked during his interview. 4. He was arraigned and pleaded guilty on 10 November 2016, and was sentenced by Mr Recorder William Edis QC on the same day. 5. In passing sentence, the Recorder found that a larger amount of undifferentiated heroin had been passed into the prison and had been split up into smaller quantities by someone in the chain of command. He said that drugs in prison were a curse and that the drug trade in prison presented a significant problem to prison authorities, uninvolved prisoners and society as a whole. It created a market which was often enforced by violence, threats and intimidation. The appellant was 28 years old with 14 convictions for 26 offences, including a 2007 conviction for possession of crack cocaine with intent to supply for which he received a community based sentence. He had a subsequent conviction for possession of class C drugs which the Recorder said did not aggravate the offending. In July 2010 the appellant had been sentenced to 7 years imprisonment for three offences of robbery, and it was the recall on that sentence which led to the appellant being in prison in February 2016 when he committed these offences. The Recorder noted the appellant’s personal mitigation, and the fact that between the release from prison and the index offending the appellant had lived a reasonably worthwhile life. In addition, the appellant had pleaded guilty at the first available opportunity. The Recorder referred to the Sentencing Council’s Definitive Guideline on Drug Offences. He put the appellant in category 3 significant role for Class A drug offences. The guideline starting point which the Recorder adopted as the appropriate post-trial sentence was 4 ½ years. Applying a one third discount for the guilty plea reduced the sentence to one of 3 years’ imprisonment on counts 1 and 2 (concurrent). 6. In his appeal to this Court, the appellant, by his counsel Mr Isaacs, argues that the Recorder erred in putting the supply offence within category 3, because it should have been treated as category 4 and sentenced accordingly. In consequence, and bearing in mind the appellant’s personal mitigation, he argued that the sentence was manifestly excessive. 7. The arguments before us centred on the guideline, as that has been interpreted and applied in the following three authorities, none of which appear to have been cited to the Recorder: R v Sanchez-Canadas [2012] EWCA Crim 2204 , R v Bayliss [2013] EWCA Crim 1067 and R v Melim [2014] EWCA Crim 1915 . 8. At the sentencing hearing the parties were in agreement that the appellant should be considered to have fulfilled a ‘significant role’. The Recorder referred in terms to the subcategory contained in the guideline under the heading ‘significant role’, namely “ supply other than by a person in a position of responsibility, to a prisoner for gain without coercion”. The Recorder rejected the appellant’s suggestion that he had acted under coercion, and concluded that the appellant’s role was significant. The appellant does not argue against that part of the Recorder’s conclusions. In our judgment, this appellant’s role was properly categorised as significant. 9. The issue in this appeal relates to the categorisation of harm. Category 3 of the guideline includes the following types of supply which are not dependent on quantity of drugs: “ selling directly to users (‘street dealing’) ” and “ supply of drugs in prison by a prison employee ”. Mr Isaacs argues that because this was not a “ supply of drugs in prison by a prison employee ” within the latter type, it falls outside category 3 altogether. He argues that the guideline deals with supplies in prison in terms, and only those by a prison employee are within category 3; any other type of prison supply must be classified according to the quantity of the drug involved, and in this case the quantity was within category 4. 10. Mr Isaacs relies on the three authorities already noted in support of his argument. The first of those in sequence is Sanchez-Canadas. In that case, the appellant had sent a prisoner a box containing trainers. The soles had been adapted and hidden within them were 10 ¾ grams of heroin and 23 grams of cannabis resin in eleven wraps. The appellant’s explanation in interview was that the drugs were destined for his friend, whose money the appellant had been managing. The appellant was sentenced on the basis that his role was significant and the harm fell within category 3, the sentencing judge saying that although the indicative quantities fell within category 4, their value within prison would be much greater than on the street, and so the offending was elevated this to harm category 3. The appeal against the sentence of 45 months was dismissed but the appeal court arrived at that sentence by a different route than that adopted by the sentencing judge. Specifically, the appeal court held that this was category 4 harm, with a starting point at the top of that category range, significant role. So far as the harm category is concerned, the Vice President (Hughes LJ) said this: “[10] …the judge's approach of lifting the category to category three because this was a supply into prison, runs into the difficulty that the guidelines specifically contemplate exactly that elevation for some kinds of supply to prisoners but not for this one. The guidelines indicate that there should be such a lift where the offence “is supply of drugs in prison by a prison employee”, and this was not. We do not for a moment however dissent from the judge's proposition, which is amply borne out by the universal experience of criminal courts, that supply of drugs into prison is in itself inherently more serious than the supply of drugs generally is. That is because drugs in prison are a currency, an instrument of power, extortion and oppression and they fundamentally undermine the discipline and good order which is essential to running a prison properly. However, the right way to deal with it is not to raise the category as the judge did.” 11. In confirming that this was significant role, the Vice President said: “[13] …it was perfectly proper to treat this level of culpability as more accurately described as a significant role than as a lesser role. The supply of drugs into a prison ought normally to be regarded as best fitting that culpability category. It will ordinarily demand a prison sentence, even when there is no commercial motive and indeed even where the supplier has come under some moral pressure. Supplies by prison officers or other prison employees are more serious still and are separately dealt with by being placed automatically into category three in the harm scale, irrespective of quantity.” 12. We pause here to note that this case concerns drugs smuggled into prison by a friend or associate outside prison. There was no suggestion that the friend or associate was involved in dealing drugs, either inside or outside prison. No consideration was given, therefore, to the other part of category 3 which relates to ‘street dealing’. 13. The second case is Bayliss. These were appeals against sentence by two family members and an application for leave to appeal by a third. Norma Bayliss was the mother of Faine Bayliss, and Candice Ball was Faine Bayliss’ partner. The three had been jointly concerned in the supply of cannabis and buprenorphine to Faine Bayliss, who was at the time of the offences a serving prisoner. The quantities recovered were 454 milligrams of cannabis and 1.552 grams of buprenorphine. The sentencing judge had sentenced all three on the basis that the offending fell within category 3 harm, rejecting the submission advanced before him that this was category 4. On appeal, Faine Bayliss’ counsel argued that the weights of the drugs were firmly within category 4, and that the guidelines covered cases of smuggling drugs into prison, which offences were only elevated to category 3 when they were committed by prison employees [8]. Norma Bayliss and Candice Ball argued that Sanchez-Canadas applied and that their offending fell within category 4 [10]. The appeal court (His Honour Judge Melbourne Inman QC giving judgment) held that the sentencing judge had been in error in escalating the offending from category 3 to category 4 to reflect the fact that the supply was into prison, and that the quantities of drugs were clearly within category 4 [13]. The court held that the sentence of 2 ½ years for Faine Bayliss was not manifestly excessive; it was properly at the top end of the range for a category 4 offence, leading role, less discount for guilty plea. Leave was refused. Norma Bayliss’ appeal against sentence of 10 months’ imprisonment was dismissed. Candice Ball’s appeal against sentence of 16 months’ imprisonment was allowed and a sentence of 10 months substituted. 14. Again, we pause to note that there was no suggestion in Bayliss that any of the offenders were dealing drugs. There was no discussion of the street dealing limb of category 3. 15. The third and most recent case is Melim. That was an appeal against a sentence of 3 years’ imprisonment for two drugs offences. The appellant had sent letters to two inmates, the first containing 33 grams and the second containing 18 grams of cannabis resin. The sentencing judge said that he was not bound by the guideline on the facts of the case because this was a supply into prison. He imposed a sentence of 3 years on a plea. Wilkie J, giving the judgment of the Court of Appeal, said this: “[14] Where the guidelines deal with the level of harm, in the vast majority of cases, that will be assessed by reference to the quantity of drugs involved in the supply. However, exceptionally, in the case where the offence is supply of drugs in prison by a prison employee, the starting point is said not to be based on quantity but will fall into category 3 of harm, even though the quantity of the drugs supplied is not of an amount which would normally result in harm being assessed at that level but would be at the lower level of category 4. [15] The amount of drugs which were supplied and reflected in these two counts would normally have been placed within category 4 level of harm. In the authorities, applying the sentencing guidelines to offending comprising supply by a non-prison employee into prison, certain principles emerge. We have been referred particularly to the case of R v Sanchez-Canadas … and R v Bayliss … The effect of these decisions is to reflect the guidelines, that is to say in terms of culpability, the role is normally said to be at least significant. Where, as here, the quantity would otherwise fall within category 4 and the supply is by a non-prison employee, then that is the level of harm which must apply. However, those cases also establish the proposition that the fact that the offending comprises supply of drugs within or into prison is to be regarded as a highly aggravating feature, normally placing the level of sentence at the top end of the appropriate range described in the guidelines.” The appeal was allowed, and a sentence of 9 months was substituted. 16. We note that in this case too, there was no suggestion of dealing within prison, nor in consequence any consideration of the street dealing limb of category 3. 17. All three of these cases concern relatively small quantities of drugs being smuggled into prison from outside by friends, associates or relatives, not being employees of the prison. Because the supplier or associate in each case was not a prison employee, and the quantities were small, the harm caused by the offending fell into category 4. In none of these cases was there any suggestion that the offenders had been engaged in drug dealing, and in none did the sentencing judge or the appeal court consider the part of category 3 which refers to ‘street dealing’. In short, the facts of all these cases are very different from the facts of this appeal; and the issue which arises in this appeal was simply not canvassed or addressed in any of them. In our judgment, these authorities do not assist the appellant. 18. Under the guideline, three types of supply fall within category 3: (i) where the offence is selling directly to users, ie ‘street dealing’, (ii) where the offence is a supply in prison by a prison employee, and (iii) where the quantity of drugs puts the offending into that category. With regard to (i) and (ii) the amount of the drug involved is irrelevant – the categorisation depends on the nature of the supply and not the amount of the relevant drug actually supplied. These are different routes into category 3, each of which is independent of the others. The cases referred to earlier demonstrate that a supply into prison which is made by someone other than a prison employee may fall outside category 3 if the recipient is the end consumer of the drugs and the amount supplied is smaller than the quantities identified in the guideline. But the supply of drugs within the prison community is not automatically excluded from category 3 just because it is undertaken by someone other than a prison employee. To the contrary, the supply by a prisoner selling directly to others can still fall within category 3, either because of the quantity involved or, as in this case, because the facts disclose that it was ‘street dealing’. Whether it does or not will depend on the facts of the case. 19. We make the obvious point that ‘street dealing’ is a term of art. The supply does not need to take place on a street in order to be ‘street dealing’. The essence of street dealing, as the guideline states, is that it involves selling directly to users. A person engaged in that activity is a ‘street dealer’, even if they are operating within the prison walls, just as they would be if they were operating outside prison, on the street. 20. We return to the facts of this case. The number of wraps in the possession of the appellant, wrapped in paper from prison documentation, and the fact that the appellant was observed selling drugs in the yard serve to confirm that he was, in effect, street dealing. Defence counsel acknowledged that if the behaviour of the appellant, as captured on prison CCTV, were transposed to the street then significant role category 3 would be the correct classification of the offence. It would be illogical if the fact that the appellant was in prison produced a different result and wholly unjust that this offence should be put in a lower category than if he had been dealing on a street corner. 21. The Recorder’s starting point was 4 ½ years. That is the guideline starting point for Class A, category 3 significant role. Following Melim at [15], the Recorder should have moved up from that starting point towards the top of the range, to reflect the highly aggravating feature of a supply within prison. 22. The Recorder considered the aggravating and mitigating factors. He concluded: “Doing the best I can to balance those factors out, I think the starting point should be the end point…”. There was personal mitigation available, but, if anything, the appellant was somewhat fortunate in this assessment. 23. The Recorder then reduced the sentence by a third to reflect the plea entered at the first available opportunity and imposed a sentence of 3 years’ imprisonment. 24. The sentence was not excessive and accordingly this appeal is dismissed.	```yaml citation: '[2017] EWCA Crim 822' date: '2017-06-27' judges: - LORD JUSTICE TREACY - HIS HONOUR JUDGE PICTON (sitting as a Judge of the CACD) ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	No: 2005/6047/A3 Neutral Citation Number: [2006] EWCA Crim 285 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 9 February 2006 B E F O R E: LORD JUSTICE KEENE MR JUSTICE STANLEY BURNTON SIR RICHARD CURTIS - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 112 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) - - - - - - - MISS S BENNETT JENKINS appeared on behalf of the ATTORNEY GENERAL MR R CRABB appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. LORD JUSTICE KEENE: This is an application under section 36 of the Criminal Justice Act 1988 by Her Majesty's Attorney General for leave to refer a sentence to this court because it appears to him to be unduly lenient. We grant leave and we treat this therefore as the hearing of the Reference. 2. On 21st October 2005 at the Crown Court at Exeter before His Honour Judge Boothman, the offender was convicted after a trial of four counts of indecent assault. On the same occasion he was sentenced to 30 months' imprisonment on each count concurrently, making a total of 30 months' imprisonment. He was disqualified from working with children and ordered to register as a sex offender indefinitely. 3. The four counts involved three victims to whom we shall refer as L, A and B. L and A were aged 11 at the time of the offences and B was 14. The offences consisted in each case of masturbating the victim, in two instances to ejaculation. Two of the offences were against L. In three of the offences the victim was at the offender's home at night for a sleepover because the victim was a friend of the offender's nephew who lived with him. The other offence took place while the boy was camping in a tent with the nephew. 4. The offender was a cub scout leader and one of the victims was a cub scout. The offender was in his late thirties at the time of these offences. The first offence against L took place in 2000 at the offender's home. The offender told L that he had a nice stomach and began to rub the victim's stomach. The offender then began to touch the victim's penis and to masturbate him to ejaculation. He told the victim this was to get rid of the old sperm so that new ones could be made. The offender persisted in the assault even though the victim asked him to stop. The victim did not know what to do to stop the offender but said he realised that what the offender was doing was wrong. He was told not to mention what had taken place. 5. The second offence against L was in the same year and took place in a tent. The offender came in, laid down beside the victim and again masturbated him to ejaculation. Some time later the victim asked to see a counsellor. He was unable to describe orally what had happened and in the end put the details down in the form of a letter. 6. The second victim, A, was assaulted in 2002 and again was 11 at the time. He met the offender through the scout movement since this victim was a cub scout. During a sleepover the offender began to masturbate the victim. He told him that he had been a nurse and that as part of his work he had to rub oil into young boys' penises. On his return home the victim had been upset and did not want to go to scouts any more. He later left the scout movement. 7. The third victim, B, was assaulted in early 2003 when he was 14. During a sleepover the offender gave him alcohol in the form of lager and vodka. This caused the victim to vomit. His pyjamas were then changed and he was put to bed. The victim's memory of events is somewhat clouded by the alcohol which he was given, but he recalled waking up to find the offender touching his penis. The offender masturbated the victim. The victim resisted and pushed the offender away causing him to fall off the bed. The victim was noted by his mother to be quiet and withdrawn when he returned from the sleepover. 8. The offender denied all the allegations at interview and did so again at trial. He is now aged 42. He has a previous conviction for indecent assault on a 10-year-old boy. That took place in 1979 when the offender was aged 15. 9. Counsel for the Attorney General submits that the sentences passed in this case failed to reflect properly the seriousness of the offences, the need to deter others from offences of this kind and public concern about such cases. 10. Attention is drawn on behalf of the Attorney General to a number of aggravating factors in the case. First, the offences involved a breach of trust in respect of the victims. Second, there were three separate victims of this indecent behaviour. Third, they were all young. Fourth, the indecent conduct was of a persistent nature. Fifth, the nature of the indecency is described on behalf of the Attorney General as being serious, involving in two of the instances masturbation to ejaculation. Sixth, reference is made to the offender's previous conviction for indecent assault. Seventh, one of the victims was given alcohol by the offender and then indecently assaulted after he had fallen asleep. And finally, attention is drawn to the effect of these offences on the victims. We shall return to that in due course. 11. Miss Bennett Jenkins, who appears today on behalf of the Attorney General, recognises that there was no evidence of grooming the boys or of payment of money to them. Nonetheless, on the authorities, to which we shall come, it is submitted that the sentence of two-and-a-half years was and is unduly lenient. 12. For the offender Mr Crabb accepts that the sentences passed in this case were lenient, but he challenges whether they were unduly so. He emphasises that the previous conviction for indecent assault took place a long time ago when the offender was only 15. He also emphasises that these were not specimen counts and that no threats were employed by the offender nor, as we have indicated already, was any money used in order to persuade the boys to allow the indecency to happen. It is accepted by Mr Crabb that these were serious offences and accepted also that they must have had some effect on the boys but it is argued that the judge heard the boys give evidence and was therefore in a good position to assess the impact on them. Moreover, our attention is drawn to a recent report on the offender which indicates that he now recognises his responsibility for these offences and has asked to be assessed for a sex offenders treatment programme. Consequently, the submission is that the sentences passed here were not unduly lenient. 13. Before turning to the authorities we remind ourselves that cases of indecent assault on boys can vary greatly in their facts. The acts amounting to indecent assault vary, so of course does the age of the victim, as does the number of victims and the effect on the victim or victims. Nonetheless, having said that, it seems to this court that some guidance can be obtained from previous decisions. In Clarke [1997] 2 Cr.App.R (S) 53 there were three victims aged between 11 and 15 and the defendant was, as in the present case, in a position of trust. The assaults, again, consisted of masturbation. Three years' imprisonment after pleas of guilty was upheld on appeal. 14. In Nicholson [1998] 1 Cr.App.R (S) 370 the appellant had been convicted after a trial. He was convicted of nine offences in respect of two victims. He had some previous convictions for such offences and there was a breach of trust involved. Again the general nature of the assaults was that of masturbation, although not to ejaculation. A total of four-and-a-half years' imprisonment was upheld. 15. Finally, in Staples [2001] 2 Cr.App.R (S) 119, a scout master was convicted after a trial of 17 counts against four victims aged between eight and 11. Most of the charges, though not all, involved touching the boys' penises over their clothing. Four years' imprisonment in total was upheld on appeal. 16. There can be no dispute, it seems to us, that the present case contained a number of aggravating features. In particular, the offences involved a breach of trust. There were three victims in all. They were aged 11 in two cases and 14 in the other. Two of the offences involved masturbating to ejaculation and in one of the others alcohol was administered to the boy almost certainly in order to secure his sleepy compliance. 17. Given the passage of over 20 years since the previous offence, we do not attach great weight to the offender's record, but the sentences in this case did have to reflect two further factors. First, the effect on the victims who seemed to have been troubled and considerably upset by these events. We have seen impact statements which the sentencing judge did not have before him. They indicate for example that one of the victims found that he could not sleep after the offence against him. Another refers to the offences as having had a devastating effect on his relationship with girls and that he feels very insecure. The other factor to which we would refer is the absence of any pleas of guilty in this case. That of course does not increase the sentence but it means that there is no mitigation available in that respect. All three victims in this case had to go through the trial process and to give evidence and thereby relive these unhappy experiences. 18. We take into account the matters referred to by Mr Crabb on behalf of the offender but having done so we conclude that the total here of two-and-a-half years' imprisonment after a trial simply did not reflect the serious features to which we have referred. That total sentence was not merely lenient, it was unduly so. 19. An appropriate sentence in total at first instance in this case would have been one of five years' imprisonment. We have of course to make allowance for the fact that the offender has already been sentenced once and has been under the impression for a time that his total sentence was 30 months' imprisonment. We allow therefore for the factor normally described as double jeopardy. Doing so, we conclude that the appropriate sentence now is one of four years' imprisonment on each count to run concurrently. We therefore quash the sentences of imprisonment imposed below and in their place impose ones of four years' imprisonment on each count to run concurrently. That will therefore give a total of four years' imprisonment.	```yaml citation: '[2006] EWCA Crim 285' date: '2006-02-09' judges: - LORD JUSTICE KEENE - MR JUSTICE STANLEY BURNTON - SIR RICHARD CURTIS ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	No: 2007/00560/D3 Neutral Citation Number: [2007] EWCA Crim 2913 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Thursday, 15th November 2007 B E F O R E: LORD JUSTICE GAGE MRS JUSTICE COX DAME HEATHER STEEL DBE R E G I N A -v- IAN PHILIP CRAIG 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 O Willmott appeared on behalf of the Appellant Mr O Oldland appeared on behalf of the Crown Judgment 1. 1. LORD JUSTICE GAGE: On 18th December 2006 at the Exeter Crown Court, the appellant was convicted of using criminal property (count 1), two counts of transferring criminal property (counts 2 and 3) and possession of criminal property (count 4). On 19th December 2006, before the same judge, he was sentenced to a total of 42 months' imprisonment. 1. 1. There were two co-accused, one of whom had died before the trial. The second was Michelle Ann O'Brien. She was convicted of facilitating the retention of criminal property (count 5) and acquisition of criminal property (count 6). She was sentenced on 19th December 2006 to 51 weeks' imprisonment on each count concurrent, suspended for 2 years. At the time of the offences alleged against her she was the appellant's girlfriend. 1. 1. The prosecution case was that over a period covered by the counts in the indictment, the appellant had used quantities of cash, expensive motor vehicles, motorcycles, jet skis and other items, which could not be justified on the wages that he had earned. It was their case that tax and National Insurance records showed that over this period the appellant had not been employed or earning. There was, accordingly, a substantial disparity between the use by him of substantial sums of cash and the fact that his income was declared as nil. The prosecution invited the jury to conclude that there was an overwhelming inference that the appellant's source of funds was derived from criminal activity, most probably, but not necessarily exclusively, from dealing in drugs. 1. 1. The appellant's case was that for many years, in different employments and working for or with different employers or business partners, he had accumulated substantial funds which he kept in bank accounts and in a nest egg, kept in the home of a former partner and also in the home of his girlfriend, his co-defendant. 1. 1. During the course of being interviewed by the police, the appellant outlined the nature of his work since the early 1990s. He identified a number of those for whom he had worked, who were business partners of his. In this way he sought to demonstrate how he had managed to save substantial sums of money. He accepted that he had paid no tax or National Insurance. It was not in dispute that his failure to pay tax or National Insurance would not found the basis of any offence of using or possessing criminal property. 1. 1. In order to rebut the appellant's case that his funds had been earned by legitimate work or trading, the prosecution called as witnesses some of his business partners and employers. Some of them, in the course of their evidence, volunteered evidence of the appellant's criminal conduct, either of taking money from them or by embezzling sums paid to him for work done for his employers. 1. 1. The prosecution did not attempt to identify the criminal conduct which gave rise to the acquisition by the appellant of his funds or of the motor cars, save to allege that its primary case was that the most likely way in which the appellant had come by these large sums of money was through drug dealing. 1. 1. In the course of its case the prosecution put forward a schedule which showed that between 30th March 2004 and 6th October 2005 the appellant spent on various purchases of motor vehicles, holidays or other transactions the sum of £123,583, of which £92,303 were cash transactions, and a further £23,790 was a sum of cash recovered from the home where he and his co-accused lived. This was the sum that formed the basis of count 4. Bank statements from the Halifax Bank of Scotland and Barclays Bank demonstrated payments into accounts held by the appellant in the total sums alleged in counts 2 and 3 of the indictment. 1. 1. In view of the grounds of appeal and the way the case has been presented to this court, it is unnecessary for us to outline in any great detail the evidence adduced by the prosecution. The bank statements were agreed documents. Indeed, all the documentary evidence before the court was agreed. 1. 1. Of those who had worked with or employed the appellant, the prosecution called four men: Stephen Butcher, who worked with the appellant installing windows; Barry Peach, who worked with the appellant in a company called Sekura; Graham Wilkinson, who was also concerned in Sekura; and Andrew McEwan, who worked with the appellant installing windows in Watford and the London area at weekends. These witnesses gave evidence either to the effect that the appellant had not earned huge sums of money when working with them or, as in the case of Peach and Wilkinson, that he had taken from the business money to which he was not entitled and had embezzled. Other witnesses were asked to rebut the appellant's suggestion at interview that he had sold machinery for large sums in cash. 1. 1. The prosecution also called an expert witness who gave evidence of mass spectrometry tests on the money taken from Miss O'Brien's house and on various mobile telephones. These revealed that there was a greater amount of contamination with controlled substances than is usually found. 1. 1. The appellant gave evidence. He did so over four days and he was comprehensively cross-examined. He dealt extensively with his previous employment, including working with Mr Wilkinson and Mr Peach. He denied taking money unlawfully from either of them. 1. 1. In summary, so far as the relevant time is concerned, he said that after October 2004 he did various jobs for people which included decorating, and various work for the Golden Lion for which he was paid around £5,000 in cash. He said that a further £10,000 came from a woman named Alison Lowe. He said that she gave him the money as it was not earning enough interest in her bank account. He said that he was intending to buy a plot of land with it from an estate agent, Mr Taverner, and there would have been a profit. He said that this piece of land came off the market in June 2005. He said that the purchase price was for the land. He had no idea what the building cost was going to be, so no idea what sort of profit he was going to make. 1. 1. He said that he had sold a piece of machinery in about June 2003, then another in November 2004 for around £2,800. He sold some machinery to Powerglaze for £7,000. He said that Mr Thompson was the middleman. He said that he took more machinery to Mr Thompson in Scotland and that he received £10,000 in cash. This money went back into his nest egg. He said that he went to Scotland in a van to purchase machinery from Mr Thompson. He said that a number of the payments made into his account were monies paid back for monies that he had taken out to purchase cars. 1. 1. He said that when he went to Euroframes from Torbay Conservatories and Windows there were still outstanding jobs which Euroframes were able to complete. He said that in March 2000 there was £31,000 payable to him after payment of the mortgage and remortgage of a house that he had sold, namely 4 Harberton Close. He said he had always had flash cars and that he had a nest egg. He had built up around £120,000 in cash. He said that £24,000 of that money was in the safe at Miss O'Brien's house. He said that the other £96,000 was at one time under the stairs at Wendy Lee's house. He said that she did not know this. At another time it was in Miss O'Brien's hall cupboard in a bin liner or a plastic bag, but again this was not to her knowledge. He said he met Miss O'Brien on 17th July 2005 in a public house. He moved in with her shortly afterwards. 1. 1. He denied ever using class A drugs. He accepted in cross-examination that he did not have any receipts for the machinery, but denied the suggestion that the machinery in his possession did not belong to him. On his behalf some seven witnesses were called. 1. 1. There are two grounds of appeal for which the appellant has leave. A further ground was suggested by the single judge when giving leave, and it is now put forward before this court by way of amendment. 1. 1. We deal first with ground 1. It is contended on behalf of the appellant that the judge wrongly ruled and misdirected the jury in relation to matters which it would have to find proved in order to convict the appellant. This has been referred to throughout the appeal before us as the Brown point, because it depends upon the decision of R v Brown (1984) 79 Cr App R 115. 1. 1. To understand this properly it is necessary to look at the statutory provisions relating to criminal property. "Criminal property" is defined in section 340 of the Proceeds of Crime Act 2002 . Subsections (1), (2), (3), (4) and (5) read as follows: "340-(1) This section applies for the purposes of this Part. (2) Criminal conduct is conduct which — (a) constitutes an offence in any part of the United Kingdom, or (b) would constitute an offence in any part of the United Kingdom if it occurred there. (3) Property is criminal property if — (a) it constitutes a person's benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and (b) the alleged offender knows or suspects that it constitutes or represents such a benefit. (4) It is immaterial — (a) who carried out the conduct; (b) who benefited from it; (c) whether the conduct occurred before or after the passing of this Act. (5) A person benefits from conduct if he obtains property as a result of or in connection with the conduct." 1. 1. It is relevant to return to and note that the mens rea in respect of an such offence is that the alleged offender knows or suspects that the property constitutes or represents such a benefit. 1. 1. In this case it is contended on behalf of this appellant that there were a number of ways in which the alleged criminal property in the hands of the appellant could be criminal property. It is said that the jury could have concluded that any one of six alternatives could have made the property criminal property, quite apart from it not being criminal property at all. Those six ways are set out by counsel in his skeleton argument at paragraph 8. We shall read them: "(1) They could have concluded that the disparity between Mr Craig's legitimate sources of wealth and his apparent wealth was such that while they could not necessarily be sure that his wealth was the proceeds of any particular crime, they were sure it was the proceeds of some crime or another. (2) They could have been sure that the property was the proceeds of theft of machinery from the Wilkinson partnership or (3) the embezzling of money from the Peach partnership or (4) the theft of vans from the Peach partnership or (5) the theft of machinery from the Peach partnership. (6) Finally they might have concluded that Mr Craig was a drug trafficker." 1. 1. So it is submitted, by parity of reasoning of this court in Brown , the judge should have directed the jury that they must all be sure as to which of these alternatives were proved. It was, it is submitted, not sufficient for some members of the jury to be sure that one alternative was proved and other members of the jury to be sure that another was proved. They must all be sure that the same route to criminal property was proved. 1. 1. In support of this submission, counsel has referred this court to a number of other decisions, but the one which he relies on as setting out the test most appropriately is R v Morton [2003] Crim LR 73. He relies upon a passage in the Criminal Law Review report in which Rix LJ said: "In our judgment a Brown direction may be required in principle in all cases where a single judge or juror could not satisfy himself of guilt without improperly aggregating the factual allegations necessary to guilt. Thus in the context of Brown a single judge could not say to himself: I am not satisfied as to fraudulent dishonesty in the case of any single one of the alleged statements relied on by the prosecution, but there is sufficient suspicion arising from the alleged statements in aggregate to satisfy me of guilt." 1. 1. The judge ruled against the submission made on behalf of the appellant that this direction should be given to the jury. Indeed, he did not give such a direction to the jury. 1. 1. Mr Willmott submits that he should have given such a direction. He submits that in the particular circumstances of this case the jury would have to decide which of the strands of criminal conduct it relied on to prove that the property was criminal conduct. For instance, he submits that when the judge, as he did, gave the jury a direction about what constituted theft, that was an invitation for the jury to conclude that some of the property was the proceeds of theft, but they might equally have thought that some of the property came from other offences. Accordingly, this was specifically a case where the judge ought to have given the Brown direction. 1. 1. We have no doubt that the Brown principle does not apply on the facts of this case. The 2002 Act has been described as draconian in effect. What the jury must be sure of is that the property was criminal property. In our judgment it was designed to overcome defences put forward on precisely the basis that is raised by this ground of appeal. It would place a huge burden on the prosecution if it had to prove only one route by which the property was criminal property and negative all other routes. In this regard, the word in respect of mens rea , namely suspect , is in our judgment relevant and important. 1. 1. As counsel for the prosecution points out in his skeleton argument, the statutory definition of criminal property is non-specific as to the way in which it became criminal property. Mens rea is, as we have pointed out, described as the offender knowing or suspecting that the property constitutes or represents a person's benefit from criminal conduct. This clearly indicates a general definition of criminal property. 1. 1. Counsel for the prosecution, Mr Oldland, relies on the decision of Butterfield J in R v Kelly (unreported), in which he said of similar submissions made to him as follows: "In appropriate cases prosecutions may be brought where it is not possible for the Crown to prove by direct evidence the involvement of the defendant in the commission of specific criminal offences nor the receipt of monies by him arising out of the commission of specific criminal offences. If Mr Lewin's submissions were correct then the law would actually be more restrictive than the previous legislation where the prosecution had to prove either that the money came from drug trafficking or from other criminal conduct. That difficulty has been overcome by the much wider and more general provisions of the new Act. Whilst the prosecution must prove that the property is 'criminal property' within the meaning of the statutory definition, there is nothing in the wording of the section which imports any further requirement that the property emanated from a particular crime or a specific type of criminal conduct." 1. 1. We accept this as a correct statement of principle, although it was given in a case where the point was not raised in the way in which it has been today. Accordingly, in our judgment this ground fails. 1. 1. We turn to the second ground of appeal. This ground of appeal in our judgment has more substance. The appellant complains that the summing-up was defective, in that the defence case was not properly put and the appellant’s evidence not placed before the jury in such a fashion as to enable the jury to understand it. In his skeleton argument, Mr Willmott has helpfully analysed the summing-up to demonstrate that the appellant's evidence was only summarised in the most partial way. There was no coherent setting out of the defence response to the prosecution allegations. It was rarely referred to by the judge without being accompanied by material which undermined it. In summary, it is submitted that the cardinal line of the defence was never properly reflected in the summing-up. 1. 1. In the course of his submissions this morning, Mr Willmott has taken us to examples of the evidence relied upon by the defence, which were either not referred to at all or only referred to very briefly by the judge in his summing-up. The establishment of any one of these matters as something which the jury were sure of or might be sure of would, it is submitted, have helped to bolster the credibility of the appellant in what was, after all, quite a strong case against him. 1. 1. Counsel for the prosecution, Mr Oldland, submits that the issue in the case was really very simple. In evidence, the appellant was quite unable to account for his admitted expenditure between October 2004 and October 2005 in relation to his earnings. It is submitted that by the end of the evidence, the appellant had simply failed to account for the disparity between his expenditure and his receipts. In particular, Mr Oldland relies on the fact that, although the appellant asserted a large nest egg as the source of the funds, his evidence in that respect was unrealistic and unbelievable. Allowing for the fact that he did not have to prove his defence, it is submitted that all the suggestions put forward by him to account for the way in which he had spent the money or accumulated sums were rebutted by the prosecution evidence and in cross-examination. In short, the prosecution submit, through Mr Oldland, that the prosecution case was overwhelming. 1. 1. In his skeleton argument Mr Willmott has set out the evidence and arguments in respect of what are said to be seven sources from which the appellant derived sufficient money to account for the shortfall between his expenditure and his income. He refers us to the evidence of the appellant in respect of some of these matters, and the way the judge summed them up to the jury. Before us this morning we invited him to take us through one particular matter about which that complaint is made. He did so. It is clear that in that particular case the judge's reference to the defence is, to say the least, cursory. 1. 1. In our judgment, read as a whole the summing-up demonstrates that the observations of the single judge when granting leave were fully justified. He said this: "For my part I cannot discern with any clarity what the Crown's case was with respect to each count in turn - there seems to be no attempt made systematically to focus the jury. Should not the jury have been directed to consider Counts 2, 3 & 4 before considering Count 1? Again, I cannot discern the nature of the Defence case whether as a definable whole or with respect to each count. It is arguable that it has not been summed up: the Appellant's own evidence is not recited and what should have been an exposition of the Defence case becomes a recital of hitherto overlooked Prosecution evidence from the witness, Ebejer. [He was the scientific officer giving evidence about contamination of bank notes.]" 1. 1. In our opinion it is not only arguable that the defence case was not properly summed up in a coherent manner, it is a fact that it was not properly summed up. The summing-up starts with a long recitation of evidence from witnesses who had employed or worked with the appellant interspersed with a summary of other evidence. It follows no very logical or coherent pattern, and is interspersed with some (but not very many) references to the appellant's evidence and some (but not very many) references to evidence called on his behalf. 1. 1. The appellant's case in all occupies a little over the four of the 56 pages of the summing-up. Throughout the summing-up there are references to five of the appellant's seven witnesses, most of them in a cursory manner. Two others were not referred to at all. 1. 1. We are bound to say that the effect of the summing-up on the reader is, as the single judge said, to leave one with no clear idea of what was the defence. Of course we recognise that the jury having heard the evidence would have been in a better position to understand the summing-up than this court. There is force in the submission made to us by Mr Oldland that this was a strong case, and that the jury took a short time to find the appellant guilty. 1. 1. However, it is a cardinal rule of a jury trial that the judge should lay the defence before the jury in a clear and understandable manner. This is particularly necessary, in our view, when dealing with prosecutions under the money laundering provisions of the Proceeds of Crime Act 2002 . The offences as here are widely drawn. The statutory provisions are, as we have already said, draconian. In this case the defence had the task of showing that the inference which the prosecution invited the jury to draw from the appellant's admitted possession of large quantities of money was not that of money laundering. The appellant had to deal with a number of detailed, albeit admitted, cash receipts and withdrawals. In his attempt to explain the receipts as honest transactions, albeit not declared for tax purposes, it was necessary to deploy evidence by way of explanation of the sums passing to and from his bank accounts or in his possession as cash. In this respect, his evidence and the evidence of his witnesses was vital to his defence. It required a careful and focused exposition in the summing-up by reference to the facts and by reference to the counts on the indictment. Sadly, in our judgment the defence was not properly and coherently placed before the jury in the summing-up by the judge. 1. 1. We accept, as we have said, that this was a strong case and we are invited by Mr Oldland to say that, despite such deficiencies as we have found in the summing-up, the verdicts are nevertheless safe. We have concluded that we cannot do so. Where, as here, the defence has not properly been laid before the jury in the way in which we suggest it should have been, in our judgment the appellant cannot be said to have had a fair trial and the result is that the appeal must be allowed. 1. 1. We deal with one other matter raised by the single judge, the question of whether count 1 was drawn too wide. Counsel adopts this as a ground of appeal and seeks leave to advance it. There is no reason, in view of our decision, to grant leave nor refuse it. Since we have already concluded that the appeal must be allowed, it is strictly unnecessary for us to deal with this ground. However, we would point out that when the prosecution seek to put forward a count as widely drawn as count 1, at the least the prosecution should give particulars of each of the matters relied on as criminal property. If this is not done, there will be a temptation for the trial to involve an inquiry that is much wider in scope than is necessary or appropriate. We are not, in making this observation being critical of the prosecution or of Mr Oldland, because the fact of the matter is that this was never raised by the defence before or at trial. It can therefore hardly be said that the defence were in any way prejudiced by the way in which count 1 was framed. 1. 1. However, we draw attention to what we would regard as best practice, namely that in cases such as this involving an assertion of use of criminal property and indeed of possession of criminal property, the prosecution would be well advised to give full particulars, either by way of particulars to the indictment or by way of a statement before the case is opened to the jury. 1. 1. However, for the reasons which we have endeavoured to explain, the appeal is allowed on ground 2 of the grounds of appeal. 1. 1. MR OLDLAND: My Lord, the respondents seek a retrial in this case -- 1. 1. LORD JUSTICE GAGE: Yes. 1. 1. MR OLDLAND: -- and ask you to exercise your powers under section 7 of the Criminal Appeal Act and to order a retrial. 1. 1. LORD JUSTICE GAGE: When you say expedited, I did not know there was such a provision. 1. 1. MR OLDLAND: Exercise. 1. 1. LORD JUSTICE GAGE: I am so sorry. 1. 1. MR OLDLAND: To exercise your powers under section 7. As your Lordship has already remarked, we submitted to this court, and it was accepted at least in part by this court, that this was a strong prosecution case. It is and remains a strong prosecution case. It is also a serious and important case. We would submit the sums of money involved are by no means -- 1. 1. LORD JUSTICE GAGE: Let us see what Mr Willmott has to say about that. 1. 1. Mr Willmott. 1. 1. MR WILLMOTT: My Lord, this. The release date for Mr Craig is 4th April next. 1. 1. LORD JUSTICE GAGE: I am sorry? 1. 1. MR WILLMOTT: Mr Craig's release date is 4th April next. 1. 1. LORD JUSTICE GAGE: Yes, but it is not unimportant, even if he were released. Are there any confiscation proceedings? 1. 1. MR WILLMOTT: My Lord, there has been a confiscation order. 1. 1. MR OLDLAND: The sum confiscated, which has now been realised by the sale of the various cars, and so on and so forth, is a little over £80,000. 1. 1. LORD JUSTICE GAGE: Yes. 1. 1. MR WILLMOTT: My Lord, the only submission can be this, that the bulk of the sentence has been done, that the appellant is presently being assessed for home detention curfew. It may be in the present climate that that, and given the nature of the offence, that that assessment is successful, in which case in terms of the penal aspect of the sentence, it has effectively by and large been served. 1. 1. The question as to the confiscation in my submission is this. It is clearly a significant sum, but the amount of court time, the initial trial running to more than three weeks, that a retrial would occupy -- 1. 1. LORD JUSTICE GAGE: I cannot think that a retrial is likely to last as long as three weeks. That was, on the issues in the case, an inordinate length of time. I am sure, now that counsel have been over the ground once before, it will be perfectly possible to get the matter disposed of in a far shorter time. 1. 1. MR WILLMOTT: Well my Lord, time ( inaudible ). ( The Bench conferred ) 1. 1. LORD JUSTICE GAGE: Yes, we think there should be a retrial and we so order. 1. 1. MR OLDLAND: My Lord, there remains the interesting question of the co-defendant. Her convictions were entirely parasitic upon the conviction of Mr Craig. 1. 1. LORD JUSTICE GAGE: Well, we are not dealing with her. She has not appealed. 1. 1. MR OLDLAND: No. I can put it this way. Counsel for her saw me in the robing room in Exeter yesterday and said, "Can you let me know what happens." 1. 1. LORD JUSTICE GAGE: No doubt you will. 1. 1. MR OLDLAND: But the proper course must be that he has to apply for leave out of time -- 1. 1. LORD JUSTICE GAGE: Yes. 1. 1. MR OLDLAND: -- and to come before this court. 1. 1. LORD JUSTICE GAGE: Yes. 1. 1. MR OLDLAND: In the circumstances would your Lordship require that the respondents are represented on that occasion? 1. 1. LORD JUSTICE GAGE: What, when it -- 1. 1. MR OLDLAND: When the O'Brien appeal comes before this court. 1. 1. LORD JUSTICE GAGE: Oh I think so, yes. 1. 1. MR OLDLAND: So be it. 1. 1. LORD JUSTICE GAGE: Different considerations may apply, who knows. 1. 1. Well, we allow the appeal. We quash the convictions. We specify that the convictions on the counts that we have quashed (that is counts 1 to 4 inclusive) be retried. We direct that a fresh indictment be preferred. We direct that the appellant be re-arraigned on the fresh indictment within two months. 1. 1. There should be a representation order for a retrial, I assume? 1. 1. MR WILLMOTT: I would be grateful if there were, my Lord. 1. 1. LORD JUSTICE GAGE: Anything else you want dealt with? No. Thank you both very much. 1. 1. Is should have said that the Presiding Judge for the Western Circuit must direct the venue for the retrial. ______________________________	```yaml citation: '[2007] EWCA Crim 2913' date: '2007-11-15' judges: - LORD JUSTICE GAGE - MRS JUSTICE COX ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	No: 05/4684/A8 Neutral Citation Number: [2006] EWCA Crim 481 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Monday, 27 February 2006 B E F O R E: LORD JUSTICE LONGMORE MR JUSTICE AIKENS RECORDER OF LIVERPOOL HIS HONOUR JUDGE HENRY GLOBE QC - - - - - - - R E G I N A -v- COLIN B - - - - - - - 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 JOHN THACKRAY appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T 1. LORD JUSTICE LONGMORE: On 8th August 2005, at the Crown Court at Sheffield before His Honour Judge Robertshaw, this appellant pleaded guilty to counts 1-6 and 9-13 of an indictment alleging indecent assault on a female and to counts 7 and 8 alleging rape. He was then sentenced to a term of nine years' imprisonment on counts 7 and 8, other sentences being two years for counts 1-5, three years for counts 9-13 and twelve months for count 6, all concurrent with the nine-year sentence. There were also the usual consequential orders. He now appeals against sentence by leave of the single judge. 2. The sad facts are that the victim was the appellant's natural daughter. When she was 10 years of age, in 1982, he started sexually to abuse her by inspecting her genitals when she was alone. He would come into her bedroom, lift her nightdress and start stroking her vagina, usually at bedtime. He would also go into the bathroom when she was getting ready and start touching her there. He began telling her that she would soon be changing and that her pubic hair would become coarser. On occasions she would roll over in bed and press her body down on the mattress, but he would force his hand underneath her or turn her over. The child was very scared when he abused her and, although she did not want it to happen, she felt that if she did not let him he would start on her younger sister. 3. Over the years matters progressed to him removing his penis. She recalled one occasion when he placed her hand on his penis and made her masturbate him until he ejaculated. He would tell her to keep quiet about the abuse and it was their "special love". 4. As she became older, he started digitally to penetrate her vagina, and the abuse peaked when she was 13 or 14. He would frequently look at her vagina and breasts, and told her she would soon need a bra. He even accompanied her when she purchased her first bra which, naturally, she felt extremely embarrassing. 5. When her periods started he seemed pleased and the assaults took a different form thereafter. He would simulate sexual intercourse with her, and occasionally he would push too hard and insert the head of his penis in her vagina. The assaults continued until she was 16, when she felt strong enough to stop him. That resulted in him going off in a huff and he was sullen towards her. 6. Moreover, there was one final indecent assault many years later. She had left home and was living in her own house when the appellant came out to put up a garden shed for her. He asked her for a cuddle, put his arms around her and pressed his groin towards her. He became aroused and placed his hand on her vagina over her clothing. 7. The victim took an overdose in 2003 and was admitted to hospital. Eventually counselling was sought. That resulted in disclosures of the abuse being made to Social Services. 8. In 2004 she wrote to the appellant asking him why he had abused her. He responded by apologising to her and sending her flowers. 9. There were concerns by Social Services that the appellant was having unsupervised access to the victim's children and that was what led up to disclosure to the police. The victim's husband also spoke to the appellant and told him he was not to see their children on his own. 10. The appellant was arrested in 2005. When interviewed he admitted the offences, save for the allegations of partial penetration of the vagina. 11. In sentencing, the judge said that the appellant was a 58-year-old man of good character, but it had to be noted that these offences went back a long time and were committed over a period of many years. He was entitled to full credit for his pleas to the offences of indecent assault. He had initially not pleaded guilty to the rape offences, but it was accepted there had been an indication he would plead to those offences before he actually did so. Nevertheless he was entitled to rather less credit for his pleas to those offences, counts 7 and 8. His pleas had meant that the victim had not had to undergo the trauma of a trial; and the judge hoped that his full acknowledgment of his guilt would go some way to enabling the victim to put the past behind her. His pleas demonstrated his remorse; but the victim was his own daughter. The starting point for one offence of rape in such circumstances was eight years, and he was entitled to a discount for his plea. However, that was not the end, because the two rapes were but one aspect of a long course of indecent assaults committed by him against his little girl. The judge further said that parenthood was a huge privilege and it also involved huge trust and responsibility. He had abused that trust in the most serious way imaginable by the sexual assaults he perpetrated against her for his own selfish sexual gratification. 12. The appeal comes before this court with the leave of the single judge. 13. Mr Thackray on the appellant's behalf has submitted that the sentence was manifestly excessive and that either the starting point was too high or there had been insufficient credit for a guilty plea. He submitted that the starting point should be no more than ten years and that, in the light of the guilty pleas, a sentence of about seven-and-a-half years was suitable. He emphasised that this appellant had shown genuine remorse. He also submitted, with some delicacy, that this was not the worst form of rape that this court would know about. 14. We bear all those matters in mind. Nevertheless, as the judge said, there was a long course of indecent assaults, quite apart from the two rapes, lasting for a number of years. The abuse of trust in this case was quite appalling. Having considered all the matters that have been put before us and having been referred to the well-known case of Millberry [2000] 1 WLR 546 , we do not consider that this sentence of nine years can in all the circumstances be regarded as manifestly excessive. This appeal will be dismissed.	```yaml citation: '[2006] EWCA Crim 481' date: '2006-02-27' judges: - LORD JUSTICE LONGMORE - MR JUSTICE AIKENS - HIS HONOUR JUDGE HENRY GLOBE 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} ======	2018/00579/A1 Neutral Citation Number: [2018] EWCA Crim 1508 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Wednesday 9 th May 2018 B e f o r e: LORD JUSTICE TREACY MR JUSTICE EDIS and HER HONOUR JUDGE MUNRO QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - R E G I N A - v - STEPHEN SIMPSON - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd trading as Epiq 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Mr A D Smith appeared on behalf of the Appellant - - - - - - - - - - - - - - - J U D G M E N T Wednesday 9th May 2018 LORD JUSTICE TREACY: I shall ask Mr Justice Edis to give the judgment of the court. MR JUSTICE EDIS: 1. Stephen Simpson is 20 years old. On 16 th November 2017 he pleaded guilty before the magistrates to a series of offences. He was then committed for sentence, pursuant to section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 in respect of four offences of burglary, contrary to section 9(1)(b) of the Theft Act 1968 and pursuant to section 6 of the Sentencing Act 2000 in respect of an offence of taking a motor vehicle without consent and an associated offence of using it without insurance. 2. On 11 th January 2018 in the Crown Court at Sheffield he was sentenced to concurrent terms of two years' detention for the burglary offences and to a consecutive term of four months' detention for taking the vehicle without consent. The total sentence was, therefore, 28 months' detention in a young offender institution. A disqualification from driving for 18 months was imposed for the insurance offence. 3. In answer to a specific request for clarification from counsel for the appellant after sentence was passed, the judge said that he had taken into account the custodial sentences imposed on the offences of burglary and the unlawful taking of the motor vehicle when fixing the length of the disqualification. 4. The facts of the offences were as follows. All four burglary offences were committed between 6.30am and 7.30am on 1 st October 2017 in a block of student flats in Sheffield. Two of the flats entered were occupied. The appellant stole items from four flats. He entered each flat through unlocked or insecure doors. One victim, who was not at home at the time of the burglary, lost her Santander bank card. In the second offence there were two victims who shared the same flat. They were also not at home when he stole a MacBook Pro computer, which was worth £1,250, and an iPhone worth £500. The third burglary also involved two victims who shared a flat. They were both at home when he entered it. He stole a wallet which had been left in the communal kitchen and took an iPhone from the bedroom in which a young woman was asleep when he entered. 5. The victim of the fourth burglary was not at home when the appellant entered her flat, but other flatmates were. He stole her iPad and her car keys, which he used to drive away her vehicle which was parked outside. 6. Later that same day the mother of the last victim tracked the stolen iPad using a software application for that purpose. It was traced to the appellant's parents' address in Barnsley. The police attended and were permitted to search the premises by his parents. The appellant was not present, but a stolen iPhone and MacBook were recovered. The appellant's mother contacted him by phone and asked him to return to see the police, which he did. When he arrived he had with him a stolen iPad. He told the police on arrest that he had purchased these items in a public house on the previous evening at around midnight. A more comprehensive search of his bedroom revealed the stolen bank cards. The car was found parked approximately 500 metres from his home and the car keys were discovered in an alleyway nearby. In the car was one of the stolen iPhones. The result of all this was that all the stolen items were recovered. 7. When interviewed he declined to answer any questions. But subsequently, when he was required to attend the police station, he made full admissions by way of a prepared statement. 8. Prior to this offending, the appellant was a man of good character who had been in work. 9. When the author of the pre-sentence report enquired as to why he had committed these offences, the appellant said that he had a gambling addiction which he had attempted to conceal and to address over the previous 18 months. He said that on the night before he committed these offences he had lost £600 in a casino. He said that he had not intended to steal anything, but had noticed that a door to the premises had been left open. He then, he said, gave way to the impulse to solve his financial difficulties by committing these burglaries. He expressed remorse and shame. 10. The judge noted that the appellant had been under the influence of alcohol on the previous evening and that he had accrued these gambling debts. He said that the area where the premises were was awash with student flats, as would have been obvious to the appellant. The judge said that the appellant had decided that there would be rich pickings in the student flats and held that for the purposes of the relevant guideline the appellant had deliberately targeted the premises where he committed these offences. The judge said that the appellant had not cared whether or not the flats were occupied and had indeed entered two flats which were occupied. The judge concluded that, taken together, the offences fell within the upper half of category 1 of the relevant guideline. He said that the various mitigating features which he identified, namely the recovery of the property, the appellant's remorse and previous good character, brought the offences back down to the starting point in category 1, which was three years. The judge then gave full credit for the early guilty pleas, reduced that term of three years' custody on each burglary offence by one-third to two years custody and imposed consecutively a term of four months for the taking of the motor vehicle. 11. Mr Smith, who appeared for the appellant before the judge and who has argued his case attractively before us this morning, essentially takes the point that the categorisation of the burglary offences was an error. He says that the finding that the premises had been deliberately targeted was not justified by the facts of the case, although he accepts that the number of offences which were committed would justify increasing the sentence above that which would be provided in the range which he says was the proper one, namely, category 2. Category 2 has a starting point of one year's custody and a range of up to two years. 12. In written grounds of appeal he also submits that the consecutive term of four months for taking a motor vehicle without consent was the maximum available in this case and that this was inappropriate for a young person of good character in the absence of any aggravating features relevant to that offence. He also submits in writing – and somewhat delicately in oral argument – that in the circumstances the sentence could and should have been suspended. Discussion and Decision 13. One occupier was at home in her flat which was entered when she was asleep in bed. Her bedroom was invaded by the appellant. Other people were present in one of the other flats. The offences against occupied properties fall within the high harm category of the guideline, but there are no other factors putting the offences in that level. The occupiers were asleep at the time, it would seem, and no direct confrontation, fortunately, resulted. 14. In our judgment, the judge's finding that the premises had been deliberately targeted is one which cannot be supported. It is important to bear in mind the words used in the guideline to describe that feature of high culpability cases: "Victim or premises deliberately targeted (for example, due to vulnerability or hostility based on disability, race, sexual orientation)." In reality, almost all dwelling house burglaries are targeted in the sense that the offender chooses which premises to burgle because he or she hopes to find there moveable property which is valuable and which can readily be sold. In our judgment, the deliberate targeting factor requires something more than this. 15. If this had been a single case of burglary, a sentence within the category 2 range would, in our judgment, have been justified. However, we agree with the approach taken by the sentencing judge that it was appropriate to deal with all four offences of burglary committed essentially on the same occasion as each other by the use of concurrent terms. Therefore, the sentence on each requires adjustment to take account of the number of offences in order to reflect the total criminality involved. As we have said, the category range for category 2 offences goes up to two years' custody. 16. In our judgment, the decision of the judge that only an immediate custodial sentence could be justified, given the gravity of these offences of burglary, was plainly right. It would, in our judgment, have been quite wrong to suspend the sentence. 17. However, we do not agree that, even taken together, the burglary offences should be placed in the upper half of category 1, which has a range of two to six years' custody. The number of offences did require the court to go above the category 2 range before discounting for mitigation and then the guilty pleas. The judge's approach was to give effect to mitigation by reducing the sentence before plea discount to the category 1 starting range, as we have said. We consider that the judge's identification of the mitigating features was correct. This was a first conviction which the appellant explained by pressing financial need owing to a gambling problem. That last factor does not begin to justify the offending, but the lack of previous convictions and the fact that this was a first sentence of custody does require a reduction in the sentence. Further, the fact that when he was caught the appellant co-operated with the police by returning the iPad when his mother asked him to means that he is entitled to some credit for the fact that the property was all recovered and returned safely to the young victims. The value of electronic devices is not really their replacement cost but the disruption to studies and social life caused by the loss of contact details, messages and saved files. Their safe return does matter. 18. We consider that the appropriate sentence in this case should have been above the category range, namely, more than two years; but a reduction back to that level was required to give effect to the mitigation. That then required a further reduction of one-third because of the early guilty plea. The sentences for the burglary offences should, therefore, be 16 months' detention to run concurrently on each. 19. We do not disagree with the imposition of a consecutive term to reflect the fact that the car was taken. This was a very valuable item and its loss, even though it will have been insured, would have caused significant expense in replacement costs, had it not been recovered, and increased premiums had it been damaged or not recovered. 20. However, the maximum sentence for this offence is six months' custody. The sentence of four months, after full credit, therefore equates to the maximum sentence. The appellant had never previously committed any offence. The car was, in fact, recovered. The offence is serious because it was committed in the context of the burglary of a dwelling house. But that is why a consecutive term is to be imposed and it is important to avoid double counting. We consider that the offence is properly marked by a sentence of three months, which must be discounted to reflect the guilty plea, to two months. 21. We therefore allow the appeal, quash the sentence of two years and four months' detention imposed by the Crown Court and substitute concurrent sentences of 16 months' detention for each offence of burglary and a consecutive sentence of two months' detention for the unlawful taking of the motor vehicle. The total sentence is therefore one of 18 months' detention in a young offender institution. 22. We must return to consider the position in relation to the disqualification. The disqualification from driving of 18 months was imposed for the insurance offence and custodial sentences were imposed for the other offences. The disqualification was imposed under section 146 of the Sentencing Act 2000. Section 147A of that Act does not apply because the disqualification from driving was imposed in respect of an offence for which no custodial sentence was passed. Therefore, the court was required to consider the provisions of section 147B of the Sentencing Act 2000. That provision precisely mirrors section 35B of the Road Traffic Offenders Act 1988. That latter provision was, of course, the subject of detailed analysis and explanation by this court in R v Needham [2016] EWCA Crim 455 , and the reasoning is directly transferrable into the present statutory context. 23. The judge imposed a disqualification from driving of 18 months and he imposed a sentence which presupposed that fourteen months of that time would be spent in custody. Therefore, the effective disqualification which he imposed was one of four months. 24. In all the circumstances of this case, although that is an unusual duration for a disqualification from driving, we consider that it is adequate to reflect the appellant's criminality. This is not a case where there was any bad driving or any other aggravating feature of the unlawful taking, save that which we have already mentioned. 25. In those circumstances a disqualification from driving for four months is adequate. It is necessary for us to adjust the length of the disqualification appropriately so that it achieves that effect. The adjustment is to add nine months to the effective term of the disqualification, meaning that the appellant will now be disqualified from driving for thirteen months. 26. To that extent this appeal is allowed.	```yaml citation: '[2018] EWCA Crim 1508' date: '2018-05-09' judges: - LORD JUSTICE TREACY - MR JUSTICE EDIS ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	No: 200503130/B2 Neutral Citation Number: [2006] EWCA Crim 962 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 11 th April 2006 B E F O R E: LORD JUSTICE HOOPER MR JUSTICE MCCOMBE MR JUSTICE WILKIE - - - - - - - - R E G I N A -v- MICHAEL WEBB - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR P THOMAS QC appeared on behalf of the APPELLANT MR P PARKER QC appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE HOOPER : On 27 March 1996 the appellant (now 59) was convicted of the murder of Clarence Cooper aged 84 and of a conspiracy to burgle. Clarence Cooper was killed during the course of a burglary of which the appellant, on the prosecution's case, was the master mind. He appeals against his conviction for murder following a reference by the Criminal Cases Review Commission ("CCRC"). At the conclusion of this morning’s hearing we announced that the appeal was dismissed. We now give our reasons. 2. We are grateful for the comprehensive analysis of the case in the CCRC’s Statement of Reasons. 3. We take the facts from that statement: "2. On count 2, Mr Webb was jointly convicted with Michael Micklewright of murdering Clarence Cooper (aged 84 years) at Mr Cooper’s home in Alexandra Road Walsall. Jason Matthews was found not guilty of murder but guilty of manslaughter. Anthony French was acquitted following the trial judge’s ruling on a submission of no case made on his behalf. Evidence was presented that Mr Cooper was murdered during a burglary at his home on the night of 8/9 August 1994. His body was found at around 12:30/12:45pm on 9 August 1994 by a neighbour, Tye Paddock. Mr Cooper had been stabbed 12 times in the neck with a sharp instrument but had died from asphyxia caused by a handkerchief (probably used as a gag) which had been pushed into his mouth. The pathologist, Dr Acland, calculated the time of death as between 11:43pm on 8 August and 5:19am on 9 August 1994. 3. It was the prosecution’s case that Mr Webb was the leader of a small gang comprising Jason Matthews, Michael Micklewright, Anthony French and himself, and that he had taught the others (then aged between 16 and 17) how to commit burglaries. This was supported by Mr Webb’s own admissions in his police interviews (see below) that he showed the boys how to do "sleepers" (burglaries at night), had provided them with the requisite tools and on one occasion had disposed of the stolen goods. Mr Webb also accepted at his interviews that on the night of the murder the gang left his house to commit burglary and were carrying screwdrivers, Stanley knives and an Army knife. He also said in his interview that Mr Micklewright was a “nutter”. The prosecution contended that the parties had entered into a conspiracy to burgle Mr Cooper’s home at night and that Mr Cooper was murdered when he disturbed them. 4. The prosecution unequivocally asserted that Messrs Micklewright, Mathews and French were at Mr Cooper’s address on the night in question. As to Mr Webb’s role, the case as left to the jury was that Mr Webb might have physically participated in the burglary by entering Mr Cooper’s house; that he might have remained outside the premises; or, he might have remained inside his own home having entered into a joint enterprise with the others. The prosecution adduced evidence in support of each of these scenarios. 5. Important evidence against Mr Webb consisted of his alleged "confessions" to Darren Cooke and Carol Wallbank, who were living together with Mr Webb in a hostel after the murder had taken place. According to Miss Wallbank and Mr Cooke, Mr Webb told them about the murder of Clarence Cooper almost on a daily basis on occasions between 12th September and 17th October 1994. Miss Wallbank gave evidence that Mr Webb had told her that he went to Mr Cooper’s house with the boys to set up the burglary and that he stayed outside whilst the three boys went inside. He heard a smash and the three boys ran out covered in blood. Mr Cooke gave evidence that Mr Webb told him that Mr Micklewright had stabbed Mr Cooper in the throat with a knife or a screwdriver which had come from Mr Webb’s house and that somebody had stuffed a handkerchief into Mr Cooper’s mouth. In addition Mr Webb told him that he and the boys had all kicked and punched Mr Cooper. Mr Cooke also stated that Mr Webb told him that they stole £100 from Mr Cooper’s home and went back to his, Mr Webb’s house, where he told the others he could burn their clothes and showed them how to clean themselves. Mr Cooke also gave evidence that Mr Webb told him that he disposed of Mr Micklewright’s knife. 6. Victoria Webster gave evidence that she and Gary Matthews (brother of the co-accused Jason Matthews) went to see Mr Webb on 27 August 1994 and Mr Webb told her the following: He could get Jason Mathews off the charges with the police if in return Mr Matthews would tell him what he had told the police about Mr Webb’s role. He (Mr Webb) had told the police that Mr Matthews had stayed at his house on the night of the murder. Victoria Webster in her evidence went on to say that Mr Webb told her that Messrs Micklewright and French had gone out with knives and black bags and a handkerchief taken from his drawer and that they murdered Mr Cooper. She also stated that Mr Webb told her that they, Messrs Micklewright and Matthews, deliberately set him up by leaving the handkerchief and the bin liner at Mr Cooper’s house. Mr Webb had also told her that the burglars carried an Army knife and another knife which was possibly a Stanley knife. Mr Webb’s interviews 7. On 22 August 1994, Mr Webb went voluntarily to Walsall police station and made a witness statement. He was arrested on 24 August 1994 for murder and was interviewed at length. He consistently claimed that during the night of 8/9 August 1994 Messrs Micklewright, French and Matthews left his house at about 1.30am, and, having returned in the early hours, went out again and returned about 4.45am. Mr Webb said that they went out with his two screwdrivers, balaclavas and gloves to commit burglaries. He admitted that he knew Mr Micklewright had an Army and a Stanley knife and that Mr French had a Stanley knife. He admitted that he had shown them how to do "sleepers", but denied sending them to Mr Cooper’s house. He said that he did not know where Mr Cooper lived. He denied any involvement with Mr. Cooper's death. He said that Messrs Micklewright and French changed their clothes the next day and that he had heard about the murder at the Glebe Centre between 12 and 1pm on 9 August. He also said that Mr Micklewright had told him that they (Messrs Micklewright, French and Matthews) had panicked and stabbed the old man when the lights came on. Joint enterprise . 8. It was the prosecution’s case that Mr Webb was the leader, organiser and planner of the defendant’s burgling activities generally, and in particular on the night of the murder. The prosecution argued that there was evidence that showed that Mr Webb had organized the burglary at Mr Cooper’s home. The prosecution adduced evidence that the defendants carried with them weapons (namely Mr Micklewright’s Stanley and Army knives and Mr French’s Stanley knife), and two of Mr Webb’s screwdrivers. 9. The prosecution said that Mr Webb’s knowledge of the weapons, coupled with his view of Mr Micklewright, indicated an awareness of the possibility that an occupier would be seriously injured if the need arose. Substantial argument took place about the law relating to joint enterprise. 4. We add to this summary only the following. The handkerchief probably belonged to the victim and we shall so assume. The pathologist gave the cause of death as asphyxia perhaps aggravated by the neck wounds. It was not clear whether the neck wounds preceded or followed the application of the gag. 5. The appellant chose not to give evidence. 6. It was the respondent’s case that the appellant was a party to the murder. Another defendant had pushed the handkerchief into the deceased’s mouth causing his death. The judge gave the following direction to the jury to apply to any defendant who did not actually cause the death: "The prosecution case is that the defendants committed this murder jointly. Where the offence is committed by two or more persons, each of them play a different part, but if they’re acting together as part of a joint plan to commit an offence, they are each guilty of it. Before you can convict any of the defendants you must either be sure that he committed the murder himself or that he did an act or acts as part of a joint plan with the other defendants to commit murder. If you are not sure that he was killed by the defendant whose case you are considering you must go on to decide whether the defendant whose case you are considering was a party to a joint enterprise which included either an agreement, tacit or express, involving the intention to kill Clarence Cooper or to cause him really serious bodily harm if the need arose during the course of the burglary; or, without agreeing to such conduct being used, the realisation that Clarence Cooper might be killed or caused really serious bodily harm during the burglary. ... What about B and C who are party to the joint enterprise to burgle the house? The law is that where two or more persons embark on a joint criminal enterprise, in this case burglary, each is liable for the acts done in pursuance of that joint enterprise, and that includes liability for the unusual consequences if they arise from the carrying out of the joint enterprise. However, if one of the burglars goes beyond what had been agreed between them as part of the joint enterprise and does an act which is outside the scope of what has been agreed between them, then the others are not liable for the consequences of that unauthorised act. It is for you to decide whether what was done was part of the joint enterprise or went beyond it and was in fact an act unauthorised by the joint enterprise. ... In any of those situations it is open to you to conclude that the defendant whose case you are considering was a secondary party to the joint enterprise, but you must also be sure that the joint enterprise in which he participated included either an agreement involving an intention to kill Clarence Cooper, or to cause him really serious harm if the need arose during the burglary, or without agreeing to such conduct being used the realisation that Clarence Cooper might be killed or might be caused really serious bodily harm in the course of the burglary. In fact, the way the prosecution put their case is that the secondary parties to the joint enterprise must have realised or contemplated that really serious harm might be intentionally inflicted on Clarence Cooper, and that they nevertheless continued to participate in the burglary. If, therefore, you are sure that one of the three defendants killed Clarence Cooper with the requisite intention for murder, namely to kill or to cause really serious bodily harm, and that the killing occurred during the execution of a joint enterprise which involved the realisation that serious bodily harm might be intentionally inflicted on Clarence Cooper, and if you are sure that the defendant whose case you are considering participated in that joint enterprise with that realisation, then the defendant whose case you are considering will be guilty of murder." 7. The judge gave the jury some written questions. In so far as relevant to this appeal, they were, as set out by the judge in the summing up: "Thirdly, are you sure that one of the defendants, other than the defendant whose case you are considering, killed Clarence Cooper with the intention to kill him or to cause him really serious bodily harm? If yes, consider question 5; if no, consider question four. Fourthly, are you sure that one of the defendants, other than the defendant whose case you are considering, killed Clarence Cooper in circumstances that all reasonable and sober people would inevitable realise must subject someone to the risk of some harm although not serious harm? If yes, consider question 7; if no, find him not guilty of murder and manslaughter. Fifthly, are you sure that the defendant whose case you are considering took part in a joint enterprise with the defendant who killed Clarence Cooper to burgle 178 Alexandra Road? If no, find him not guilty of murder and manslaughter. If yes, consider question 6. Sixthly, are you sure that the joint enterprise in which the defendant whose case you are considering took part included the realisation by him that really serious bodily harm might be intentionally inflicted on Clarence Cooper? If yes, find him guilty of murder; if no, consider question 7. Seventhly, are you sure that the joint enterprise in which the defendant whose case you are considering took part involved a realisation by him that some harm might be caused to Clarence Cooper? If yes, find him guilty of manslaughter; if no, find him not guilty of murder and manslaughter. You probably realise by now, members of the jury, why I thought it might be helpful if you were to have those directions in writing so that you can take them out with you and consider them when you retire." 8. Although the judge in his oral directions told the jury to decide whether what was done was part of the joint enterprise or went beyond it, that was not repeated in the written directions. The trial being conducted prior to the decision of the House of Lords in Powell and English [1997] 1 AC 1 no specific direction was given about the handkerchief. Mr Parker QC who, like Mr Thomas QC, was not counsel at trial concedes rightly that the direction was not in accordance with Powell and English . 9. Given that the appellant was convicted of murder, the jury must have been sure that he participated (in some way) in the burglary of the home of Clarence Cooper and he realised (at the least) that serious bodily harm might be intentionally inflicted on Clarence Cooper during the burglary. The appellant had admitted in his police interviews that he showed the boys how to do "sleepers" (burglaries at night), had provided them with the requisite tools and on one occasion had disposed of the stolen goods. Mr Webb also accepted during his interviews that on the night of the murder the gang left his house to commit burglary and were carrying screwdrivers, Stanley knives and an Army knife. He also said in his interview that Micklewright was a "nutter". 10. Mr Thomas rightly and importantly conceded that the jury must have concluded that the appellant realised that one or more of the "weapons" might be used with the intention of causing (at the least) serious bodily harm to the occupant of the house being burgled. That was how the judge approached the case in his ruling on a submission of no case to answer. 11. Given that the appellant realised (as the jury found) that serious bodily harm might be inflicted on Clarence Cooper during the burglary, he will be guilty of murder if what the killer did was within the scope of the joint enterprise. In Attorney General’s Reference under section 36 of the Criminal Justice Act 1972 No 3 of 2004 [2005] EWCA Crim 1882 , discussed in [2006] Crim. L. R. 63 the Court said this about the scope of a joint enterprise: "32. Mr Perry concedes (rightly in our view) that the test for whether what the primary party did is within or outside the scope of the joint enterprise requires the application of a subjective test. Did the secondary party foresee the possibility that the primary party would do what he did? It is preferable to define the scope of the joint enterprise in this way rather than by using such language as “Did the act go beyond what had tacitly been agreed?” or “Did he depart from the concerted action of the common design?”. That is established by Powell and English (see e.g. 31C-D). Nor is a test fashioned on the law of causation probably very helpful. Earlier cases which talk of “must have anticipated” may also now be ignored. 33. The issue in this case is what does the secondary party have to have foreseen as a possibility? There is no dispute between Mr Perry and Mr Cox that it is an act and in the case of English, as in this case, it is the act which caused the death. Lord Hutton in Powell and English said: 'The first issue is what is the degree of foresight required to impose liability under the principle stated in Chan Wing-Siu [1985] A.C. 168 . On this issue I am in respectful agreement with the judgment of the Privy Council in that case that the secondary party is subject to criminal liability if he contemplated the act causing the death as a possible incident of the joint venture, unless the risk was so remote that the jury take the view that the secondary party genuinely dismissed it as altogether negligible.’(Underlining added)”. 12. It is clear from Powell and English that it is sufficient if the defendant foresaw an act of the type which the principal party committed . Lord Hutton said, at page 29: "Mr Sallon, for the appellant, advanced to your Lordships' House the submission (which does not appear to have been advanced in the Court of Appeal) that in a case such as the present one where the primary party kills with a deadly weapon, which the secondary party did not know that he had and therefore did not foresee his use of it, the secondary party should not be guilty of murder. He submitted that to be guilty under the principle stated in Chan Wing-Siu the secondary party must foresee an act of the type which the principle party committed, and that in the present case the use of a knife was fundamentally different to the use of a wooden post. My Lords, I consider that this submission is correct. It finds strong support in the passage of the judgment of Lord Parker C.J. in Reg. v. Anderson; Reg. v. Morris [1966] 2 Q.B. 110 , 120 which I have set out earlier, but which it is convenient to set out again in this portion of the judgment: 'It seems to this court that to say that adventurers are guilty of manslaughter when one of them has departed completely form the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people today.'. The judgment in Chan Wing-Siu's case [1985] A.C. 168 also supports the argument advanced on behalf of the appellant because Sir Robin Cooke stated at p.175: 'The case must depend rather on the wider principle whereby a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend.’ (Emphasis added.)" 13. Mr Parker (upon whom we did not call) referred us in his skeleton argument to another passage in Lord Hutton’s speech which is to a similar effect (page 30): "However, I would wish to make this observation: if the weapon used by the primary party is different to, but as dangerous as, the weapon which the secondary party contemplated he might use, the secondary party should not escape liability for murder because of the difference in the weapon, for example, if he foresaw that the primary party might use a gun to kill and the latter used a knife to kill, or vice versa." 14. Mr Thomas submits that the jury should have been directed that to convict of murder they had to be sure that the appellant had in contemplation the use of a handkerchief or towel as a gag if necessary. That in our view overlooks the fact that it is sufficient if the defendant foresaw an act of the type which the principal party committed. 15. We take the view that, in the light of Powell and English , the jury should have been directed along the following lines on the facts of this case and in the light of the other directions: "If you are sure that the defendant realised that a screwdriver or knife might be used with the intention of causing (at least) serious bodily harm to Clarence Cooper and if you are sure that the defendant realised that one of the burglars may, with the intention that serious bodily harm be caused to Clarence Cooper (by himself or another), take steps to silence the victim’s voice, then he is guilty of murder [the other ingredients being satisfied]." 16. We know the jury were sure of the first part, namely that the defendant realised that a screwdriver or knife might be used with the intention of causing (at least) serious bodily harm to Clarence Cooper. Mr Thomas, relying on Greatrex [1999] 1 Cr App R 126 , submits the second part should have been left to the jury. That not having been done, the appeal must succeed, so he submits. In our view Greatrex was quite different. The fatal blow was delivered by an iron bar to the head. The appellant, on the jury’s verdict, was, with others, involved in violently kicking the victim. It was held that it was for the jury to decide whether the use of the iron bar was within the appellant’s contemplation and that it was open to the jury on the facts of that case to have decided either way. In this case the "weapon" used to cause death was only a handkerchief. 17. Given that the second part of this question should have been left to the jury for their determination, we have to ask whether the conviction is unsafe. In our view, in the light of the admissions made by the appellant, a jury would inevitably have convicted if this direction had been given. 18. We add this. If, in the instant case, the knife wounds had been a substantial cause of death (either medically or because of their disabling effect), then the direction given by the judge may well have satisfied the Powell and English test.	```yaml citation: '[2006] EWCA Crim 962' date: '2006-04-11' judges: - LORD JUSTICE HOOPER - MR JUSTICE MCCOMBE - MR JUSTICE WILKIE ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical 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 137 Case No: 2007/00990/C1/3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SNARESBROOK CROWN COURT JUDGE S.R. WILKINSON T00060679 Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/02/2008 Before : LORD JUSTICE THOMAS MR JUSTICE WYN WILLIAMS and HH JUDGE RICHARD BROWN DL - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - DEREK KELLY Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Jan Luba QC and Zeeshan Dhar for the Appellant Michael Brompton QC and Denis Barry (instructed by CPS) for the Respondent Hearing date: 20 November 2007 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Thomas: The issue 1. In 1960, Parliament by enacting the Betting and Gaming Act 1960 made significant changes to many centuries of legislation in respect of betting and gaming. The Act repealed many old Acts of Parliament, gave a new definition to “gaming” and established a licensing regime for those who provided premises for gaming. Those and other provisions were consolidated into the Gaming Act 1968. S.52(1) of that Act (substantially re-enacting s. 28 of the 1960 Act ) defined “gaming”, subject to provisions that are immaterial, as “the playing of a game of chance for winnings in money or money’s worth…” and a “game of chance” as: “game of chance does not include any athletic game or sport, but, with that exception, and subject to sub-section (6), includes a game of chance and skill combined and a pretended game of chance or of chance and skill combined.” Sub-section (6) provided: “ In determining for the purposes of this Act whether a game, which is played otherwise than against one or more other players, is a game of chance and skill combined, the possibility of superlative skill eliminating the element of chance shall be disregarded” 2. Ss.3 and 4 of the Act prohibited levying a charge in respect of gaming or a charge on stakes or winnings, unless the premises were licensed; s.8 provided that if gaming took place contrary to the prohibitions, an offence was committed. The issue on this appeal is whether the judge correctly directed the jury in respect of the statutory definitions of a game of chance in circumstances where the appellant organised a specific type of poker game at unlicensed premises. 3. There has been no decision which can be found on the meaning of the provision defining a game of chance since the change in the law over 40 years ago. It is not clear why this is the position. It has proved very difficult to ascertain whether there have been many prosecutions, as no records were kept where there was an acquittal and convictions were deleted after a given period of time. We are grateful to counsel for the Crown for ascertaining in these difficult circumstances that since the change in the law in 1960, it can now only be established that the first recorded conviction was in 1998 and thereafter there have been a few convictions each year. The Report of a Joint Committee of the Lords and Commons published in April 2004 (HL Paper 63-I, HC 139) recorded that the Gaming Board and the police acknowledged difficulties in tackling illegal gaming due to a lack of police expertise and police time. 4. In 2005 Parliament amended the provisions again by the Gambling Act 2005; a game of chance in s.6 of that Act is defined: “(2) In this Act “ game of chance ”— (a) includes — (i) a game that involves both an element of chance and an element of skill, (ii) a game that involves an element of chance that can be eliminated by superlative skill, and (iii) a game that is presented as involving an element of chance, but (b) does not include a sport.” Sub-section (6) gives the Secretary of State a power by regulation to provide that a specified activity carried on in specified circumstances is or is not to be treated as a game, a game of chance or a sport. It is not necessary to refer to these provisions any further as no contention was advanced that the provisions are relevant to the construction of the 1968 Act . The facts 5. The circumstances in which the issue now arises for decision can be briefly described. i) In March 2004, the appellant opened the Gutshot Club in Clerkenwell Road, Islington, London where he organised a variant of poker called “Texas Hold ‘Em Poker” (TH Poker); he charged players for participation and made a levy on the winnings. The participants in TH Poker were largely enthusiasts for the game and the evidence before the courts was that all the profits in the card room were ploughed back into the club for the benefit of the members. The appellant had no licence which would have been needed under Part I of the Act, if gaming had been organised at the club in these circumstances. He contended that he was not engaged in organising gaming as TH Poker was not the playing of a game of chance within the meaning of the Act. Following a complaint from the Gaming Board, police made covert visits to the club in December 2004 and January 2005. ii) The appellant was charged under s. 8 with an offence of organising gaming in which a levy was made in December 2004 and organising gaming where a fee was charged to participate in January 2005. He was tried before HH Judge Wilkinson and a jury at Snaresbrook Crown Court in January 2007. The appellant accepted that he had organised the game of TH Poker, a charge had been made to players for participating in the game and a levy had been made on the winnings; in the circumstance, if the prosecution proved that playing TH Poker was gaming, then he accepted the offences had been committed. The sole issue was therefore whether TH Poker was a game of chance. iii) It was common ground that the successful playing of TH poker required considerable skill. The appellant called expert evidence from Professor Kelly and Nick Szeremeta. No expert evidence was called by the prosecution. iv) It was the evidence of Professor Kelly that TH Poker was a game of chance and skill. It required more skill than any other game of poker. Even though the first two cards drawn by each player were completely at random and subsequent cards also drawn at random, the element of skill was predominant. For example, each player might get to know 5/7 ths of the hand of each other player when the final card was drawn; meaningful predictions could then be made by the skilled player. He did not commit to a ratio of skill to chance; research work had shown that the ratio was 70:30 of skill to chance. He accepted that a 30% chance was not insignificant. v) Mr Szeremeta gave evidence that some types of poker required more skill than bridge; skill was more significant than chance. He gave detailed evidence about the mathematical calculations necessary to explain the odds and the strategies employed. vi) On 16 January 2007, the judge heard argument as to the directions to be given to the jury. The appellant contended (on the basis which we will set out) that the test as to whether TH Poker was a game of chance depended on whether skill predominated over chance; as TH Poker was predominantly a game of skill, it was not a game of chance within the meaning of s. 52(1). The judge in a short ruling rejected that submission and held that no gloss was required on the definition in the Act, though he accepted the prosecution submission that the prosecution had to prove that there must be a significant element of chance, though not necessarily a predominant one, as most games contained some elements of chance even to an infinitesimal extent. vii) The judge then summed up the law on what constituted a game of chance to the jury on the basis of his ruling: “Now, the Gaming Act provides that the expression ‘Game of Chance’ includes a game of chance and skill combined. As a matter of law I direct you that that means exactly what it says. As a matter of law it is irrelevant as to whether chance predominates over skill, or whether skill predominates over chance. What matters is that there must be a significant or meaningful element of chance, as opposed to an element which is simply token, notional or a scintilla. If Parliament had intended the test to be dependent on whether chance or skill predominated it would have said so. The issue, therefore, that you have to decide in this case is a narrow one and I shall return to that issue in a moment.” He then added: “It is common ground in this case that the successful playing of [TH Poker] requires considerable skill. The issue, therefore is this, does the game also include a significant element of chance?” viii) The appellant was convicted on 16 January 2007. He was subsequently conditionally discharged for two years and ordered to pay £10,000 towards the prosecution costs. ix) He appeals against his conviction to this court by leave of the single judge. 6. The contention elegantly and succinctly advanced by Mr Luba QC on behalf of the appellant was that Parliament had radically altered the law in 1960, that it was no longer relevant to examine the old cases and that on the true construction of the 1968 Act , the judge should have directed the jury that a game where skill predominated over chance was not a game of chance within s.52(1) of the 1968 Act . The historical position 7. Mr Luba QC’s argument was founded on a succinct, clear and very helpful historical analysis of the development of the law. This can be summarised as follows: i) At common law, the playing of any game of chance, including dice and card games, was not unlawful: The Case of Monopolies (1603) 11 Co Rep 87; Sherbon v Colebach (1691) 2 Vent 175. However, the keeping of a common gaming house was punishable at common law as a nuisance: Hawkins Pleas of the Crown (book 1 c.75, s.6) made clear that: “All common gaming-houses are nuisances in the eye of the law; not only because they are great temptations to idleness, but also because they are apt to draw together great numbers of disorderly persons which cannot be very convenient to the neighbourhood.” Thus if dice and cards were played in a common gaming house as part of its business, the gaming would be unlawful, even though the games themselves were not (see Jenks v Turpin (below) at page 513). That apart, a person was not punishable at common law in respect of gaming (see page 517 of Jenks v Turpin ). ii) The prohibitions on games of chance and games of skill were all statutory. From an early time, Parliament had placed restrictions on playing games of chance. In 1541, by the Unlawful Games Act ( 33 Hen 8 c.9 ), Parliament had prohibited certain games at certain locations at certain times. Various enactments changed the law over the centuries; some restricted the circumstances in which games might be played; others prohibited certain games. The Gaming Act 1845 (8&9 Vict c 109) made significant changes; it legalised all games of skill, but preserved all the penalties which attached to the playing of unlawful games anywhere, or gaming at all (even of lawful games) in common gaming houses. It made specific provision for proof of what amounted to a common gaming house: “in default of other evidence proving any house or place to be a common gaming-house, it shall be sufficient, in support of the allegation in any indictment or information that any house or place is a common gaming-house, to prove that such house or place is kept or used for playing therein at any unlawful game, and that a bank is kept there by one or more of the players exclusively of the others, or that the chances of any game played therein are not alike favourable to all the players, including among the players the banker or other person by whom the game is managed or against whom the other players stake, play, or bet; and every such house or place shall be deemed a common gaming-house” In 1854 by the Gaming Houses Act it was made an offence by s.4 to use any premises for unlawful gaming. iii) In Jenks v Turpin (1884) 13 QBD 505 , the Divisional Court considered a case stated on the issue as to whether a person who ran a club where baccarat was played and entrance fees charged was keeping premises for unlawful gaming contrary to s.4 of the Gaming Houses Act 1854 . The court decided that the premises were kept for unlawful gaming if the place where the activity occurred was a common gaming house or if the game was illegal; on the facts the club was a common gaming house and baccarat was an illegal game. iv) In reaching the conclusion that Baccarat was an unlawful game Hawkins J (at page 523) considered that unlawful games could be divided in two classes: “ first, those which are absolutely forbidden by name, and to the gaming at which a penalty is attached. This class includes ace of hearts, pharaoh (or faro), basset, and hazard,… He then listed those specifically prohibited, including certain games of pure skill. He then turned to consider the second class: The second class comprises a number of games not altogether prohibited under penal consequences, nor declared to be altogether illegal, but which nevertheless have been styled "unlawful" by the legislature, because the keeping of houses for playing them and the playing them therein by anybody were rendered illegal. After referring to the change in the law made by the Gaming Act 1845 , he continued: “Since that statute the only games made unlawful by 33 Hen. 8, c. 9 , are games of dice or cards, whether such games were known at the time of the passing of that statute or have been since invented. All such games, if they are games of chance, or games of chance and skill combined (which cannot be called games of mere skill), are in my opinion clearly within the meaning of the words unlawful games in Gaming Houses Act 1854 (17 & 18 Vict. c. 38). The language of the 1st section of the Gaming Act 1845 (8 & 9 Vict. c. 109), in referring to 33 Hen. 8, c. 9 [The Unlawful Games Act 1541] , and repealing only so much of it as applies to games of skill, is a strong indication of the intention of the legislature that all the other games mentioned in the statute of Hen. 8 were to continue to be treated as unlawful in the sense in and to the extent to which they were made unlawful by that statute, viz. unlawful if played in a house kept for playing at them. The unlawful games, then, now are, ace of hearts, pharaoh, basset, hazard, passage, roulet, every game of dice except backgammon, and every game of cards which is not a game of mere skill; and, I incline to add, any other game of mere chance.” He then concluded that baccarat was a game of chance; although experience and judgment made one player more successful, it could not be described as a game of mere skill. It was therefore unlawful. v) The test set out by Hawkins J was consistently followed in a series of cases in the years down to 1960; it is only necessary to refer to three: a) In Pessers, Moody, Wraith and Gurr Ltd v Catt (1913) 77 JP 429 , suppliers of a machine through which a game was played sued the defendant who had rented it for royalty payments. The defence was that the machine could not be used as the game was a game of chance and not a game of skill and therefore unlawful. All the judges who considered the issue Eve J (on a motion for an interlocutory injunction), Scrutton J (at first instance), Vaughan Williams LJ, Farwell LJ and Kennedy LJ (in the Court of Appeal) considered that there was more than a scintilla of skill and it was a game of skill; Kennedy LJ gave the fullest reasons: “It seems to me that in this case there is what I may call a governing element of skill in the use of the cup which can, wherever the ball falls, skilfully used, catch that ball. Of course the degree of skill, and therefore the success, will depend to some extent upon practice, and with practice to a person with a good eye who is using the moveable bar to which the cup is attached, it would be perfectly possible, I should imagine, if he were a skilful person, to catch it every time. Therefore the test as to success or failure seems to me in this case to be one of skill and not of chance. That is the dominant element, and, being so, I think the judgment which has been pronounced below, and is in accordance with that of Eve J., was right, and that this appeal should be dismissed.” b) In Dalton v Adelphi Club [1938] 4 All ER 556 , the club which organised games of stud poker on their premises were prosecuted under the Gaming Houses Act 1854 . The metropolitan stipendiary magistrate found it was a game of skill. The Divisional Court presided over by Lord Hewart CJ held that it was not a game of mere skill; whatever degree of skill an experienced player might acquire, the game of stud poker as described in the case stated was always a game of chance; it could not be described as a game of mere skill. c) In R v Tompson [1943] 1 KB 650 , the defendants who ran a bridge and poker club on the Finchley Road in London were indicted under the 1854 Act at the County of London Sessions. Expert evidence was called to show that the way poker was played at the club was a game where skill predominated over chance. The chairman ruled that the question as to whether poker as carried on at the club was an unlawful game was a question for him and he held it was, as it was not a game of mere skill. The Court of Appeal presided over by Viscount Caldecote CJ held he was wrong; the court said at p 656: “The question whether or not a game is one of mere skill is, in our opinion, a question of fact. Indeed, in the present case by allowing witnesses to be called as to the amount of skill required to succeed at the game of poker, the learned chairman treated it as a question of fact although the evidence of these witnesses was directed to show that in the game of poker as played on these premises skill was the dominant factor and not that the game was one of mere skill in the sense of skill alone. Therefore, except in a case where the game in question is one which is specifically made illegal by statute we think that before a judge can rule that a card game is unlawful a question of fact has to be decided by a jury, namely, is the game one of mere skill or not.” The court considered that the correct question for the jury, when dealing with a game of cards, was: “ Is this a game of skill, i.e., a game in which the element of chance is so slight as to render the game one which can properly be said to be a game of mere skill?” vi) The court pointed out that the cases dealing with machines were different; since 1913, when Kennedy LJ formulated the test set out above, “ the courts, in automatic machine cases, have taken as a test, not whether the game is one of mere skill, but whether or not the proportion of skill to chance is such as to establish that skill is the dominant or governing factor in the game. That test has never been applied to games of cards, and, in our opinion, rightly so, because, as was pointed out in Jenks v. Turpin by Hawkins J., there is a distinction between card games, which by statute are unlawful unless they are games of mere skill, and such games as those played with automatic machines which are not unlawful unless they are games of mere chance and become mere instruments of gaming. It appears, therefore, that in the present case, the learned chairman applied the right test, namely: Is this game a game of mere skill?” 8. Mr Luba QC submitted that the change in the law effected by the 1960 Act had the consequence that it was no longer appropriate to rely on the older cases to which he had referred us. The Act effected a fundamental change, as the short summary which we have set out demonstrates; the Act rendered gaming lawful on the conditions set out in the Act and repealed the old statutes. The complexity of the old law with different tests applicable to cards and automatic machines was no longer relevant. The test as to gaming and a game of chance was set out in the Act and it was for the jury to determine whether on the facts the game was a game of chance as defined in the Act. 9. We agree with that submission. As Parliament had made a significant change of the applicable law and provided a statutory definition of a game of chance, it is, in our view, no longer necessary or helpful to refer to the old cases. In the present case, reference was made to R v Tompson before the judge; we can quite understand why, in the absence of any authority on the post 1960 regime, it was done. However, Mr Luba QC was correct in saying that it was wrong to do so. The approach to the construction of the 1968 Act 10. In relation to the definition in the 1968 Act to which the judge should have sole regard, Mr Luba QC submitted that it was clear that the definition in the Act could not be applied literally; construed properly, he contended that it was clear that a game which was predominantly a game of skill was not a game of chance within the statutory definition. i) First, he relied on an observation in Armstrong v DPP [1965] AC 1262 . The defendant in that case ran a postal bingo club; he was prosecuted for running a lottery contrary to the Betting and Lotteries Act 1934 . It was admitted that there was a lottery, but it was contended that the defendant could rely on a provision of the Gaming Act 1960 which provided that nothing in the 1934 Act made unlawful any gaming conducted in such a way that no offence was committed under the relevant part of the 1960 Act ; in connection with that issue a question of law arose as to the element of participation required to constitute “playing a game” of chance within the meaning of s. 52(1) of the 1960 Act . Lord Pearson (who gave the only substantive speech) considered that on the facts there was no participation by those who played bingo as could reasonably be said to constitute the playing of a game. At page 1280D, he observed that the Act contained only the partial definition of a game of chance. Mr Luba QC relied on this very short observation for the submission that it was necessary to provide a fuller definition of the game of chance than that provided in the Act. We do not think that this provides any real assistance as the particular observation was directed at what was meant by “playing” a game of chance and not whether a particular game constituted a game of chance – see the argument of counsel for the appellant at page 1276E. ii) Mr Luba QC next submitted that the primary object of the definition was to ensure that any game of chance which included an element of skill was nonetheless to be treated as a game of chance. There was, however, nothing to suggest that Parliament intended games which were predominantly games of skill to be considered games of chance. Indeed as every game included an element of chance, construction of the 1968 Act which led to the inclusion within the definition of “games of chance” games such as chess and scrabble would be absurd; it could not therefore be right, as suggested in Halsbury Laws of England, Vol 4(1) 4 th edition para 3 that only games of pure skill where there is no element of chance, are excluded from the definition. iii) In support of this submission Mr Luba QC referred us to a number of cases decided in the USA where the courts had considered what was meant by a “game of chance”. A considerable number of decisions, from courts in Massachusetts, Ohio, North Carolina, California and Alaska were put before us in a bundle of authorities; specific reliance was placed on the summaries of the law by Judge Dull in Stubbs v Dick (1949) 89 N.E.2d 480 (Court of Common Pleas of Mercer County Ohio), by the Supreme Court of North Carolina in State v Stroupe (1953) 76 S.E. 2d 313 and by the Supreme Court of California in Re Allen (1962) 377 P. 2d 280. In those cases the courts referred to well established rules: “The universal acceptation of a game of chance is such a game as is determined entirely or in part by lot or mere luck, and in which judgement, practice, skill or adroitness have honestly no office at all or are thwarted by chance.” “The real test is whether chance is the determining element in the outcome of the game and not whether the game contains elements of chance or skill. If chance is the determining element in the outcome, then it is a game of chance.” “Most courts have reasoned that there are few games, if any which consist purely of chance or skill, and that therefore a game of chance is one in which the element of chance predominates over skill and a game of skill is one where the element of skill predominates over chance.” “The test is not whether the game contains an element of chance or an element of skill but which of them is the dominating factor in determining the out come of the game.” In North Carolina, on this basis, games of skill included chess, draughts, billiards, bowls and quoits; games where dice regulated the play were games of chance. More recently in Joker Club v Hardin (2007) 643 S.E. 2d 626, NC Court of Appeals it had been held in the North Carolina Court of Appeals that poker was a game of chance applying the predominance test; that was because although skill was required, the instrumentality for victory was not entirely in the player’s hands and thus chance prevailed over skill. We understand that the case is on appeal to the Supreme Court of North Carolina. In California, it has been held on this basis that bridge is a game of skill. iv) Mr Luba QC also relied on the minority judgment in the decision of the Supreme Court of Canada in Ross, Banks and Dyson v The Queen (1968) 70 DLR (2d) 606 . The Supreme Court had to consider whether the game of contract bridge fell within a statutory provision which stated “ “game” means a game of chance or mixed chance and skill”. The majority judgment (delivered by Pigeon J) held that the provision in question was clear: “The word mixed implies no indication of the respective proportions of the two elements. Nothing shows that they must be equal or nearly so. Nothing indicates which is to be preponderant.” Spence J in the minority disagreed: “Once the cards have been dealt then in the progress of the play all element of chance disappears and any chance thereafter can only result from the deal. In these circumstances, therefore, I believe that it must be taken as established that in the game of bridge the only chance involved is the chance in the dealing of the cards and that certainly the element of skill predominates in the playing of the game.” Spence J considered that the purpose of the provision was to ensure that games of chance were to include games where, although the predominating element was chance, there was a degree of skill. He concluded: “I am nonetheless of the opinion that in the game of bridge where the element of skill far outweighs the element of chance and where in fact the element of chance is a mere coincidental preliminary, it should not be considered as being within the words of the statute “ a game of mixed skill and chance.” v) The judge had not therefore applied the test in the 1968 Act , but had based his summing up on the old law; he should have directed the jury that a game in which skill predominated over chance, was not a game of chance. There had been a misdirection. 11. Although, for the reasons we have given we agree with Mr Luba QC that it was not appropriate to have regard to the old law and that the issue is one of construction of the provisions of the 1968 Act , we consider that the judge directed the jury correctly on the 1968 Act : i) The meaning of a game of chance set out in s.52(1) of the 1968 Act is not by its terms an exhaustive definition, as the word “include” is used. However, it does not seem to us that this was intended by Parliament to enable a more restrictive definition to be given. It is clear that Parliament could have adopted a test of preponderance; it did not and we see no reason to write into the Act a further restriction or qualification which Parliament could easily have included but which it did not. ii) In our view, the definition in the Act is in simple terms and needed little elaboration; it was a question of fact for the jury to determine whether on the statutory definition TH Poker was a game of chance. iii) It may be in some cases the definition would need some elaboration. If a prosecution was brought where the element of chance was insignificant or de minimis, then it would be necessary to spell out that that element of chance should be ignored in determining whether the game is a game of chance. For example, if chance was be used to determine which player had the right to start a game, but the game was otherwise a game of skill, then that element should be regarded as insignificant or de minimis and therefore should be ignored. iv) In his direction to the jury the judge may have gone further than this in favour of the appellant. He directed the jury that there must be a significant or meaningful element of chance as opposed to an element which was simply token, notional or a scintilla. In our view, as Parliament has provided that games of combined skill and chance are to be treated as games of chance without any qualification, then the only circumstance where chance should not be taken to make a game of skill and chance a game of chance is where the element of chance is such that it should on ordinary principles be ignored – that is to say where it is so insignificant as not to matter. Parliament did not provide that in a game of mixed skill and chance that the element of chance had to be significant for the game to be a game of chance; there is no reason for the courts to do so. v) It seems to us that the element of absurdity to which so much weight was attached on behalf of the appellant is properly catered for by ignoring chance where the element of chance is so insignificant as not to matter. vi) We have reached this conclusion on the basis of our interpretation of 52(1) of the 1968 Act . It was common ground that s. 52(6) was directed at the operation of games played against “the bank” such as in casinos or where gaming machines are used, as it refers to games “played otherwise than against one or more other players.” It was argued on behalf of the appellant that, as Parliament had considered it necessary to refer to “superlative skill eliminating the element of chance” in relation to games played against “the bank”, Parliament had envisaged courts would, in determining whether a game of combined skill and chance was a game of chance, have regard to the predominance of the elements of skill and chance. We do not consider that this in any way follows; on the contrary, on the definition of a game of chance as set out in the Act, if there was no element of chance (as that had been eliminated by superlative skill), it would not be a game of chance and skill combined. The subsection was therefore directed at bringing within the definition games against the bank where (if such exist) skill had eliminated any element of chance. vii) Argument was also directed to the question of whether assistance as to the statutory definition of a game of chance could be derived from s. 40(2) which provided an exemption from s.3 in certain circumstances in respect of miners’ welfare institutes or clubs. It was contended by the Crown that the exemption was directed in part at bridge clubs and, if the test was one of predominance of chance over skill, then that provision would have been unnecessary. We do not think that this subsection really assists either way. viii) We were grateful to Mr Luba QC for referring us to the US and Canadian authorities. We do not think that any real help can be derived from the US authorities where the concept of predominance has become embedded. Although the definition of game in the Canadian statute under consideration was exhaustive, the approach of the majority of the Supreme Court of Canada in Ross to the construction of the Canadian legislation is very much the approach we have adopted in relation to the UK legislation; for the reasons that are evident from this judgment, we were not persuaded by the views of Spence J. 12. There was in our view therefore no misdirection in the summing up. The jury were on the evidence plainly entitled to conclude that the game of TH Poker was a game of chance as defined by the 1968 Act . The appeal must be dismissed.	```yaml citation: '[2008] EWCA Crim 137' date: '2008-02-08' judges: - LORD JUSTICE THOMAS ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical 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: 2005/5604/A3 & 2005/5763/A3 Neutral Citation Number: [2006 EWCA Crim 3423 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 11 January 2006 B E F O R E: MR JUSTICE FULFORD HIS HONOUR JUDGE FINDLAY BAKER QC (Sitting as a Judge of the CACD) - - - - - - - R E G I N A -v- KEVIN FRIEND RICHARD TARRANT - - - - - - - - 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 O'HIGGINS appeared on behalf of the APPELLANTS - - - - - - - - J U D G M E N T 1. MR JUSTICE FULFORD: On 7th October 2005 at the Crown Court at Maidstone, the appellant Tarrant pleaded guilty to an offence of robbery, together with his co-accused, Kevin Peter Lee Friend. Prior to that date, namely on 22nd August 2005, Tarrant pleaded guilty at the Channel Magistrates Court to two offences of theft for which he was committed to the Crown Court for sentence. His Honour Judge David Croft QC, sitting as a Deputy Circuit Judge, sentenced both men as follows: Tarrant was sentenced to a term of detention for public protection pursuant to section 225 of the Criminal Justice Act 2003 with a minimum term of 19 months, less 48 days spent on remand. In his case one offence of robbery was taken into consideration. It is unclear both from the court record and the sentencing remarks exactly how the judge dealt with the two offences of theft, although one offence of robbery was taken into consideration. Friend was sentenced to imprisonment for public protection pursuant to section 225 of the same Act with a minimum term of 12 months, less 17 days spent on remand. 2. Tarrant appeals against that sentence with the leave of the single judge. Friend also appealed against that sentence and was granted leave by the single judge. However, yesterday this court received notification from him indicating that he wished to abandon his appeal. At our invitation his counsel, Mr O'Higgins, who also appears before us for the appellant Tarrant, has spoken with Friend in custody by telephone. He has reiterated to Mr O'Higgins his intention to abandon his appeal, and having had carefully explained to him all the relevant issues that position is, persisted in by Friend, and in those circumstances Mr O’Higgins does not ask this court to adjourn consideration of Friend's case so that a conference can take place. Therefore, we are now only concerned in this appeal with Tarrant. 3. The facts of these offences can be shortly stated. On 18th June 2005 the appellants entered a convenience store in Folkestone and they took some food and drink to the counter. As soon as the till was opened by the assistant, Miss Kara Phipps, Tarrant went behind the counter and pushed Miss Phipps aside and he, followed by Friend, grabbed money from the till. They then both left the store taking approximately £150 with them. The two men had not taken any steps to disguise themselves and they were recognised by police officers from a CCTV record of this incident. Moreover, Tarrant's fingerprints were recovered at the scene. 4. In due course the judge rejected Friend's mitigation that he had joined this criminal enterprise on the spur of the moment when Tarrant pushed the shop assistant to one side. For wholly sustainable reasons the judge decided that both men had planned this offence in advance. 5. As regards the offence of robbery which the judge took into consideration, on 17th June 2005 the appellant Tarrant committed a similar offence at a bookmakers in Folkestone. He pushed the assistant at the till out of the way, grabbed some money and ran out. 6. As regards the two offences of theft, on both occasions, again in Folkestone, Tarrant entered jewellers' shops and having asked to look on one occasion at two engagement rings and on the other at some earrings, he ran out with the items without paying. The overall value of this jewellery, which was never recovered, was over £10,000. 7. Tarrant maintained after arrest that he had committed each of the offences whilst under the influence of crack cocaine and that the stolen property had been used to buy more drugs. He expressed remorse for his actions. The author of his presentence report emphasised his early resort to drugs and rehearsed that he had a history of offending linked to drug and alcohol misuse, as well as a tendency to respond impulsively and aggressively. It was recognised that the assumption had to be made that he posed a risk of harm but it was suggested that factors existed that indicated he did not pose a risk of serious harm, not least because in the commission of these offences there was little planning, no weapons were used and no serious physical injury had resulted. 8. Tarrant is 20 years of age and he has accumulated a formidable criminal record. He has been sentenced on 22 previous occasions for a total of 49 offences, of which 12 were for criminal damage, five for threatening behaviour, four for common assault, two for affray, two for possessing an offensive weapon, one for assaulting a police officer and one for attempted robbery. The judge determined that both men having committed robbery, which is a specified offence under the Criminal Justice Act 2003 , posed a significant risk to members of the public of serious harm from further offences of violence and as a result he imposed an indeterminate sentence on both for the protection of the public. 9. The minimum custodial element of the sentence as regards Tarrant was arrived at in the following way. The judge noted that he was the person who was primarily responsible for the violence during the robbery on 18th June, although the judge accepted that this was not the worst of robberies in that no weapons were used and no physical injury was caused. However, the judge rightly observed in our view that it must have been an extremely frightening experience for Miss Phipps. Taking into account the additional robbery, the starting point for the sentence the judge would have imposed if he had not passed an indeterminate sentence was six years. He made a deduction of two years for Tarrant's plea and deducted approximately 15 per cent because he would be on licence throughout the period of the sentence, leaving 38 months. This was then halved, making a custodial period of 19 months, less the 48 days that Tarrant had spent on remand. 10. In essence Tarrant's appeal is advanced on the footing that the judge should not have passed an indeterminate sentence because it was unreasonable to conclude that there was a significant risk of serious harm to the public. Because he had been convicted of a serious offence for the purposes of section 225(1) of the Criminal Justice Act 2003 , under section 229(1) it fell to the court to consider whether for the appellant there was a significant risk to members of the public of serious harm by the commission on his part of further such offences. Serious harm is defined as meaning death or serious personal injury, whether physical or psychological (see section 224). If the answer to that question was in the affirmative, unless a life sentence was appropriate the court is obliged to pass a sentence for public protection. 11. In Tarrant's case, because he had one conviction for attempted robbery and two convictions for affray, the court was obliged to assume that such a risk existed unless it considered that it would be unreasonable to conclude that such a risk existed. In our view it is critical that a judge when deciding whether or not to pass an indeterminate sentence should focus with care and precision on each of the various stages of the test or tests that he or she must apply and that the reasons for the sentence should be clearly, if shortly, explained. In this case it is submitted that the judge, certainly at times, appeared to be unclear as to the precise nature of the criteria or he ceased to focus on them consistently. In explaining his decision to the appellants, the judge referred to both the existence of a "significant risk of serious harm" and "a risk of significant harm" and after Tarrant and Friend were taken down to the cells, when he was invited to correct what he had said in passing sentence, the judge referred to "a reasonable risk of them causing significant risk to the public" and "there is a risk and it is a reasonable risk, it is reasonable to conclude that there is such a risk." Finally, when counsel indicated that there were problems with that formulation as well, the judge said, we observe correctly, "there must be a significant risk to members of the public of serious harm." 12. With respect to the judge, in light of those changing remarks, we accept that there is force in the submission advanced before us that bearing in mind his failure to use consistent language when setting out his reasons for passing these sentences the judge may not have approached the elements of the test properly. He referred to both "a risk" and "a reasonable risk" as well as "a significant risk". Furthermore, he conflated serious harm with significant harm or significant injury and, as we have already pointed out, serious harm is the subject, importantly, of a precise and narrow definition. "Significant harm" may well include harm that is less grave than "serious harm" as defined by the Act. 13. Although, as we have pointed out, the judge also referred to the correct tests during his sentencing remarks, the marked impression is left that he may unconsciously have applied a lesser criteria than that provided for in the relevant sections of this Act which we remind ourselves have only relatively recently come into force. Furthermore, as this court made clear in R v Lang and Others [2005] EWCA Crim. 2864 , unless the information about the offence or offences, the pattern of behaviour and the offender together show a significant risk of serious harm from further offences, it will usually be unreasonable to conclude that the assumption applies. In our view on the particular facts of this case once the judge had considered the circumstances of the relevant offences, the pattern of Tarrant's behaviour and all of the information about him, he should have decided to use the language of the Act "that it would be unreasonable to conclude" that there was a significant risk of serious harm from him to members of the public. Tarrant had not inflicted or attempted to inflict serious harm in the past. As regards this joint offence of robbery, as well as the further offences involving him alone, aside from pushing a shop assistant to one side, Tarrant had not utilised any violence. 14. Although, as we have already observed, in the past he has been a prodigious offender, there is scant, if any, indication that his offending is worsening; still less that it is deteriorating to the level where he could be said to pose a significant risk of serious harm to members of the public. For those reasons, in our view, this sentence that was passed of detention for public protection should be quashed. 15. The next issue is the sentence in his case that we should substitute. We agree with the starting point identified by the judge and we note that in the grounds of appeal Mr O'Higgins on his behalf does not quarrel with this aspect of the sentencing exercise. Given that for him this will now be a determinate sentence, the period will be 38 months, less the 48 days spent on remand. To that extent and for those reasons this appeal is allowed.	```yaml citation: '[2006] EWCA Crim 3423' date: '2006-01-11' judges: - MR JUSTICE FULFORD - HIS HONOUR JUDGE FINDLAY BAKER 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: 200401593/A1 Neutral Citation Number: [2004] EWCA Crim 2801 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 22nd October 2004 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE RICHARDS MR JUSTICE BEAN - - - - - - - - - - - - R E G I N A - v- MOHAMMED ASLAM - - - - - - - - - - - - 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 COX appeared on behalf of the APPELLANT MR R D'CRUZ appeared on behalf of the CROWN - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE BEAN: This is an appeal against a confiscation order by leave of the Single Judge. On 29th April 2003 at Stratford Magistrates' Court the appellant pleaded guilty to 24 offences of dishonesty and asked for a further 14 offences to be taken into consideration. On 30th May 2003, in the Crown Court at Snaresbrook, he was sentenced by Mr Recorder Lowe QC to a total of 18 months' imprisonment. There is no appeal against that decision. 2. The Crown initiated confiscation proceedings which, after some delay, came before His Honour Judge Birtles on 7th January 2004. The Crown had, in the usual way, served a schedule detailing the matters in respect of which they sought confiscation. One of these, count 1 on the indictment, related to an offence committed which had been committed prior to 1st November 1995. Similarly, one of the offences taken into consideration occurred before that date. 1st November 1995 is of significance since it was the date on which the relevant provisions of the Proceeds of Crime Act 1995 came into force. The Crown were seeking to proceed under that Act. The previous legislation was the Criminal Justice Act 1988 as amended by the Criminal Justice Act 1993. 3. On 7th January 2004 the defence took the point which is the subject of this appeal, namely that because the confiscation schedule included one count and one offence to be taken into consideration, each of which pre- dated the commencement of the 1995 Act , the court had no jurisdiction to continue with the confiscation proceedings brought under that Act. The response of the Crown, after reflecting on the matter, was to abandon reliance on the count and the offence taken into consideration which occurred before 1st November 1995. 4. The defence submitted that this manoeuvre failed to achieve its purpose and that the confiscation proceedings remained fatally flawed. Judge Birtles reserved judgment and in a careful written decision, to which we would pay tribute, he rejected the defence submissions. He accordingly made a confiscation order under the 1995 Act in the sum of £25,000 with a term of imprisonment of 9 months, consecutive to the earlier sentences, in default of payment. 5. It should be noted that if the offending count 1 had remained in play, the benefit allegedly received by the defendant, would, on the Crown's case, have been increased by £35,000; on the other hand, under the pre- 1995 legislation some £7,000 would have had to be deducted from the amount of the confiscation order since it related to a "course of conduct" covered neither by the convictions nor by the offences taken into consideration. The "course of conduct" confiscation provisions were first introduced by section 2 of the 1995 Act , creating a new section 72AA of the Criminal Justice Act 1988 . 6. It is possible to summarise the facts of the offences quite briefly, since they do not affect the jurisdiction point which is before us. The appellant produced two forged documents, one a death certificate purporting to show his father was dead, and one a letter purportedly from a doctor saying he was ill, in response to queries from people who ran the medical course he was attending. He stole a quantity of stationery and cleaning products from a hospital where he worked, and also stole a computer from the same hospital. He used his computer at work to disguise the origin of orders he was making for goods with stolen credit card details to arrange for goods to be delivered at a number of addresses. He was also falsely claiming certain social security benefits. 7. Section 1 of the 1995 Act amended the law relating to confiscation orders in a number of respects, for example by imposing a duty on the court to conduct confiscation proceedings where it considered that to be appropriate even though the prosecution had not served written notice of their intention to do so. Section 16(5) of the 1995 is as follows: " 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." If section 1 of the 1995 Act did not apply in the present case, it would follow that confiscation proceedings could only have been brought under the earlier statute. 8. The meaning of section 16(5) was considered by this Court, specially constituted with five judges, in R v Simpson [2004] QB 118 , upon which Mr Cox, appearing for the appellant, strongly relies. Simpson pleaded guilty to six offences arising from a value added tax fraud. He was sentenced to 30 months' imprisonment and a confiscation order was made against him. The Crown failed to serve a properly constituted notice complying with section 72 of the 1988 Act as amended in 1993. That did not matter if the 1995 Act applied, since under section 1(2) of that Act the court could proceed of its own motion. 9. It was argued on Simpson's behalf that one count (count 6) to which he had pleaded guilty concerned facts which took place a fortnight before 1st November 1995. Accordingly, it was argued that section 16(5) had the effect that the 1995 amendments did not apply and the failure to serve a proper notice was fatal to the confiscation order, even though "count 6 was not a count on which the confiscation order was based" (paragraph 15 of the judgment). 10. The court rejected that submission. It noted that the submission, if correct, would have the curious result that an acquittal on count 6 would have left the Crown free to seek a confiscation order under the 1995 Act in respect of the remaining counts, whereas the conviction on count 6, even though irrelevant to the confiscation order, would have rendered the confiscation proceedings under the 1995 Act a nullity. The court held that section 16(5) was to be interpreted as though it read: " 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 in respect of which a confiscation order is or could be sought , which was committed before the commencement of that section." The words "in respect of which a confiscation order is or could be sought" were apparently suggested by Mr David Barnard, counsel for the prosecution, in his skeleton argument. No confiscation order was apparently sought, or at least made, in respect of count 6. But so far as we can see a confiscation order could have been sought in respect of that count since that was simply one of a number of VAT offences before the court (see paragraph 2 of the judgment). 11. The legislative purpose of section 16(5) , as it seem to us, was to prevent the Crown from dividing convictions against a defendant in one set of proceedings into pre- and post- 1st November 1995 matters and then taking confiscation proceedings (concurrently or consecutively) under both statutes. So if at the time the judge is asked to make a confiscation order under the 1995 Act on a number of counts there remains a pre- commencement count on which the Crown is seeking, or could still seek, a confiscation order under the 1988 Act as amended in 1993, there is no jurisdiction to make an order under the 1995 Act . However, if the pre- commencement count is one which could not be the basis of confiscation proceedings, there is no obstacle to using the 1995 Act regime. Similarly if (as in this case) the Crown has expressly abandoned any reliance on the pre- commencement count for the purposes of a confiscation order, the fact that it could have sought such an order in respect of that count seems to us entirely immaterial. In such a case also, in our judgment, there is no obstacle to using in the 1995 Act regime in respect of the post- commencement counts. We do not understand Simpson to require a contrary conclusion. 12. We agree with the observations of this Court in R v Sekhon [2003] 1 WLR 1655 : "28 ...we suggest that it would not have been the intention of Parliament to exclude the jurisdiction of the court in relation to the making of confiscation orders because of procedural defects of a technical nature that caused no injustice to the defendant. In this context it is interesting to note that certainly this is not Parliament's intention now. The most recent legislation in this area is the Proceeds of Crime Act 2002. Section 14(11) of that Act provides: 'A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement.' 29 We would expect a procedural failure only to result in a lack of jurisdiction if this was necessary to ensure that the criminal justice system served the interests of justice and thus the public or where there was at least a real possibility of the defendant suffering prejudice as a consequence of the procedural failure." 13. The other aspect of section 16(5) of the 1995 Act as interpreted in Simpson is that a confiscation order cannot be made under that Act if the defendant is convicted in those proceedings of a pre- commencement offence in respect of which a confiscation order is sought . Here, as Mr Cox points out in his able argument on behalf of the appellant, a confiscation order was sought in respect of the offending count until he raised the section 16(5) issue at the outset of the confiscation hearing before Judge Birtles, at which point reliance on that count was abandoned by the Crown. 14. As to that, we interpret the phrase "in respect of which a confiscation order is sought" from the judgment in Simpson as referring to a case where the prosecution maintain their reliance on the count in question at the substantive hearing of the application for a confiscation order. We agree with the learned judge that the abandonment of confiscation proceedings in respect of one count at that stage is analogous to the Crown offering no evidence on one count of an indictment at the beginning of a trial. We cannot agree with Mr Cox that this abandonment was an abuse of process. Conversely, we accept the submission of Mr D'Cruz that it is for the Crown to decide on the counts in respect of which it wishes to institute and maintain confiscation proceedings. 15. For the sake of completeness we should mention the one offence taken into consideration which antedated 1st November 1995. Given that section 16(5) refers to convictions, we doubt whether an offence taken into consideration brings it into play at all. However, it is unnecessary to decide the point in this case, since if section 16(5) does apply to the offence taken into consideration our decision as to the proper interpretation of that section in relation to count 1 plainly applies to the matter taken into consideration as well. 16. Accordingly, in our judgment, the learned judge was right to permit the prosecution to proceed under the 1995 Act . 17. Mr Cox submitted, as a fall back position, even if the Crown was so entitled, it would be wrong to permit a confiscation order in respect of the "course of conduct" which represents £6997.75 of the total of £25,000. But we consider that his argument on jurisdiction is, as he submitted to the learned judge, an all- or- nothing argument. If the Crown was entitled to proceed under the 1995 Act , it was entitled to rely on the appellant's course of conduct in so far as it occurred after 1st November 1995, and thus the amount of the order was properly fixed at £25,000. 18. For these reasons we dismiss the appeal. 19. MR COX: I make an oral application for leave to appeal. 20. THE VICE PRESIDENT: You first of all need us to certify a question of general public importance for the consideration of the House of Lords. 21. MR COX: I do my Lord. One of the difficulties was that Mr D'Cruz was going to be here, a matter we discussed after the last hearing because- 22. THE VICE PRESIDENT: Have you got a draft question? 23. MR COX: I have not. We were going to hear what your Lordships said and ask your Lordships for some time to draft a question together. 24. THE VICE PRESIDENT: Probably the most convenient course, Mr Cox, is if you will submit the question in writing, preferably within the next 7 days whilst it will be feasible for all of us to look at it. You actually I think have 14 days but it would help if it was within seven days. If we are minded to certify we shall say so; if we are not, we shall say so. If we say we are not minded to certify, you will probably be given an opportunity for brief oral argument. I do not encourage you to submit a question because I have indicated, bearing in mind we are dealing with transitional provisions, it has to be a point of general public importance. But, with those observations in mind, proceed as you wish.	```yaml citation: '[2004] EWCA Crim 2801' date: '2004-10-22' judges: - (LORD JUSTICE ROSE) - MR JUSTICE RICHARDS - MR JUSTICE BEAN ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	No: 2010/5953/B4 Neutral Citation Number: [2011] EWCA Crim 157 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 13 January 2011 B e f o r e : LORD JUSTICE MOSES MR JUSTICE KENNETH PARKER THE RECORDER OF LONDON His Honour Judge Peter Beaumont QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - R E G I N A v RACHEL LAMBETH - - - - - - - - - - - - - - - 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 D Small appeared on behalf of the Appellant Mr S Rippon appeared on behalf of the Crown - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE MOSES: This is an appeal which raises the question as to the consequence of a failure of a judge to give the correct warnings to the jury about their behaviour during the course of the case. 2. The appellant was convicted of unlawful wounding in October 2010 at Birmingham Crown Court. The case was a very strong one in which it was alleged that she joined two other ladies in going to the home of the victim in Walmesley Way, Birmingham and attacking her. She was identified by the complainant's mother and through the names that were used at the time by the complainant. The jury, despite her evidence, convicted her. 3. A number of grounds were raised but the appellant was given permission to appeal on only one and very fairly and helpfully Mr Small does not advance the others by way of renewal. This unfortunately leaves him in a difficult position as to the ground in respect of which permission was granted. 4. The judge ought to have directed the jury at the outset of the trial in accordance with the guidance that is now well familiar and is set out in R v Oliver [1996] 2 Cr.App.R 514 and reiterated in R v Hastings and identified not only in the Crown Court Bench Book but also at Archbold paragraph 4-425. He must direct the jury that they must decide the case only on the evidence that they hear in court and only discuss the case in the privacy of their own jury room between themselves - particularly that they should not discuss the case with anyone outside their number when they return home or during any adjournments. 5. Mr Small says the judge failed to give those directions until the second day when he was reminded to do so by prosecuting counsel and he gave those directions at the end of the day. There is unfortunately no transcript of the start of the trial. It is apparent from the judge's remarks on Tuesday 28th September 2010 (the second day) that he believed he had given those directions both at the short adjournment and in the evening. Mr Small says he did not and in the absence of any transcript we are quite prepared, without any disrespect to the judge, to assume without further investigation that the judge did not do so. 6. In our judgment his failure to do so has no effect upon the safety of the conviction. When he did remind the jury at the end of the second day, no one suggests that there was any comeback or reaction by the jury such as to suggest that something had previously gone wrong and there is nothing in the course of the case down to the time when they convicted, on the plainest evidence, to suggest that any irregularity had in fact occurred. It was clearly incumbent on the judge to give those directions and even assuming he did not, it does not necessarily follow that a failure to do so leads to the conclusion that the conviction was unsafe. In the context of these facts, the overwhelming nature of the case against this appellant and the absence of any reaction of the jury, we are satisfied that there was no irregularity such as to cast doubt upon the safety of the conviction. 7. There is however a third point which we should deal with. The judge was also asked to tell the jury that they should not be tempted to make any investigations of their own on the internet. This is consistent and indeed obeys the strictures of the Lord Chief Justice on this topic. The judge declined to do so. He took the view that to warn the jury not to be tempted to use the internet would amount to an invitation to go and do it. In so considering he paid insufficient regard to the reasoning and directions of the Lord Chief Justice. One of the points of instructing the jury not to do so is to put the other members of the jury on guard should one of their number be tempted to do so and made them aware of the concept of collective responsibility for the proper conduct of the trial. By doing so he invites members of the jury to be on guard lest one of their number should disobey the instruction and invites them to draw that to the attention of the judge. In that way collective responsibility might ensure that the practice of looking things up outside the scope of the evidence is avoided. 8. It was incumbent upon the judge to obey the instructions of the Lord Chief Justice in that regard, but having said that, there is no suggestion in any way that that affected the safety of the verdict for the reasons we have given. The notion that there was anything on the internet in any event which might assist one way or the other in relation to this young lady, aged 21, who was convicted of the unlawful wounding, is fanciful. In those circumstances this appeal is dismissed.	```yaml citation: '[2011] EWCA Crim 157' date: '2011-01-13' judges: - LORD JUSTICE MOSES - 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} ======	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 202301214/B1 Neutral Citation No.: [2024] EWCA Crim 159 Royal Courts of Justice Strand London WC2A 2LL Wednesday 7 February 2024 Before: LADY JUSTICE ANDREWS MRS JUSTICE CHEEMA-GRUBB THE RECORDER OF REDBRIDGE (HER HONOUR JUDGE ROSA DEAN) (Sitting as a Judge of the CACD) REX V JORDAN THOMAS CAMPBELL __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ NON-COUNSEL APPLICATION _________ J U D G M E N T 1. MRS JUSTICE CHEEMA-GRUBB: This is a renewed application for permission to appeal against convictions for strangulation and rape, following refusal by the single judge. 2. The applicant was convicted, after trial in February 2023, and on 4 May 2023, he was sentenced to an extended sentence of 15 years, comprising a custodial term of 9 years and an extended licence of 6 years for rape, with 2 years’ imprisonment concurrent for strangulation. A restraining order of indefinite duration was imposed. 3. The basis of the application is fresh evidence by way of an email from the complainant, sent after the trial, which the applicant believes exculpates him. In addition, the applicant criticises the legislation which prevents cross-examination of a complainant on her previous sexual history except with leave of the judge. 4. The applicant requires an extension of time of 40 days in which to renew his application for an extension of 8 days for leave to appeal against conviction. 5. The background can be stated shortly, as it is set out fully in the Criminal Appeal Office summary which the applicant has. The complainant has life-long anonymity. We do not intend to identify her in this judgment but the provisions of the Sexual Offences (Amendment) Act 1992 apply, and no matter relating to her can be included in any publication, during her lifetime, if it is likely to lead members of the public to identify her as a victim of these offences. 6. The applicant and his ex-partner met up at the applicant’s address on 17 September 2022, a few days after they had broken up. There was an argument and he attacked her. He strangled her and told her they were going to have sex. She was too frightened to say “no”. She left in the morning and told witnesses what had happened, albeit her entire account came out in stages. 7. The applicant’s contrary account was that she had wanted to have makeup sex and they argued. Although she was distressed, there was no deliberate strangulation, and they went on to have consensual sexual intercourse. 8. It is clear that the jury had to determine whether they could be sure that the complainant’s account was reliable and honest. 9. The applicant relies in these applications on an email he has produced dated 5 April 2023 which he says he received “out of the blue” from his ex-partner after his conviction. The email includes the following: i. “Now it’s over and I heard your defence it’s had my brain boggled. I didn’t realise I couldn’t remember so much of the night, especially the walk home, and that scared me. You said you asked me for makeup sex in court, but I didn’t remember that. I mean, I didn’t think you had at all but now I’m doubting myself and I believe you did, and I said yes, even if I didn’t want to so you wouldn’t have known.” 10. She also refers to the respectful way in which the applicant had treated her in the past, and her desire that he be a father still to their child. 11. Following receipt of the email, the prosecution obtained a further statement from the complainant. That statement is dated 2 May 2023, and the applicant’s ex-partner confirms therein that everything she said in her evidence at the trial was truthful. She explains that the email she sent to the applicant post-trial was a result of her being manipulated by him, including through his friends, at a time when she was vulnerable, he having been sent to prison. Her statement concludes: i. “I still stand by what I said in the trial. I do not remember the walk home. However, I remember what happened in the room. I remember he strangled me, hit me and then after he had sex with me when I did not want to. I was crying and I was just lying there. He would have known I was not consenting. I did lie in the email, but I did this because I was stupid, calm and mentally not in the right place and vulnerable. I believed he had changed. I thought things would be different next time and I wanted my son to have a dad.” 12. Nevertheless, the applicant seeks to argue his conviction is unsafe. We accept that this proposed ground of appeal could not have arisen within the 28 days permitted for an application for leave to appeal to be lodged. Had there been any merit in the application, we would have granted all the necessary extensions. 13. Under section 23(2) of the Criminal Appeal Act 1968, this Court may, if it is necessary or expedient in the interests of justice, receive any evidence which was not adduced in the proceedings from which the appeal lies. Under that provision, the Court needs to have regard in particular to whether the evidence appears to be capable of belief, whether it appears to the Court that the evidence may afford a ground for allowing the appeal, whether the evidence is admissible, or 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 in the proceedings. 14. We bear in mind that in formulating his grounds of appeal the applicant has not had the benefit of legal advice. The original application for permission to appeal has been refused by the single judge. Although we are satisfied that the applicant has provided a reasonable explanation for the failure to adduce the evidence at the trial, we are not satisfied, having regard to the circumstances in which the email that the applicant relies on was sent to him and the subsequent statement obtained by the police, that the evidence arguably may afford grounds for allowing an appeal. The ultimate question at the trial was whether the jury could be sure the complainant was correct in her account or whether, as the applicant said at trial, she had not described or recollected the events accurately. Even taking the 5 April email at face value, the complainant does not therein withdraw her evidence or agree that she had misled the court; she simply states on reflection that she cannot, at that time, exclude the possibility that the applicant had asked her for makeup sex and she had agreed. She does not say anything about the strangulation which the applicant had also denied. 15. We are unable to find any reason to disregard the more recent statement the complainant has made to the police. It is of note that the statement itself was preceded by an email from the witness herself to the police on 17 April in which she said: i. “I need to speak to you pretty urgently. I’ve messed up big time and allowed Jordan to get in my head again. So much I’ve written him a letter stating I remember him asking me for sex that night and I said yes. I don’t remember this, and Jordan had asked me to write it so he could apply for a retrial or appeal.” 16. The applicant also draws our attention, albeit not as a freestanding proposed ground of appeal, to another issue raised at the trial, which was his account that he and his ex-partner had had makeup sex in the past. An application to adduce evidence of text messages in this regard was made, we are told, pursuant to section 41 of the Youth Justice and Criminal Evidence Act 1999, but the trial judge ruled that the introduction of evidence about previous instances of makeup sex were excluded by the legislation. 17. In this regard the applicant does no more than invite us to consider that position as part of context in which to assess his intended appeal. We have done so. We have read the judge’s summing-up in which the cases for the prosecution and defence are set out, including a summary of the applicant’s evidence. It appears that the applicant had given evidence in respect of the strangulation, that the complainant had introduced him to “this kind of thing” and also that they had done it when they had been drinking or having makeup sex. It follows that what the applicant wanted the jury to know about in respect of there having been previous occasions of makeup sex and strangulation was indeed adduced during his own evidence. 18. Accordingly, having considered the matter independently and for ourselves, we agree with the single judge that there is no arguable ground of appeal, and the applications sought must therefore be refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]	```yaml citation: '[2024] EWCA Crim 159' date: '2024-02-07' judges: - LADY JUSTICE ANDREWS - MRS JUSTICE CHEEMA-GRUBB ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical 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 1302 Case No. 2008/06063/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Wednesday 10 June 2009 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE COLLINS and MR JUSTICE OWEN - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - ANTHONY FRANCIS MORLEY - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404 1400; Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr P Greaney appeared on behalf of the Appellant Mr R Mansell QC appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T THE LORD CHIEF JUSTICE: 1. Anthony Morley is 36 years old. He has made previous court appearances but they are irrelevant to the sentence which we are now considering. 2. On 20 October 2008, at Leeds Crown Court, following his conviction by a jury of murder, the appellant was sentenced by His Honour Judge Stewart QC to imprisonment for life. The period of thirty years' imprisonment was specified as the minimum term under the Criminal Justice Act 2003 . An appropriate order was made that the days spent on remand in custody should count towards sentence. The appellant appeals against sentence by leave of the single judge. 3. The appellant was a chef. He was described at trial (both in his own words and by others) as being of conflicted sexuality. He had been involved in sexual relationships with both men and women. According to his evidence, he had been raped at the age of 17 by an older man who had been his employer. That event had had a profound effect on him and on his own view of his sexuality. 4. The employer gave evidence at trial. He accepted that he had engaged in homosexual activity with the appellant, but he asserted that this had happened after the appellant was 18 years old and that the activity between them had been consensual. 5. The deceased was homosexual by orientation and comfortable with his own sexuality. The appellant had met him a number of years prior to the killing. The two men knew each other as acquaintances. A month or so before the killing the appellant had met the deceased by chance in a gay bar in Leeds. He went back to the deceased's home. They "kissed and cuddled", but their sexual activity developed no further on that evening. The appellant slept on the sofa and the deceased slept in his bed. 6. Thereafter, the appellant and the deceased had limited contact by sending text messages. On 23 April 2008 a series of text messages of a flirtatious nature were exchanged. In one the appellant spoke of his wish that things should be taken slowly. They arranged, as the appellant accepted at trial, a "date" for 23 April 2008. In accordance with their agreement, they met in Leeds at about 5pm. The appellant had spent the earlier part of the afternoon drinking with a friend. The appellant and the deceased then had a drink. According to his evidence the appellant, who was an experienced drinker, had about six or seven pints of beer. After that they went back to the appellant's home. 7. Once there, the appellant cooked a meal. They drank two bottles of wine and a number of cans of beer. There was some "kissing and cuddling". They then went to bed in order to watch the film "Brokeback Mountain". According to his evidence the appellant maintained that, prior to going to bed with the deceased, he had received his assurance that things would be taken slowly. They had gone to bed on the basis that there would be no sexual activity. 8. The appellant's evidence was that later that night he woke to discover the deceased performing oral sex upon him. The scientific evidence showed the deceased's DNA on the appellant's penis and was consistent therefore with oral sex. The appellant felt betrayed because of the earlier promise to take things slowly. He went downstairs to calm himself. Having calmed himself, he recalled returning upstairs. He said that he had no recollection of events until he came around as a result of cutting his own finger while stabbing the deceased in the course of a ferocious attack. 9. The trial judge did not see the way in which the evening developed in the same way. In the course of his sentencing remarks he observed that the deceased was not able to give his own version of events but that if he had been he would have pointed to a number of factors: that it was the appellant who had texted him and invited him to dinner; that it was the appellant who had bought the drink which they both drank to excess; that it was the appellant who had cooked the meal for the two of them; that the appellant had engaged in kissing and cuddling downstairs; that it was the appellant who, having invited the deceased to share his bed, took off his own trousers and tee-shirt and got into bed wearing only his underpants; and that it was the appellant who had kissed and cuddled the deceased in his bed. The judge continued: "He would have said to this court that this was not a case of betrayal, that everything he did you consented to, if not expressly, impliedly. You made the running as much as he did." Those findings are important. 10. The evidence of the pathologist revealed that the throat of the deceased had been cut by the appellant while the deceased lay asleep. Thereafter, the deceased was stabbed many times. Following his death, sections of his flesh were removed from his breast and his thigh. Some of that flesh was seasoned with herbs and cooked with olive oil in the kitchen downstairs. A chewed piece of flesh was later found in a waste bin in the kitchen. The appellant's DNA was found on that chewed piece of flesh. 11. At trial the appellant accepted that he had killed the deceased, and that after his death he had removed sections of flesh from the body, cooking part of it and sampling it before spitting it out. He maintained that he could not recollect killing the deceased or his subsequent conduct in removing, cooking and sampling the flesh. His acceptance of what he had done was based on the acceptance of the evidence that he had done it. 12. After the killing the appellant left the house. In dressing gown and slippers he went to a nearby takeaway and asked for the police to be telephoned. He waited for the police. When they arrived he told them that he had killed the deceased because he had been raped. That was a reference to his assertion at trial that he had been raped when a younger man by his former employer. He also referred to having asked the deceased to take things slowly. He said that he had hurt his finger. He thought that he had done so when his hand slipped on the knife as he was putting it into the deceased's chest. He added that the rib cage is "hard to get through especially from the back, harder than you think". 13. The defence of provocation was rejected by the jury. The appellant relied on medical evidence to demonstrate that his responsibility for his actions at the time of the killing was diminished. Again the jury did not accept that contention. 14. A psychiatric report before the court indicated many of the matters to which we have referred in the course of our analysis of the facts. The appellant denied any interest in, or use of, material relating to violent or sadomasochistic matters. However, the psychiatrist noted that he had expressed an interest in a website which showed photographs and news relating to violent fatalities, murder, suicide and other bizarre events. He noted that witness statements referred to the appellant's use of weapons and that the deceased (according to the appellant) was allegedly aroused by knives. 15. The psychiatric report which formed the basis of the diminished responsibility defence noted that there was no evidence of a personality disorder, or that the appellant had ever suffered from an episode of mental illness. According to Professor Eastman, he was clearly disturbed in his psychological functioning and conflicted about his sexuality. There was no evidence to suggest any inherent cannibalistic interests. 16. In his sentencing remarks the judge described this as "a cold-blooded, savagely executed murder, carried out by cutting his throat as he lay in your bed and, when he fell to the floor and you stabbed him repeatedly and ferociously, he died." The judge referred to the cannibalistic elements of the offence and said: "All this you maintain because of your conflicted thoughts about your sexuality and his taking things too quickly." The judge referred to evidence that the appellant could not come to terms with the fact that he derived sexual satisfaction from homo-sexual activity. The judge was dubious whether that was an explanation for earlier violence. He referred to an incident where the appellant had taken a meat cleaver to his former lover of five years, and he had only just missed cutting that man's head open because he slipped while in drink. That incident was followed by the appellant retreating to his bedroom and trashing it. When the ambulance arrived, he threatened the paramedics with an air rifle so that they called the police. 17. The judge added that the conflicted sex life of the appellant did not explain why he had taken an axe to his own bedroom door in the weeks before the killing. All of this material emerged during the course of the trial. 18. The judge concluded that all that behaviour, as well as the instant murder, demonstrated that when in drink the appellant was highly dangerous. He accepted that when sober the appellant was a decent, caring man with many qualities, including the ability to work hard. The judge noted the deceased's lack of difficulty with his own sexuality, the absence in the deceased of any violent streak, and the fact that he was "outwardly gay and proud of it". He enjoyed his life to the full. 19. When he came to decide the minimum term to be served by the appellant before parole could be considered, the judge observed that this was a murder aggravated by the appellant's sexual orientation. Having considered the aggravating and mitigating features, he concluded that the appellant's gruesome conduct after the death and the destruction of the body would be taken into account in the context of his conclusion that this was a particularly serious murder which merited a starting point of thirty years. He wished to avoid double counting against the appellant. 20. The submission made to this court in a clear and succinct argument advanced by Mr Greaney on behalf of the appellant is that the judge was wrong to take a starting point of thirty years; that under Schedule 21 to the 2003 Act the starting point should have been fixed at fifteen years, with an appropriate increase to allow for the events which followed the killing; but that the minimum term should not have ended up as a sentence of thirty years' imprisonment. 21. There is force in the submission that this could not be described directly as a case in which the appellant's conduct fell within the categorisation in paragraphs 5(2)(e) and (g) of Schedule 21 . However, it was accepted, and rightly so, that there was a sexual background to the killing, identified in the way in which the appellant was deeply troubled by his own sexuality and discomfited (to put it as low as we can) by the fact that the deceased was entirely at peace with himself over his own sexuality. 22. The question we must ask ourselves is whether the judge was right to reach the conclusion that this murder should be treated as one of a particularly high level of seriousness, thus making thirty years the appropriate starting point. We have referred to the way in which the judge addressed the issue of sexual orientation. Taken on its own, we should be inclined to the view that the submission on behalf of the appellant was correct. However, the question for us is not whether the judge was in error in the way in which he decided that the sexual element of this case should be applied in the context of the Schedule, but whether the judge was in error to conclude that this was a case of a particularly high level of seriousness. The nature of the attack and the sexual element to it is a significant feature. The sexual background which culminated in this killing cannot be ignored. The attack was one of extreme ferocity following sexual activity, about which there could be no final conclusion, but about which the judge indicated that he did not accept the appellant's version. Sexual orientation was a factor in this case. The death followed sexual activity in which the appellant decided that he should punish an individual who was at peace with his own sexuality. In addition to the ferocity of the killing and the circumstances in which the deceased's throat was cut, there was an element of clear deliberation. Following the sexual activity, the appellant went downstairs and calmed himself. He armed himself with a knife which he, as a chef, had the expertise to use in the way in which it was used, first to cut the deceased's throat, and then to stab him repeatedly, notwithstanding the difficulties which he explained when he was questioned about the incident after he was arrested. Having done all that, there is the dreadful element of the way in which the body of the deceased was desecrated after death. 23. Desecration in circumstances like this which involve not only desecration but cannibalism, is not a feature expressly identified in Schedule 21 . However, in our judgment it is a feature which normally would fall, and in this case certainly does fall, to be identified as a profoundly significant feature of seriousness which would justify bringing the case into the particularly high level of seriousness, assuming that all other aspects of the case were equal. We emphasise (and it was accepted, rightly) that the list of features identified in paragraphs 4 and 5 of Schedule 21 , as well as the list of aggravating and mitigating features in paragraphs 10 and 11, are not conclusive, nor exclusive. The reality is that, however comprehensive legislation relating to sentences may seek to be, it cannot ever cover all the many different facets of human criminal behaviour which sentencing judges have to face and take into account. The question is not whether paragraph 5 of Schedule 21 applies, but whether in all the circumstances this was a case of particularly high seriousness. In our judgment it was such a case. The starting point of thirty years was the right starting point. Although we accept part of the criticism of the way in which the judge approached his sentencing decision, we have reached the same conclusion (albeit by a different route). In those circumstances the appeal will be dismissed. _________________________	```yaml citation: '[2009] EWCA Crim 1302' date: '2009-06-10' judges: - MR JUSTICE COLLINS - MR JUSTICE OWEN ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	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 1327 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202300725/A4 Royal Courts of Justice Strand London WC2A 2LL Thursday, 5 October 2023 Before: LORD JUSTICE EDIS MRS JUSTICE STACEY DBE HIS HONOUR JUDGE LEONARD KC (Sitting as a Judge of the CACD) REX V PAUL ARTHUR KING __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR R ELLIOTT appeared on behalf of the Applicant _________ J U D G M E N T (Draft for Approval) 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. No matter relating to a sexual offence that has been committed against a 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 . It has not been waived or lifted. 2. MRS JUSTICE STACEY: On 7 November 2022 in the Crown Court at St. Albans, the applicant, then aged 63, was given permission to change his plea and pleaded guilty to two offences: attempted buggery of a male under 18 without consent, contrary to section 1(1) of the Criminal Attempts Act 1981 and section 12(1) of the Sexual Offences Act 1956 and indecent assault on a male person, contrary to section 15(1) of the Sexual Offences Act 1956 . A further count on the indictment of buggery was not proceeded with and was ordered to lie on the file. 3. On 8 February 2023 he was sentenced by His Honour Judge Roques to eight years' imprisonment for both offences, each to be served concurrently with the other. The applicant renews his application for leave to appeal against sentence following refusal by the single judge. 4. The relevant facts are as follows. On 10 February 1983 the 16-year-old complainant was on his way home crossing Fairlands Valley Park in Stevenage, Hertfordshire somewhere between 9.00 and 10.00 pm. He often took this route with friends but on this occasion was alone. He was approached by the applicant, then aged 23, who was pushing a bicycle who asked him for the time and appeared to continue on his way after the complainant had replied. The applicant then suddenly turned back, grabbed the complainant from behind, took hold of him around the chest. He used both of his arms to pin the complainant's arms to his side so that he was unable to push the applicant's arms away. He made the complainant undo his belt and drop his trousers and underwear and he touched the complainant's penis and testicles. He forced the complainant to lean forward and attempted to penetrate his anus with his penis. The applicant then spun the complainant around, pushed him to his knees and with his right arm and hand around the complainant's neck very forcefully pushed his penis inside the complainant's mouth. The applicant was too strong for the complainant to be able to resist. The applicant pushed the complainant's head back and forwards until he ejaculated in the complainant's mouth. As soon as ejaculation had taken place the applicant fled, leaving the complainant on the ground. 5. The complainant ran home and told his father and two of his brothers that he had been attacked and they went to the police. Swabs were taken that revealed seminal staining, but no suspect was identified at that stage. 6. Following a cold case review and further forensic and DNA analysis the applicant was identified and arrested on 7 June 2021. He denied the offences until the week before trial. 7. In careful sentencing remarks the judge identified that at the time of these offences the applicant was of good character but noted that in the following decade he had committed a number of similar sex offences: indecent assault in 1984, when a further offence was taken into account, and two offences of buggery in 1991 for which the applicant received a custodial sentence of four years in 1992. 8. The judge noted that within the maximum available sentence at the time the applicant fell to be sentenced having measured regard to the current sentencing regime. The judge meticulously followed the approach to sentencing historical sex offences. He noted that if the offences had occurred today they would be attempted rape and rape for which the maximum sentence would be life. He was well aware that at the time the offences were committed the maximum sentence available was 10 years since it had been the judge who had alerted counsel the day before, in order to correct an error on the prosecution's sentencing note. 9. The impact of the offences on the complainant were devastating at the time and have continued to have a life-long effect on his mental health and ability to form lasting relationships amounting to severe psychological harm. The offences fell within Category 2 Harm and Level B culpability under the current guidelines which would give a sentencing range of between seven to nine years, with a starting point of eight years. There is no criticism of that assessment. 10. The judge then considered aggravating and mitigating features. He identified four significant aggravating features: the timing, the location, the age of the complainant and the very severe psychological harm which had blighted his life for 40 years because of these offences. They would have resulted in a significant uplift from the starting point of eight years. Set against the aggravating features, the judge noted that the applicant was a young man of 23 at the time the offences were committed, he now had stage 3 chronic obstructive pulmonary disorder and poor health which may make his time in custody more onerous. He acknowledged that the applicant had committed no further offences after 1991 and had glowing character references. However, that was to be balanced against the fact of the decade of offending after these offences were committed which culminated in his imprisonment in 1992, meaning that the passage of time was neither an aggravating nor a mitigating feature. 11. He concluded the applicant was not dangerous and that the lowest determinate sentence after trial would have been nine years for each offence, having taken into account the mitigation. The indication of a guilty plea one week before the trial date entitled the applicant to little more than a 10 per cent discount, resulting in an eight year sentence. 12. In accordance with the totality principle, since both counts arose out of the same incident the sentences were ordered to be served concurrently. 13. There are three grounds of appeal which together are said to render the sentence manifestly excessive. First that there was no reduction in sentence for the applicant's mitigation, in particular his ill-health and remorse. Secondly, the judge did not consider the totality principle in relation to the 1999 sentencing exercise. And thirdly, there was no reduction made for the lower maximum sentence at the time of the commission of the offences. 14. Leave was refused by the single judge who considered that when the case was considered in the round, even with the benefit of the mitigation available to him and the lower maximum sentence available at the time, an overall sentence of eight years after credit for the late plea was within the scope of the judge's sentencing discretion and could not arguably be considered to be manifestly excessive. 15. This was a particularly serious rape of a boy at night in a public park and was terrifying for the young victim who has suffered and still suffers substantial trauma as a result. His victim personal statement shows both the short term and the long term effects that this has had on his life. He immediately split up with his girlfriend at the time and was unable to explain to her what had happened. He stopped going out and could not form a relationship for the next five years. He attributes his marriage breakdown after just 14 months to the trauma these offences caused him and the difficulty he has had forming lasting relationships since then. He has never been back to that part of the park since the incident, even though he still lives in the area. After he first told the police in 1983 he has never spoken of it until the police informed him of their continuing enquiries in 2020. Since then he has been preoccupied with what occurred in 1983. He has been unable to focus or concentrate and has been off work. He has been struggling to cope and uses alcohol to block out the invasive thoughts of these offences. The judge correctly described the effect on the complainant as having a devastating impact on his mental health. 16. Against that background, the judge gave what credit he could for the applicant's mitigation and ill-health. The expressed remorse sat uneasily with the very late guilty plea and the blanket denial in the defence case statement. The seriousness of the offence is to be assessed by the culpability of the offender and the harm caused or intended. That is the main consideration of the court. 17. The judge took careful account of the mitigation, considered the facts and the seriousness of the many aggravating features and correctly identified that the continued commission of sexual offences against young men and boys from 1984 to 1991 was an aggravating feature, but that the absence of further offending thereafter and evidence of good character was a mitigating feature. The judge was entitled to conclude that the applicant’s good behaviour subsequent to his release from custody in around 1994 merely balanced out the aggravating features of his earlier like offences. The applicant was an experienced merchant seaman, neither very young nor immature when these offences were committed so as to justify a reduction for sentence on grounds of youth. 18. The criticism of the judge's failure to consider the totality principle in relation to the 1992 sentencing exercise is misplaced. The principle of totality applies when sentencing an offender for multiple offences at the same time or when sentencing an offender who is already serving an existing sentence, neither of which apply in this case. The applicant did not admit the present offence and did not ask for these offences to be taken into consideration when he was being sentenced for the similar offences in both 1985 and 1992. Indeed, had the sentencing judge in 1985 or 1992 at those sentencing exercises known of these earlier offences it would have been treated as an aggravating feature and would have likely resulted in a longer sentence. It demonstrates the difficulty of applying a counter factual situation to cases of this type. Even with the applicant's mitigation and the lower maximum penalty applicable at the time, the seriousness of the offences and the very severe psychological impact that they have had upon the complainant justify the eight-year concurrent sentence that he imposed which was neither manifestly excessive nor wrong in principle. Leave to appeal is refused. 19. By way of postscript, we wish to clarify and confirm that since the offences were committed on 10 February 1983, before the victim surcharge order provisions came into effect on 1 October 2012, no victim surcharge was imposed. 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 1327' date: '2023-10-05' judges: - LORD JUSTICE EDIS - MRS JUSTICE STACEY DBE - HIS HONOUR JUDGE LEONARD KC ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	Neutral Citation Number: [2006] EWCA Crim 560 Case No: 2005/02818/D3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SNARESBROOK CROWN COURT HIS HONOUR JUDGE BING Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/03/2006 Before : LORD JUSTICE DYSON MR JUSTICE GRIGSON and MR JUSTICE WALKER - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Ross Warwick Porter Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. A. Korda (instructed by C.P.S.) for the Respondent Mr. A. H. Milne (instructed by Messrs Edwards Duthie ) for the Appellant Hearing dates : Monday 6th March 2006 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Dyson : this is the judgment of the court. 1. On 26 April 2005, the appellant was convicted at Snaresbrook Crown Court by a majority of ten to two on fifteen counts of making an indecent photograph of a child contrary to section 1(1)(a) of the Protection of Children Act 1978 and two counts (counts 16 and 17) of possessing indecent photographs of children contrary to section 160(1) of the Criminal Justice Act 1988 (“ the 1988 Act ”). With the leave of the single judge, he appeals in part against his convictions on counts 16 and 17. This appeal raises an important point as to the meaning of “possession” in section 160(1) of the 1988 Act . 2. So far as material, section 160 of the 1988 Act provides: “(1) Subject to subsection (1A), it is an offence for a person to have any indecent photograph or pseudo-photograph of a child in his possession. (2) Where a person is charged with an offence under subsection (1) above, it shall be a defence for him to prove- (a) that he had a legitimate reason for having the photograph or pseudo-photograph in his possession; or (b) that he had not himself seen the photograph or pseudo-photograph and did not know, nor had any cause to suspect, it to be indecent; or (c) that the photograph or pseudo-photograph was sent to him without any prior request made by him or on his behalf and he did not keep it for an unreasonable time.” Section 160(7) provides that a “pseudo-photograph” means “an image, whether made by computer graphics or otherwise howsoever, which appears to be a photograph”. The facts 3. On 5 November 2002, the police raided the appellant’s house and seized some hard drives and two computers (referred to as exhibits EOR31 and EOR 43) which were linked to the internet almost permanently. The appellant worked in the field of information technology and had built two computers. 3575 still images and 40 movie files of child pornography were recovered from the hard disk drives of the two computers. The still images were the subject of count 16 and the movie files the subject of count 17. The Crown chose to indict the appellant with possession on 5 November 2002 in these two counts. 4. Of the 3575 still images, 2 were found in EOR31 and the remaining 3573 in EOR43. The 2 still images found in EOR31 and 873 of the remaining 3573 found in EOR43 had been deleted in the sense that they had been placed in the “recycle bin” of the computer which had then been emptied. The remaining 2700 still images were saved in a database of a programme called ACDSee. This programme is designed for viewing graphical images and is used by photographers. When opened in the “gallery view”, the programme creates “thumbnail” images of the pictures viewed. These would originally have been larger images associated with each thumbnail. If one had clicked on the thumbnail, the larger image could have been viewed. All of the larger images had, however, been deleted. The effect of deleting the larger images was that the thumbnail could no longer be viewed in the gallery view. But a trace of each thumbnail (“the metadata”) remained in the database of the programme. 5. Of the 40 movie files, 7 were recovered from EOR31. All of these had been placed in the recycle bin which had then been emptied. The remaining 33 files were recovered from EOR43: they had not been saved, but were recovered from the cache (temporary internet files) record of the two hard disk drives. 6. It was conceded by the Crown that (i) all the deleted items had been deleted before 5 November 2002, (ii) the appellant did not have the software to retrieve or view the deleted still or movie files and (iii) the thumbnail images were only retrievable with the use of specialist forensic techniques and equipment provided by the US Federal Government which would not have been available to the public. It is common ground that the appellant could have acquired software to enable him to retrieve the items which had been emptied from the recycle bin. Such software could have been downloaded from the internet or otherwise purchased. There was no evidence that the appellant had attempted to do this. The trial 7. At the close of the prosecution case, it was submitted on behalf of the appellant that there was no case to answer in relation to the entirety of the subject of count 16 and in relation to 7 of the movie files that were the subject of count 17. It was argued that none of these images was in the appellant’s possession, since he had done all that he could do to divest himself of possession by placing them in the recycle bin which he had then emptied. It was conceded on his behalf that the 33 files that were in the cache were retrievable and were, therefore, in his possession. In rejecting these submissions, the judge said: “In my judgment, the determination of the submission should really be decided by analysing what, as Mr Douglas put in his slide show, is in the box. What is in the box is a hard drive. Within the hard drive there are files. Files in the hard drive may or may not include an index. Files are of three categories, operating files, application files and data files. For the purposes of this submission the photographs are, of course, data files and not application or operating system files. If a file is an active file then, in my judgment, the evidence has established that the user of the computer can without any real difficulty activate and engage the contents of the file on the hard drive; but, in my judgment, a file remains on the hard drive even if it has been deleted or lost because the evidence of Mr Douglas before the jury has been to that effect. A file does not cease to be a file on a hard drive if it has been deleted. It remains a file, albeit a deleted file. Therefore, the court interprets the word ‘possession’ in this sense; that the defendant possessed the files within his computer whether they were in an active category or a deleted category. The single point in this submission, therefore, fails…..” 8. In his summing up, the judge dealt with the issue of possession in the following way: “….possession, as a matter of law, in Count 16, means having something under your custody or control with the knowledge that you have such a thing in your custody and control and for practical purposes there is little difference in that definition and the definition of making, because as I defined to you in Counts 1 to 15, if a person deliberately and intentionally downloads an image, he makes that image and if that action is done with the knowledge that the downloaded image is or likely to be indecent, the offence is made out, but you must be sure, in relation to Count 16, that before you find the defendant ‘guilty’ of having custody or control on his hard disk of those images, that he knew that they were or likely to be indecent. And once again, members of the jury, the direction in relation to deleting the files, in relation to Count 16, applies in the same way as Counts 1 to 15, because you have heard the experts tell you that the nature of a computer is that on the hard disk there are a number of files, data files. Such files may be active or deleted, recovered, lost or unallocated and the mere fact that an image is on a deleted file, rather than an active file, does not mean that the user is not in possession, because the file deleted or not, is one of the files he had on a hard disk which was in his possession, was his computer and his hard disk. The issue in this case, is whether he knew that the images were indecent, or likely to be indecent.” The parties’ submissions 9. On behalf of the appellant, Mr Milne submits that a person does not commit the offence of possession of indecent photographs or pseudo-photographs on the hard disk drive of his computer unless the images are “readily accessible to the accused for viewing at the time when they are said to be possessed, or capable of being made so accessible without the need to obtain additional specialist software”. He further submits that a person who has at some time in the past been in possession of such images, but who has taken all reasonable steps to destroy them or make them irretrievable by him (such as by placing them in the recycle bin of his computer and emptying the bin) is no longer in possession of them. Applying that approach to the facts of this case, Mr Milne does not seek to appeal against the conviction in relation to the 33 files in the cache that were the subject of count 17. But he says that the appeal should be allowed in respect of the remaining items in count 17 and all of the items that were the subject of count 16. 10. On behalf of the Crown, Mr Korda submits that, so long as images remain on the hard disk drive and are recoverable and capable of being viewed, they are in the possession of a person who has control of the hard disk drive. Applying that approach to this case, Mr Korda concedes that the appellant was not in possession of the 2700 stills which were had been saved by the ACDSee programme. But he submits that the 7 movie files and 875 still images which had been emptied from the recycle bin were in his possession. 11. These rival assertions concern the physical state of affairs that is necessary in order to constitute the offence of possession contrary to section 160(1) . The oral argument before us did not specifically address the mental element necessary to constitute the offence, although it is mentioned briefly in the appellant’s amended skeleton argument. 12. It should also be noted that the question before us would not have arisen if the appellant had been charged with possession during the period from the time when he viewed the images until he deleted them. At trial the Crown did not seek to amend the indictment to specify any such period. We have not sought any explanation for this, but we recognise that there may be practical reasons why the Crown would wish to be able to charge defendants with possession of images at the time when the computer in question is seized, rather than at some earlier date. The proper interpretation of section 160(1) of the 1988 Act 13. In Warner v Commissioner of Police of the Metropolis [1969] 2 AC 256 , 304F, Lord Pearce said: “Again Lord Parker CJ in Towers & Co Ltd v Gray [1961] 2 QB 361 after observing that the term “possession” is always giving rise to trouble, and after considering various cases there cited, concluded, rightly as I think, that in each case its meaning must depend on the context in which it is used”. 14. The apparently unqualified language of section 160(1) is in fact subject to certain qualifications. First, a person is not guilty of the offence of possession under section 160(1) unless he knows that he has the photographs or pseudo-photographs in his possession. This was decided by the Divisional Court in Atkins v Director of Public Prosecutions [2002] 2 Cr App R 248 , 261-262. Secondly, section 160(2) provides three defences. Section 160(2)(c) is of some significance: a person is not guilty of the offence of possessing an indecent photograph or pseudo-photograph if it was sent to him without any prior request by him or on his behalf and he did not keep it for an unreasonable time. 15. The retention of hard copy indecent photographs of a child which are sent to a person without prior request presents no particular difficulty. It will be a matter for the jury on the facts of any individual case to decide whether the defendant who received such a photograph kept it for an unreasonable time. Once he knows that he has received it, the item will be in his possession until he has got rid of it, but he is not guilty of the offence if he gets rid of it within a reasonable time. The section 160(2)(c) defence is only available where the photograph or pseudo-photograph is sent to the defendant without any prior request by him or on his behalf. It follows that if a hard copy photograph or pseudo-photograph is sent to a person at his request, then on the assumption that he knows that he has received it and that it is in his custody or control, he will be in breach of section 160(1) even if he gets rid of it within a reasonable time. 16. But possession of indecent images of children on a computer presents special problems. It may seem superficially attractive to say that all that is required to prove a breach of section 160(1) of the 1988 Act is that, to the knowledge of the defendant, the images were on the defendant’s hard disk drive within the computer which was in his custody and control at the material time. It can be argued that possession is an ordinary English word which should be given its normal meaning. Parliament has mitigated the harshness that would result from giving the word its normal meaning by expressly providing three defences in section 160(2) and impliedly providing that knowledge is an essential element of the offence. On this interpretation (which was adopted by the judge in the present case), the fact that the images may be difficult or even impossible to retrieve is irrelevant. 17. But this interpretation could give rise to consequences so unreasonable that we are not willing to accept it unless we are compelled to do so by the express words of the statute or by necessary implication. Its unreasonableness is well illustrated by the present case. The only way in which the appellant could have retrieved the 2700 still images which had been saved by the ACDSee programme would have been by the use of specialist techniques and equipment supplied only with the authorisation of the US Federal Government and which were not available to the general public. It is accepted by the Crown that in reality the appellant could not have retrieved these images. In our judgment, it offends common sense to say that they were in the possession of the appellant on 5 November 2002. As we have said, Mr Korda does not so contend. 18. It is not, however, necessary to postulate such an extreme example to demonstrate that the judge’s view leads to unreasonable results. Suppose that a person receives unsolicited images of child pornography as an attachment to an email. He is shocked by what he sees and immediately deletes the attachment and deletes it from the recycle bin. Suppose further that he knows that the images are retrievable from the hard disk drive, but he believes that they can only be retrieved and removed by specialists who have software and equipment which he does not have. It does not occur to him to seek to acquire the software or engage a specialist for this purpose. So far as he is concerned, he has no intention of ever seeking to retrieve the images and he has done all that is reasonably necessary to make them irretrievable. We think that it would be surprising if Parliament had intended that such a person should be guilty of an offence under section 160(1) of the 1988 Act . 19. Moreover, an interpretation which rendered such a person guilty of a breach of section 160(1) would sit uneasily with section 160(2)(c) . This provision shows that Parliament intended that persons who inadvertently come into possession of images and get rid of them within a reasonable time are not guilty of the offence of possession. In these circumstances, it would be surprising if Parliament had intended that this defence should not be available to persons who inadvertently come into possession of images on their computers. But on the judge’s interpretation, the section 160(2)(c) defence would not be available even to a person who had saved the images in ACDSee or in a similar programme. It is true that the defendant in the present case could not invoke section 160(2)(c) because he could not say that the images had not been sent to him at his request. But the point remains that, on the judge’s interpretation, the section 160(2)(c) defence may be available to a defendant who has received hard copy photographs or pseudo-photographs and has adopted the simple remedy of getting rid of them within a reasonable time, whereas it is not available to a defendant who has received such images on his computer, even if they are saved in ACDSee or a similar programme, because the images are still on the hard disk drive of the computer. 20. In our judgment, such an interpretation is not compelled either by the express words of the statute or by necessary implication. So what is the correct interpretation? In DPP v Brooks [1974] AC 862 , 866H, Lord Diplock giving the judgment of the Privy Council said: “In the ordinary use of the word “possession”, one has in one’s possession whatever is, to one’s knowledge, physically in one’s custody or under one’s physical control.” That was said in the context of a case about unlawful possession of drugs. In a similar context and to similar effect, Lord Scarman said in R v Boyesen [1982] AC 768 , 773H: “Possession is a deceptively simple concept. It denotes a physical control or custody of a thing plus knowledge that you have it in your custody or control.” 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. 22. It seems to us that both counsel in the present case were, in substance, adopting a test of custody or control, although they described it in terms of accessibility. The only difference between the formulations advanced by counsel is that Mr Milne argues for the less stringent test of reasonable accessibility; whereas Mr Korda contends for a simple test of accessibility. Our starting point in resolving this conflict is that the first question for the jury is whether the defendant in a case of this kind has possession of the image at the relevant time, in the sense of custody or control of the image at that time. If at the alleged time of possession the image is beyond his control, then for the reasons given earlier he will not possess it. If, however, at that time the image is within his control, for example, because he has the ability to produce it on his screen, to make a hard copy of it, or to send it to someone else, then he will possess it. It will be a matter for the jury to decide whether images are beyond the control of the defendant having regard to all the factors in the case, including his knowledge and particular circumstances. Thus, images which have been emptied from the recycle bin may be considered to be within the control of a defendant who is skilled in the use of computers and in fact owns the software necessary to retrieve such images; whereas such images may be considered not to be within the control of a defendant who does not possess these skills and does not own such software. 23. We acknowledge that this introduces a subjective element into the concept of physical possession. But we note that the defences provided by section 160(2) import a consideration of the knowledge and behaviour of the particular defendant. Moreover, on any view, an important element of subjectivity is introduced by the requirement of knowledge. It follows that this is not an area where Parliament has enacted an absolute offence. In these circumstances, we see no objection to interpreting the word “possession” in the particular context of the possession of images in a computer as referring to images that are within the defendant’s control. 24. It will, therefore, be a matter for the jury to decide whether images on a hard disk drive are within the control of the defendant, and to do so having regard to all the circumstances of the case. Such is the speed at which computer technology is developing that what a jury may consider not to be within a defendant’s control today may be considered by a jury to be within a defendant’s control in the near future. Further, in the course of time more and more people will become skilled in the use of computers. This too will be a relevant factor for the jury to take into account. The outcome of this appeal 25. It follows from what we have said that the judge was right not to accede to the submission that counts 16 and 17 should be withdrawn from the jury. But his summing up to the jury was flawed. He directed them that 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. 26. For these reasons, the convictions on counts 16 and 17 must be quashed. The appeal is, therefore, allowed.	```yaml citation: '[2006] EWCA Crim 560' date: '2006-03-16' judges: - LORD JUSTICE DYSON - MR JUSTICE WALKER ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	Neutral Citation Number [2023] EWCA Crim 1443 IN THE COURT OF APPEAL CRIMINAL DIVISION No. 202302832 A1 Royal Courts of Justice Tuesday, 14 November 2023 Before: LORD JUSTICE WILLIAM DAVIS MR JUSTICE JAY HIS HONOUR JUDGE DENNIS WATSON KC REX v HARRY JONES _____ REFEERENCE BY HM SOLICITOR GENERAL UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 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. Przybylska appeared on behalf of the Applicant Solicitor General. Ms F. Gerry KC appeared on behalf of the Respondent. _________ JUDGMENT LORD JUSTICE WILLIAM DAVIS: 1 On 3 November 2019, Harry Jones, then aged 27, and an acquaintance of his named Daniel Tulley, a man aged 31, had a disagreement. Precisely what the disagreement was about does not matter for our purposes. The consequence was an exchange of Facebook messages in which Mr Tulley suggested that they should have a fight to which Mr Jones responded, "I'm game, come here." 2 During the following day Mr Tulley sent further messages suggesting a fight. At about 5.15 in the afternoon, Jones left his home in Wolverhampton in his Range Rover. He drove to the nearby town of Bloxwich with his father and two other men in the car. Bloxwich was where Mr Tulley lived. They were looking for Mr Tulley. They went to the street where he lived. They saw Mr Tulley's partner. Jones, who was angry and red in the face, asked where Mr Tulley was and he was frustrated when she would not tell him. He telephoned Mr Tulley who, apparently, agreed to meet for a fight. Jones then left in a Range Rover; at this point he was the driver. 3 Around 10 minutes later the Range Rover arrived in the road where Mr Tulley was standing with a female friend. They were waiting for a taxi. Eyewitnesses said that there were at least two people in the car. Differing descriptions were given of the driver: one was consistent with the appearance of Jones, another described the driver as having a beard, Jones being clean-shaven. In any event, the Range Rover accelerated. It went on to the wrong side of the road. It mounted the kerb, it struck Mr Tulley. Mr Tulley's friend was knocked to the ground but fortunately suffered no significant injury. Mr Tulley, however, appeared to be stuck to the Range Rover as it drove on. The car then stopped some distance down the road. Mr Tulley fell to the ground. The Range Rover drove away. 4 Mr Tulley suffered very serious injuries: multiple skull fractures, subdural and subarachnoid bleeding, traumatic brain injury, scalp laceration. He was taken to hospital where he underwent emergency surgery. He was in an intensive care unit for about a fortnight. He then spent a further month in hospital before being discharged just before Christmas 2019. We shall consider the long-term consequences of his injuries shortly. 5 A witness at the scene had taken the registration number of the Range Rover. The police traced the car to a property belonging to Jones's family business. On 6 November 2019 Jones went to a police station. When interviewed, he said that he was not guilty but otherwise made no comment. He was charged with causing grievous bodily harm with intent. 6 Jones was sent for trial in the Crown Court at Wolverhampton. On 15 October 2020, he pleaded not guilty at the plea and trial preparation hearing ("PTPH"). Because of the effects of the pandemic on court sittings, the first available date for trial was 3 November 2021, Jones being on bail. In late October 2021 that date was vacated at the defence request to accommodate the availability of leading counsel who had been engaged to represent Jones. The next available date was 5 October 2022. That trial date was effective. 7 Jones was tried by His Honour Judge Berlin and a jury. His defence at trial was that he had been a passenger in the Range Rover at the relevant time. He accepted that there had been an arrangement to fight Mr Tulley, but he had not assisted or encouraged the driver to drive at Mr Tulley and he did not intend any really serious harm. The case was left to the jury on alternative bases: either Jones was the driver or Jones had encouraged the driver to drive at Tulley. 8 On 7 October 2022 Jones was convicted of causing grievous bodily harm with intent. The trial judge ordered a presentence report. He also required up to date evidence about Mr Tulley's injury and the effect. Sentence was adjourned for those purposes. Unfortunately, the trial judge was then unable to sit for an extended period due to illness. It was eventually determined that another judge would have to conduct the sentencing hearing. So it was that on 21 July 2023 Jones was sentenced by Her Honour Judge Campbell to a term of 10 years' imprisonment. HM Solicitor General now applies for leave to refer the sentence, pursuant to section 36 of the Criminal Justice Act 1988 , as unduly lenient. 9 Jones was 31 at the date of his sentence. In July 2015 he had been convicted of driving a motor vehicle with excess alcohol for which he was fined and disqualified. Otherwise, he had no previous convictions. 10 The pre-sentence report prepared for the sentencing hearing was dated 2 November 2022. The author noted that Jones continued to deny the offence. Asked about the impact on Mr Tulley, the report recounted Jones's response as follows: "When prompted to consider the impact upon the victim Mr Jones recognised that serious harm had been inflicted upon him. He described it as 'heart-breaking' when he thinks about the injuries caused to Mr Tulley. Throughout the interview he said that he feels remorseful for what happened, which struck me as somewhat paradoxical given that he denies being the driver of the vehicle." The report went on to say: "The circumstances of the index offence give rise to serious concerns about risks of harm and recidivism. It is extremely fortunate the victim survived a near fatal injury. Mr Jones appears to have no qualms about using extreme levels of violence to resolve conflict and has demonstrated a willingness to inflict serious harm. He made no attempt to offer any aid to the victim and fled the scene. Mr Jones's involvement in serious violent offending and the risk posed to the victim as well as the wider public by such conduct is of ongoing concern." 11 The author of the report indicated that Jones viewed his familial relationships as a positive influence. However, this had to be set against the fact that Jones had set out on the day in question with his father in the car with him. Overall, Jones was assessed as presenting a significant risk of causing serious harm to others by the commission of specified offences in the future. 12 The judge had a very large number of letters from family members and friends of the offender expressing their positive view of the offender's character and of the work he did to support both his family and the wider community. In the course of the hearing just one of those letters was read out to us. We have looked at them all. Concerns were expressed about the effect his incarceration would have on that part of the family business for which he was responsible. It was noted by the time of sentence his wife was pregnant so that any sentence imposed on him would remove his support from her and in due course from their child. 13 Mr Tulley's long-term partner provided a victim personal statement. She said that he had suffered a permanent brain injury, he had been changed by his injuries and was difficult to live with, "the old Dan does not exist anymore, and he will never be as he was". He was paranoid and anxious, fearing large groups of people and the traffic around him. His short term memory was severely affected. He had permanently lost his sense of taste and smell. He suffered from mood swings and had tantrums like a small child. He suffered constant pain. He had been offered further surgery but could not face it. He had a large visible scar on his head about which he was self conscious: "I feel like on that night a part of Dan died ... we are living a constant nightmare ... " 14 The judge had medical evidence from Dr Harriss, a consultant in rehabilitation medicine. Mr Tulley had spent 10 months in residential rehabilitative care after his discharge from hospital. In June 2021 Dr Harriss's conclusion was that Mr Tulley, who had suffered a severe brain injury, would never regain the capacity to work again. He struggled with ongoing and profound cognitive problems and imbalance. The best that could be expected was that he might regain the ability to manage his own affairs with some support and to participate in community activities for recreation. Dr Harriss anticipated no significant improvement in his cognitive and physical abilities. 15 There was also a short report available to the judge from a specialist psychiatrist, a Dr Bhatta. This indicated that there were no current psychiatric problems. 16 At the sentencing hearing the prosecution argued that the offence fell into category 1A within the relevant sentencing guideline. The high culpability factors relied on were use of a highly dangerous weapon or equivalent, significant planning and revenge. It was said that at least two of the category 1 harm factors were present; that led to a starting point of 12 years and a category range of 10 to 16 years. 17 Defence counsel made only passing reference to the guidelines during his mitigation. He acknowledged that it was of little consequence whether the offender had been convicted as a principal or as a secondary party. He emphasised that there had been long delays in the proceedings. He stressed the impact the offending had had on Jones's close and extended family and on his friends. 18 In imposing sentence the judge stated that the offender's culpability was high because a highly dangerous weapon had been used in the assault. She said that harm fell into category 1 because Mr Tulley had suffered a particularly grave or life threatening injury. The judge took into account any references which spoke positively about the offender's character. She said that balancing the gravity of the offence with the positive good character of the offender meant that the sentence fell at the bottom of the category range. Thus, she imposed a sentence of 10 years' imprisonment. 19 On behalf of HM Solicitor General, it is argued that the judge failed to reflect the multiple culpability factors. These should have led the judge to move up towards the top of the category range. The offender's good character should have had limited force because, as the guideline makes clear, "this factor is less likely to be relevant when the offending is very serious." Moreover, this was not a case of a man making a bad decision on the spur of the moment. The offender had taken time and effort to track down Mr Tulley. The reduction for good character ought to have been very limited. 20 The offender was represented before us by Felicity Gerry KC. She was not counsel at the trial or sentence. She submitted by reference to the psychiatric evidence that Mr Tulley's prognosis was good which reduced the severity of the harm. She put it to us today that the victim has at least some quality of life. She relied on the remorse referred to in the presentence report. She argued that the exceptional good character evidence and the substantial delay were both substantial mitigating factors. She placed particular weight on the pregnancy of the offender's wife. Ms Gerry cited three authorities to us. With respect to her, none seems to us to be of assistance. None purported to set out any point of principle. The question is whether this judge properly applied the guideline taking into account the particular factors of this case. 21 Ms Gerry's overall submission was that the sentence was within the relevant category range and it was an appropriate sentence given the mitigation available to the offender. She invited us to draw back from interfering with the judge's sentence for fear that this would discourage judges who are placed in the position that this judge was, namely sentencing after a trial that they did not conduct, from taking a robust view. We do not fully understand this submission, but the fact of the matter is that this judge was not the trial judge. So that means we are in just as good a position as her properly to assess where this offence lay within the range of offending of its kind. 22 The correct formulation of what is an unduly lenient sentence is still that provided by the Lord Chief Justice in Attorney General's Ref. No. 4 of 1989 , [1990] 1 WLR 41 : "A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge applying his mind to all the relevant factors could reasonably consider appropriate." It follows that for us to conclude that this sentence was unduly lenient we must find that it was not reasonably appropriate for the judge to impose a sentence at the bottom of the category range for a category 1A offence. 23 Two high culpability factors were clear and obvious. First, there was the use of a highly dangerous weapon or equivalent. Second, Mr Tulley was obviously vulnerable; he was a pedestrian standing on the pavement. The judge did not refer to this latter factor. 24 We consider that this also is a case where there was significant planning. So far as Mr Tulley was concerned, he was due to meet the offender for a fight. On the face of it, there was no question of a weapon being used. The offender, on the other hand, drove around in a large car for some time looking for Mr Tulley. When he saw Mr Tulley he did not stop the car or cause the car to be stopped and get out ready for the proposed fight. Rather, he drove or caused the car to be driven at Mr Tulley. Where there are multiple culpability factors the judge must consider moving up the category range. 25 In relation to the offence of causing grievous bodily harm with intent, the guideline deals with this point specifically in two ways. First, in words common to a number of guidelines, it is said that – "A case of particular gravity, reflected by multiple features of culpability in step one, could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features, set out below." Second, there is a rubric specific to this offence as follows: "For category A1 offences the extreme nature of one or more high culpability factors or the extreme impact caused by a combination of high culpability factors may attract a sentence higher than the category range." 26 This rubric was considered by this court in Fleming [2022] EWCA Crim 250 at [22] to [26]. In Fleming itself the vulnerability of the victim was extreme which could have justified a sentence higher than the category range. 27 In this instance it is the extreme nature of the combination of high culpability factors which applies. The offender used his Range Rover as a weapon, whether he was driving it himself or directing someone else. A Range Rover is a large and heavy car. Its use involved particularly high culpability. Added to that Mr Tulley was in a very vulnerable position. There was nothing he could do to avoid the attack on him. 28 Turning to harm, we reject the proposition that the medical evidence demonstrates that Mr Tulley's prognosis is in any way hopeful. Dr Harriss's evidence is directly to the contrary. No evidence we have seen since then has altered the position as described by Dr Harriss. This is unsurprising. Mr Tulley suffered a severe brain injury. The judge referred to harm as falling into category 1 because the injury was particularly grave or life threatening. The other two elements of category 1 were also present, namely, injury results in physical or psychological harm resulting in lifelong dependency on third party care or medical treatment and offence results in permanent irreversible injury or psychological condition which has a substantial and long term effect on the victim's ability to carry out their normal day-to-day activities or on their ability to work. The evidence of Dr Harriss and what is set out in the victim personal statement amply justifies the conclusion that those features apply here. This factor was a further reason to elevate the sentence to the top of the category range, if not beyond. The aggravating factor apparent from the circumstances was the offender's decision to leave the scene with Mr Tulley lying gravely injured in the road. 29 There were mitigating factors but, in our judgment, they were of relatively limited effect. There was a significant delay between the offence and the final sentence. During that time the offender did not commit further offences, which is to his credit. However, the delay itself was caused by the offender contesting the case. He is not to be penalised for that. Equally, he can hardly claim delay of itself as a mitigating factor. Had he pleaded guilty at the PTPH in October 2020, he would have been sentenced at some point a few weeks or at most a month or two thereafter. In our judgment his expressed remorse can carry little or no weight. The reasons are identified by the author of the presentence report. The offender had no relevant previous convictions. The relevance of this factor can be that it indicates a lower risk of reoffending. That was not the case in respect of this offender as the presentence report made clear. It is the case that the offender was of positive good character. He had many people speaking very well of him. However, the guideline provides that this factor is less relevant where the offending is very serious as this was. 30 We have concluded that the judge should have moved up from the starting point to the top of the category range at stage 1 of the sentencing process. Giving as much weight as possible to all of the mitigating factors we have referred to but also having regard to the fact that the offender simply drove away leaving Mr Tulley grievously injured in the road, the least sentence that we consider should have been appropriate for this very serious offending was 14 years' imprisonment. In those circumstances we give leave to HM Solicitor General to refer the sentence imposed by the judge as unduly lenient. 31 We quash the sentence of 10 years' imprisonment and substitute a sentence of 14 years' imprisonment. That will entitle the offender to release after serving two thirds of that sentence. __________	```yaml citation: '[2023] EWCA Crim 1443' date: '2023-11-14' judges: - LORD JUSTICE WILLIAM DAVIS - MR JUSTICE JAY - HIS HONOUR JUDGE DENNIS WATSON KC ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making 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 [2024] EWCA Crim 202 Case No: 2023/01481/B5 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 - KHURAM JANJUA ____________________ 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) _____________________ Mr R Furlong appeared on behalf of the Applicant ____________________ J U D G M E N T ____________________ Friday 16 th February 2024 LORD JUSTICE COULSON: Introduction 1. The applicant is now aged 43. As long ago as October 2011 he pleaded guilty to two counts of conspiracy to supply Class A drugs. On 10 th December 2011 he was sentenced to three years and nine months' imprisonment. 2. Confiscation proceedings were then commenced against the applicant. On 18 th December 2012, a confiscation order was made. The benefit figure, which was agreed between the parties, was £120,000, with the agreed available amount fixed at £3,874. Only a small part of that sum was ever paid, and so on 11 th December 2014 the applicant was committed to prison in default of payment for 58 days. No further payments have been made in the intervening years. 3. Following a belated and unsuccessful attempt to appeal against the confiscation order, which we deal with in greater detail below, on 5 th April 2023 the Crown obtained a variation of the confiscation order, made by Mr Recorder Patrick Upward KC ("the judge") at Birmingham Crown Court. That increased the available amount from £3,874 to £66,517.76. The applicant seeks to renew his application for leave to appeal against that variation, following refusal by the single judge. 4. The applicant has today been represented by Mr Furlong of counsel. We should say at the outset that we have been considerably assisted by his submissions. They were advanced clearly, fairly and frankly, in order to ensure, quite rightly, that all the points that the applicant wanted to make were made before us. The Variation of the Confiscation Order 5. As we have said, the original order was made on 18 th December 2012. On 22 nd October 2018 the Crown applied, pursuant to section 22 of the Proceeds of Crime Act 2002 , for a variation of the confiscation order. That was because further investigation had shown that the property held in the applicant's sole name, 204 Lawford Road, Rugby, had significantly increased in value, so that the applicant's interest in it was worth substantially more than the figure agreed in 2012. 6. The application to vary prompted the applicant to seek an extension of time of 2,942 days in which to apply for leave to appeal against the original confiscation order made on 18 th December 2012. The argument was that the benefit figure in the original confiscation order had been erroneously calculated and agreed. It seems clear from the chronology that the applicant was advised that he needed to appeal against the original order before the variation application was heard – hence the belated applications for an extension of time and for leave to appeal. 7. Those applications were refused by the single judge. However, the applicant renewed his applications to the full court. On 18 th November 2021, the full court refused those applications: see [2021] EWCA Crim 1797 . This court noted, amongst other things, that there was a good deal of authority for the proposition that, when a confiscation order had been agreed between the parties, it was only in exceptional circumstances that the court could subsequently interfere with it. The full court agreed with the single judge that, first, that there was no possible basis for an extension of time; and secondly, that there had been no error in the original calculation and that what had happened in 2012 was instead "a classic case of compromise". There was no evidence of wrong advice, and the suggestion that the applicant had not been advised in 2012 of the possibility of further section 22 proceedings was found to be "not credible". There was no evidence that the actual section 22 proceedings, when they were launched in November 2018, had taken the applicant in any way by surprise. 8. The Crown's section 22 application having been stayed so as to permit the applicant to apply for leave to appeal, was back on track once the applicant's application had been refused. It proceeded in the Crown Court at Birmingham to a hearing on 5 th April 2023. 9. At that hearing, the judge heard evidence from Ms Williams (a financial investigator), who identified the increase in value of the property, and also a separate account containing £15,000. There was barely any cross-examination of her. There was then evidence from the applicant and his partner, Tania Gibbons. The judge then gave his judgment. For reasons which are not apparent, no part of the hearing was recorded on the DARTS system. Accordingly, there was no recording of the judgment. We are grateful to counsel for their agreed note, but it is, of course, a poor substitute for a proper transcript. 10. The agreed note of the judgment makes plain that: (a) the judge began by setting out the background and the evidence; (b) the judge was satisfied that the variation application should succeed – the applicant remained the sole owner of the deeds of 204 Lawford Road and was therefore the sole beneficial owner of the property; (c) in consequence of the evidence of Ms Williams, the property was valued at £71,465.64, and there was also the £15,000 in a NatWest account about which Ms Williams had also given evidence and which was not challenged; and (d) the judge recognised that Ms Gibbons had contributed to the upkeep of the house, and in consequence of that and other matters, he made a reduction of one-third of the value of the property when calculating the available amount; (e) in consequence, the available amount was increased from £3,874 to £66,517.76. That was an increase of £62,643.76. That increase was made up of two-thirds of the value of the property, namely £47,643.76 (out of the total value of £71,465.64), and the sum of £15,000 from the NatWest account; (f) the judge gave the applicant three months to pay the new amount and identified a period in default of six months' imprisonment. The Proposed Appeal 11. There were originally three points in the proposed appeal. The first was that the judge should have taken into account the applicant's argument that the original benefit figure was not compliant with the decision in R v Waya [2012] UKSC 51 . The other two grounds – one concerned with the amount of the two-thirds calculation and one concerned with the period in default – both raised suggestions of double counting. 12. The single judge refused leave to appeal. As to the first point, she noted that the benefit argument had not been argued before the judge and was in any event unarguable in the light of the decision of the full court in 2021. As to the double counting grounds, the single judge gave clear reasons as to why neither of those was arguable. 13. The renewed application did not suggest that any part of the proposed appeal was abandoned. This morning, however, Mr Furlong told us that, having seen the views of the single judge, the two points based on the double counting argument were no longer pursued. Whilst this court obviously encourages parties and counsel to abandon arguments which they consider will not succeed, as we pointed out to Mr Furlong, it is unsatisfactory when that happens on the morning of the hearing itself. In our view – and our experience this week has highlighted this – when parties seek to renew applications for leave to appeal, they need to do so having considered in careful detail the observations of the single judge. In that way, arguments which will plainly not succeed for the reasons pointed out by the single judge can then be abandoned before the court has to spend time and effort preparing to deal with them. We also note that Mr Furlong has had some difficulties as a result of being at least the third counsel to represent the applicant in these confiscation proceedings. He did not appear before the judge on 5 th April 2023. We have, we hope, made proper allowance for that fact. Ultimately, of course, the issue is whether or not there is an arguable case that the judge erred in his approach at that hearing. Ground 1: The Original Benefit Figure 14. We therefore turn to ground 1 of the proposed appeal, which is now the only live ground of the renewed application. This is the argument that, on 5 th April, the judge failed to take into account the applicant's argument about the original benefit figure and how it was, so it is said, not compliant with the decision in Waya . We have considered that argument carefully, but there are three reasons why we have concluded that that point is not open to the applicant, and is not arguable in this court. 15. First, we are satisfied that the point was not taken before the judge on 5 th April 2023. We accept, of course, the difficulties created by the malfunction of the recording system. But it is plain to us from a consideration of all the documents that do exist in relation to that hearing that there was no argument that the judge was obliged to re-open, or should have re-opened, the issue of the original benefit figure. Clearly it cannot be a ground of appeal to suggest that the judge failed to address a particular argument when that argument had not been raised with him. 16. Secondly, we consider that that argument had not been made to the judge on 5 th April for the good reason that it could not have succeeded. That is because of what happened in 2021 in this court. This court established, finally and conclusively, that the original benefit figure fixed in 2012 was an agreed figure and was, in the circumstances of this case, inviolable. That is what this court said in express terms. The applicant had tried to open up the benefit figure eight years out of time, and both that attempt and the required extension of time had been refused. That was the end of it. It could not be the subject of any further consideration. We do not accept that a chance observation by the single judge in respect of that proposed appeal (made when refusing permission) somehow meant that the right to raise further points about the original benefit figure survived the conclusive judgment of this court in 2021. 17. Thirdly, standing back and looking at the merits, we consider that the argument is not open to the applicant because of the reasons expressly set out in paragraph 17 of the judgment of this court in 2021. The benefit figure in 2012 had been agreed. There was a series of different potential benefits, different accounts, different sums of money, all of which were potentially in play. There was, very sensibly, a compromise. It was what this court called a "classic case of compromise". Accordingly, there was no unfairness in 2012, because all of the various matters were taken into account in arriving at the agreed figure. This court reiterated in 2021 that there had been no unfairness. There had been no wrong advice. The order in 2012 was just – in the widest sense of the word – regardless of the nitty gritty as to how it might have been made up. That was the end of the matter in 2012 and it is the end of the matter now. 18. Accordingly, for those reasons we refuse the renewed application on Ground 1. 19. As we have said, neither of the other two grounds based on double counting is now pursued and so we do not deal with them. 20. We observed during the debate with Mr Furlong that, in one sense at least, the applicant has been the author of his own misfortune, because the very modest available amount that was identified in 2012 was a sum that plainly should have been paid. It was not. All the difficulties since have arisen out of that non-compliance. So, although for some of the reasons set out in the papers we have a certain amount of sympathy with the applicant, his position overall is not meritorious. 21. For all those reasons, and repeating again our thanks for Mr Furlong's submissions and the way in which they were presented, this renewed application for leave to appeal against the confiscation order must be refused. ________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: [email protected] ______________________________	```yaml citation: '[2024] EWCA Crim 202' 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} ======	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. 202202924 B2 Neutral Citation Number: [2024] EWCA Crim 212 Royal Courts of Justice Thursday, 18 January 2024 Before: LORD JUSTICE POPPLEWELL MR JUSTICE CHOUDHURY HER HONOUR JUDGE ANGELA RAFFERTY KC REX V ARTIG MWAMI MAWEJA EMMANNUEL REPORTING RESTRICTIONS APPLY: THE 1992 SEXUAL OFFENCES ACT __________ Transcript prepared from digital audio by Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] _________ No Representations _________ APPROVED JUDGMENT ( Transcript prepared using poor quality audio recording ) MR JUSTICE CHOUDHURY: The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Accordingly, no matter relating to the complainants shall, during their lifetime, be included in any publication if it is likely to lead members of the public to identify them as being the victim of these offences. This prohibition applies unless waived or lifted in accordance with s.3 of the Act. 1 On 21 September 2022, in the Crown Court at Oxford before HHJ Daly, the applicant, then aged 24, was convicted of five offences of sexual assault. On 21 October 2022, the applicant was sentenced to 8 weeks’ imprisonment consecutive for each of the five counts of sexual assault, a further 8 weeks’ consecutive for another count of sexual assault on a different indictment and 2 weeks concurrent for another count of sexual assault. The total sentence was 48 weeks’ imprisonment. 2 The applicant seeks to renew his application for leave to appeal against conviction, leave having been refused by the single judge. 3 The background is as follows. In the early evening of 10 November 2020, four women who were out in the Wantage Road area of Didcot when they were unexpectedly approached by a person described as a black male, approximately 6 feet tall, who slapped or grabbed their bottoms. 4 On 12 November 2020, another woman complained that, whilst walking home from work in the Broadway, Didcot, her bottom was grabbed by a black male who asked if she wanted a kiss. He was described as being 6 feet tall and wearing a blue hoodie. 5 Following the various reports of sexual assault, police commenced patrolling the area on 13 November 2020. The applicant was observed wearing similar clothing and matching the description of the person responsible and was arrested. 6 On 15 November 2020, the applicant attended the police station; he confessed that he was guilty of the offences. He subsequently sought to retract that confession, stating that he only made it in order to protect his family from unwanted attention. 7 There was CCTV evidence placing the applicant in the vicinity before or immediately after the assaults had taken place. The applicant accepted that in many parts of the CCTV the image was of him but explained that he was simply out walking. 8 The complainants gave evidence, the details of which are contained in the Criminal Appeal Office Summary and are not repeated here. Clothing from the complainants was examined and found to contain no DNA from the applicant. The results of that examination are contained in a report prepared by Suzanne Winter of Cellmark Forensic Services (“the DNA Report”). Evidence as to the content of the DNA report was given at trial. The applicant denied the offences in police interview. 9 The issue for the jury at trial was whether they could be sure that the applicant was the person responsible for the assaults. By a majority of 11 to 1, the applicant was convicted. 10 He seeks leave to appeal against that conviction. He contends that the conviction is unsafe, principally because the DNA report was not placed before the jury. He also contends that the CCTV evidence did not show him committing any of the offences, that identification procedure was not conducted and that he was at a disadvantage at trial because he was unrepresented. 11 In refusing leave, the single judge said as follows: “The applicant is right that there is no DNA evidence against him, that there was no identification evidence against him and that the CCTV does not show him committing any offence. However, the CCTV evidence did show that he was in close proximity to each of the complainants shortly before or after each complainant says that she was sexually assaulted. If he is innocent, that is a remarkable coincidence. Although there was no DNA evidence, and the jury was reminded of that in summing-up, there was evidence that the lack of DNA material was not inconsistent with the complainants’ accounts. There was no identification evidence because the offender was masked. There was a sufficient circumstantial case against the applicant. His convictions are not arguably unsafe.” 12 Having reviewed the matter afresh, we agree entirely with the single judge that the applicant’s convictions are not arguably unsafe. The fact that there was no DNA evidence was made absolutely clear to the jury during the judge’s summing-up. Indeed, it was, at the applicant’s request, the final piece of evidence of which they were reminded before retiring to deliberate. The fact that they were not shown the actual report of the DNA findings would not assist them. Such evidence is rarely presented directly to the jury, but is the subject of live evidence, as it was in this case. That evidence was fairly summed-up by the judge. 13 For these reasons, leave to appeal is refused. __________	```yaml citation: '[2024] EWCA Crim 212' date: '2024-01-18' judges: - LORD JUSTICE POPPLEWELL - MR JUSTICE CHOUDHURY - HER HONOUR JUDGE ANGELA RAFFERTY KC ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202203263/A1 [2023] EWCA Crim 1052 Royal Courts of Justice Strand London WC2A 2LL Wednesday 2 August 2023 Before: LORD JUSTICE DINGEMANS MR JUSTICE GOOSE MRS JUSTICE FARBEY DBE REX V ELIAS ARBERRY __________ 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 MASON appeared on behalf of the Applicant J U D G M E N T MRS JUSTICE FARBEY: 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, no matter relating to the victim of the offences 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 a sexual offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act . 2. On 7 June 2022 in the Crown Court at Taunton before HHJ Cook, the applicant, then aged 25, pleaded guilty to four counts of rape, two counts of assault by penetration and one count of wounding with intent. On 14 October 2022 in the same court before HHJ Cullum, the applicant, then aged 26, was sentenced on all counts to concurrent terms of life imprisonment. The period of nine years and 315 days was specified as the minimum term under section 321 of the Sentencing Act 2020 . Appropriate ancillary orders were made. 3. Having been convicted of an offence during the currency of a three-year community order imposed on 11 June 2021 for the assault of an emergency worker and other offences, the community order was revoked and the applicant was re-sentenced to 12 months' imprisonment to run concurrently with the life sentences. He renews his application for leave to appeal against sentence after refusal by the single judge. 4. We turn to the facts. The applicant was in a relationship with the victim of these offences, whom we shall called V. On 2 May 2022, while in V's flat, he began questioning V about a previous allegation of rape that she had made against a former partner. He punched V's head and removed her clothes, saying: "If your ex can rape you, so can I." The applicant then forced his penis into V's anus (count 1). 5. After he had had a cigarette the applicant forced his penis into V's vagina (count 2). He grabbed her by the hair, pulled her into the kitchen and pushed her down onto the kitchen floor. He grabbed some used cat litter from a tray and pushed it into her anus and vagina (counts 5 and 6). He poured milk onto V and urinated on her. When she went to have a shower he came in and forced her to eat a mixture of cat litter, cigarette butts, milk and urine. He sprayed water from the shower into her face so that she could not breathe. He held her by the throat and struck her. He took a toilet bleach spray and sprayed it into her vagina which burnt her. Some of the spray went into her eyes so that she could not see. 6. The applicant had brought a knife into the bathroom and told V to insert it into her vagina, saying he wanted to see blood. When V refused he bent her over a radiator and penetrated her vagina with the knife (count 7). V thought that she was going to die and was biting on her arm and crying in pain as she could feel blood running down her leg. 7. The applicant then went downstairs. V came down and sat on the sofa. The applicant then used a lit cigarette to burn her vagina in three different areas. V asked the applicant to take her to hospital but he forced the knife into her vagina (count 7). The applicant once again began to ask about the previous rape allegation and forced his penis into her mouth (count 4). He penetrated V's anus (count 3) with his fist, saying: "Everyone else has done this to you, why not me?" V once again asked him to get medical attention but he refused. 8. The offending continued throughout the day with further episodes of the applicant getting V to eat cat litter and a further occasion of anal rape. 9. In the early evening V realised that the applicant had fallen asleep. She found her mobile phone and called a family member who arranged for her to be collected. She reached her parents’ home where an ambulance was called and she was taken to hospital where she underwent a lengthy operation. 10. A statement from V's GP spoke about her continuing need for medical attention following her release from hospital and about her changed personality. She was 22 years old at the time of the applicant's offences. In her victim personal statement she describes in moving terms the life-changing effects. 11. The applicant was arrested on 3 May 2022 at a hotel in Weston-Super-Mare where he had barricaded himself into a room. He had 11 previous convictions, including six convictions for violent offences, which included throwing a previous partner over some railings into a river during an argument and a further offence of assault against a different former partner. He had a recent conviction for engaging in controlling and coercive behaviour in an intimate relationship. 12. Before the judge started to consider sentence, Mr Patrick Mason, who appears on the applicant's behalf before us, as he did below, sought an adjournment for a report about the applicant's ASD. The judge refused the application on the grounds that he had sufficient material about the applicant's mental health problems and that the precise diagnosis would not make a difference. 13. In careful and detailed sentencing remarks the judge considered whether the applicant posed a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences, i.e. whether he was dangerous within the meaning of section 308 of the Sentencing Act 2020 . He took into consideration the applicant's history of domestic violence towards V and other partners. He noted other elements of the applicant's controlling behaviour, such as controlling V with cameras. He observed that the applicant had in effect tortured V, as well as committing the rapes in response to a slight that he felt about her previous life. He had inserted a knife and cut into her vagina twice. The applicant had continued to torture V despite her obvious and deep distress. 14. The judge took into consideration the psychiatric report produced on behalf of the applicant by Dr Caroline Jacob who is a consultant forensic psychiatrist. She considered that the applicant was suffering from emotionally unstable personality disorder. The judge stated that this disorder did not make the applicant dangerous and was a mitigating factor. In addition, the judge had the benefit of a pre-sentence report which assessed the applicant as presenting a high risk of serious harm to intimate partners in the future. Weighing the relevant factors, the judge concluded that the applicant was dangerous. 15. Having found the applicant to be dangerous the judge went on to consider whether the seriousness of the applicant's offences justified a life sentence under section 285 of the Sentencing Act 2020 . He concluded that a life sentence for each of the offences was justified. Applying the relevant sentencing guidelines he concluded that the appropriate overall determinate sentence would have been 22 years' imprisonment, reduced to 15 years and six months to reflect a 25 per cent discount for the applicant's guilty pleas. The minimum term therefore fell to be fixed at two-thirds of 15 years and six months, less 175 days on remand, making nine years and 315 days as we have already mentioned. There is rightly no challenge to any part of the judge's calculation or to his legal approach to the minimum term. 16. In a Note dated 31 July 2023, Mr Mason sought an adjournment of this renewed application in order for the applicant to rely on fresh evidence, namely a report from Dr Carol Stott, who is a clinical psychologist. Dr Stott assessed the applicant on an unknown date and concluded that he suffers from ASD. It is plain from the report itself that Dr Stott has not received any documents about the applicant's offending or his medical history. His report is therefore incomplete and Mr Mason would like an opportunity to submit a fuller report and to obtain a further psychiatric report. Mr Mason points out that he received some informal indication from the Court of Appeal Office that the case could be listed later this month and he has been working to that timetable. We indicated in writing yesterday that the adjournment application was refused but confirmed that it could be renewed orally. 17. Mr Mason has today renewed his application for an adjournment. He submits that this court should in the interests of justice adjourn for further and better reports which would cast light on whether the applicant's ASD and other mental health problems could be safely managed in the community. The degree to which the applicant's mental health problems can be managed is relevant to the question of whether he is dangerous and also casts some retrospective light on his culpability. 18. As to the grounds of appeal, Mr Mason submits that sentences of life imprisonment were manifestly excessive and wrong in principle. The offences while serious were not of the utmost gravity for which life sentences following a dangerousness finding should be reserved: see for example R v Wilkinson [2009] EWCA Crim 1925 , para 19. An extended sentence with a lengthy custodial term would be sufficient to address the risks presented by the applicant. It is further submitted the judge had failed properly to assess dangerousness. Insufficient or no weight was given to the applicant's mental health and insufficient consideration was given to alternative sentences and orders. The judge ought to have adjourned the sentencing hearing in order to enable the applicant to obtain a psychological report which would deal with the applicant's ASD. 19. The sustained brutality of the applicant's offences should need no spelling out. On their own, the seriousness of the offences would justify a finding of dangerousness. Combined with the applicant's history of violent offending against women in intimate relationships, the judge's conclusion is unassailable. Having found that the applicant was dangerous, the judge was entitled to conclude that the seriousness of these offences called for life sentences. There was no arguable error of law or of approach. There are no arguable grounds for this court to interfere. 20. The applicant had ample opportunity before he was sentenced to obtain necessary reports. The judge had before him a detailed psychiatric report from a suitably qualified psychiatrist instructed on behalf of the applicant. She concluded that there was no evidence of ADHD but did not reach any conclusions about ASD more generally. The judge was not bound to adjourn the case for additional reports because, as he noted, the precise diagnosis would not make a difference to the questions he had to decide. The key point is that, in the sentencing process, the judge considered the effects of the applicant's mental health problems and treated them as a mitigating factor. He was under no duty to adopt any other approach. 21. In circumstances where all issues were ventilated before the sentencing judge, we see no proper grounds to adjourn this renewed application for the court to receive a psychological assessment or any other report that was not before the judge. The question of risk in any event would be as relevant to the question of an extended sentence as to a life sentence. We are unpersuaded that further reports would make any difference. 22. Finally, we note the applicant's letter of remorse to us. It has no probative value in relation to any issue before us. It cannot make any difference to his sentence. For these reasons we refuse to grant an adjournment and refuse this renewed 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 1052' date: '2023-08-02' judges: - LORD JUSTICE DINGEMANS - MR JUSTICE GOOSE - MRS JUSTICE FARBEY DBE ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2023/00953/B2 [2023] EWCA Crim 1632 Royal Courts of Justice The Strand London WC2A 2LL Tuesday 12 th December 2023 B e f o r e: VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION ( Lord Justice Holroyde ) MR JUSTICE SWIFT MR JUSTICE HILLIARD ____________________ R E X - v - DAMIEN DUNSTUAN ____________________ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _____________________ Mr D Cherrett appeared on behalf of the Appellant Mr O Mgbokwere appeared on behalf of the Crown ____________________ J U D G M E N T ____________________ Tuesday 12 th December 2023 LORD JUSTICE HOLROYDE: 1. This is an appeal by leave of the single judge against convictions for offences of aggravated burglary, contrary to section 10 of the Theft Act 1968 , and unlawful wounding, contrary to section 20 of the Offences against the Person Act 1861 . 2. The relevant facts can be briefly stated. In the early hours of 17 th February 2021, a group of men broke into a house in Dagenham. CCTV footage showed that at least two of the men were carrying crowbars which were used to force open the door. One of the occupiers of the house was struck over the head with a crowbar. He suffered a wound which required stitching. It appears that the intruders had expected to find "weed and money" in the house, but they had gone to the wrong address. 3. The appellant was charged jointly with Paul Ram and Guled Abdi, both of whom were also convicted, and with three other men who were acquitted. 4. Count 1, the charge of aggravated burglary, alleged that the defendants, together with others, entered the house as trespassers with intent to steal therein "and at the time of committing the said burglary had with them weapons of offence, including a crowbar". 5. Count 2 alleged that the defendants, together with others, had unlawfully and maliciously wounded the man who was struck. 6. Following a trial in the Crown Court at Woolwich, before His Honour Judge Mann KC and a jury, none of the accused disputed that the offences charged had been committed by someone. The issues in the case were as to whether any of the accused was rightly identified as having taken part. 7. The case against the appellant was that he was a participant in the offences; that he either lent support at the house, or was a lookout, or was a getaway driver. The prosecution adduced circumstantial evidence, which included the following features. It was alleged that the appellant had travelled to the scene in convoy with others of the accused, having been in telephone communication with some of them on the previous day. It was said that the appellant had taken part with Abdi in carrying out a reconnaissance in the area near the house, after which the appellant, Abdi and Ram were involved in further phone calls. 8. Ram and the appellant then returned to the area near the house at around 1.30 am on 17 th February. Thereafter, a group of eight men were seen at the house. Abdi and Ram (but not the appellant) could be identified on the CCTV footage. It was not alleged that Ram had been one of those carrying a crowbar. 9. At the start of the trial, the prosecution applied to adduce previous convictions of a number of the accused as evidence of their bad character. These applications were made under section 101(1) (d) of the Criminal Justice Act 2003 on the basis that the previous convictions were capable of showing a relevant propensity. 10. In the appellant's case, the convictions on which the prosecution sought to rely related to offences of wounding with intent and possessing a bladed article in a public place, to which the appellant had pleaded guilty in 2013. The circumstances of those offences were that the appellant (then aged 28) had been involved with two others in a joint knife attack on their victim. The judge refused that application. He held that there was an insufficiently strong nexus between the present charges and the previous offending to outweigh the prejudice which would be suffered if the evidence were admitted. He concluded his short ruling with the following prescient words: "As I have indicated already during the course of this part of the proceedings, that does not prohibit the prosecution re-applying if defendants give evidence or something occurs which makes the conviction admissible under another heading. Often defendants give evidence and say things that they should not, which makes the admission of the evidence possible [under] … section 101(1) (f) … giving a false impression, but I do not admit it at this stage." 11. The appellant gave evidence in his own defence. He denied any knowledge of or participation in the offences or in any earlier reconnaissance. He admitted that he had driven his car to the relevant area on 15 th February 2021, but said that he had given a lift to a friend who lived a few roads away. He also admitted that he had been near the scene on 17 th February 2021, but said that was only because Ram had asked to be dropped off there and had later called him, as he was about to leave, asking to be collected. 12. At the conclusion of the appellant's evidence in chief, there was the following exchange: "Q. Were you involved in an aggravated burglary? A. No, I wasn't involved in no aggravated burglary. Q. Did you agree to anybody taking crowbars? A. No. If I knew a crowbar was in my car, he would not be getting in my car. I've got kids, I've got a family, so … Q. All right, so you did not have a crowbar in your car? Is that what you say? A. No, no crowbar." 13. The prosecution applied, pursuant to section 101(1) (f) of the 2003 Act , to adduce evidence of the appellant's 2013 convictions. Mr Mgbokwere, then as now representing the prosecution, submitted that by his replies, the appellant had given a false or misleading impression, namely that he was not a person of violence or not a person who acted in concert with others to use violence, or a person who subscribed to the use of a weapon in a criminal enterprise. 14. Mr Cherrett, then as now representing the appellant, opposed that application. He submitted, in summary, that the appellant had not sought to create, and had not in fact created, a false impression. He had done no more than deny the offence, and in particular had not asserted that he would never act violently or possess a weapon. It was factually correct and was already in evidence that the appellant lived with his partner and a child. 15. Mr Cherrett further submitted that the 2013 offences could have no probative value in relation to the issues in the present trial. The crowbars carried to the scene in the present case were not weapons per se (although they became weapons when one was used to wound the occupier), and the overall circumstances, he submits, were far removed from the facts of the 2013 offending. For all those reasons, Mr Cherrett submitted, evidence of those previous convictions was not admissible. In the alternative, if they were admissible, he submitted that they should be excluded, pursuant to section 78 of the Police and Criminal Evidence Act 1984 , because its highly prejudicial effect outweighed any probative value. 16. The judge granted the prosecution's application. He held that the appellant had created a false impression which needed to be corrected. The answer which the appellant had given to his own counsel created the impression that he was a family man who would not involve himself in offending of this type. Why else would he mention his children and say that his vehicle was a family car? The judge further held that the previous convictions of the appellant were probative of the prosecution case and that it was reasonable and proportionate to admit them. He observed that the appellant's counsel would be able to deal with the matter in re-examination if he wished. 17. The trial then proceeded. There was some cross-examination of the appellant about the 2013 convictions, and the relevant facts were later placed before the jury as written agreed facts. Mr Cherrett was, indeed, able in due course to address the jury and make the submissions he wished to make about why the 2013 convictions should carry no weight. 18. In his legal directions, the judge explained why the evidence of the previous convictions had been admitted. He directed the jury that that evidence was "… just one part of the evidence and it is a matter for you how, if at all you use it to assess him and the credibility of his account. What you must not do is assume that because he committed this offence in the past, he is therefore guilty of the charges he currently faces or that, by definition, he is more likely to be guilty of them. It is just one part of the evidence that you are entitled to consider if you choose to do so." 19. No criticism is made of those directions. The grounds of appeal challenge the judge's decision to admit the evidence of bad character. In his written and oral submissions, Mr Cherrett again advances and amplifies the points which he made to the judge. He submits that the judge was wrong to find that the appellant had created a false impression; that the judge was wrong to admit the previous convictions, having regard to their age and their nature; and that, in the alternative, the judge should have acceded to the defence application to exclude the evidence because of its prejudicial effect. 20. The respondent opposes the appeal. Mr Mgbokwere's written and oral submissions again repeat and amplify the matters which he argued before the judge. We are grateful to both counsel for their assistance. 21. So far as is material for present purposes, section 101 of the Criminal Justice Act 2003 provides: "(1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if — … (f) it is evidence to correct a false impression given by the defendant … (2) Sections 102 to 106 contain provision supplementing subsection (1). …" 22. Section 105 of the 2003 Act , so far as is material, provides: "(1) For the purposes of section 101(1) (f) — (a) the defendant gives a false impression if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant; (b) evidence to correct such an impression is evidence which has probative value in correcting it. (2) A defendant is treated as being responsible for the making of an assertion if — (a) the assertion is made by the defendant in the proceedings (whether or not in evidence given by him), … … (6) Evidence is admissible under section 101(1) (f) only if it goes no further than is necessary to correct the false impression. …" 23. In contrast to two of the other gateways to admissibility provided by the section, section 101 itself does not contain a power to exclude evidence which is admissible through gateway (f). The court retains, however, its general power under section 78 of the Police and Criminal Evidence Act 1984 to exclude prosecution evidence if it appears to the court that, having regard to all the circumstances "the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it". 24. Having reflected on counsel's submissions, our conclusions are as follows. The judge carefully considered each of the matters which the statutory provisions required him to consider. He was, in our view, clearly correct to find that the appellant had created the impression that he was not the sort of person to participate in crimes of the type charged involving violent offending by a group using a weapon or weapons. That was a false or misleading impression, because in 2013 he had taken part in just such offending. We agree with Mr Cherrett's submission that care must always be taken when considering admitting evidence through this gateway, if it may be said that the relevant statement by an accused is equivocal. But in the present case there was, in our judgment, nothing equivocal about the impression given. Moreover, bearing in mind the terms of the question reasonably asked by Mr Cherrett, and bearing in mind the judge's wise warning to the appellant when he rejected the earlier application by the prosecution, the judge was plainly entitled to find that the false impression had deliberately been given. As the judge rhetorically asked: why else would the appellant, when simply asked whether he had agreed to anybody taking crowbars, have chosen to reply in the terms he did, instead of simply saying "No". As Mr Mgbokwere suggested rhetorically in his submissions to us: why else would the appellant refer to his children and his car being used by his family, particularly when that same car underwent a change of registered keeper later on the very same day as the burglary? 25. This case, in our view, is far removed from the situation which sometimes arises of a defendant in the heat of the moment denying guilt in ill-chosen terms which were not intended to secure an undeserved advantage for himself. We are unable to accept Mr Cherrett's suggestion that the relevant reply was no more than a throwaway remark. 26. True it is, as Mr Cherrett says, that the details of the two incidents differ, but the nature of the offending in 2013 did, in our view, have probative value in contradicting the assertion by the appellant in the present case that he was not the sort of man to assist in offences of aggravated burglary and unlawful wounding. It was, of course, open to Mr Cherrett to ask further questions of the appellant in re-examination if he felt he could safely do so, and to make submissions to the jury in his closing speech with a view to inviting the jury not to attach any weight to the 2013 convictions. 27. The judge was therefore entitled to find that there was a false impression which needed to be corrected and that the previous convictions had probative value in making that correction. The evidence of the previous convictions did not go further than was necessary for that purpose. The evidence was accordingly admissible. 28. The potential exclusion of the admissible evidence was a matter for the judge's discretion. We can see no basis for saying that he exercised that discretion in a way which was not properly open to him. Although a number of years had passed between the 2013 offences and the present allegations, the appellant had been a mature adult when he involved himself in serious offending in 2013. If no reference had been made to that earlier offending, the jury would have been left with a false or misleading impression, which the appellant had deliberately created, despite the warning which the judge had given to him and to other accused. In deciding whether the admission of the evidence would adversely affect the fairness of the proceedings, the judge had to consider fairness to the prosecution, as well as fairness to the defence. In those circumstances, we are unable to accept the submission that no reasonable judge could have refused to exclude the evidence. Nor do we accept that it was the admission of this evidence which tipped the scales and led to the appellant being convicted, when others were not. 29. Having considered the competing submissions of counsel, it seems to us that there was, in any event, a strong circumstantial case against the appellant. 30. We are, therefore, satisfied that the convictions are safe. It follows that this appeal fails and must be dismissed. ______________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] ______________________________	```yaml citation: '[2023] EWCA Crim 1632' date: '2023-12-12' judges: - MR JUSTICE SWIFT - MR JUSTICE HILLIARD ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	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 1344 No. 202302116 A3 Royal Courts of Justice Tuesday, 24 October 2023 Before: LORD JUSTICE WILLIAM DAVIS MR JUSTICE HOLGATE HER HONOUR JUDGE DE BERTODANO REX v JAMIE RUSHTON REPORTING RESTRICTIONS APPLY (Sexual Offences (Amendment) Act 1992) __________ Transcript prepared from digital audio by Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] _________ J U D G M E N T MR JUSTICE HOLGATE: 1 The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's life time, 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. The prohibition applies unless waived or lifted in accordance with section 3 of the Act. 2 On 9 December 2022 in the Crown Court at Wood Green before His Honour Judge Ezzat, the applicant changed his plea to guilty on one count of sexual assault contrary to section 3 of the Sexual Offences Act 2003. On 30 May 2023 he was sentenced by the same judge to a term of 18 months' imprisonment. A second count of voyeurism was ordered to lie on the file in the usual terms. He applies for an extension of time of 27 days in which to renew his application for leave to appeal against sentence following refusal by the single judge. The issue of whether time should be extended depends upon whether we consider the proposed appeal to be arguable. 3 The applicant and the complainant were colleagues working at a veterinary practice. On 24 June 2017 they and other colleagues attended an annual conference organised by their employer. The events ended in a black tie dinner. The applicant was a veterinary surgeon. The complainant had started out as a receptionist at the practice but she undertook training and became a veterinary nurse. The two of them worked together. They had a close and friendly working relationship. 4 On the night of 24 June, the complainant attended the black tie dinner. During the course of the evening she drank heavily. She did not recall the evening coming to an end. She next remembered waking up on the morning of 25 June in the applicant's bed, still wearing the red dress that she had worn the evening before. He was sitting on the opposite side of the room. The complainant concluded that she must have been drunk at the end of the evening and that the applicant had given up his bed for her. She went to breakfast with her friends and gave little further thought to the events of that night. 5 In 2019 the applicant's then wife found both moving and still images on a memory stick. These showed a woman in a red dress passed out or asleep, and the applicant touching her and adjusting her body so that he could see and feel her genitalia. It then took two years for the police to be able to establish who the person in the red dress was. It was the complainant. 6 The applicant was charged in relation to his behaviour on 2 February 2022. He initially denied the offence. He said that he had derived no sexual gratification from his actions and had reasonably believed that the complainant consented to his behaviour. He subsequently pleaded guilty three days before the date set for his trial, on a basis which asserted that he and the complainant had been involved in a consensual sexual relationship. That led to a Newton hearing, which took place on 15 May 2023. The judge rejected the applicant's contentions. 7 The applicant was aged 45 at sentence. Before this offence he was of previous good character. We have read the pre-sentence reports. The author said that the applicant is very articulate. He presents as an intense character and had bombarded her with huge amounts of information. It was clear that he was extremely anxious and did not want to be perceived as a sexual predator. However, in the view of the probation officer he intellectualised issues and she was not sure how much he truly understood the impact of his actions. 8 The author referred to images which have been found on devices belonging to the applicant. The applicant maintained that the photographs were not for sexual gratification. The author disagreed. The PSR also referred to the applicant's obsessive compulsive disorder and we have read a series of psychological and psychiatric reports in relation to the applicant. 9 In his sentencing remarks the judge referred to the delay in the case and said that this was attributable to the time it took for the images to be discovered on the applicant's phone, and for the victim to be identified. Any further delay thereafter had resulted from the way in which the applicant had conducted his defence. 10 In relation to the mitigation advanced on the applicant's behalf, the judge drew particular attention to the insight he had gained in listening to the applicant's evidence at the Newton hearing. He said that he did not detect any real remorse in the applicant. This was in part because he got the impression that the applicant did not really think he had done anything wrong. The guilty plea was an acceptance he had broken the law, but it was not an acceptance that what had happened was wrong. The judge referred to the serious effect the prosecution had had on the applicant's career, but he said that this was simply the result of his own conduct. 11 The judge then said this: "You said in your evidence that you did not want to commit a sexual assault, you wanted to capture a moment of someone you cared deeply for. It is clear from your evidence that you remain in denial about your offending. Your basis of plea accepts that you gained sexual gratification from these actions; this was previously denied by you. What provides a telling insight in relation to your behaviour are the other images that were discovered on your device; there are many images of women covertly filmed at work, in shops or on public transport; pictures of women's bottoms. You were not capturing a moment of someone you deeply cared about when you were taking those photographs of colleagues or strangers whilst they went about their daily lives." 12 The judge then explained that the offence fell within category 2A, and how he arrived at the length of the custodial term. He made it clear that he did not hold in any way against the applicant the outcome of the Newton hearing. On the question of whether the sentence should be suspended ,the judge said that whilst the applicant was a man of previous good character, the offending was so serious that only an immediate term of imprisonment was appropriate. 13 The grounds of appeal, initially settled by counsel, raise two issues. First, it is said that in rejecting the applicant's personal mitigation, the judge failed to have regard to the absence of any further offending over a five year period since the offence took place, together with the evidence from psychologists of issues affecting the applicant and needing to be addressed, and which would be better addressed in the community. Second, it is submitted that the sentence should have been suspended. 14 In refusing leave to appeal against sentence, the single judge said this: "1 The sentence of 18 months' imprisonment is not challenged. What is challenged is the judge's decision to make it an immediate sentence rather than suspending it. 2 There clearly was an amount of material, including the psychological reports, bearing on the issue of suspension of sentence. The applicant was also of previous good character. I would not necessarily say that the judge would have been positively disentitled from imposing a suspended sentence but that is not the issue. The issue is whether he was arguably disentitled from imposing an immediate custodial sentence. 3 The applicant took gross advantage of the intoxicated complainant. The judge, who had seen and heard the applicant give evidence at the Newton hearing, assessed no true remorse and no true acceptance that he had done wrong. His motivation was selfish sexual gratification, the victim being so intoxicated as to be completely helpless and unknowing. The judge reviewed the facts. He reviewed the psychological evidence. The judge expressly took account of the relevant Guideline relating to community and suspended sentences. In all the circumstances, the judge's evaluative conclusion that the offending was so serious that only an immediate term of imprisonment was appropriate was, in my view, one reasonably and properly open to him. There is no sufficient basis for an appellate court interfering with that decision." 15 The applicant has subsequently submitted to the court grounds of appeal of his own composition in support of his renewed application. They are 31 pages long, and somewhat diffuse. We have considered them. In summary the applicant advances the following four points: (1) The sentence should have been suspended for the reasons set out in his document; (2) His personal mitigation was either overlooked by the judge, or undervalued; (3) The circumstances and conduct of the Newton hearing infringed his right to a fair hearing. The judge erred by allowing hearsay evidence to be introduced; (4) The terms of the sexual harm prevention order infringed his rights under Article of the ECHR and the restrictions are not proportionate. 16 Those third and fourth grounds are entirely new grounds of appeal. According to R v James [2018] 1 WLR 2749 they should have been the subject of an application to amend the notice of appeal, with sufficient reasons identified to justify allowing such amendments. We have, nonetheless, considered whether either or both of those grounds are arguable. 17 As regards ground 3, this is misconceived. The judge made it clear in his sentencing remarks that he did not hold the fact that the applicant was unsuccessful in the Newton hearing against him. That did not prejudice him as regards the sentence imposed. In any event, the judge’s findings on lack of remorse are not open, sensibly, to challenge. 18 Ground 4 relates to the sexual harm prevention order which lasts for a period of 10 years. It was considered by the judge at the sentencing hearing. Leading counsel who then appeared for the applicant made limited submissions about only two of the provisions in the draft order. The judge accepted those submissions in the applicant's favour. It does not appear that there was any other criticism by counsel of the terms of the order. Nevertheless, we have reviewed those terms. They are provisions which frequently appear in orders of this nature. They arose out of the specific circumstances of this offence to which the applicant pleaded guilty, together with the images to which we have referred. In our judgment there is no conceivable basis upon which it could be argued that any of those terms were disproportionate, or otherwise inappropriate. 19 That simply leaves the first two proposed grounds of appeal. Despite the extensive submissions which the applicant has put forward in support of those arguments, we consider that there is no merit in them, essentially for the reasons given by the single judge. Accordingly, this renewed application for leave to appeal against sentence, together with any informal application for leave to amend the notice of appeal, are refused. LORD JUSTICE WILLIAM DAVIS: Thank you very much. ____________	```yaml citation: '[2023] EWCA Crim 1344' date: '2023-10-24' judges: - LORD JUSTICE WILLIAM DAVIS - MR JUSTICE HOLGATE - HER HONOUR JUDGE DE BERTODANO ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical 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. 2008/00721/A4 Neutral Citation Number: [2008] EWCA Crim 1055 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Monday 21 April 2008 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Phillips of Worth Matravers ) MR JUSTICE PITCHFORD and MRS JUSTICE DOBBS DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - GARETH TALFRYN DAVIES - - - - - - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - - - - - - Mrs S O'Neill QC and Mr S Moses appeared on behalf of the Appellant Mr S Denison appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T Monday 21 April 2008 THE LORD CHIEF JUSTICE: Introduction 1. This is an appeal against sentence brought with the leave of the single judge. On 14 November 2007, the appellant Gareth Davies was convicted at the Central Criminal Court before His Honour Judge Hawkins QC and a jury of the murder of Egeli Rasta (count 1) and of doing an act intended to pervert the course of justice (count 2). On 11 January 2008 he was sentenced to life imprisonment with a minimum term of 23 years on count 1 (less time spent on remand). A concurrent term of six years' imprisonment was imposed in respect of count 2. No appeal is brought in respect of this element of the sentence. 2. The horrifying facts of this offence can be shortly stated. Egeli Rasta had come from Estonia to work in England in December 2004. By July 2006 she was living in Mitcham and she regularly used Mitcham Common to exercise and to sunbathe. 3. The 4th July 2006 was a particularly warm day. In the afternoon of that day Miss Rasta's friends were unable to contact her by telephone and she then missed appointments on the following days. She was reported missing on 7 July 2006. 4. Cell phone records from her mobile telephone showed that it was being used. The police traced the telephone to the appellant and he was arrested on 13 July 2006. At his home in Mitcham police found a rucksack that contained damp clothing and a baseball cap stained with Miss Rasta's blood, as ascertained by DNA analysis. Next to the rucksack was a holdall which contained a knife. This too was stained with Miss Rasta's blood. The holdall also contained an orange vibrator, a second vibrator which was home-made from a hover part, blue industrial tissue and an opened packet of liquid Viagra. 5. On 16 July 2006 a walker on the common alerted police to a smell coming from a wooded area. The area was searched and Miss Rasta's naked, badly decomposed body was discovered in a shallow grave. It was not possible to determine the cause of death. A length of fishing line was present at the scene where her neck would have been. Blue tissue paper matching that in the appellant's holdall was also found in the copse. Miss Rasta's clothing has never been found. 6. The basis of the second count was the concealment by the appellant of Miss Rasta's body. 7. The crime of murder carries a mandatory life sentence. Section 296 of the Criminal Justice Act 2003 requires the court, unless it decides that the defendant must remain in prison for the rest of his life, to specify in such circumstances the minimum term that he must serve before being considered for release on licence. In fixing the minimum term the court is required to have regard to the seriousness of the offence. In so doing the court is further required by section 296(5) to have regard to the general principles set out in Schedule 21 to the Act. 8. Paragraph 5 of Schedule 21 requires that, in circumstances where the court considers that the seriousness of the offence or a combination of the offence and one or more offences associated with it is particularly high and the offender was aged 18 or over when he committed the offence, the appropriate starting point in determining the minimum term should be 30 years. Cases that will normally fall within this subparagraph are set out in paragraph 5(2) and include a murder involving sexual or sadistic conduct. 9. The only issue that there appears to have been before the judge in relation to the sentence was whether the evidence in the case led to the conclusion that the murder involved sexual conduct so that the starting point was 30 years. Apart from this, aggravating and mitigating factors were agreed between the prosecution and the defence. The sentence 10. The appellant was 22 years old at the time of the offence. He had a number of previous convictions, but none for violence to the person. The judge had before him a number of expert reports concerning the appellant's mental state. These had concluded that the appellant had difficulties with his memory, was in the bottom 5 per cent of the population for intelligence and was suffering from a personality disorder. 11. The prosecution submitted to the judge that the circumstances of the crime committed on the common involving an attractive young victim who had been stripped naked, permitted the inference that the crime had had a sexual motivation and had involved sexual conduct. For the defence it was argued that such an inference could not safely be drawn as there were alternative explanations for the removal of the clothing, such as to destroy evidence or to enable the body to be more effectively concealed. 12. The relevant portion of the judge's sentencing remarks reads as follows: "The Crown submit that the circumstances of this crime, committed as it was on the common, a young woman, attractive young woman, with the body found in the copse, stripped naked, allows me safely to draw the inference that it had a sexual motivation and involved sexual conduct. The defence say that in the circumstances of this case it is not safe for me to draw that inference. I have considered very carefully the position and I come to the conclusion that I am driven, in the circumstances of this case on the factors that I have set out, that it had sexual motivation and involved sexual conduct. I cannot be sure in the circumstances of this case that you had an intent to kill when you committed the crime and that is submitted both by prosecution and defence. You are a young man -- it is submitted by both that that is a factor I should take into account in deciding the appropriate amount -- 22 at the time of the killing. It is agreed you have no previous convictions for violence to the person and I am bound to conclude in the circumstances that this may have occurred suddenly without premeditation. As to your mental condition, I have been helped by a very detailed series of reports submitted by the defence. You are of low intelligence. You had a very unfortunate background. You suffer from personality disorder and depressive nature and I think in all the circumstances those are also factors that I should take into account in balancing the position. As I said, the sentence upon you for the murder is a life sentence and I conclude that before you may apply to the Parole Board you must serve 23 years. I give full credit for the time that you have served -- and I am told you have served 542 days -- which will apply towards the sentence, and I will sentence you to six years concurrent for perverting the course of public justice in concealing the body." 13. The reports to which the judge referred include a psychiatric report from Dr Jan Falkowski, dated 7 December 2007, which is entirely in accord with the other reports. He summarised his opinion as follows: "7. Mr Davies had a deprived and disrupted childhood. He began to abuse drugs at an early age. Mr Davies has difficulties in a number of areas of his interpersonal functioning. He also suffers from emotional instability. This has led him to harm himself at times. These are symptoms of a personality disorder. Mr Davies suffers from a personality disorder which has features of the most emotional instability, schizoid and borderline elements. Although personality disorders may improve to some extent with long- term psychotherapy, they are extremely difficult to treat. It is likely that Mr Davies will continue to experience depressive symptoms from time to time. It is important that he is monitored as he is likely to harm himself or attempt suicide when he is feeling depressed. 8. Mr Davies has a low IQ. It is important to emphasise however that several million people in the United Kingdom would have a similar or lower IQ. Mr Davies' IQ would limit his ability to achieve in some areas, but it would not affect his ability to function on a day-to-day basis. His memory difficulties would also not prevent him carrying out day-to-day activities." The standard of proof 14. The difference between a 15 year starting point and a 30 year starting point when fixing a minimum term can have very great significance, as this case demonstrates. The question arises as to the standard of proof the court should apply when deciding whether aggravating features exist that lift the starting point from 15 years to 30 years. We asked counsel whether there was any authority which dealt with this question and they told us that they were aware of none. It seems to us that in principle the standard of proof should be the same as that to be applied by a jury when reaching their verdict. The distinction between the factors that call for a 30 year starting point and those that call for a 15 year starting point is no less significant than that which has to be considered by a jury when distinguishing between alternative offences such as, for instance, those under sections 18 and 20 of the Offences against the Person Act 1861. It would be anomalous if the same standard of proof did not apply in each case. Counsel for both the prosecution and the defence were agreed that this is the correct analysis of the position. 15. Was the evidence referred to by the judge such as enabled him to be sure that this was a murder which involved sexual conduct? For the appellant Mrs O'Neill submitted that the evidence did not permit such a conclusion to be reached. The only significant matter relied upon by the judge was the fact that the victim's body had been stripped of its clothing before it was buried. It is at least possible -- indeed Mr Denison for the prosecution said that it was likely -- that the victim would have removed some of her clothing on this day because she was known to sunbathe on the common, and it was a very warm day. Nonetheless, if that were the position, the remainder of her clothing had been removed from her by the appellant. But Mrs O'Neill submitted that it was not right to infer, let alone to be sure from this fact, that there had been the involvement of sexual conduct in this murder. The clothing might have been removed to prevent forensic links with the appellant or to make it easier to conceal the body, or to inhibit identification. Mrs O'Neill submitted that the judge's conclusion was essentially speculative; it lacked the sound evidential basis that was a prerequisite to adopting a 30 year starting point. 16. Mr Denison for the prosecution sought to persuade us that this was not the case. He referred us to matters which were not referred to by the judge: that the copse where the body was found was a place to which the appellant had obviously gone in the past because his name had been carved on a tree, and a beer can was found there with his DNA upon it. He submitted that, when these facts were taken into account in conjunction with the sex aids in the appellant's rucksack, the judge could safely draw the conclusion that some form of sexual conduct had taken place in connection with the murder. 17. We do not accept these submissions. The sex aids found in the appellant's rucksack were forensically examined and bore no trace of the DNA of the victim. The appellant said that they were for his personal use, and there was no reason to doubt this. The appellant's previous convictions give no suggestion of a propensity to sexual offences or indeed offences of violence. The psychiatric report, while it demonstrates personality defects, does not suggest a propensity for sexual offending. 18. At the end of the day the only factor that points to the possibility of sexual conduct having been involved is the fact that the victim's body was left naked. That certainly raises the possibility that sexual conduct was indeed involved, but it does no more than that. One cannot escape from the fact that the appellant must have removed all the victim's clothing from the scene of his crime. Why he did so is again a matter for speculation, but the motive that led him to do so could, it seems to us, have also led him to remove such clothing as the victim was wearing at the time of the offence. 19. For all of these reasons we have concluded that the judge's finding that this crime involved sexual conduct must be set aside and that in those circumstances, in accordance with the requirements of section 21, the starting point for the minimum term for this offence is 15 years. 20. Where does one move from that starting point? At the time of sentencing the Crown accepted that the judge should take into account as mitigation that there was no evidence of an intention to kill and that the offence was unlikely to have been premeditated, in addition to the factors of the appellant's youth and immaturity. Those concessions were plainly reflected by the significant reduction that the judge made from his starting point of 30 years. 21. We were concerned that the judge should accept as mitigation the absence of an intention to kill and the absence of premeditation in circumstances where the appellant gave no positive evidence as to the circumstances of the crime (for he denied his responsibility for it), and in circumstances where it had proved impossible to draw positive forensic conclusions from the body because of its concealment. It seems to us at least arguable that in these circumstances the proper approach of the court was to start with the presumption that the appellant had intended the consequence of his acts, namely the killing of his victim. However, the judge proceeded on the basis that it was common ground that there should be no assumption of an intention to kill or of premeditation. 22. He did so, however, in circumstances where he took a 30 year starting point on the basis that this was a murder connected with sexual conduct. If a starting point of 15 years is taken, the question then is: to what extent should regard be had to the mitigating factors, and to what extent should regard be had to the accepted aggravating factor of the concealment of the body? That is one of the aggravating factors expressly set out in the table at paragraph 10(g) of Schedule 21. 23. Mrs O'Neill realistically accepted that in the circumstances of this case the aggravating feature of the concealment of the body outweighed any effect that should be given to what had been agreed as mitigating factors at the time of sentencing. Implicitly it seems to us that she accepted the force of the submission made by Mr Denison for the prosecution that the concealment of the body was very serious aggravation in the circumstances of this case. Not merely did it result in additional anxiety and distress for the relatives of the victim, but it had the effect of concealing from the court the facts of the offence with the possible consequence that the appellant had benefited by the inability of the court firmly to conclude that this was indeed a murder connected with sexual conduct. 24. We share the analysis of counsel. This was, as Mr Denison submitted, a truly dreadful murder of a wholly innocent victim who had been entitled to expect that she could enjoy the amenity of Mitcham Common without molestation. 25. When we weigh up both the aggravation of the concealment of the body with the factors conceded to be mitigation, we have concluded that it is appropriate to quash the minimum term found by the judge and to replace it with a minimum term of 18 years, giving credit for the time spent on remand. To that extent this appeal is allowed.	```yaml citation: '[2008] EWCA Crim 1055' date: '2008-04-21' judges: - MR JUSTICE PITCHFORD - MRS JUSTICE DOBBS DBE ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Neutral Citation Number: [2018] EWCA Crim 2660 Case No: 201704801/B2 & 201704802/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 20 November 2018 B e f o r e : LORD JUSTICE FLAUX MRS JUSTICE CARR DBE HIS HONOUR JUDGE PICTON (Sitting as a Judge of the CACD) R E G I N A v LEVI LEMON REECE EFFER 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 J Smart appeared on behalf of Lemon Miss F Clegg appeared on behalf of Effer Mr R Partridge appeared on behalf of the Crown J U D G M E N T (Approved) LORD JUSTICE FLAUX: 1. On 26 September 2017 in the Crown Court at Isleworth, following a trial before His Honour Judge Robin Johnson and a jury, these appellants, now both aged 19, were convicted of attempted robbery. On 6 November 2017, Lemon was sentenced to 12 months in a young offender institution suspended for 18 months, with 200 hours' unpaid work. Effer was sentenced to 15 months in a young offender institution suspended for 18 months, with 250 hours' unpaid work. They each appeal against conviction on one ground for which leave was given by the single judge. That ground is that the judge erred in failing to leave to the jury in the case of Effer an alternative count to robbery of assault, thereby rendering the convictions unsafe. Other grounds for which leave was not given by the single judge have not been renewed. 2. The essential circumstances of these offences were as follows. On the evening of 1 December 2016, Mr Pranay Sharma was walking home from work at about 11.30 at night when he was involved in an incident with a group of men which included the appellants. Mr Sharma called the police and gave an account of being punched by the appellants and of an attempt having been made to demand his property. He accepted that he had thrown punches during the incident. 3. The prosecution case was that the appellants had been part of a group of men who had surrounded Mr Sharma and attempted to rob him. They relied upon the evidence of Mr Sharma, CCTV footage which showed some of the incident, the fact that it was Mr Sharma who called the police and, in the case of Effer, his failure to mention in interview matters he now relied upon in his defence case. 4. The case for both appellants was that having walked into Effer, Mr Sharma had refused to apologise and become aggressive. Effer accepted that he had struck Mr Sharma but said that he had done so after Mr Sharma struck him. Lemon contended that he was a peacemaker and tried to diffuse the situation. At some point an unknown man who was not part of their group had placed Mr Sharma in a headlock. There had been no attempted robbery. Both appellants were of previous good character. 5. The issues for the jury were thus whether there had been any attempt to rob Mr Sharma and whether Lemon had been party to any criminal behaviour at all. 6. The key aspects of Mr Sharma's evidence were as follows. On his way home from work he had heard a number of men running after him. He stopped and they asked him for weed. He said he did not have any, at which point they asked for his wallet, headphones and phone. One man was short and black with dreadlocks and the other tall and white with a white shirt. Initially he pushed them away but the black man became angry and punched him. He was surrounded and fell to the ground. He stood up and then the white man hit him. Another man told him to go home, which he tried to do, running to the other side of the road where the fight began again. One man had tried to befriend him but also tried to take his property. He pushed and punched both men. He said the men were bullying him. He told them that he had nothing valuable. He had not thought they were going to steal from him. There had been no shouting or arguing before the white man hit him. He had hit them in self-defence. They tried to grab his bag and his phone. He then ran into the closest shop and made a 999 call to the police. The men followed him. He subsequently identified the appellants as his attackers. 7. In cross-examination, he said that there was no question that he had collided with the man in the white shirt. There had not been an argument about this. He had only arrived in the United Kingdom four months earlier. He had been afraid during the incident and wanted to run away. He said he had been hit by the black man first. It was put to him that although in his statement he said that he had been pushed to the ground and hit to the head that had not happened. He was sure that he had been hit to the ground. This was not shown in the CCTV footage. It was put to him that there was no footage of him being kicked and punched and that his account lacked detail. He said in response that this had been his first ever experience of a crime. 8. PC Daby who attended the shop gave evidence of arresting the appellants initially for assault. Lemon said his friend had been assaulted by an Asian man who was in the shop. Effer confirmed this. He appeared intoxicated. Mr Sharma gave an account of the officer of men running behind him and asking for weed. Effer had punched him to the side of the face and Lemon had also punched him and he had punched back. 9. Both appellants gave evidence. Lemon was now an undergraduate and he came from a respectable family. He had been out at a late 18th birthday party for Effer who was a close friend. He was not drunk and they had left at about 11.30. Effer was walking slightly ahead and suddenly turned round and approached Sharma. He was clearly angry. Lemon ran over to check everything was all right and heard Effer demanding an apology. Sharma said he had done nothing wrong and had been running for a bus. Lemon tried to tell him to go home but he seemed confused and the exchange became heated. The only reference to drugs had been Lemon telling Sharma he smelt of weed. Nothing physical had happened. He had said: "Don't mind my friend he's drunk." But Sharma had become aggressive and pushed him. He did not react. A man had appeared who was not in their group and frog-marched Sharma to the corner of the road. Sharma had punched both Effer and himself. They ended up on the floor and had been helped up by their friends. Sharma had run off. Lemon had given a prepared statement in interview but he had been advised thereafter to go no comment. 10. In cross-examination, he said he was the peacemaker. His group had not surrounded Mr Sharma, or asked him for drugs or his property and he had had plenty of opportunity to run for his bus or to walk off. 11. In evidence Effer said that he had been a bit tipsy at the time of the incident. Sharma had walked straight into him. He had wanted an apology and he lost his temper a little. He said the CCTV began immediately after the collision. Sharma had been aggressive. Cannabis had not been mentioned. No one had patted down Sharma, demanded his phone or tried to take it. He also described the man who was not part of their group taking Sharma into the corner of the road. The incident had continued over the road. Sharma had punched him in the face. His friends told Sharma to stop and asked him to go. When he was arrested he asked what property but he had not answered questions in interview on the advice of his solicitor. The group had not pushed Sharma against the wall or surrounded him. Others had been trying to diffuse the situation. Sharma had pushed him and he (Effer) had punched him but had not done so again despite Sharma punching both the appellants. 12. On behalf of Effer, Ms Clegg, who was not trial counsel, submitted that Effer had admitted assault at an early stage and been prepared to plead to common assault, but this had been rejected by the CPS. She submitted that Effer had also admitted assault during his evidence. Mr Sharma's evidence also supported this being no more than an assault, in that he had said it did not feel like an assault, it felt like a robbery. The CCTV footage was also consistent, she said, with assault. She submitted that in these circumstances the judge should have left an alternative count of assault to the jury. She relied upon the decision of the House of Lords in R v Coutts [2007] 1 Cr.App.R 6, particularly the passage in Lord Hutton's speech at [61] and [62]. She submitted that the alternative count here was clearly suggested by the evidence so should have been left to the jury and that, in circumstances where that was not done, the conviction was rendered unsafe. 13. Similar submissions were made by Ms Smart on behalf of Lemon. She submitted that the reason why, if the lesser offence is not left to the jury in the alternative, the conviction is unsafe is that the jury was faced with disgraceful conduct by Effer, but may have found it difficult to acquit and so have convicted him of the more serious offence out of a desire that the defendant should not get off scot free. Here, if there had been such an alternative count for Effer, he could have pleaded to it and the jury would then have been sure that he would be punished for his violence. Whilst her client Lemon would not have been on that count, the case against him was that he was a secondary party to Effer's actions, joining in a joint enterprise, so that if the conviction against Effer was unsafe, by extension so was that against Lemon. She submitted that this was one of those cases where the jury had been left with a stark choice of either letting Effer get away with violence in the street or interpreting what they saw on the CCTV footage as an attempted robbery involving both appellants. 14. Coutts was considered by this Court in R v Foster [2008] 1 Cr.App.R 38, upon which Mr Partridge on behalf of the prosecution relies. Perhaps of more assistance in that context is the decision of this Court in R v Hodson [2009] EWCA Crim. 1590. Keene LJ giving the judgment of the Court considered Coutts and Foster and said this at [10] and [11]: "10. We bear in mind the commentary on Coutts , which is contained in this court's decision in R v Foster [2008] 1 Cr App R 38 . There is no automatic requirement on a judge to leave an alternative verdict if such a verdict would not properly reflect the facts of the case, when judged realistically, or would not do justice to the gravity of the case. This court stressed that whether it is necessary to leave such a verdict, even when legally available as an alternative, will depend on the facts of the individual case. But if it is a realistically available verdict on the evidence, as an interpretation properly open to the jury, without trivialising the offending conduct, then it should be left. 11. It is, in our view, particularly important that this is done where the offence charged requires proof of a specific intent and the alternative offence does not. Even then there may be circumstances where the issue of specific intent does not truly arise. For example, if a man is shot at point-blank range in the head and the defence is simply that the defendant was not present, there is no requirement on the judge then to leave the alternative of manslaughter by way of killing without the necessary intent for murder. However, there will be cases, as Coutts recognised, where it is necessary to leave the lesser offence as an alternative to avoid the dangerous situation where the jury is faced with the stark choice of convicting for the serious offence or acquitting altogether. That may give rise to a miscarriage of justice." 15. That passage was applied and followed by this Court in R v Johnson [2013] EWCA Crim. 2001, and more recently in R v Robinson [2018] EWCA Crim. 149. In our judgment, the passage is particularly apposite in the present case. An alternative verdict of common assault, in effect no more than some pushing and shoving and punching in the street, following some accidental contact between Mr Sharma and Effer, is not borne out by the prolonged incident which can be seen on the CCTV footage which we have viewed. On any view the punch which Effer would have admitted amounted to assault took place some minutes after the commencement of the incident, at the stage when the group of men had moved closer to the edge of the road. Common assault as an alternative verdict would not only not have reflected what can be seen on the CCTV, but would not properly have reflected the facts of the case or done justice to the gravity of the case which was alleged to have been a joint attempt at street robbery by the appellants acting together, demanding Mr Sharma's property from the outset. In the circumstances of this case, we do not consider that the judge was obliged to leave the alternative count of common assault to the jury. 16. We also note that although both appellants now complain that the alternative count was not left to the jury, neither counsel raised this issue with the judge before or during his summing-up or submitted that he should leave an alternative count. As this court emphasised in Hodson , at [16], it was their duty to do so if it was a realistic alternative: "We cannot conclude this judgment, however, without emphasising the duty upon counsel, at a trial such as this, to ensure that they raise with the judge, if he has not raised it of his own volition, the need at least to consider the propriety and necessity of leaving an alternative verdict such as section 20 to the jury if it is available on the facts. Particularly where there has been a fairly recent House of Lords' decision such as Coutts , it is the duty of counsel to draw such matters to the judge's attention to ensure that things do not go wrong, as they went wrong in this case." 17. The fact that counsel did not raise this alternative count with the judge suggests either a tactical decision not to do so or that it did not occur to counsel that it was a realistic alternative and this is an after-thought. 18. Of course there may be cases where in the light of questions from the jury the judge may have to revisit his or her decision not to leave an alternative count - a point made by Sir Igor Judge P in giving the judgment of this Court in Foster at [61]: "... not every alternative verdict must be left to the jury. In addition to any specific issues of fairness, there is what we shall describe as a proportionality consideration. The judge is not in error if he decides that a lesser alternative verdict should not be left to the jury if that verdict can properly be described in its legal and factual context as trivial, or insubstantial, or where any possible compromise verdict would not reflect the real issues in the case. He must, of course, reconsider any decision he may have reached about alternative verdicts in the light of any question which the jury may see fit to ask ... The judgment whether a 'lesser alternative verdict' should be left to the jury involves an examination of all the evidence, disputed and undisputed, and the issues of law and fact to which it has given rise. Within that case specific framework the judge must examine whether the absence of a direction about a lesser alternative verdict or verdicts would oblige the jury to make an unrealistic choice between the serious charge and complete acquittal which would unfairly disadvantage the defendant. In this context the judge enjoys 'the feel of the case' which this court lacks. On appeal the problem which arises is not whether a direction in relation to a lesser alternative verdict was omitted, and whether its omission was erroneous, but whether the safety of the conviction is undermined." 19. However, this is not such a case. As Mr Partridge rightly points out, there were no questions from the jury here which could be interpreted as demonstrating that they were struggling with a "stark choice" between convicting of attempted robbery and acquittal, such as that they were considering some middle ground which more accurately reflected the appellant's perceived criminality. They delivered timely and unanimous verdicts. In our judgment, there was simply no such stark choice here, and no question of fairness requiring that this alternative count, which did not reflect the gravity of the case and the totality of the evidence, be left to the jury. The summing-up was fair and balanced. The legal directions were correct and the convictions were safe. These appeals against conviction are dismissed. 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 2660' date: '2018-11-20' judges: - LORD JUSTICE FLAUX - MRS JUSTICE CARR DBE - HIS HONOUR JUDGE PICTON ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	No. 2008/02044/A2 Neutral Citation Number: [2008] EWCA Crim 1383 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Wednesday 18 June 2008 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Phillips of Worth Matravers ) MR JUSTICE GOLDRING and MR JUSTICE PLENDER - - - - - - - - - - - - - ATTORNEY GENERAL'S REFERENCE Nos. 20 of 2008 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A - v - MARK GORDON KIM WEBB - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4A Telephone No: 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - Mr C W D Aylett QC appeared on behalf of the Attorney General Miss R Collins appeared on behalf of the Offender - - - - - - - - - - - - - Judgment Wednesday 18 June 2008 THE LORD CHIEF JUSTICE: Introduction 1. On 14 January 2008, in the Crown Court at Bristol, before His Honour Judge Lambert, the offender Mark Webb was convicted of two offences of sexual activity with a child contrary to section 9 of the Sexual Offences Act 2003 . On 19 March 2008 he was sentenced to eighteen months' imprisonment, concurrent on each count. 2. The Attorney General applied for leave to refer this sentence to this court for review, pursuant to section 36 of the Criminal Justice Act 1988 , on the ground that it is unduly lenient. We granted leave at the beginning of the hearing. Background 3. The offender was born on 19 June 1974. He was aged 32 at the time of the offences. His victim K was aged 15 years and three months. 4. In May 2007 K had known the offender for about six months as the boyfriend of one of her friends (who was aged 17). She had regularly visited the offender's flat with her own boyfriend M. She would drink vodka heavily when she was there, which the offender would purchase for her with her money. 5. On 30 May 2007 K went to the offender's flat in a distressed state as M had been held in police custody. The offender agreed to telephone the police posing as M's father to find out when he would be released. He was told that it would not be for a few hours. The offender went out with K and bought her a small bottle of vodka. They returned to the flat where the offender gave her several glasses of the vodka. 6. K began to feel the influence of the drink and lay down on the sofa. The offender comforted her and then took her into his bedroom. He began to kiss her and he removed her jeans and underwear. He performed oral sex upon her. He stopped when she protested, but then got on top of her and penetrated her vagina with his finger. She again asked him to stop, whereupon he removed his finger and placed his penis in her vagina. She repeated that she did want this and asked him to stop. He withdrew his penis. She went to the lavatory and got dressed. When she came out the offender here another vodka and a cigarette. He warned her that if she told anyone she would be a "dead girl". 7. K went home and told her mother, who called the police. K provided a video-recorded interview in which she said that the offender had also taken photographs of her using her mobile telephone, which he had posted on the internet. Although this was pursued at trial, there was no evidence to support that allegation. 8. At the trial the offender did not give evidence. Evidence was given by a friend of K's, L, who was also aged 15 and had been the subject of suggestive comments from the offender who had asked her if she would be bothered by the idea of a 38 year old man going out with a girl of 16. The Sentencing Material 9. At the sentencing hearing the judge had a pre-sentence report which found the offender to be stressed and emotionally unstable. He was still in complete denial of the offence. He had previous convictions for deception, forgery and theft dating back to 2000, but no convictions for an offence of a sexual nature. He had not completed his education as a result of the abuse he had suffered from his adoptive father and had been sectioned under the Mental Health Act at the age of 17. He spent four years in hospital. Thereafter he was assessed as incapable of work and lived on Disability Living Allowance. He had five children but had little contact with any of them. He had absconded on bail with a vulnerable 18 year old after his arrest. He was assessed as posing a high risk of sexual harm to female children of teenage years. His victim had been vulnerable and his actions predatory. It would not be until he acknowledged his guilt and could more readily accept his sentence deviancy that any meaningful treatment could be commenced. 10. There was also a psychological report from Dr David Torpy which found the offender to be a person with limited mental ability functioning in the dull-normal level. He asked that the court should treat him as a normal person. He appeared to have a chronic alcohol problem. 11. K provided a victim impact statement in which she blamed herself for becoming drunk. She stated that she had become almost housebound since the incident and put under severe stress by the proceedings. The trial had been traumatic; hearing her video interview again had revived the memories. She had made a suicide attempt shortly afterwards. The Sentencing Hearing 12. At the sentencing hearing on 19 March 2008 Miss Collins, who represented the offender as she has done before us, concentrated largely on personal mitigation. She submitted that the offender was immature, vulnerable and intellectually impaired. She also said this in relation to his physical well-being at the time: "He actually appears in the last few weeks whilst he has ben in custody to have thrived in an environment where there is a structure, there is a boundary, there is supervision. He almost seems quite content in custody. When he was on bail he had extraordinary problems so far as accommodation is concerned. He was often sleeping rough. He often saw those instructing me and myself having spent the night without any sleep at all. He was sleeping in the bus station, and the like. He was depending on people like himself to try and put him up. He looks so much better. He obviously gets a good night's sleep. he is on medication which suits him. He has been on medication for many years. The medication he is on at the moment appears to suit him. He does not have the dark circles around his eyes that he had during the course of the trial. He was not eating, he spent days not eating during the course of the trial." There was reference between counsel and the judge to the Sentencing Guidelines Council's guideline for this offence. This recommends as a starting point for circumstances such as those before the judge a sentence of four years' custody and a sentencing range of between three and seven years. The judge remarked on the "huge departure" from the sentence that would have been appropriate for the offence of unlawful sexual intercourse and observed that the best that could be said for the offender was that K was in the upper reaches of the protected age range. 13. In sentencing the offender the judge started by imposing a sexual offences prevention order in the following terms: "Mark Webb is not to: 1, have any contact direct or indirect with any person under the age of 16 whom he does not reasonably believe to be over that age for longer than five minutes on any one occasion; 2, reside in a dwelling where any person under the age of 16 also resides; 3, cause or permit any person under the age of 16 whom he does not reasonably believe to be over that age to enter or remain in the dwelling or curtilage thereof where he resides". Curtilage means garden and yard and similar directly adjacent to houses. "4, enter any school or school premises as defined by section 139(a)(vi) of the Criminal Justice Act 1988 or loiter within 50 metres of such premises as defined; 5, enter any children's playground or play area or loiter within 50 metres of any such premises". I recite further, although it is not part of this order: you will be disqualified from working with children for life. The sexual offences prevention order is until further order." The judge went on to say this: "You took advantage of a 15 year old girl when she was in drink. Whether she was accustomed to drink, she was affected by it. You then perpetrated two sexual acts upon her. She was a vulnerable girl who had suffered significantly at the hands of others in the past. I have regard to the Sentencing Council's Guidelines in relation to such offences. The starting point there reflected does not reflect the right sentence for a consensual act with a 15 year old girl, wicked though what you did was. Come what may, your offending is so serious that fines and community sentences cannot be justified. Taking into account the gross intellectual impairment that I note in you, the fact that you are much younger than your chronological age in terms of your psychology and general attitude towards things, and taking into account certain delusions you have revealed to the writer of the pre-sentence report, a considerably shorter sentence is appropriate in your case that might be suggested by those guidelines, which are just that and no more. Having regard to the fact of the impact that imprisonment is going to be greater upon you then almost any other man who has to be dealt with for such offences, the right sentence in your case is one of 18 months' imprisonment concurrent on each count." 14. For the Attorney General Mr Aylett QC submits that the reasons given by the judge for departing from the Sentencing Guidelines Council's guidance are demonstrably unsound. As to the offender's intellectual condition, he submits that there is nothing about this that differs from what is all too often the picture in cases such as this. 15. Mr Aylett referred us to a psychological report dated 23 November 2007 written by Dr David Torpy, a clinical and forensic consultant psychologist. This shows that the offender had a disruptive childhood. He was adopted at the age of 9 and thereafter taken into care on a number of occasions. The following quotation is taken from that section of the report that deals with his intelligence: ".... he was assessed for his intellectual abilities and found to be functioning in his low 80s. The normal average range of IQ is set between 85-115 with a mean of 100. He fell just below this at a level sometimes referred to as dull-normal. The spread of his different abilities was uniformed which indicates no specific intellectual damage or insult. it would be reasonable to conclude from those figures that this is how he always was, albeit that the constant movement of domicile would have adversely affected his schooling." We do not consider that this report provides justification for the judge's radical departure from the guidance given by the Sentencing Guidelines Council. Miss Collins submitted, however, that the judge's appraisal was based not just on this, but on his own observations of the offender during the six day trial. He was manifestly immature and inadequate, almost living in fantasy land. He drew pictures during the hearing. 16. Mr Aylett contrasted the remarks that the judge had made about the impact of prison upon the offender with the picture painted by Miss Collins of a man who had flourished under the prison regime. We consider that there is force in Mr Aylett's comment that the judge's remarks do not seem to be justified. 17. Mr Aylett submitted that this case had the following aggravating features: the disparity in ages between the offender and K; the fact that K's consent was opportunistic, influenced by alcohol; the fact that there was both digital and penile penetration, and the fact that the offender sought to persuade K from speaking of what had happened by threats. 18. The Sentencing Guidelines Council draws attention in large bold letters to the fact that the offence in question is a "serious offence" for the purposes of section 224 of the Criminal Justice Act 2003 . This section and section 225 requires the judge to consider whether there was a significant risk to members of the public of serious harm occasioned by commission by the offender of further specified sexual offences. An affirmative response to that question requires the judge to impose either a life sentence or a sentence of imprisonment for an indeterminate period, together with a minimum term to be served as the appropriate custodial period to reflect punishment, retribution and deterrence. Section 229(2) specifies the matters to which the court must or may have regard when carrying out this exercise. 19. The judge did not expressly refer to these provisions. Miss Collins submits that it was implicit in his approach that he had decided that the case did not fall within them. Nonetheless, we think that this court ought to consider them for itself. 20. We turn to the nature and circumstances of the offence. The judge described it as a consensual act. That description gives an over-generous appearance to what in fact occurred. Three times K asked the offender to desist from the particular sexual activity on which he was engaged, and three times he complied. It must have been made plain to him that K was a far from enthusiastic participant in what he was doing. This is underlined by the fact that he warned her, with threats, not to tell anyone what he had done to her. The evidence of L adds to our concern that the offender's behaviour evidences a particular attraction towards young girls. 21. Dr Torpy was unable to carry out a full psychiatric assessment. Carrie Young, the probation officer who prepared the pre-sentence report, made the following assessment of the offender's risk of re-offending and of causing serious harm: "15. Mr Webb is assessed as posing a high risk of sexual harm to female children of teenage age. The victim of his offending was very vulnerable not just because of her age but for the other social and emotional problems. It appears that Mr Webb manipulated a situation to allow him to offend and his actions were indeed predatory. His denial and complete lack of responsibility and victim empathy indicates that he is not at a stage where he is willing to accept a sexual attraction to children, despite clear evidence and in my view this is a significant factor in assessing the risk of harm posed. 16. Actuarial tools indicate Mr Webb represents a medium risk of sexual reconviction but my clinical view is that if his current attitudes remain unchallenged and he returns to living a lifestyle similar to that preceding the offence the risk of re-offending in this way will be higher. It is not until he acknowledges guilt and can more readily accept his sexual deviancy that any meaningful work, such as attendance on an appropriate sex offender treatment programme, can be carried out." 22. We have borne in mind the guidance given in R v Lang [2005] EWCA Crim 2864 in respect of cases such as this one. If we are to impose an indeterminate sentence in accordance with section 225 we must be satisfied that there is a significant risk of serious harm. "Significant" means more than possible. It means "noteworthy, of considerable amount or importance": see paragraph 17 of the judgment. Serious ham is defined by section 224(3) to mean "death or serious personal injury, whether physical or psychological". 23. We bear in mind that this was a first offence of a man who has reached the age of 32 and who, on the evidence, spent time in the company of adolescent girls without any previous incident of this nature. We also bear in mind the terms of the Sexual Prevention Order imposed on him. We are thus concerned with the degree of risk that he will flout that order and commit further specified offences that cause serious harm. It is impossible to say that there is no such risk, but we do not consider in all the circumstances that the risk can be categorised as significant. 24. Accordingly we have concluded that it was appropriate to impose a determinate sentence. We have concluded that, for the reasons advanced by Mr Aylett, the sentence imposed was unduly lenient. There were serious aggravating feature which, in the absence of mitigation, would have taken this offence above the recommended starting point of four years. As against these, however, there is the fact that K was 15 years of age, at the upper end of the protected age range, and the offender's immaturity, which weighed so heavily with the judge. We consider that the aggravating and mitigating features are broadly in balance and that it is right to pay some regard to the stress that is involved when a sentence is re-opened on an Attorney General's reference. Accordingly, we will quash the sentence of 18 months' imprisonment and replace it with a sentence of three years and six months' imprisonment. MR AYLETT: I think the effect of that would be that the notification period would be for an indefinite period rather than the existing period of ten years. THE LORD CHIEF JUSTICE: Yes, that must follow.	```yaml citation: '[2008] EWCA Crim 1383' date: '2008-06-18' judges: - MR JUSTICE GOLDRING - MR JUSTICE PLENDER - THE CRIMINAL JUSTICE ACT 1988 ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	Case No: 2012/00421/D4 Neutral Citation Number: [2012] EWCA Crim 2392 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT IN PETERBOROUGH MR RECORDER FORSYTH T2011/7077-3 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/11/2012 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE RODERICK EVANS and MRS JUSTICE THIRLWALL DBE - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - Stephanie Rae Gilbert Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Charles Myatt for The Crown Mrs Nicola Devas for the Appellant Hearing dates: 11 th October 2012 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Roderick Evans: 1. Between 21 st November and 8 th December 2001, a period of 13 working days, this appellant stood trial with her husband, John Gilbert, and her stepson, Robert Gilbert at the Crown Court at Peterborough before Mr Recorder Forsyth. The defendants faced an indictment which contained 4 Counts. On Count 1, John Gilbert was charged with acting between the 22 nd day of December 2005 and the 21 st day of June 2009 in contravention of a disqualification order made under s.1 of the Company Director’s Disqualification Act 1986 and the appellant and her stepson, Robert, were charged with aiding and abetting that offence. 2. Of the three defendants, only John Gilbert faced Count 2. That count alleged that he had conspired with others unknown to acquire, use or have possession of criminal property, namely, computer and office equipment and associated items. The prosecution did not allege that the appellant or Robert Gilbert were party to this conspiracy. 3. On Count 3, which is the count upon which this appeal focuses, all three defendants were charged with fraud, the particulars of which were that between 1 st December 2008 and 30 th January 2009 they had dishonestly and with the intent, set out in s.2 of the Fraud Act 2006 , to which we shall return in due course, made false representations to Lloyds Bank in that they had supplied false details in support of an application to open a bank account. 4. On Count 4, John Gilbert alone faced a further allegation of fraud, the particulars of which were that between March and July 2009, he had falsely represented to a building supply company that he was authorised to act on behalf of I & J Developments and that payment would be made for goods supplied. 5. John Gilbert was convicted of all offences and sentenced to a total of 2 years imprisonment. Robert Gilbert was convicted on Count 1 and fined £500. He was acquitted on Count 3. The appellant was convicted on both Counts 1 and 3. On Count 1 she was made the subject of a disqualification under the Director’s Disqualification Act 1986 and sentenced to a Community Order on Count 3. It is against her conviction for fraud on Count 3 that she appeals with leave of the single judge. 6. The charges arose out of the appellant’s involvement with a company called I & J Developments Ltd (I & J) which was incorporated on 7 th September 2004. The appellant and her husband were shareholders in the company. Its principal business was to be the development and selling of real estate. The appellant was appointed company secretary and her husband, John, was appointed a director of the company. However, he resigned his directorship in December 2005 only a few weeks before he was made subject to an order disqualifying him from acting as a company director as a result of his trading activities in relation to another company called J & RG Ltd which had gone into liquidation owing over £123,000. 7. By 2008, the appellant and her stepson were directors of I & J but the company remained dormant. However, in 2008 steps were taken to activate the company and, thereafter, some transactions were carried out in the company’s name. The prosecution case against the appellant and her stepson on Count 1 was that they had allowed John Gilbert to effectively control I & J whilst offering him assistance where necessary. In support of this allegation, the prosecution relied upon a meeting which took place on 8 th December 2008 at the Peterborough Branch of Lloyds TSB bank at which all three defendants were present. The purpose of the meeting was to open a bank account for I & J. 8. The bank employee present at this meeting was Alma Mee, a Business Manager at the bank, and she, on the basis of information given her at the meeting, filled in a bank form called “Check List to Open Account (s) for a New Business or Switcher”. She recorded that the business of the company was “new build and renovation” and that the estimated turnover of I & J would be £700,000 to £800,000. Paragraph 10.5 of the form recorded that set up/purchase costs would be: “funded by personal arrangements - from previous builds (savings) - future funding – savings/bank finance” 9. In evidence, Alma Mee stated that she had no specific recollection of this meeting and no notes of it other than the checklist form. She could not recall the detail of what was said at the meeting save that it was John Gilbert who had done all the talking and made all the representations. However, she said that she had not written the word “savings” on the form and could not identify who had. It was the appellant, in her capacity as director and company secretary of I & J, who signed the form formally applying for the opening of a bank account and thereby confirming the accuracy of the information contained in the form. No request was made at the time of the application to open a bank account for overdraft facilities and no such application was ever made thereafter. Three days after attending at the bank the appellant resigned as a director of the company but continued as Company Secretary. 10. In addition to forming part of the prosecution’s case on Count 1, the application to open the bank account and the representations made as part of that application, were also the basis of the prosecution’s case on Count 3. The prosecution alleged that the appellant was party to the application to open the bank account and party to the furnishing of false and misleading information to the bank. She must, the prosecution said, have known the truth about the family’s poor financial situation. The prosecution put Count 3 before the jury on the basis that the obtaining of the bank account was the first step, and a dishonest step, towards using I & J to make financial gains. 11. The application to open the bank account was successful and an account in the name of I & J was opened and cheque books issued. Initially, the appellant and her stepson, Robert Gilbert, were the sole signatories on the account but some months later they applied for the signatory on the account to be changed to that of a Mr Lima. That application was, eventually, approved in July 2009. 12. In the event, there was little activity on this account. In May 2009, a deposit of £1040 was made. The following month, a cheque was cashed for £1000 leaving a balance of £40. However, in May and June 2009, I & J obtained a quantity of computers and computer equipment and, in purported payment of those items, issued post dated cheques to its supplier. Thereafter, I & J put stops on those cheques and, when they were presented for payment by the suppliers, payment was refused. I & J incurred a penalty of £35 for stopping the cheques which left a balance of £5 in its account but the suppliers suffered losses in the region of £130,000. These transactions formed the basis of the conspiracy allegation in Count 2 of the indictment. For the purposes of this judgment, there is no need to mention further Count 4 on the indictment. 13. When interviewed by the police the appellant said that her husband wanted to open a bank account and he hoped to get an overdraft because he wanted to do some more building. 14. The appellant’s case on Count 3 was that she had not acted dishonestly but had simply done what her husband had told her to do. Furthermore, she relied upon the lack of evidence about when and by whom the word “savings” had been entered on the application form and denied any intention to make a financial gain. 15. Before turning to consider the issues that arose at trial in relation to Count 3, it is necessary to have in mind the relevant provisions of the Fraud Act 2006 : “ Section 2 Fraud by False Representation (1) A person is in breach of this section if he – (a) dishonestly makes a false representation, and (b) intends, by making the representation – (1) to make a gain for himself or another or (2) to cause loss to another or to expose another to a risk of loss. (2) A representation is false if – (a) it is untrue or misleading, and (b) the person making it knows that it is, or might be, untrue or misleading. (3) … (4) … (5) … Section 5 “Gain” and “Loss” (1) The reference to gain and loss in Sections 2 to 4 are to be read in accordance with this Section. (2) “Gain” and “Loss” – (c) extend only to gain or loss in money or other property (d) include any such gain or loss whether temporary or permanent and “property” means any property whether real or personal (including things in action and other intangible property). (3) “Gain” includes a gain by keeping what one has, as well as a gain by getting what one does not have. (4) “Loss” includes a loss by not getting what one might get as well as a loss by parting with what one has. 16. At the end of the prosecution case, Mrs Devas submitted in respect of Count 3 that in view of the lack of evidence about when and by whom the word “savings” had been written on the form, there was inadequate evidence of a misrepresentation. Furthermore, the prosecution had never identified any specific gain or loss which it was alleged the defendant had intended to make or cause. The Recorder rejected the submission. In doing so he said: “I am first of all satisfied that there is evidence of a false representation to Lloyds Bank in the application for the bank account. This is not, in my view, to be found in the estimated turnover but to be found in the assertions of the availability of savings and other assets to fund the property development. The question of whether this was dishonestly done must of course go to the jury, not for decision for me; but I have been troubled by whether there is evidence of an intent to make a gain for themselves or another or to cause loss to another. If Robert Gilbert and Stephanie Gilbert knew of the planned fraud then this is plainly satisfied. But I am not satisfied that there is sufficient evidence of that. But, on reflection, even if they had bona fide thought that the bank account was to facilitate John Gilbert’s plans for property development they were surely doing so in order that he and also Stephanie Gilbert as a shareholder, could make a gain. So I find that the terms of the statute are or maybe satisfied by the evidence on that count and I turn the applications down.” 17. Mrs Devas submits that the Recorder was wrong to reject her submissions. 18. All defendants gave evidence. John Gilbert accepted that he had provided the information to Alma Mee that the developments to be undertaken by I & J would be funded, in part, by savings. The appellant (and her stepson) could not recall whether savings were discussed at the meeting. 19. As part of his summing up, the Recorder gave the jury written directions in which he set out, word for word, Section 2 of the Fraud Act 2006 , correctly dealt with the issue of dishonesty and directed the jury in the following terms upon the question of gain and loss: “If you are sure that the Defendants – any one of the three – dishonestly made a false representation, then you need to consider whether this was done with the intent of making a gain for himself or herself or another, or with the intent to cause loss to another, or to expose another to risk of loss. “Gain” or “loss” here mean gain or loss of money or other property and, of course, a bank account is not property.” 20. He then summarised the key questions the jury had to answer in respect of Count 3 as follows: “(i) Was any part of the form….or what was said on the occasion on which the form was signed, false? (ii) Was the Defendant dishonest? (iii) Did the Defendant, by making a representation, intend to cause a gain for himself or herself, or another? If you are sure that the answers to all three of these questions are yes, the Defendant is guilty of this count.” 21. Later when dealing with the evidence on Count 3, the Recorder reminded the jury about the evidence as to whether Alma Mee was told that developments would be funded, in part, by savings and told them that “dishonesty is perhaps the crucial issue which you need to decide on this count.” He then went on to deal with the question of gain or loss in the following terms: “You then have to consider whether there was the intent to make a gain, or to cause a loss - the final requirement. Acquiring a bank account is not acquiring property, and so it does not count as a gain or a loss. Now if you are sure that any one of these Defendants was at the time of the opening of the bank account party to a fraudulent scheme, such as the fraudulent scheme that resulted, then clearly a loss to others is intended. But if you don’t think that, the question is more difficult. Even if the bank account was simply to enable development or to sell the company, you may conclude that the Defendant intended by doing that … intended by opening the account, to confer a gain upon someone.” 22. Exception was taken on behalf of the appellant and Robert Gilbert to the Recorder’s suggestion that either of those defendants might be found by the jury to be party to a fraudulent scheme at the time of the opening of the bank account as the prosecution have never suggested that either had been involved with John Gilbert in the transactions which founded Count 2 or Count 4. The Recorder accepted the correction and subsequently told the jury that it had never been suggested that either Robert or Stephanie Gilbert had been party to a fraudulent scheme and that the jury should not assume that he was including either of those defendants in his remarks which applied only to John Gilbert. 23. The final matter we should mention in relation to gain and loss is a note sent by the jury to the Recorder when they were in retirement. The note read: “Does the gain in the count dealing with fraud by a false representation need to be illegal, i.e. is he allowed to make a legal gain?” 24. Having discussed the matter with counsel, the Recorder correctly directed the jury: “….. that the gain does not need to be illegal; a legal gain will suffice. I add only this: that if you conclude that it was an illegal gain, that might assist you in deciding the question of dishonesty.” 25. Mrs Devas makes a number of complaints about the summing up, some of which we can deal with quite shortly. Her submission that the appellant made no representations and was “implicated by her silence alone”, that the evidence of a representation being made as to the availability of savings was “weak in the extreme” and that there was no evidence that any representation made was untrue when made, are untenable as grounds of appeal. There was evidence that John Gilbert had told Alma Mee that the developments would be funded, in part, by savings, that the appellant was present at the meeting when that statement was made and that the appellant signed the application form for a bank account as an officer of the company. There was also evidence from which a jury could conclude that the representation was false within the meaning of the statute. 26. The next ground is that the Recorder’s direction (quoted at paragraph 21 above) that a finding by the jury that any defendant was party to a fraudulent scheme at the time the bank account was opened would mean that a loss was intended was a misdirection. That it was a misdirection in the context of this case, in relation to the appellant and her stepson, is not in issue. However, the misdirection was promptly and properly corrected by the Recorder and cannot impact on the safety of this conviction. 27. The substantive ground of appeal arises out of the way the Recorder dealt with the issue of intended gain or loss and it is on this that the single judge, Hamblen J, focused when granting leave. Mrs Devas submits that at no point did the prosecution, or indeed the judge, identify a particular gain or loss. The Recorder allowed the case to go to the jury at the close of the prosecution case on the basis of the possibility of a gain arising from future legitimate property development, rather than a gain arising directly from any representation made at the meeting at the bank, or directly from the opening of the bank account. This, and the direction to the jury that it was open to them to find that a gain could be inferred if they concluded that the opening of the bank account was simply to enable development or the sale of the company, left the case on too vague a basis. The link, it is submitted, between any representation and such a possible future gain, is too tenuous. 28. Mr Myatt, on the other hand, submits that there was clear evidence that it was the intention of each defendant that I & J should start developing properties; that the company needed a bank account in order to start trading and that the purpose of trading was to make financial gains, which would inure to the benefit of shareholders. There was, therefore, evidence from which the jury could properly infer that the appellant intended to make a gain. 29. An intention to make a gain (or to cause loss to another or expose another to risk of loss) is not of itself enough to meet the requirements of the section. In order to commit fraud by representation, a defendant must (a) make a false representation as defined in s.2(2) – (5) of the Act, (b) do so dishonestly and (c) intend, by making the representation , to make a gain (or to cause loss to another or expose another to a risk of loss). The jury must, therefore, be sure that the defendant intended to make a gain or cause loss or exposure to loss by making the false representation and it is a matter for the jury on the facts of each case whether the causative link between the intention and the making of the false representation, required by the section, is established. 30. In the present case, the need to be sure of that causative link was not properly addressed either at the end of the prosecution case or in the summing up. The Recorder misdirected himself and the jury, and the conviction on Count 3 is unsafe. 31. Accordingly, the appellant’s conviction on Count 3 is quashed and the appeal allowed.	```yaml citation: '[2012] EWCA Crim 2392' date: '2012-11-21' judges: - MR JUSTICE RODERICK EVANS - MRS JUSTICE THIRLWALL DBE ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	Neutral Citation Number: [2016] EWCA Crim 1 Case No: 201502563 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM NOTTINGHAM CROWN COURT Mr Recorder Swain T20137528 Royal Courts of Justice Strand, London, WC2A 2LL Date: 19/01/2016 Before : LORD JUSTICE TREACY MRS JUSTICE SIMLER DBE and HIS HONOUR JUDGE WAIT (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - Between : ARAM MUHEDEEN Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A Nashashibi (instructed by Gladstone Solicitors ) for the Appellant S Coupland (instructed by the Crown Prosecution Service ) for the Respondent Hearing date : 9 December 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Treacy : 1. This is an appeal against conviction. It is concerned with the trial judge’s refusal of permission to the appellant to adduce evidence of the bad character of the complainant pursuant to section 100 of the Criminal Justice Act 2003 . 2. On 13 May 2014 in the Crown Court at Nottingham the appellant was convicted of wounding with intent. He was subsequently sentenced to 10 years imprisonment. Two co-accused Shekhan and Rauf were also convicted and sentenced to 10 years. 3. The case was concerned with a fight which took place on 24 August 2013 shortly after midday in which the complainant Dwayne Richardson received five stab wounds in a confrontation with a number of other young men. The stab wounds were to the chest and back, and Richardson lost a lot of blood. 4. The Crown’s case was that this appellant and his co-accused had acted together in a joint enterprise to attack Richardson and that one of them had used a knife. Richardson’s evidence was that he was on his way to see a friend when he saw the appellant whom he thought he recognised. They spoke briefly and then went up a side street to talk further. The appellant was with three others. 5. Once up the side street he was attacked by four people all of whom were punching him. He had not realised that he had been stabbed until he got away and went to a friend’s house. He maintained that the appellant had struck the first blow and that his friends had been involved in the attack. 6. He subsequently picked out the appellant and his two co-accused at an ID procedure. When cross-examined he denied having a knife and said that he did not remember any other group coming from a nearby restaurant. At no stage had he seen a knife. There was CCTV evidence but the actual fight was not caught on CCTV. It did however show the victim being ushered off the main road into a side street by the appellant followed by the co-accused. There was telephone evidence which was consistent with the appellant and his co-accused travelling together away from the scene. 7. When the appellant was arrested and interviewed he said that he had been punched by Richardson, lost consciousness momentarily and then fled the scene after he was further threatened by Richardson. He denied any involvement in the attack on Richardson. 8. His defence therefore was that Richardson had been wounded by others and that he formed no part of any joint enterprise since he had not participated in any violent conduct. He had not seen a knife at any stage. His defence statement said that he believed that a knife must have been produced in the melee in which he was not involved but that he had not seen the knife or who produced it. However he believed that it must have been Richardson. 9. The judge directed the jury that the Crown would have to establish in the case of each defendant that he had participated in the stabbing with the requisite intent. That could be done by proving that an individual defendant used the knife, but the judge pointed out that there was no evidence specifically identifying any of the accused as having wielded the knife. 10. He went on to say that an individual who took part in the incident realising that a co-accused had a knife and might use it, or who was aware that another was using a knife in the attack and continued to take part, would be guilty by reason of joint enterprise. As we have said, he directed the jury as to the necessary intent for the section 18 offence. There is no complaint about the way in which the judge directed the jury. 11. Prior to the calling of evidence the appellant sought to adduce the evidence of Richardson’s bad character. He had between 2002 and 2009 been convicted on four occasions of offences involving the carrying of knives or bladed weapons. It was argued that those convictions were admissible under section 100 . They proved that Richardson had a propensity to carry knives. 12. Admission of the convictions would increase the likelihood that the jury would conclude that Richardson had produced the knife he was ultimately stabbed with. If the jury concluded that Richardson might have produced the knife and had been dispossessed during a short struggle it would have substantially weakened the Crown’s case on joint enterprise and as to specific intent. 13. Moreover it would have supported the defence case that the complainant was the aggressor who had attacked first, and would have substantially weakened the complainant’s credibility. The judge ruled against the submission both at the outset of the case and on its renewal after the appellant had given evidence. He had indicated that he would review the initial decision after evidence had been given. 14. Section 100 provides: “(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if – (a) it is important explanatory evidence, (b) it has substantial probative value in relation to a matter which – (i) is a matter in issue in the proceedings, and (ii) is of substantial importance in the context of the case as a whole, or (c) all parties to the proceedings agree to the evidence being admissible. (2) For the purposes of subsection (1)(a) evidence is important explanatory evidence if – (a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and (b) its value for understanding the case as a whole is substantial. ” 15. The grounds of appeal submit that the judge was wrong to reject the submission and in essence repeat the points made to the judge summarised above. Mr Nashashibi in a clear and incisive argument for which we were grateful, submitted that anything which might raise a doubt as to proof of an element of the offence must be a matter of substantial importance. Simply to focus on the case advanced by the appellant would be to ignore the fact that irrespective of whether the appellant’s account was or might be correct, the Crown had to prove participation, foresight and intent. He also suggested that if it had been the appellant who had the previous convictions, they would have been admitted in evidence. 16. The Crown resists the appeal urging that the judge’s ruling was correct. It was submitted that on proper analysis the complainant’s convictions did not go to a matter in issue in the case that was of substantial importance in the context of the case as a whole, and in any event they did not have substantial probative value. 17. In this context it was important to recognise that the case advanced by this appellant in common with his two co-accused, all of whom gave evidence, was that: i) Richardson was the aggressor. ii) In the side street the first blow was struck by Richardson who hit the appellant with his fist. iii) A large group of men emerged from the nearby restaurant. iv) That group was responsible for the attack on Richardson. v) The appellant and his co-accused had played no part in the attack. vi) Richardson must have been stabbed by one of the men from the restaurant rather than by the appellant or his companions. 18. The Crown emphasised that the appellant and his co-accused had all denied seeing a knife at any stage and all denied being involved in any attack on Richardson. 19. It seems to us that the resolution of this matter depends on section 100(1) (b). We do not consider that the case falls within section 100(1) (a) (important explanatory evidence) as is demonstrated by the definition contained in section 100(2) . The evidence must have substantial probative value in relation to a matter which is a matter in issue in the proceedings and of substantial importance in the context of the case as a whole. 20. This appellant’s case was that he had been the victim of the first blow struck and that thereafter he had nothing to do with what happened. His case in common with that of his co-accused was that none of his group had been involved at all. The stab wounds were inflicted on Richardson by a member of a separate group who had emerged from the restaurant at the start of the confrontation. The essence therefore of the defence case was of a denial of involvement. It was not, for example, a case of admission of involvement with the knife but raising self defence, and was not in the context of a closed group of people. 21. We remind ourselves of the observation of Pitchford LJ in Miller [2010] 2 Cr App R 19 that the purpose of the leave requirement in section 100 is to eliminate kite-flying and innuendo against the character of a witness in favour of a concentration on the real issues in the case. In Braithwaite [2010] 2 Cr App R 18 Hughes LJ commented that section 100 requires judgment on the part of the judge, and assessment which is highly fact sensitive in each case. 22. It seems to us that the question whether Richardson was the original possessor of the knife was not a matter of substantial importance in the case as a whole. The appellant’s own evidence was that he had not seen a knife at any stage and when he had been struck by Richardson he had been struck by a fist after which he had no part in the action. There was no evidence capable of supporting the assertion that Richardson had produced the knife; all there was was a bare speculation by this appellant. 23. Whilst of course it would be necessary for the Crown to prove the elements of the charge even if the appellant’s account was not accepted by the jury, the non-acceptance by the jury of the appellant’s account would go some way towards supporting the prosecution’s case. In the context of this case, however, Richardson’s previous convictions were in our judgment remote from the true issues which were put before the jury for its decision. On the element of intention to cause grievous bodily harm, Richardson’s convictions could shed scant light when there was no evidence that any other person involved had suffered knife injury and where he had received no less than five stab wounds to front and back. Those facts speak for themselves on the issue of intent. 24. The assertion that had the jury known of Richardson’s previous convictions they might have concluded that on this occasion he had a knife and that in a fast moving incident a co-accused had disarmed Richardson and stabbed him unknown to the appellant seems to us to be a speculation devoid of any supportive basis in the evidence. That, no doubt, is why all of the defendants made common cause in eschewing any such defence, and, instead, laid the blame for what happened upon a wholly separate group of individuals. In that situation, the clear implication was that the knife came from within that other group and was not the result of a disarming of Richardson. 25. We do not consider that the convictions, the last of which was in 2009, would in the context of this case and the way the defence was run, have been of substantial importance on any issue of credibility. Nor do we think that the argument that had the appellant had those convictions on his record they would have been admitted in evidence has any relevance. In such a case the position would have been different. Assuming the appellant’s case was a denial of stabbing, his previous convictions would be highly relevant to prove the identity of a stabber where there was evidence to show that Richardson had sustained a series of deliberately inflicted stab wounds. The two situations are simply not comparable. 26. The judge’s conclusion was that what was of relevance was who was involved at the time the complainant was stabbed rather than whether the knife was originally in the possession of the complainant and then came to be in the possession of others. He did not consider that the previous convictions had substantial probative value in relation to the real issue in the case. We accept his analysis, and in our judgment the admission of the evidence of previous convictions could have distracted the jury from the real issues in the case. 27. The matter in issue was whether the jury could be sure that the appellant was jointly responsible for a stabbing by his group with the requisite intention or whether another entirely separate group was responsible. The issue was not who initially produced the knife. That question in the light of the way in which the defence was put amounted to no more than speculation which the jury would not have been entitled to consider: see R v Mount [2010] EWCA Crim 2974 where the court emphasised that section 100 provides that the bad character of a non-defendant is admissible “if and only if” it can be brought within the section whose purpose was specifically to prevent bad character being deployed simply to generate speculation. 28. We think in any event that even if the evidence was wrongly excluded, (which we do not accept), its exclusion would not have rendered the conviction unsafe. There was a strong case available to the Crown. Despite claiming to have been punched hard enough to make him black out the appellant suffered no visible injury. Far from reporting an assault upon himself, he seems to have taken steps to move away from the area for a significant period of time afterwards. He was captured on CCTV running from the scene of the attack and appeared to be examining his hands for something. 29. When the police attempted to arrest him he escaped from a bus and remained at large for some time. His co-accused destroyed their phones and sim cards before attending the police station. Examination of CCTV footage did not show the large group of males in the area outside the restaurant as claimed by the appellant and his co-accused to be the true perpetrators of the stab injuries to Richardson. Five stab wounds provides ample evidence of intent. 30. For these reasons this appeal against conviction is dismissed.	```yaml citation: '[2016] EWCA Crim 1' date: '2016-01-19' judges: - LORD JUSTICE TREACY - 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: [2019] EWCA Crim 912 Case No: 201804712 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT LEWES Recorder Smith T20180199 Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/06/2019 Before : LORD JUSTICE FULFORD MR JUSTICE ANDREW BAKER and SIR JOHN ROYCE - - - - - - - - - - - - - - - - - - - - - Between : Darryl Mark Pledge Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr A G Thompson (instructed on a Direct Access basis) for the Appellant Mr Matthew Thompson (instructed by CPS ) for the Respondent Hearing dates : 2 nd May 2019 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Judgment Approved by the court for handing down. Lord Justice Fulford: Introduction Double-click to enter the short title 1. On 17 October 2018 in the Crown Court at Lewes before Mr Recorder Smith and a jury the appellant was convicted of Dangerous Driving contrary to section 2 Road Traffic Act 1988 (“RTA 1988”). 2. On 18 October 2018 he was sentenced by the Recorder to four months’ imprisonment suspended for 12 months. 3. Additionally, he was disqualified from driving for a period of 12 months pursuant to section 34 Road Traffic Offenders Act 1988 (“RTOA 1988”) and ordered to take an extended retest pursuant to section 36 RTOA 1988. There was an order for the appellant to pay £2,800 towards the costs of the prosecution and a statutory surcharge of £115. 4. He appeals against his conviction by leave of the single judge. The point taken on this appellant’s behalf relates to an important but extremely narrow issue of whether the prosecution had acted with reasonable diligence in fulfilling the obligation either to serve the appellant with a summons within 14 days of the offence, or to send notice of the possibility of the prosecution within 14 days of the offence to the driver or to the registered keeper of the vehicle (given he had not been warned at the time of the possibility of a prosecution). In these circumstances, a brief description of the facts underpinning this prosecution will suffice. 5. On 21 April 2017, Paul Markwick, a civilian speed/safety camera operator, was in a safety camera van, operating a video camera, when the appellant’s Ford Transit van came to his attention as it was driven along the Old Shoreham Road in Hove, because the windscreen appeared to be completely shattered. Due to the level of damage, it was hard to see the driver through the cab window. Part of the roof was depressed, with the worst of the damage on the passenger side of the vehicle. He informed the police as to what he had seen. 6. As we have already set out, the appellant was not warned at the time of the possibility of a prosecution. Mr Markwick immediately began investigations into the alleged offence, and in particular he looked up the registered keeper of the vehicle by carrying out an internet search using Google for “Sussex Waste Services”, which led him to the company’s website. He looked up the business telephone number and telephoned the company on the same day as the incident. He spoke to the appellant and informed him that a vehicle examiner would be in touch with him to arrange an examination of the vehicle. Mr Markwick sent a notice of intended prosecution, dated 26 April 2017 (therefore 5 days after the incident), which was addressed to Mr Darryl Pledge (Sussex Waste Services), Sixt House, 5 Langley Quay, Waterside Drive, Langley, Slough, SL3 6EY. This was the registered keeper’s address as it appeared on the DVLA database. 7. On 11 May 2017 a photocopy of the notice was returned to Sussex Police (therefore, we note, more than 14 days after the incident). It had been completed by the recipient, who was the previous owner of the vehicle (the car hire company, Sixt), to the effect that the vehicle had been disposed of on 15 March 2011. This prompted an immediate enquiry by Mr Markwick as to the correct address for the appellant. He issued further notices of intended prosecution on 11 May 2017 to two different addresses, one obtained from Sussex Waste Services’ website and the other from the insurance database. 8. The question clearly arises as to how this mistake came to have been made. 9. Ian Clarke, an employee at DVLA, gave evidence as to the records they hold. He explained that the vehicle logbook (the V5C certificate) was correctly issued by the DVLA in 2015 showing the address of “Sussex Waste Services, Darryl Pledge, 15 The Twitten, Southwick, Brighton, BN42 4DB”. Subsequently the DVLA received an old V5 document from the previous owner of the vehicle, the car hire company Sixt, notifying a change of business address. The name of the registered keeper was not changed in the DVLA’s records as a result of this notification, but the address was changed to Sixt House in Slough, as follows “Mr Darryl Pledge, (Sussex Waste Services), Sixt House, 5 Langley Quay, Waterside Drive, Langley, Slough, Berkshire, SL3 6EY”. As a consequence, the notice of intended prosecution sent on 26 April 2017 was directed at the correct individual but at the wrong address. Mr Markwick testified during the trial that this was the address of the registered keeper of the vehicle shown on the Police National Computer, which in turn obtained its vehicle registration information directly from the DVLA, and which he used when preparing and sending out the original notice of intended prosecution dated 26 April 2017. 10. Mr Markwick’s unchallenged evidence was that the registered address for a vehicle was often located somewhere that is not automatically associated with its keeper. 11. Proceedings were commenced against the appellant a little under a year later, on 15 March 2018, on the basis that the state of his van was such that driving it on the public highway amounted to a danger to pedestrians and other road users. He appeared at Brighton and Hove Magistrates’ Court on 29 March 2018 and elected trial by jury. 12. A written report from the insurance assessors, in March 2017, assessed the vehicle as unroadworthy and William Holden, a forensic examination officer, gave evidence that there would have been restricted visibility looking forward from the cab due to the damage across the windscreen. 13. At trial, the appellant accepted that he drove the van on 21 April 2017, and that the vehicle was damaged when he did so. His case was that the damage to the vehicle was not significant and was mostly on the passenger side, as opposed to the driver’s side; that the vehicle was being driven slowly and carefully to a place of repair; and that his driving was not dangerous. 14. The trial turned on the question of whether the jury could be sure that a careful and competent driver would have realised that driving the appellant’s van in the condition it was in on 21 April 2017 would have presented a danger of personal injury to other road users, or serious damage to property. 15. At the close of the prosecution case, counsel for the appellant, Mr Andrew Thompson, renewed a submission that the charge of dangerous driving should be dismissed. This had been originally considered and rejected by His Honour Judge Kemp on the papers but was the subject of oral argument at this stage in the trial, by way of a submission of no case to answer. The essence of the submission was that the notice of intended prosecution dated 26 April 2017 did not comply with s.1(1)(c) RTOA 1988. The original notice was never received by the appellant and, as a result, he could not be convicted of dangerous driving because the notice had not been received within the statutory 14 days. 16. The relevant legislation can be shortly described. Section 1 RTOA 1988 applies to offences falling within Schedule 1 RTOA 1988 which includes an offence of dangerous driving contrary to section 2 RTA 1988. 17. Section 1 RTOA 1988 sets out as follows: Requirement of warning etc. of prosecutions for certain offences. Subject to section 2 of this Act, a person shall not be convicted of an offence to which this section applies unless— (a) he was warned at the time the offence was committed that the question of prosecuting him for some one or other of the offences to which this section applies would be taken into consideration, or (b) within fourteen days of the commission of the offence a summons […] for the offence was served on him, or (c) within fourteen days of the commission of the offence a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it is alleged to have been committed, was— i) […], ii) (ii) in the case of any other offence, served on him or on the person, if any, registered as the keeper of the vehicle at the time of the commission of the offence. (1A) A notice required by this section to be served on any person may be served on that person— (a) by delivering it to him; (b) by addressing it to him and leaving it at his last known address; or (c) by sending it by registered post, recorded delivery service or first class post addressed to him at his last known address. […] 18. It follows that on the facts of the present case, the appellant must either have been served with a summons within 14 days of the offence or notice of the possibility of the prosecution must have been served by the prosecutor within 14 days of the offence either to the driver or to the registered keeper of the vehicle, given he was not warned at the time of the possibility of a prosecution. A notice of the intended prosecution may be served on that person (a) by delivering it to him; (b) by addressing it to him and leaving it at his last known address; or (c) by sending it by registered post, recorded delivery service or first class post, addressed to him at his last known address 19. Failure to comply with section 1 RTOA 1988 means that there cannot be a conviction for the offences to which it applies. 20. However, section 2 (3) RTOA 1988 provides: Failure to comply with the requirement of section 1(1) of this Act is not a bar to the conviction of the accused in a case where the court is satisfied— a) that neither the name and address of the accused nor the name and address of the registered keeper, if any, could with reasonable diligence have been ascertained in time for a summons or, as the case may be, a complaint to be served or for a notice to be served or sent in compliance with the requirement, or b) […] 21. By section 1(3) RTOA 1988, it is unnecessary for the prosecution to give any evidence that its requirements have been fulfilled. It is for the defence to allege that they have not: (3) The requirement of subsection (1) above shall in every case be deemed to have been complied with unless and until the contrary is proved. 22. The question of reasonable diligence is for the judge to determine, not the jury (see R v Bolkis (1934) 24 Cr App R 19 ). 23. The approach to be taken to the requirement of reasonable diligence has arisen in a smattering of cases over the last 70 years. In Clarke v Mould [1945] 2 All ER 551 , the inspector responsible for investigating an offence of dangerous driving telephoned the local taxation office of Kesteven county council to ask for the name and address of the registered owner of the car in question and was given an inaccurate address, namely a firm called Mould and Bloomer of Midland Bank Chambers, Westgate. This mistake arose because the most recent road fund licence was purported to have been signed by an individual on behalf of Mould and Bloomer and the assistant local taxation officer (perhaps unsurprisingly) had relied on that information. The true position was that Mr Mould (as opposed to Mould and Bloomer) was the registered owner, and he lived in Bottesford. Section 21 Road Traffic Act 1930 was in all material respects the same as section 2(3) RTOA 1988: Failure to comply with this requirement shall not be a bar to the conviction of the accused in any case where the court is satisfied that (1) neither the name and address of the accused nor the name and address of the registered owner of the vehicle, could with reasonable diligence have been ascertained in time for a summons to be served or for a notice to be served or sent as aforesaid. 24. Against that background, Wrottesley J sitting in the King’s Bench Division observed: It is quite clear from the plain words of the Act that the diligence there is the diligence of the police, and if the police, showing due diligence, are unable to find either the name and address of the accused or the name and address of the registered owner of the vehicle, they are excused from the obligation laid upon them to serve in this case the notice within 14 days. On the facts it is quite clear that the police applied with proper expedition to the proper place, viz, to the person charged with the duty of keeping this register, and from him they received an answer which was not an accurate answer. They were told that this firm of Mould and Bloomer were the registered owners of this motor car, and it was in accordance with that information so received that the police officer sent the registered letter to that firm. Had the information been correct, the police officer would have done all that was necessary. I do not, therefore, see how the police could have acted otherwise than in the way in which they did act. Oliver J agreed 25. In Rogerson v Edwards (1951) 49 LGR 358 , the defendant was accused of dangerous and careless driving and he was not, when stopped, warned of an intended prosecution. Section 21 Road Traffic Act 1930 ( supra ) applied in this case. The defendant was driving a lorry of which the registered owners were Greenwoods (Contractors) Ltd. The case turned on whether the defendant had given evidence in support of his contention that a notice in compliance with section 21 had not been served on him, given the burden of proof rested with him. The defendant had not provided any evidence on the issue and the prosecution’s appeal was allowed on that basis. As Lord Goddard (sitting in the King’s Bench Division with Humphreys and Devlin JJ) put the matter: In my opinion, there was no evidence here on which the justices could find that the requirements of section 21 had not been complied with. The onus was on the defendant and he did not prove anything. 26. The court noted that an envelope or other document had been produced during the hearing which indicated that the police had sent the notice to Messrs. Greenwoods, Bury Road Ramsey, Hunts, having been informed by the registration authority that this was the address of the registered owners of the vehicle in question. The registered owners, as we have just observed, was Greenwoods (Contractors) Ltd, of Bury Road, Ramsey Hunts. 27. In the course of his judgment, Lord Goddard, during the course of certain obiter remarks, considered the requirement of reasonable diligence, as follows: Certainly the police are not guilty of any lack of reasonable diligence if they apply to the registration authority. It may be said that they must also show that they did not know the name of the defendant, that is to say the driver. They can serve whichever they like either the driver or the registered owner. It may be – I do not think it necessary to give a concluded opinion on the point – that, if they sent the notice to the owner and showed that they had used all due diligence to serve him they must also go on and say that the name and address of the defendant was not known to them. I am inclined to think that it is enough that they did what they did. 28. The last of the relevant authorities is Haughton v Harrison [1976] R. T. R. 208, in which case a car failed to stop at traffic lights showing red and a constable, who noted its registration number, was provided by the local taxation department with the name and address of a person as the car's registered keeper. A notice of intended prosecution for an alleged offence under section 22 of the Road Traffic Act 1972 was served on that person at the address within the 14 days limited by section 179(2)(c)(ii) of the Act of 1972. About one month after the date of the alleged offence the constable was informed that the information provided by the local taxation department had been wrong, the car having been sold, and resold, to a limited company, before the date of the alleged offence. Subsection (4) of section 179 provided: Failure to comply with the requirement of subsection (2) above shall not be a bar to the conviction of the accused in a case where the court is satisfied – ( a ) that neither the name and address of the accused nor the name and address of the registered keeper, if any, could with reasonable diligence have been ascertained in time for a summons or, as the case may be, a complaint to be served or for a notice to be served or sent in compliance with the said requirement …’ 29. Although a different point was argued in that case, the court clearly accepted that the prosecution had acted with reasonable diligence in relying on the information from the local taxation department. 30. Mr Thompson submitted in the court below and again before us that the present case should be distinguished from what he describes as a routine case, namely the usual situation when it is sufficient for the police to rely on the information that is received from the DVLA. In the present case, Mr Markwick had undertaken a number of enquiries, including tracing the business website, upon which the registered business address was apparent. He had telephoned the appellant. In order to discharge the obligation of reasonable diligence, it is submitted that Mr Markwick should also have sent the notice of intended prosecution to the address shown on the company’s website, which he had visited and would have seen a local Sussex business address, not one in Slough. This different business address, it is argued, should have alerted Mr Markwick to the possibility that something was amiss with the address held by the DVLA. 31. The prosecution submitted that the requirement of section 1(1) RTOA 1988 was met, given the original notice of intended prosecution dated 26 April 2017 was served on the keeper of the vehicle as registered with the DVLA, even though the keeper details held by the DVLA were incorrect. In any event, reasonable diligence was exercised. There was no reason for Mr Markwick to doubt the registered keeper address held by the DVLA, and as stated in his evidence, the registered address for a vehicle is often located somewhere that is not automatically associated with its keeper. Although he received more information than in the majority of cases, that did not mean that any additional level of diligence in establishing the address of the registered keeper was expected. 32. The Recorder ruled that Mr Markwick had acted with reasonable diligence and the exception in section 2(3)(a) RTOA 1988 was engaged. There was nothing unusual in the registered keeper address being located outside the area of the alleged offence, and addresses were often submitted to the DVLA which have no obvious association with the registered keeper. The fact that Mr Markwick engaged himself in the investigation of the alleged offence did not lead to any heightened expectation of diligence on his part. It was the DVLA’s mistake, of which Mr Markwick was entirely unaware, not Mr Markwick’s lack of diligence which meant the 14-day period would always have been missed. 33. The single point taken on this appeal is whether Mr Markwick, having been alerted to the Sussex address on the website, should have taken further steps to ascertain the address of the registered keeper. It is accepted that if the appellant fails in that contention, the appeal is to be dismissed. In our judgment, the Recorder was entitled to conclude that the prosecution acted with reasonable diligence. It is right to observe that having noted the name Sussex Waste Services on the vehicle, Mr Markwick undertook an internet search which enabled him to speak with the appellant, and he told him that a vehicle examiner would be in touch to arrange an examination of the vehicle. He then used what is evidently the usual route of obtaining the address of the registered keeper from the Police National Computer, which in turn obtains its vehicle registration information directly from the DVLA. Given that in his experience the registered address for a vehicle is often located somewhere that is not automatically associated with its keeper, in our judgment it was unnecessary for him to send copies of the notice on a speculative basis to addresses which appeared on the website of Sussex Waste Services. There is no evidence before us to suggest that, save exceptionally, the records obtained in this regard from the DVLA are inaccurate. In those circumstances, the police were entitled to conclude that the information the DVLA provides was accurate, given they had not been alerted to the real possibility of an error. Knowledge of a different address on a website for a company does not materially raise the possibility that the DVLA have reported the wrong address for the registered keeper, given the contact or business address provided by a company on its website may well be different to the registered address for any relevant vehicles. On the facts of this case, therefore, the appellant’s arguments as regards reasonable diligence fail. 34. This appeal is dismissed.	```yaml citation: '[2019] EWCA Crim 912' date: '2019-06-06' judges: - LORD JUSTICE FULFORD - MR JUSTICE ANDREW BAKER - SIR JOHN ROYCE ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	Case No: 200505080/A0-200504522/A6-200504918/A8-200503384/A0-200504477/A8-200505056/A9-200504473/A4-200504572/A6-200504152/A4-200504096/A7-200505230/A4-200505379/A4-200503519/A1 Neutral Citation Number: [2005] EWCA Crim 2864 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Thursday, 3rd November 2005 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE NELSON MRS JUSTICE SWIFT - - - - - - - - - - - - - - - - - - - - - R E G I N A -v- STEPHEN HOWARD LANG HASSAN ABDI KEITH WILLIAM WINTERS CHARLES DIXON CARASCO STEVEN FEIHN ROBERT WILFRED WRIGHT EDWARD COLLIER JAMES JOHN SHEPPARD D GARY ALAN SMITH LEWIS ARMITAGE HEATHCLIFFE GLAVE MICHAEL GUIDERA KYLE FREDERICK GEORGE EDWARDS - - - - - - - - - - - - - - - - - - - - - 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 R AMLOT QC & MR B MAGUIRE appeared on behalf of the APPELLANT LANG MR R AMLOT QC & MISS I FORSHALL appeared on behalf of the APPLICANT ABDI MR R D AMLOT QC & MR A TUCKER appeared on behalf of the APPLICANT WINTERS MR R AMLOT QC & MR MCDONAGH appeared on behalf of the APPELLANT CARASCO MR R AMLOT QC & MR H JONES appeared on behalf of the APPLICANT FEIHN MR R AMLOT QC & MR C STOCKWELL appeared on behalf of the APPELLANT WRIGHT MR R AMLOT QC & MR R HAWKINS appeared on behalf of the APPLICANT COLLIER MR R AMLOT QC & MR N LICKLEY appeared on behalf of the APPLICANT SHEPPARD MR R AMLOT QC & MR NPJ CLARKE appeared on behalf of the APPLICANT D MR R AMLOT QC & MR M SHELLEY (SOL ADVOCATE) appeared on behalf of the APPLICANT SMITH MR R AMLOT QC & MR D BROOKE appeared on behalf of the APPLICANT ARMITAGE MR R AMLOT QC & MR P EASTWOOD appeared on behalf of the APPLICANT G MR R AMLOT QC & MR R LINFORD appeared on behalf of the APPELLANT EWDARDS MR I WINTER appeared on behalf of the CROWN - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: These 13 cases have been heard together because, in each, the offences were specified violent or sexual offences committed on or after 4th April 2005, thereby attracting the new mandatory sentencing provisions, in relation to the protection of the public from dangerous offenders, contained in sections 224 to 229 of the Criminal Justice Act 2003 . A sentence of life imprisonment, or imprisonment or detention for public protection, or an extended sentence was passed in the court below in 12 of the cases, though it is to be observed that in none was the specified period to be served under section 82A of the Powers of Criminal Court (Sentencing) Act 2000 , greater than three-and-a-half years and in three it was 18 months or less. In the other case, no such sentence was passed. During the hearing we gave leave to appeal to all those who did not otherwise have leave. 2. This is the first opportunity this Court has had to consider some of the principles applicable to the new sentences and the factors which judges should take into account when deciding whether one of the new sentences must be imposed. We express our gratitude not only to counsel appearing before us on behalf of the appellants and the Crown but also to Dr David Thomas QC for his helpful note in Archbold News, Issue 4, 15th April 2005. 3. It should first be noted that, in relation to offences committed before 4th April 2005, discretionary life sentences, automatic life sentences, longer than commensurate sentences and extended sentences continue to be available. Accordingly, a defendant being sentenced for offences committed both before and after 4th April is required to be sentenced by reference to the two different regimes. It will generally be preferable to pass sentence on the later offences by reference to the new regime, imposing no separate penalty for the earlier offences. But this may not be possible if the later offences are less serious than the earlier ones. 4. Sentencers will, almost always, need to have before them the relevant sections of the Act. What follows is not intended to be a substitute for looking at the Act's provisions. It is merely an attempt to summarise the approach to sentencing which the Act requires and to give guidance as to its meaning. 5. To qualify for one of the new sentences, the offender must be convicted of a "specified offence", that is one of the 153 categories of violent or sexual offences listed in Parts 1 or 2 of Schedule 15 of the Act: violent offences range from murder to affray and threats of various kinds and sexual offences for rape to exposure. It is to be noted that the Sexual Offences Act 1956 , which is referred to in identifying offences numbered 66 to 92 of Part 2 of the Schedule, was repealed on 1st May 2004, so one of the new sentences cannot be imposed in relation to any of the offences under that Act: but offences committed under the 1956 Act may be relevant to the assessment of dangerousness under section 229. 6. A specified offence may or may not be serious (section 224). It will be serious if it is punishable, in the case of a person aged 18 or over, with 10 years' imprisonment or more (section 224(2)(b)). If serious, it may attract life imprisonment or imprisonment for public protection for an adult (section 225) or detention for life or detention for public protection for those under 18 on the day of conviction (section 225). It will attract such a sentence if the court is of opinion that there is a significant risk to members of the public of serious harm by the commission of further specified offences (section 225(1) and section 226(1)). 7. Significant risk must be shown in relation to two matters: first, the commission of further specified, but not necessarily serious, offences; and, secondly, the causing thereby of serious harm to members of the public. If there is a significant risk of both, either a life sentence or indeterminate imprisonment for public protection must be imposed on an adult (section 225(2) and (3)). It must be a life sentence if the offence is one for which the offender is liable to life imprisonment and the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify imprisonment for life (section 225(2)); otherwise it must be imprisonment for public protection (section 225(3)). In relation to those under 18, there are similar provisions in relation to detention for life and detention for public protection subject, in the latter case, to an additional criterion by reference to the adequacy of an extended sentence under section 228 (section 226(2) and (3)). By section 229(3), where an offender aged 18 or over has previously been convicted of a specified offence, the court must assume there is a significant risk under sections 225 and 227 unless this would be unreasonable after taking into account information about the nature and circumstance of each offence, any pattern of behaviour of which any offence forms part and the offender. 8. It is not clear whether Parliament, when referring in sections 225(2)(b) and 226(2)(b) to the seriousness of an offence or offences being "such as to justify" imprisonment or detention for life, thereby making such a sentence mandatory, was intending to adopt this Court's criteria for the imposition of a discretionary life sentence (see R v Chapman [2000] 1 Cr App R(S) 77) or was seeking to introduce a new, more restrictive, criterion for seriousness relating it solely to the offence rather than, also, to the dangerousness of the offender. On the basis that Parliament is presumed to know the law, we incline to the former view. This construction is supported by section 143(1) which requires the court, when considering the seriousness of any offence, to consider the offender's culpability and "any harm which the offence caused, was intended to cause or might foreseeably have caused". This language clearly requires consideration of the culpability of the defendant as well as the seriousness of the offence and therefore involves consideration of dangerousness. For all practical purposes, imprisonment and detention for public protection are exactly the same as a life sentence: both are sentences for an indeterminate period, subject to the provisions of Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 as to the release of prisoners and duration of licencees (sections 225(4) and 226(4). And, in relation to both a life sentence and imprisonment and detention for public protection, the court must fix a minimum term to be served in accordance with section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 as amended. However, there may be exceptional cases where the offence itself is so serious than an indeterminate sentence is justified by the seriousness of the offence irrespective of the risk to the public (Practice Direction para IV.47 [2002] 1 WLR 2870 ). The only discernible differences between a life sentence and imprisonment or detention for public protection are, first, that in the case of a sentence for imprisonment or detention for public protection, the Parole Board may, on application 10 years after release, direct the Secretary of State to order that a licence shall cease to have effect; and secondly, in relation to such a sentence no order can be made under section 82A(4) that early release provisions shall not apply (see section 82A (4A) as inserted by Schedule 18 paragraph 4 of the Criminal Justice Act 2003) . 9. It is convenient at this point to remind sentencers of the provisions of section 143(2) and (3). Section 143(2) requires the court, when considering the seriousness of an offence committed by an offender who has previous convictions, to treat each previous conviction as an aggravating factor if, in the case of that previous conviction, the court considers that it can reasonably be so treated, having regard in particular to the nature of the offence to which the conviction relates and its relevance to the current conviction and the time that has elapsed since the conviction. This provision requires the court to look beyond the instant offence (and any offences associated with it) in order to see whether there are aggravating factors which it should have in mind when assessing the seriousness of that instant offence. Section 143(3) requires the court to consider commission of an offence on bail as an aggravating factor, when considering the seriousness of that offence. 10. The procedure for fixing a minimum term in relation to these new sentences should be as before the Act in relation to discretionary and automatic life sentences. The court, taking into account the seriousness of the offence or the combination of the offence and one or more offences associated with it, must identify the notional determinate sentence which would have been imposed if a life sentence or imprisonment for public protection had not be required. This should not exceed the maximum permitted for the offence. Half that term should normally then be taken and from this should be deducted time spent in custody or on remand (see section 82A of the 2000 Act as set out in amended form in Archbold 2005 paragraph 5 - 310 and section 240 of the Criminal Justice Act 2003) . There will continue to be exceptional cases where more than half may be an appropriate: see R v Szczerba [2002] 2 Cr App R(S) 387 paragraphs 31 - 34. As previously, when the offender has served the period specified he may require the Secretary of State to refer his case to the Parole Board who may direct his release if "satisfied that it is no longer necessary for the protection of the public" that he should be confined. If released, he will remain on licence indefinitely, save, as we have indicated, when the sentence was imprisonment for public protection and the Secretary of State makes an order, after 10 years, that the licence should cease to have effect. In calculating the minimum term, an appropriate reduction should be allowed for a plea of guilty (see Sentencing Guidelines Council Guideline on Reduction for a Guilty Plea paragraph 5.1), and care should be taken not to incorporate in the notional determinate sentence an element for risk which is already covered by the indeterminate sentence. 11. Serious harm is defined in section 224(3) as meaning "death or serious personal injury, whether physical or psychological". It is a concept familiar since the Criminal Justice Act 1991 section 2(2) (b) and previous decisions of this Court will continue to be relevant to its assessment. For example, as was said in R v Bowler 15 Cr App R(S) 78, sexual assaults which are relatively minor physically may lead to serious psychological injury; and downloading indecent images of children may cause serious psychological injury to a child arising not only from what the child has been forced to do but also from the knowledge that others will see what they were doing (see R v Collard [2004] Crim LR 757). 12. Section 227 makes provision for extended sentences in relation to persons aged 18 or over on conviction. An extended sentence must be imposed on a person convicted of a specified offence not punishable with 10 years or more where the court considers there is a significant risk of serious harm by the commission of further specified offences. As with previous extended sentences, the sentence will be the aggregate of the appropriate custodial term and a licence extension period. The custodial term must be the shortest term commensurate with the seriousness of the offence or the offence and other offences associated with it (section 153(2)), save that, if the commensurate term would be less than 12 months, 12 months must be imposed (section 227(3)(b)). The extension period will be of such length as the court considers necessary to protect the public from serious harm by the commission of further specified offences (section 227(2) (b) but must not exceed 5 years for a violent offence or 8 years for a sexual offence. The extended sentence must not exceed the maximum permissible for the offence (section 227(4) and (5)). Some parts of the judgment in Nelson [2002] 1 Cr App R(S) 565 may continue to be of help, though the judgment must be read in the light of the new statutory provisions. Until section 74 of the Criminal Justice and Court Services Act 2000 is brought into force, applying imprisonment to those aged 18 or over, the sentence for 18 to 20 year olds should continue to be expressed as "custody for life" or "detention in a Young Offender Institution". 13. It is to be noted that, in contrast to the old extended sentence under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 , (which is repealed by the Criminal Justice Act 2003, Schedule 37 , part 7) the new sentence does not apply to offences punishable with 10 years or more. This means that most sexual offences, under the Sexual Offences Act 2003 , are outwith these provisions. 14. In relation to offenders under 18 on conviction, provision for extended sentences is made by section 228. An extended sentence of detention, comparable to that of imprisonment for those under 18 or over on conviction, must be imposed where a specified (though not necessarily serious) offence is committed and the court considers that there is a significant risk of serious harm by the commission of further specified offences and, where the specified offence is a serious offence, that neither detention for life nor detention for public protection are required under section 226(2) and (3). In considering sections 226 and 228 in conjunction, the fundamental question to be addressed by sentencers will be whether an extended sentence is adequate to protect the public. 15. The provisions for assessment of dangerousness in section 229 distinguish between offenders aged 18 or over with a previous conviction for a specified offence and those under 18 or with no such previous conviction. In both cases, information is identified which the court must or may take into account in assessing dangerousness but there is a rebuttable assumption of dangerousness in relation to adults with a previous specified offence conviction. In our judgment, when sections 229 and 224 are read together, unless the information about offences, pattern of behaviour and the offender (to which regard must be paid under section 229(3)) show a significant risk of serious harm (defined by section 224 as death or serious injury) from further offences, it will usually be unreasonable to conclude that the assumption applies. 16. It seems to us that the part of these labyrinthine proposals which is most critical, in relation both to the sentencing process and to the impact of that process on prison occupancy, is section 225(1) and its echo, in relation to those under 18, in section 226(1). We have already referred to the fact that significant risk of two matters must be shown before life imprisonment or imprisonment for public protection becomes obligatory, that is the commission of a further specified offence and the causing of serious harm thereby. 17. In our judgment, the following factors should be borne in mind when a sentencer is assessing significant risk: (i) The risk identified must be significant. This is a higher threshold than mere possibility of occurrence and in our view can be taken to mean (as in the Oxford Dictionary) "noteworthy, of considerable amount or importance." (ii) In assessing the risk of further offences being committed, the sentencer should take into account the nature and circumstances of the current offence; the offender's history of offending including not just the kind of offence but its circumstances and the sentence passed, details of which the prosecution must have available, and, whether the offending demonstrates any pattern; social and economic factors in relation to the offender including accommodation, employability, education, associates, relationships and drug or alcohol abuse; and the offender's thinking, attitude towards offending and supervision and emotional state. Information in relation to these matters will most readily, though not exclusively, come from antecedents and pre-sentence probation and medical reports. The Guide for sentence for public protection issued in June 2005 for the National Probation Service affords valuable guidance for probation officers. The guidance in relation to assessment of dangerousness in paragraph 5 is compatible with the terms of this judgment. The sentencer will be guided, but not bound by, the assessment of risk in such reports. A sentencer who contemplates differing from the assessment in such a report should give both counsel the opportunity of addressing the point. (iii) If the foreseen specified offence is serious, there will clearly be some cases, though not by any means all, in which there may be a significant risk of serious harm. For example, robbery is a serious offence. But it can be committed in a wide variety of ways many of which do not give rise to a significant risk of serious harm. Sentencers must therefore guard against assuming there is a significant risk of serious harm merely because the foreseen specified offence is serious. A pre-sentence report should usually be obtained before any sentence is passed which is based on significant risk of serious harm. In a small number of cases, where the circumstances of the current offence or the history of the offender suggest mental abnormality on his part, a medical report may be necessary before risk can properly be assessed. (iv) If the foreseen specified offence is not serious, there will be comparatively few cases in which a risk of serious harm will properly be regarded as significant. The huge variety of offences in Schedule 15, includes many which, in themselves, are not suggestive of serious harm. Repetitive violent or sexual offending at a relatively low level without serious harm does not of itself give rise to a significant risk of serious harm in the future. There may, in such cases, be some risk of future victims being more adversely affected than past victims but this, of itself, does not give rise to significant risk of serious harm. (v) In relation to the rebuttable assumption to which section 229(3) gives rise, the court is accorded a discretion if, in the light of information about the current offence, the offender and his previous offences, it would be unreasonable to conclude that there is a significant risk. The exercise of such a discretion is, historically, at the very heart of judicial sentencing and the language of the statute indicates that judges are expected, albeit starting from the assumption, to exercise their ability to reach a reasonable conclusion in the light of the information before them. It is to be noted that the assumption will be rebutted, if at all, as an exercise of judgment: the statute includes no reference to the burden or standard of proof. As we have indicated above, it will usually be unreasonable to conclude that the assumption applies unless information about the offences, pattern of behaviour and offender show a significant risk of serious harm from further offences. (vi) In relation to offenders under 18 and adults with no relevant previous convictions at the time the specified offence was committed, the court's discretion under section 229(2) is not constrained by any initial assumption such as, under section 229(3), applies to adults with previous convictions. It is still necessary, when sentencing young offenders, to bear in mind that, within a shorter time than adults, they may change and develop. This and their level of maturity may be highly pertinent when assessing what their future conduct may be and whether it may give rise to significant risk of serious harm. (vii) In relation to a particularly young offender, an indeterminate sentence may be inappropriate even where a serious offence has been committed and there is a significant risk of serious harm from further offences (see for example, R v D [2005] EWCA Crim 2282 ). (viii) It cannot have been Parliament's intention, in a statute dealing with the liberty of the subject, to require the imposition of indeterminate sentences for the commission of relatively minor offences. On the contrary, Parliament's repeatedly expressed intention is to protect the public from serious harm (compare the reasoning of the Court in relation to automatic life sentences in R v Offen [2001] 2 Cr App R(S) 44, paragraphs 96 to 99. (ix) Sentencers should usually, and in accordance with section 174(1)(a) of the Criminal Justice Act 2003 give reasons for all their conclusions: in particular, that there is or is not a significant risk of further offences or serious harm; where the assumption under section 229(3) arises for making or not making the assumption which the statute requires unless this would be unreasonable; and for not imposing an extended sentence under sections 227 and 228. Sentencers should, in giving reasons, briefly identify the information which they have taken into account. 18. A variety of other issues have been addressed in argument before us and we proffer guidance in relation to some of these. 19. The risk to be assessed is to "members of the public". This seems to be an all-embracing term. It is wider than "others", which would exclude the offender himself. We see no reason to construe it so as to exclude any particular group, for example prison officers or staff at mental hospitals, all of whom, like the offender, are members of the public. In some cases, particular members of the public may be more at risk than members of the public generally, for example when an offender has a history of violence to cohabitees or of sexually abusing children of cohabitees, or, as in one of the cases before us, (Feihn)where the offender has a particular problem in relation to a particular woman. 20. When offenders are to be sentenced for several offences only some of which are specified, the court which imposes an indeterminate sentence under sections 225 or 226 or an extended sentence under sections 227 or 228, for the principal offences should generally impose a shorter concurrent sentence for the other offences. In the case of a specified offence where there is a risk of serious harm, the sentence for such other offence must be an extended sentence where the principal offence is a serious offence (section 227(2)). It will not usually be appropriate to impose consecutive extended sentences, whether the principal offence is serious or merely specified (compare Nelson paragraph 23). 21. Care should be taken to ensure that a continuing offence which, as initially indicted, straddled 4th April 2005 is indicted, if necessary by amendment, so that sentence can properly be passed by reference to the new and/or old regime as appropriate. 22. If, in relation to a dangerous offender, the requirements of the Mental Health Act 1983 are satisfied the court can dispose of the case under those provisions - see section 37 of the Mental Health Act as amended by the Criminal Justice Act 2003, Schedule 32 paragraph 38(b). 23. In the light of these general observations, we turn to the cases before us. 24. Lang : on 17th June 2005 at Basildon Crown Court, this appellant pleaded guilty and on 19th June he was sentenced by His Honour Judge Lockhart to life imprisonment for robbery with a specified period based on a notional determinate sentence of 6 years. He appeals by certificate of the sentencing judge. 25. The facts were that, at about 7 o'clock on the morning of 5th April 2005, the appellant entered a shop where a lone female assistant was on duty. He selected a drink and some crisps and approached the counter. He produced a knife which he brandished close to the assistant's face and demanded money. He seized notes proffered by the assistant and ran out of the shop. 26. In passing sentence the learned judge referred to this being the robbery of a small newsagents shop where the victim was a young lady alone at the time. It was likely that at that time there would be few customers present. The appellant had a knife which he brandished close to her face, while demanding money and she was terrified. 27. The appellant was 23 and had numerous previous convictions, the most relevant of which were a robbery in 1999 and two street robberies the following year. This particular offence was a bad offence of its type and the appellant had committed three previous robberies within the past 6 years. 28. The pre-sentence report indicated that attempts to deal with his problems in the past had failed. 29. The court, the learned judge said, had to determine whether the provisions of section 225 of the 2003 Act applied and this involved looking into the future as well as at the appellant's record. The only sensible conclusion was that he presented a potential for significant risk of serious harm to the public from similar offending. There was no basis for suggesting that there would be any significant change in his behaviour. Accordingly section 225 applied. 30. The next question, the judge said, was whether the circumstances justified imprisonment for life. He was over 18, the offence was a specified serious offence and he posed a significant risk of further harm. The offence was more serious because of the use of the knife. It was committed by a repeat robber, and so there was an established pattern of behaviour. The seriousness of the offence was such as to justify imprisonment for life. 31. The appellant was born in July 1982. He has made nine previous appearances before the court for 27 offences, including the three previous convictions for robbery to which the judge referred. The pre-sentence report indicated that the appellant is of limited impulse control. He was addicted to crack and, unless he took responsibility for his behaviour and sought to achieve a permanent change, further offending was inevitable. He would continue to pose an escalating risk of harm to the public. He was now remorseful and had shown some victim empathy. 32. The grounds of appeal challenge the propriety of a sentence of life imprisonment and the propriety of the notional determinate sentence. 33. Mr Maguire, on the appellant's behalf, conceded that there was a significant risk of further specified offences but he submitted that there was no significant risk of serious harm demonstrated. The appellant's record, he said, is unattractive but in no previous offence had serious harm been caused or a weapon been carried. The pattern of offending did not suggest serious risk and the judge regarded the earlier robberies as less serious than the present. In the present offence, the knife had not been used and the undoubted fear of the victim did not give rise to serious psychological consequences. In any event, submitted Mr Maguire, the circumstances of the present offence were not sufficiently serious to justify a life sentence. 34. Mr Maguire stressed the mitigation to be found in the appellant's age, 23 at the time, the absence of a firearm or any actual violence, the fact that the appellant was acting alone and without sophisticated planning on a single occasion, the fact that he is beginning to show insight into his conduct and is being motivated to change, these matters being demonstrated by his own letter and a prison report. Mr Maguire also stressed the plea of guilty at the first opportunity. 35. For the Crown, Mr Winter posed the question as to whether street robberies or robberies of shop premises should in themselves fall within the category of giving rise to significant risk of serious harm where no physical injuries are caused and there is no evidence of psychological injury. This case fell within section 229(3), although the judge in his sentencing remarks did not refer to this section. Accordingly, there was an assumption of a significant risk of serious harm, unless it would be unreasonable so to conclude. 36. It is to be noted that the pre-sentence report referred to further offending as being inevitable and to an escalating risk of harm to the public, unless the appellant sought to achieve a permanent change, as to which there are present promising signs. In our judgment not all street robberies or robberies of shops will give rise to a risk of serious harm. But where a lethal weapon, be it a real firearm or a knife, is carried, then there may well be a significant risk of serious harm in an offence of that kind. Where, as here, the knife was waved near the victim's face and the appellant has three previous convictions for robbery in the space of 6 years, it is in our judgment impossible to contend that it would be unreasonable to conclude that the statutory assumption should apply. Accordingly, the judge was right to say that the circumstances gave rise to a significant risk of serious harm, although it would have been preferable had he expressly addressed section 229. He was not, however, right to proceed as he did from that conclusion to a conclusion that the offence was so serious as to merit a life sentence. Indeed, the notional determinate term which he fixed suggests to the contrary. This robbery was serious. But it would not hitherto have been such as to justify a life sentence. Nor, in our judgment, does it now. Accordingly, we quash the life sentence and substitute for it a sentence of imprisonment for public protection. In view of the mitigation, particularly the plea of guilty, we think a notional determinate sentence of 6 years was somewhat too high. Five years would have sufficed. The specified term to be served will therefore be two-and-a-half years less time spent in custody, which we understand to be 3 months and one week. To that extent, Lang's appeal is allowed. 37. Abdi : on 1st July 2005 at Inner London Crown Court, this appellant pleaded guilty to robbery and, on 15th July, he was sentenced by Mr Recorder Lafferty to life imprisonment with a specified period to be served based on a notional determinate sentence of 4 years. His case was referred to the Full Court by the Registrar. 38. The facts were that, at about 10.00 pm on 18th April 2005, a young man was walking along a street in Central London, talking on his mobile telephone to his girlfriend. He felt something hit him on the right side of his cheek. This caused his spectacles to fall to the ground. Not knowing what was happening, he turned and saw the appellant before him. It was apparent to him, in his disorientated state, that his mobile telephone had gone. The appellant ran off. He was arrested a short while later because the robbery had been recorded on CCTV. He was in possession of the victim's mobile telephone. 39. When interviewed he declined to comment. 40. He entered his plea on a somewhat elaborate specific basis which was accepted. For present purposes the relevant part of the basis of plea is that he had snatched the telephone forcibly from the victim who was holding it to his ear. The appellant accepted that his hand may have collided with the victim's face in a way perceived by the victim to be a punch and that, in consequence, the spectacles were knocked off. However, the defendant did not intentionally punch the victim nor use any other force to him. 41. In passing sentence, the Recorder accepted that this was a less serious offence than the one in relation to which the appellant had previously received 4 years' imprisonment. Nonetheless, it was a grave offence. The appellant was a dangerous offender, who posed a significant risk of serious harm to the public by virtue of the offence to which he had pleaded guilty and by virtue of his two previous convictions for robbery. In view of the circumstances of the offence, he did pose a significant risk because he had committed this offence so soon after being released from his previous sentence. In consequence, the Recorder concluded that life imprisonment was appropriate. 42. The appellant was born in January 1982. His previous convictions include two for robbery. A pre-sentence report assessed the risk of him re-offending as high and said that there was a high risk of him harming the public, though whether that would or would not be serious harm was not specifically addressed. The report said that he had shown little remorse in relation to the victim. 43. The grounds of appeal assert that the judge erred in imposing a life sentence. Furthermore, he had failed to warn counsel that he had this in mind. He failed to identify the aggravating features justifying the imposition of a life sentence. Furthermore, the judge erred in finding the appellant posed a significant risk of harm to the public and, in particular, in basing that view solely on the high risk of re-offending without referring to the level of likelihood of harm. The notional determinate sentence of 4 years is also challenged. 44. On the appellant's behalf, Miss Forshall conceded that there was a significant risk of the commission of further specified offences but challenged the Recorder's implicit, though not expressed, conclusion that there was a significant risk of serious harm. The appellant's two previous convictions for robbery, she pointed out, had involved minimal force in one case and, in the other, although the victim was young and a knife had been carried, the knife was concealed. 45. The pre-sentence report said there was always a risk of psychological harm in robbery, but in this case there was no evidence of such harm in relation to any of the offences committed by the appellant. Furthermore, the accepted basis of plea, she submitted, was entirely inconsistent with any harm, still less serious harm, to the present victim and no weapon had been carried by the appellant. On this basis, she submitted, the pattern of offending pointed, if anything, to decreasing rather than increasing risk of serious harm being caused by the appellant. Furthermore, she submitted, the present offence is not so serious as to justify a life sentence and the Recorder made no findings in his sentencing remarks to justify such a sentence. 46. For the Crown Mr Winter conceded that the life sentence could not stand. 47. In our judgment, the absence of material of any kind, demonstrating physical or psychological harm to any victim, and the fact that the pattern of previous offending when compared with the present offence is of diminishing seriousness, because no knife was carried on this occasion, mean that it would have been unreasonable, had the Recorder considered the point, to make the assumption under section 229(3) Although the author of the pre-sentence report was right to say that there is always a risk of psychological harm in robbery, it is not necessarily either a significant risk or a risk of serious harm; as we have earlier indicated the degree of both risk and harm must be evidenced. Furthermore, rapid repetition of offences in itself does not, as the Recorder suggested, demonstrate a significant risk of serious harm. Accordingly, we allow this appeal by quashing the life sentence. In the absence, as it seems to us, of a significant risk of serious harm, having regard to the matters to which we have referred, imprisonment for public protection is not appropriate. There will be a determinate sentence of 4 years as the Recorder indicated less 88 days served on remand. To that extent this appeal is allowed. 48. Winters : on 27th June 2005 at Birmingham Magistrates' Court, the appellant pleaded guilty and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 . On 25th July at Birmingham Crown Court, he was sentenced by His Honour Judge Faber to imprisonment for public protection, with a notional determinate term of 3 years, for sexual assault on a female, contrary to section 3 of the Sexual Offences Act 2003 . His case has been referred to the Full Court by the Registrar. 49. The facts were that, at about 6.30 pm on 3rd June 2005, a woman was standing at a bus stop in Birmingham City Centre when the appellant approached her. Without saying anything, he seized her breasts with both hands, through her outer clothing. She told him to stop. He kept hold and then tried to tear her shirt off. The woman tried to get away. He swung her round by her shirt and she hit her head against the bus shelter. At that point, a bus driver who had seen the incident came to the woman's assistance. The appellant made off. The police were informed. The appellant was arrested later that day. He declined to comment. 50. The judge said that this was a very serious offence of its type. The appellant had acted in a very intimidating manner and put his hands on her breasts. He had persisted, although told to stop. She had tried to fight him off, and had been caused to strike her head against the bus shelter. The bus driver had intervened so the appellant had desisted though leaving the victim very frightened, distressed and intimidated. The judge said, rightly, that this was a specified offence. He said that when someone committed a serious specified offence the court had to consider whether there was a significant risk of serious harm. The contents of the pre-sentence report, the appellant's record and the matters advanced in mitigation on his behalf were considered. The material before the court included the fact that the appellant had told the probation officer that he had acted in a similar manner on two previous occasions. 51. The judge concluded that the previous offending showed a pattern of similar behaviour and this offence had been committed shortly after his release from a short custodial sentence. The defendant had failed to address his pattern of behaviour and alcoholism and had failed to co-operate with the probation service and to respond to community punishments in the past. The judge said that there was a high risk of him re-offending and that therefore there was a significant risk of serious harm and that therefore an indeterminate sentence for protection of the public would be imposed. 52. The appellant was born in October 1957. He has a considerable number of convictions for minor criminal behaviour, including criminal damage and being drunk and disorderly and, in May 2005, he was sentenced to 4 months' imprisonment for using threatening, abusive or insulting words or behaviour. That, apart from a sentence of 14 days' imprisonment imposed a few days before for criminal damage, was the only custodial sentence passed upon the offender. It is to be noted that his previous record did not include any specified offence. 53. There was a pre-sentence report which recommended a community order and assessed a high risk of re-offending and what was described in the report as a "moderate risk of general harm to the public". He was drunk at the time of the offence and was unable to explain why he had committed it. 54. The grounds of appeal complain that the judge was in error in imposing imprisonment for public protection, bearing in mind the absence of any conviction for a previous relevant offence, the nature and circumstances of this offence and such pattern of behaviour as emerged from his previous offending. It is said in the grounds that the information before the judge did not support an inference of a significant risk of serious harm to the public. The grounds concede that there was a significant risk from further specified offences being committed. 55. On the appellant's behalf Mr Tucker stressed the comparative triviality of the appellant's previous offending which started to occur in the appellant's forties when he turned to drink after a divorce. At the time of this offence he was living nearby to its commission in a Salvation Army hostel. He has no previous specified offences. He does not, submitted Mr Tucker, present a significant risk of serious harm. Mr Tucker drew attention to the terms of the pre-sentence report which, as we have indicated, do not identify a significant risk of serious harm. 56. For the Crown, Mr Winter highlighted the fact that the definition of serious harm in section 224, in referring to death or serious personal injury, focuses primarily on the consequences of violence and is inapt to embrace sexual offences save those of unusual gravity. The appellant, Mr Winter accepted, has no previous specified offences in his record and so is within section 229(2) and outwith the assumption within section 229(3). 57. In our judgment, nothing in this offence or the appellant's record supports an inference of significant risk of serious harm. The judge was wrong to infer a significant risk of serious harm merely because there was a high risk of re-offending. The appeal therefore is allowed. The sentence of imprisonment for public protection is quashed. A determinate sentence of 3 years, as contemplated by the learned judge and unchallenged in the grounds of appeal, is appropriate with credit for 55 days served on remand. That is the sentence which we substitute. To that extent, his appeal is allowed. 58. Carasco : on 23rd April 2005, at Greenwich Magistrates' Court, this appellant pleaded guilty and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 . On 24th May, at Woolwich Crown Court he was sentenced by His Honour Judge Norris to imprisonment for public protection for sexual assault on a female, contrary to section 3 of the Sexual Offences Act 2003 . The notional determinate term identified was 4 years. 59. A Sexual Offences Prevention Order was imposed under section 104 of the Sexual Offences Act preventing him from taking any alcohol for the rest of his life. He appeals against sentence by leave of the Single Judge on grounds which, with the leave of the Court, were amended in the course of the hearing before us. 60. The facts were that, on 21st April 2005, a 16 year old girl was standing with friends at a bus stop in Lewisham. The appellant kept standing near them, pestering them and making a nuisance of himself. Initially the girls laughed at him. But when one girl turned her back on him, the appellant came up to her and tapped her on the arm. She ignored him. But he moved his hand and then touched her left breast. She turned round and saw him remove his hand and laugh. Her friends saw a police officer nearby. They gave a description of the appellant and he was found a short distance away and arrested. 61. In interview he made full admissions. He expressed his regret and he said that alcohol was the main reason for him offending. 62. In passing sentence the learned judge referred to the appellant's age and the fact that he had to be sentenced for yet another offence of indecent assault, this time on a 16 year old girl. The taking of alcohol, the judge said, had been the story of the appellant's life many times in the past. He had started offending when he was a juvenile and since he was 30 there had been a number of offences of indecency of one form or another. When he was in drink he could not resist some sort of sexual assault on someone near him and it was a very worrying state of affairs for him and the public at large. It was apparently common ground before the judge that the defendant, by his conduct, did give rise to a significant risk of further offences, causing serious harm. The judge concluded that a custodial term followed by an indefinite period on licence was therefore appropriate. 63. The judge referred, again, to the history of offending and identified the notional determinate sentence as 4 years. He imposed the condition with regard to abstinence from alcohol which we have earlier identified. 64. The appellant was born in September 1951. He has a considerable number of previous convictions for a wide variety of offences committed over a period of almost 40 years, many of them for burglary and other offences of dishonesty. There are, however, eight previous convictions for indecent assault on a female, one for gross indecency with a child and one for indecent exposure. In 1997 he was sentenced to 6 months' imprisonment for indecent assault on a female under 16 and in April 2002 he was sentenced to 12 months' imprisonment for indecent assault on a female under 14. 65. The pre-sentence report identified a high risk of re-offending but did not address serious harm. The defendant acknowledged that his behaviour had been inappropriate and was likely to have caused the victim distress. He had been very drunk at the time. 66. The grounds of appeal, as originally drafted, challenged the propriety of the 4 year determinate term but, in the course of the hearing before us, the court granted leave to challenge the sentence of imprisonment for public protection. 67. On the appellant's behalf, Mr McDonagh submitted that such a sentence, despite whatever concessions he may inappropriately have made in the court below, was not, on reflection appropriate. He also challenged the 4 year term as being too long. On instructions, he abandoned any challenge in this Court to the Sexual Offences Prevention Order and the condition for alcohol abstinence to which we have referred. Mr McDonagh submitted that, although the appellant has a substantial record, in particular, of persistent sexual offending at a low level for over 20 years, he has not during that period received, in relation to that conduct, a sentence longer than 12 months and the maximum sentence he has ever received for a sexual offence was 21 months in 1982. 68. Mr Winter, for the Crown, submitted that, although the public clearly needs protecting from this appellant in view of his continuing repetitive offending, an indeterminate sentence of the kind imposed is not appropriate. Repetitive minor offending does not, he submitted, provide of itself a basis for inferring a future significant risk of serious harm, particularly in the absence of any evidence that any of the victims of his offences, albeit young, have suffered harm of a serious kind. Indeed, as Mr Winter points out, the level of sentences imposed for the past offences is incompatible with a suggestion that serious harm had occurred to the victims. It is to be noted that the pre-sentence report, as we have indicated, did not specifically address, still less identify, a significant risk of serious harm. 69. In our judgment, there was here, despite the concessions made in the court below, no proper basis for imposing imprisonment for public protection on the basis of a significant risk of serious harm. We accept the substance of the submissions made to us by both Mr McDonagh and Mr Winter. Accordingly, the appeal is allowed. The sentence of imprisonment for public protection is quashed. Furthermore, we are unpersuaded that a notional determinate sentence of 4 years was necessary for this offence. Albeit the age of the victim was undoubtedly an aggravating factor, the degree of indecency was relatively minor. We accordingly, in quashing the sentence of imprisonment for public protection, substitute a determinate sentence of two-and-a-half years' imprisonment with credit to be given for 3 days served on remand. To that extent, Carasco's appeal is allowed. 70. Feihn : on 5th August 2005 at Croydon Crown Court, this appellant pleaded guilty to count 2 in the indictment, namely possession of an imitation firearm with intent to cause fear of violence, contrary to section 16A of the Firearms Act 1968 . A not guilty verdict on count 1 of putting a person in fear of violence by harassment was entered under section 17 of the Criminal Justice Act 1967 . His Honour Judge Macrae imposed a sentence of imprisonment for public protection with a notional determinate term of 3 years. This case was referred to the Full Court by the Registrar. 71. The facts were these. The appellant had, for some 6 months, been in a relationship with an adult woman. She terminated it in March 2005. The appellant took this badly. On 22nd April he went to her home address in Croydon. When she opened the door, he pushed inside and she fell on the sofa. He produced a silver handgun which he pointed at her throat and said: "You'll fucking listen to me now, you've ruined my life so I'm going to ruin yours. I had everything and you've ruined it." Undaunted, the lady seized the gun, pushed the barrel down and struck the appellant with the handset of a nearby telephone. In response, the appellant pulled out a kitchen knife. He said: "You stupid cow. Do you want me to use this, you're pushing me to use this." The lady telephoned the police. The appellant left. 72. The silver handgun was found about a month later at the appellant's father's home. 73. On 30th May the appellant was arrested. In interview, he denied being in possession of a knife or a firearm during the course of the incident. The judge, in passing sentence, said that the offence was a specified offence, under section 224 but section 229, in relation to the assessment of dangerousness was, as he put it, "not being relied on". He referred to the production of the firearm and knife and he said that a custodial sentence for the protection of the public had to be passed. Credit would be given for the plea of guilty and the notional determinate sentence would be 3 years, which he later clarified as meaning that 18 months would be served less time spent on remand. 74. The appellant was born in March 1972. He has a previous conviction for robbery, one for attempted robbery and one for possessing an offensive weapon. Those three offences were dealt with, in 1988, by way of conditional discharges and fines. Since that time he has had non-specified convictions for burglary and theft, the most recent of which was in 1994 when a probation order was made. He has a caution in July 2003 for three offences of destroying or damaging property of less than £5,000 in value. 75. There was before the sentencing judge a medical report indicating that the appellant is a poorly controlled diabetic who now, in consequence, suffers complications. There was also before the judge a letter from the appellant's father. 76. The grounds of appeal assert that the judge was wrong to find that the appellant posed a significant risk of causing serious harm. An indeterminate sentence for public protection was inappropriate, whether in the light of the circumstances of the present offence or of his previous record. 77. Before this Court, Mr Jones made no complaint about the notional determinate sentence but he submitted that imprisonment for public protection was inappropriate. The judge, he said, was not entitled to disregard section 229(3), in view of the previous specified offence of robbery in 1988. But, in relation to the present offence, there was no violence by the appellant, even when he was struck with the telephone by the victim. There was no evidence of physical or psychological harm to the victim and the appellant's record afforded no basis for predicting serious harm. There had been no conviction of any kind for more than 10 years and the cautions in 2003 were afforded no basis for an inference of serious harm. Mr Winter, for the Crown, rightly stressed the importance of sentencers complying with section 229(3). But he submitted that, even had the judge considered the assumption in that subsection, he could not reasonably have concluded that an offence of robbery, resulting in a £40 fine 17 years ago, gave rise to a risk of serious harm then or in the future. The judge had relied on the imitation firearm and the knife in the instant case, but Mr Winter submitted that the use of an imitation firearm (as this was) merely to threaten and not used for any physical purpose upon the victim, could not support the inference of death or serious personal injury which section 224 requires. The knife, as Mr Winter points out, had not been taken to the premises by the appellant: it belonged there. Furthermore, as Mr Winter pointed out, no pre-sentence report had been obtained. In this case it would have been particularly pertinent to obtain one in order properly to investigate whether, while he was in custody, the appellant had been able to resolve the issues which he had with his former girlfriend. 78. There is, in our judgment, force in all these submissions made by both counsel. This was not a case calling for imprisonment for public protection. The circumstances of the offence and the appellant's record, as it seems to us, can be regarded as reasonably defying the assumption in section 229(3). Furthermore, without a pre-sentence report the judge ought not to have concluded, by reference to the material before him, that there was a significant risk of serious harm. Accordingly Feihn's appeal is allowed. The sentence of imprisonment for public protection is quashed. In its place there will be a determinate sentence of 3 years' imprisonment with credit to be given for 66 days served on remand. 79. Wright : on 12th August 2005 at Derby Crown Court, before His Honour Judge Hamilton, this appellant pleaded guilty to assault by penetration, contrary to section 2 of the Sexual Offences Act 2003 and, on 26th August, he was sentenced to imprisonment for public protection, with a notional determinate term of 2 years. The judge also purported to say that the appellant would be on licence for 10 years after his release and he declined to make a Sex Offender's Prevention Order, ostensibly on the ground that the victim was not under 18. The case has been referred to the Full Court by the Registrar. 80. The facts were these. On the evening of 24th June 2005 the female victim was out drinking with friends in Sheffield. Her boyfriend had an altercation with another man during the evening. This led to the police being called and her boyfriend being arrested. The victim of this offence was very distressed, but later, on receiving a call from a friend inviting her to stay the night and offering her a lift to the Chesterfield area, she agreed to this arrangement and was picked up in a vehicle and sat in the back. One of those people in the vehicle was the appellant, whom she knew. He tried to put his arms round her but she brushed him off. They arrived at her friend's house and drinking continued. At about 2.30 in the morning everyone retired to bed, leaving the appellant downstairs, he apparently having fallen asleep in a chair. About 3 hours later the victim heard her bedroom door creak and realised that the appellant had come in. On top of the duvet he lay down fully clothed. The woman was wearing her underwear. The appellant put his hand beneath the duvet and touched her vagina beneath her underwear. She pushed him away and told him to stop. He apologised. She was upset. He did not leave the room. Then she heard the sound of a belt buckle. The appellant again laid down next to her and he repeated what he had done before. She asked him to stop; he told her to stop wriggling otherwise "he would stick his cock up her". She got up, got dressed and went downstairs. She was very upset. The appellant followed her. She told him to leave her alone. She complained to the police about a week later. The appellant was thereafter arrested. 81. In interview he said that, since about 11.00 am on 24th June, he had been drinking. He could not recall the car journey to Chesterfield or anything else. He accepted that he might have assaulted the victim in the way she described but he simply could not remember. 82. In passing sentence, the judge referred to the plea of guilty at the earliest opportunity and to the fact that he had to consider whether there was a significant risk of serious harm to members of the public occasioned by the commission of further similar offences by the defendant. The judge pointed out that the defendant had previously been cautioned for indecently assaulting two girls and had been made the subject of a Sex Offender Order which he had twice breached. The most serious aspect of the present offence was that he had committed it while on home release from prison. It seemed, said the judge, that he did amount to a danger and there was a significant risk of him committing similar offences. He had a poor record of compliance with both custodial and community sentences, but his main problem was alcohol. Prior to the change in the law, the judge said, he would have imposed an extended sentence for 3 years to undertake a Sex Offender's Programme. The only way, now, to impose such a sentence was to impose one of imprisonment for the protection of the public. He also, as we indicated at an earlier stage, said that the offender would be on licence for 10 years after his release and that a Sex Offender Prevention Order would not be made because the victim was under 18. 83. The appellant was born in January 1979. He has two previous convictions for failing to comply with the notification requirements of a Sex Offender Order and he has one for breach of a Sex Offender Order. He was placed on the Sex Offender's Registrar for 5 years in May 2000, when he was cautioned for two offences of indecent assault on a female. In February 2005 he had been sentenced to a total of 4 months and 31 days for breach of licence and failing to comply with notification requirements. He had been released on licence from that sentence on 22nd April, that is to say, just 2 months before the present offence was committed. 84. The pre-sentence report before the judge indicated the appellant's poor record of compliance with previous sentences and also referred to alcohol intoxication as a feature of his offending: he admitted being heavily dependent on alcohol. The report indicated that he was likely to pose a significant risk to girls and young women in the future and there was a reference to him having supplied some victims with alcohol. The report also referred to his inability to remember the circumstances of his offending due to intoxication. 85. The grounds of appeal assert that a sentence of imprisonment for public protection was inappropriate. 86. On the appellant's behalf Mr Stockwell accepted before us that the appellant's conviction for affray resulting in a 9 month sentence in April 2004 was a relevant specified offence for the purposes of the Criminal Justice Act 2003 , but the two cautions for indecent assault in May 2000 were not convictions for the purposes of section 229(3). The present offence had been committed while on licence, as we have described and, although it was unpleasant, it involved no violence and the period and degree of penetration had both been short. Although the victim was clearly upset, there was no evidence suggesting that she had suffered serious harm from this misconduct. Although the defendant had been persistent in what he had done, he had, more than once, desisted when told to stop. The only conviction in the defendant's record for violence was that for affray, to which we have referred and there were no convictions for sexual offences. Furthermore, the fact that he had been cautioned in relation to the indecent assault allegations in May 2000 suggested the absence of any serious harm on those occasions. No pattern of offending suggesting serious harm was demonstrated, submitted Mr Stockwell, and neither the pre-sentence report nor the judge in passing sentence addressed the question of serious harm. 87. Mr Winter submitted that the appellant posed a significant risk to the public, but not of serious harm. Had the judge addressed section 229(3), which he did not, he must, Mr Winter submitted, have concluded that it was unreasonable to find a significant risk of serious harm. Furthermore, he had no power to impose the 10 year licence provision which he purported to impose and an order under the Sex Offenders Prevention Act 2003, section 104 is, contrary to the judge's assumption, available regardless of the age of the victim. 88. All of those submissions we accept. In consequence, this appeal is allowed. The sentence of imprisonment for public protection is quashed. There will be a determinate sentence of 2 years' imprisonment with credit to be given for 39 days served on remand. 89. Collier : on 4th July 2005 at Cardiff Crown Court, this appellant pleaded guilty to a number of offences and, on 21st July, he was sentenced by His Honour Judge Durham Hall QC as follows: on count 3, for robbery, to imprisonment for public protection; on count 2, for assault occasioning actual bodily harm, to 2 years' imprisonment concurrently; on count 4, for theft, to 12 months' imprisonment concurrently, and on count 1, for driving a conveyance taken without authority, to 5 months concurrently. The notional determinate sentence imposed in relation to robbery was four-and-a-half years. 90. The appellant, it is to be noted, was 18 when he pleaded guilty and therefore he should in any event have been sentenced to detention for public protection rather than imprisonment, the concurrent terms of detention being in a young offender institution. (See R v Danga 13 Cr App R(S) 408). The Registrar has referred this case to this Court. 91. The facts were that, at about 10.50 pm on 8th May 2005, a pizza delivery driver called Higgins was making a delivery in Cardiff. He realised on approaching that he was at the wrong address. He was about to return to his car when he saw the appellant driving it away, for a few metres only, because it stalled. He approached the car and had a short conversation with the appellant through the driver's window. The appellant got out and became aggressive and abusive, punching the other man several times in the face, causing cuts to his lips and then repeatedly punching him in the body and saying: "Give me your fucking car". He tried unsuccessfully to take the keys out of the ignition. The appellant kicked the car in several places causing a significant amount of damage. He also opened the boot and took out a tool kit and stereo. Those events together gave rise to counts 1, 2 and 4. 92. At about 11.45 the same evening another man was walking in the same vicinity. He noticed the appellant and a woman walking towards him. The appellant blocked his way and said: "Give me your mobile telephone". The man said he did not have one. The appellant said: "Give me your 'phone or I'll knock you down." At that stage the complainant threw his telephone on the grass and ran off. That gave rise to count 3. 93. Three days later the appellant was arrested. In interview he declined to comment. 94. The learned judge in passing sentence referred to the fact that the appellant was approaching his 19th birthday and had pleaded guilty to a series of offences causing the court grave concern. His plea of guilty had been at the earliest opportunity. He had an unenviable record for one so young and had been on licence from the previous sentence when these offences were committed. He had not learned anything during his progression through the courts. He had been utterly out of control when he attacked Higgins and stole from him. That was an offence akin to robbery, and shortly afterwards, he had robbed the other young man. 95. He presented, in the view of the probation officer, a high risk of reoffending and the people most at risk from him were those he thought he could overpower or whom he came into conflict with. That risk would be increased significantly when he was in the company of like-minded people. The robbery itself was a serious offence and it was apparent that the appellant posed a significant risk of causing serious harm to members of the public by the commission of further offences. Life imprisonment was inappropriate but imprisonment for public protection was requisite. 96. The appellant has three previous convictions for assault occasioning actual bodily harm, one for attempted robbery and one for common assault. He was born on 25th September 1986. In April 2003 he was dealt with for an offence of common assault in January 2003, when he had repeatedly slapped the face of his former girlfriend. No visible injuries had been caused. In February 2004, this time for assault occasioning actual bodily harm, a community punishment order was imposed for an offence in July 2003, which involved an unprovoked attack on his girlfriend, causing injuries to her knees and her left eye. In May 2003 he had been disturbed in the process of attempted burglary. In July 2003 he had attempted to push the complainant off a pedal cycle and, when approached by the complainant's mother, he had assaulted her. A little later the same day he had head-butted the complainant whose bicycle he had earlier sought to take. In June 2004 he had struck a complainant in the face with what is described as a "lump" causing a cut to the nose and under the eye. In relation to that, he was dealt with for assault occasioning actual bodily harm in August 2004 and a 12 month detention and training order was made for concurrently with an 18 month detention and training order for another offence. 97. A pre-sentence report described the risk of him reoffending as relatively high and contained the phrase, referred to by the sentencing judge, in relation to the people most at risk from him being those whom he thought he could overpower. 98. The grounds of appeal challenge the imposition of an indeterminate sentence for public protection on the basis that a conclusion of significant risk of serious harm was not reasonable, bearing in mind the lack of use of a weapon so far as the instant offences are concerned. 99. On behalf of the appellant Mr Hawkins submitted that imprisonment or detention for public protection was inappropriate and the notional sentence of four-and-a-half years was too long. He submitted that the appellant's record, including the convictions of three offences of assault occasioning actual bodily harm and attempted robbery, albeit unedifying, was not such as to give rise to a reasonable conclusion in relation to the assumption under section 229(3), of the possibility of serious harm. Furthermore, he submitted that the circumstances of the present robbery, involving no weapon and merely a threat of violence rather than actual violence, did not demonstrate a significant risk of serious harm. 100. Mr Winter, for the Crown, posed for the Court's consideration the question as to whether an escalation of risk to serious harm can properly be the subject of inference from a multiplicity of comparatively minor offences. In our judgment, that can be a proper inference, depending on all the circumstances. In the present case, the pre-sentence report to which we have already referred was of considerable significance, particularly in the light of the statutory assumption. It seems to us that it cannot be said that a finding of significant risk of serious harm was unreasonable. The appeal against the indeterminate sentence for robbery is therefore dismissed though the sentence must be expressed as detention rather than imprisonment for further protection. We see nothing wrong in a notional determinate sentence of four-and-a-half years, which will be detention in a young offender institution. The concurrent sentence of 2 years for assault occasioning actual bodily harm was, as Mr Winter points out, unlawful because section 227 mandatorily requires an extended sentence for a specified offence where there is a significant risk of serious harm. In all the circumstances we quash that 2 year sentence and impose in place of it a concurrent extended sentence of 4 years detention in a young offender institution, the custodial term of which is 2 years and the extended licence period of which is 2 years. 101. We comment, in passing, that neither the sentencing judge, nor this Court were provided (as they should have been) with any information as to the unexpired portion of the appellant's licence at the time of these offences. Save for varying the way in which the sentences are expressed and its sentence in relation to the assault occasioning actual bodily harm, this appeal is accordingly dismissed. 102. Sheppard : on 6th June 2005 at Winchester Crown Court, this appellant pleaded guilty to an offence of wounding with intent and on 29th July he was sentenced at that court by His Honour Judge Brodrick to detention for public protection. A term of four-and-a-half years was identified as the notional determinate term. The case has been referred to the Court by the Registrar. 103. The facts were these. On 16th April 2005 a 20 year old man called Wilson went to an ice rink in Basingstoke to celebrate the birthday of a friend. The appellant also attended. The party was in good mood although drink had been taken. Mr Wilson had an argument with his girlfriend. He was a little the worse for drink and was spoken to by the ice rink manager, twice. He apologised. There was a third occasion, when he drew the attention of the management to him, and then a fourth when he was ushered out of the building. He was then restrained by a group of people with whom he argued. The appellant approached. Wilson punched him, but he was still being restrained by others and pointing his finger at the appellant. While he was being restrained, the appellant lunged towards him and stabbed him with a knife in the right eye. In consequence, he became deeply unconscious. A CT scan revealed a serious brain injury. He was left blind in his eye and there was a danger that the other eye would be compromised. He lost his sense of smell and will have permanent defects in limb function. He has major problems with higher intellectual functions. His life has been changed for ever. He will never be able to live independently. He may die prematurely. 104. The appellant ran off and hid, disposing of the knife, but it was recovered. He eventually handed himself to the police. In interview, he admitted stabbing Wilson and agreed that his actions were not justified. He had been drunk at the time. 105. The basis of his plea was that, prior to the offence, he had consumed half a bottle of Jack Daniels together with other alcohol. The consumption of alcohol is not a mitigating feature. It is, as the Sentencing Guidelines Council have made clear, an aggravating feature (Guideline on seriousness paragraph 1.22). He was assaulted by the victim. He intended to cause serious bodily harm but he did not aim for the victim's eye or intend the grave extent of the injuries which we have described. In passing sentence, the judge commented that the plea of guilty to wounding with intent had been entered at the first opportunity. He had earlier turned himself in to the police and was entitled to full credit for his plea. But, on the night in question, while carrying a knife, he had taken large quantities of drink. That was not a happy or sensible combination. Indeed, it could be seen as an aggravating feature. 106. It was accepted that insults had been traded with Wilson, but the appellant had taken out a knife, opened it and made one swift stabbing or slashing motion at Wilson's face, penetrating his eye, with the consequences to which we have referred. The judge said that this was an extremely serious offence and the appellant's record showed he had two previous convictions for assault occasioning actual bodily harm and cautions for battery. Accordingly, he qualified for a sentence of detention for public protection. The probation report indicated that he did represent a significant danger of causing serious harm to the public unless and until work was done to help him mend his ways. An extremely lengthy psychological report in some respects suggested the contrary. The judge was critical of the thinking in that report, although it may be that its terms were confined to whether or not there was a psychological basis for reaching a conclusion as to the risk of serious harm: the psychologist's view was that there was not. The judge concluded that this was a classic case for the invocation of the new powers, bearing in mind the significant risk of further similar offences and serious harm until such time as appropriate treatment had taken place. It is apparent that the judge expressly addressed the relevant issues, save the possibility of an extended sentence to which we shall return. 107. The appellant was born in April 1988. He was not quite 17 at the time of the offence. His record includes the two previous convictions for assault occasioning actual bodily harm, to which we have referred, in relation to which, on 3rd November 2004, he was sentenced to a 9 months referral order. He also had two cautions for battery. 108. The pre-sentence report indicated, as we have said, that the appellant posed a serious risk of harm to the public. The pattern of his offending was a cause for concern. Alcohol misuse was a factor which had clouded his judgment. He had expressed remorse and shame for his action. The psychological report referred to his immaturity but he did not suffer from any mental illness. 109. The grounds of appeal assert that the sentence was manifestly excessive in view of his age, admissions to the police, early plea, remorse and the fact that he had handed himself into the police. 110. The pre-sentence report was based on historical offending behaviour and an extended sentence would have been available as an appropriate alternative to the sentence passed. 111. On behalf of this appellant, Mr Lickley submitted that, in the light of the historical special protection for young offenders, recognised in the Criminal Justice Act 2003 , by the difference between section 229(2) and 229(3), detention for public protection was not necessary and an extended sentence might have been appropriate. Mr Lickley accepted, as he was bound to do, the great seriousness of this offence and its impact on the victim. But Mr Lickley stressed the view of Dr Indow that there was no psychological basis for suggesting dangerousness. Mr Lickley stressed that the appellant is still only 17 and it is particularly hard for one so young not to know when, or possibly whether, he may be released. Mr Lickley accepted that, although the judge's sentencing remarks do not refer to the possibility of an extended sentence, that was clearly a possibility present to the judge's mind because, as the transcript shows, it was referred to at the end of the prosecution's opening of the facts. 112. Mr Winter, for the Crown, submitted that the focus of section 224 on death or serious personal injury suggests that this is precisely the sort of offence which Parliament had in mind for an indeterminate sentence for public protection. In the absence of any time scale for the resolution of the appellant's problems, an extended sentence would not be adequate. In our judgment, it would have been preferable if the learned judge had set out his reasons for imposing a sentence under section 226 rather than an extended sentence under section 228. But, as it seems to us, his conclusion was correct, in the light of the information before him which he properly identified. 113. The appellant was carrying a knife and had been drinking. There was an obvious risk therefore of serious harm in the future based both on that offence and the specified offences of violence in the appellant's recent record which indicated a recent pattern of violent offending. In addition, there is the conclusion in the pre-sentence report that he cannot manage his anger particularly when in drink. 114. In our judgment, the sentence of detention for protection of the public was, in all the circumstances, necessary and appropriate and, in this Court, is unimpeachable. Accordingly Sheppard's appeal is dismissed. 115. D : on 17th June 2005 at Warrington Crown Court, this appellant pleaded guilty to robbery. On 8th July he was sentenced by His Honour Judge Hale to detention for public protection with a notional determinate period of 7 years. His case has been referred to this Court by the Registrar. 116. The facts were that, on 3rd June 2005, an 18 year old student was walking back to Warrington Station having done some shopping. He heard the appellant, who was behind him shout "Oi" and, when he looked round, he saw the appellant, whom he did not know. The appellant, who initially was some distance behind, caught up with the student and they stopped and had a brief conversation, which the student found rather strange as the appellant asked him where he was going and why. But then the appellant produced a large kitchen knife from his trousers. The handle was wrapped in a tea towel and the appellant made a number of threats. He told the student to step back. He then produced a Balaclava and said the student was to hand over his chain and wallet, which contained £50, and a ring. The appellant found the student's identification in his wallet and said: "If you do anything stupid it's not worth your while." He told the student not to go to the police, that he was being watched and the appellant then left. 117. The following day, the police were contacted. The robbery had been caught on CCTV. Later that day the appellant was arrested. He denied the offence in interview but was picked out on a VIPER identification parade, whereupon he made full and frank admissions. He added that, at the time of the offence, he had been high on a cocktail of drugs and alcohol. 118. The learned judge, in passing sentence, referred to the appellant being 16 at the time and having had an appalling start to his life. But he had not helped himself by committing a string of robberies over the years. The court had some sympathy but also had to protect the public. He had threatened the public on a number of occasions. He indicated in interview that he would not think twice about using a knife if someone resisted. In the judge's view, this case clearly met the qualifications for a sentence for public protection. There were real aspects of dangerousness in his background and in his approach. An extended sentence would not fit the case because it was not known how long an extension ought to be. 119. On the appellant's behalf, Mr Clarke conceded that this appellant fulfils the criteria for dangerousness under section 229 and that the pre-sentence report, prepared by someone who knew the appellant, described his behaviour as "entrenched". He submitted, however, that an extended sentence would have sufficed and that a notional determinate sentence of the order imposed was too long. Mr Clarke does not before us pursue one of the grounds of appeal which alleges an incompatibility between the legislation provided for this sentence and Article 5 of the European Convention on Human Rights. 120. The record of the appellant includes five convictions for robbery and two for attempted robbery within the last 2 years. 121. The pre-sentence report, in addition to the extract to which we have already referred, describes the appellant as displaying no victim empathy. He is a vulnerable young man who will continue to commit serious offences. 122. So far as Mr Clarke's first submission is concerned, namely that an extended sentence would have sufficed, we reject that proposition. The appellant, as we have said, indicated in his interview with the police that resistance by a victim would lead to use of a knife. Furthermore, as the judge rightly recognised, the appellant, in the light of the pre-sentence report upon him, is so far away from confronting his criminality and violence that it is presently impossible to gauge how long a licence period would be needed if an extended sentence were to be passed. That, in our judgment, is a highly material consideration when concluding that an extended sentence is inappropriate. 123. As to the length of the notional determinate sentence, however, we think that 7 years on a plea was excessive. We quash that term and substitute a period of five years, so that the minimum term to be served will be two-and-a-half years less 35 days on remand. To that limited extent only his appeal is allowed. 124. Smith : on 21st July 2005 at Cambridge Crown Court, the appellant pleaded guilty to a number of offences. He was sentenced by His Honour Judge Hawkesworth in the following way: on count 2, for assault occasioning actual bodily harm, an extended sentence of three-and-a-half years was passed pursuant to section 227, made up of a custodial term of 18 months and extension period of licence of 2 years. On count 4, for aggravated vehicle taking, the sentence was 12 months' imprisonment consecutively. On count 5, the sentence was 3 months consecutively for driving while disqualified and on count 6, for theft, the sentence was 3 months also consecutively. The total sentence therefore purported to be an extended sentence of 5 years, consisting of a total custodial term of 3 years and an extended period of licence of 2 years. He was also disqualified from driving for 2 years. The case has been referred to the Full Court by the Registrar. 125. The circumstances were these. At 10.30 on the evening of 25th April 2005 a man walking along a street in Cambridge heard the sound of breaking glass. He looked round and saw the appellant standing next to his car. The car's window was broken. He approached the appellant and asked what he was doing. The appellant's response was to punch him in the face. That gave rise to count 2. The man ran off and was chased for a short distance by the appellant. Someone else had heard the sound of breaking glass and saw the punch being delivered. He called the police. The appellant had stolen £2 from the parked car. His movements were recorded on CCTV camera. Another incident took place when a car alarm was set-off and that was reported to the police and gave rise to count 6. 126. Some time later, the appellant stole a Ford Corsa motorcar and drove it off. It was recovered at about 1.30 the following morning having collided with the gates of a cricket ground. Those gates were considerably damaged as a result and that gave rise to counts 4 and 5. 127. A witness had heard the crash and saw the appellant running off. The appellant was tracked to a bus station through CCTV cameras. 128. In interview he declined to comment. He was subsequently identified by three witnesses. 129. The judge, in passing sentence, referred to the fact that, on the day following his release from the previous sentence, he had nowhere to go. He had gone to Cambridge, got drunk and broken into a car to steal from it. He had an appalling record for offences not only of dishonesty but more particularly of violence. The provisions of section 227 had to be considered because the assault occasioning actual bodily harm was a specified offence. 130. Having regard to his record and the fact that he had committed these offences the day after his release and one of them involved an assault on an entirely innocent member of the public, there was, the judge concluded, a risk of serious harm to members of the public from the commission of further offences, calling, in consequence, for an extended sentence for the assault. Consecutive sentences would be imposed in relation to the other offences. 131. The appellant was born in March 1977. He has three previous convictions for assault occasioning actual bodily harm and one for common assault. 132. The grounds of appeal contend that the extended sentence was manifestly excessive and inappropriate, particularly without the benefit of a pre-sentence report as to the risk which he posed. In any event, 18 months was of itself too long, particularly in conjunction with the sentences imposed for other offences. 133. Mr Shelley, on behalf of the appellant, submitted that, in his past, the appellant has caused no serious harm to anyone and these offences in themselves did not demonstrate dangerousness. No pre-sentence report was obtained. A custodial term of 3 years was, in any event, excessive for these offences on a guilty plea. 134. Mr Winter, for the Crown, rightly pointed out that the several previous offences, including offences of assault occasioning actual bodily harm and one of affray are specified offences and section 229(3) is therefore engaged. There was clearly a significant risk of re-offending, submitted Mr Winter, but it was not clear, particularly in the absence of a pre-sentence report, that a significant risk of serious harm could reasonably be concluded, bearing in mind the section 224 requirement for death or serious personal injury. As we pointed out earlier in this judgment, sections 224 and 229 have to be read together. In our judgment, in the light of all the material to which we have referred, it was unreasonable to conclude, particularly in the absence of a pre-sentence report, that these offences and this appellant's record and pattern of offending at a relatively minor level gave rise to a significant risk of serious harm. It was also inappropriate to impose sentences consecutively to an extended sentenced. Accordingly, this appeal is allowed. The extended sentence is quashed. We also accept that, on guilty pleas, a custodial term of 3 years was excessive. We shall accordingly quash the 18 months for the offence of assault occasioning actual bodily harm and substitute for it a sentence of 12 months. The other sentences of 12, 3 and 3 months will run consecutively to the 12 months for the assault occasioning actual bodily harm. The total sentence will therefore be one of two-and-a-half years' imprisonment. To that extent, this appeal is allowed. 135. Armitage and Glave : on 3rd August 2005, Armitage pleaded guilty on rearraignment at Sheffield Crown Court. On 15th August Glave also pleaded guilty. On 13th September they were both sentenced by His Honour Judge Lawler QC in the following way: Armitage, who pleaded guilty to count 1 of attempted robbery, received an extended sentence of 4 years, pursuant to section 228, consisting of a custodial term of 3 years and an extended licence period of 12 months. Glave, who pleaded guilty to unlawful wounding on count 3, received an extended sentence of 3 years made up of a custodial term of 2 years' detention and an extended licence period of 12 months. The case has been referred to the Full Court by the Registrar. 136. The facts were these. At about midnight on 4th June 2005 a Mr Cade was walking home with three friends. He was pushing a bicycle. He was approached by Armitage who picked a fight with him and demanded his bicycle. He refused. Armitage took off his T-shirt, tensed his muscles and began to scream in a high pitched voice. He seized Mr Cade and the two grappled, with Armitage swinging punches. At that point Grave approached. He was carrying a beer bottle which he used to strike Cade on the forehead. The bottle broke on impact. Armitage then kicked Cade in the face. Cade retreated after feeling another blow on his back. When he was four or five metres away Grave threw the bottle at him. It was said, though this was in dispute, that Glave had picked up a metal bar and threatened one of Cade's companions with it. 137. In hospital Mr Cade received six stitches in a 2 centimetre laceration above his left eyebrow. 138. In passing sentence, the judge referred to the late pleas, Armitage having unexpectedly pleaded to attempted robbery and had pleading guilty to unlawful wounding and the day fixed for trial. The judge had seen the victim's residual scar which was nasty and visible that day. The judge rightly described this as an unpleasant incident giving rise to unnecessary and gratuitous violence in relation to a perfectly innocent young man minding his own business. It was worrying that Glave had refused to discuss the matter with the probation officer, although the court had been told he was remorseful. Although Armitage had previous convictions he was not, as the judge put it, "heavily convicted". One of those convictions however was for assault occasioning actual bodily harm and that involved a nasty punching and kicking assault on a man on the ground. 139. Having been sentenced to a referral order for that matter, the very next day he committed this offence. So custody was inevitable. He would receive some credit for his late plea. It was accepted that he was remorseful and had not served a custodial sentence before. 140. Glave, who was 16, had two previous convictions, one of which was for affray. He had breached an Action Plan Order in relation to that and a Supervision Order had been imposed instead which he had successfully completed. The judge said that, equally in his case, only a custodial sentence could be justified. He would receive some credit for his plea. Account was taken of his age, the fact that he had not served a custodial sentence before and his positive behaviour whilst on bail. 141. Referring to the new sentencing regime, the judge pointed out that they had both committed offences of violence before. He concluded that Armitage posed a significant risk of causing serious harm to members of the public. An extended sentence would however be sufficient to protect the public from that significant risk. The position in Glave's case was exactly the same. 142. Armitage was born on 11th December 1987 and Glave on 13th March 1989. They have the convictions and the absence from their records of custodial terms to which reference has already been made. 143. The pre-sentence report on Armitage described him as intelligent but somewhat angry and challenging. It referred to a disappointing start to his referral order but he had subsequently kept appointments with his allocated officer, albeit not always punctually. He was not a prolific offender and he was full of remorse. The pre-sentence report on Glave recommended an extended sentence on the basis that he would not discuss the offence and that was of concern. It was said that there might be some risk of him re-offending. 144. The grounds of appeal contend in relation to both appellants that an extended sentence was not warranted and that the custodial terms imposed were, in both cases, in any event excessive. 145. For Armitage, Mr Brooke submitted that the scar did not amount to serious harm and, in any event, there was no evidence that Armitage had caused it. What he characterised as "squabbling over a bicycle" did not support a conclusion of dangerousness nor did Armitage's previous conviction for assault occasioning actual bodily harm. Mr Brooke stressed Armitage's youth, the absence of any weapon when the offence was committed, the presence of remorse on his part, the appalling personal background outlined in the pre-sentence report, including him having, at the age 15, to look after his mother who had been badly affected by a series of strokes. Mr Brooke pointed out that the present experience of custody is Armitage's first and he submitted that it has had a profound affect upon him. 146. For Glave, Miss Eastwood stressed the significance of the passage of time in relation to a 16 year old. The fact that the scar was visible to the judge 2 months after the wound had been inflicted did not mean that it would necessarily be permanent. Still less did it give rise to serious injury. Because Glave had been committed to the Crown Court by the Youth Court, the pre-sentence report was prepared on the basis that an assessment of dangerousness had already been made by the Youth Court. The unwillingness of the appellant to discuss the offence, which we have indicated was relied on by the author of the report as an indication of dangerousness should, Miss Eastwood submitted, more properly be regarded as a sign of immaturity. She submitted that a detention and training order would have been much more appropriate. 147. Mr Winter, for the Crown, rightly points out that this case highlights one of the anomalies in the new regime. Robbery is a serious offence but it may not cause serious harm. Unlawful wounding, on the other hand, is not a serious offence but it may cause serious harm. It is also unclear, Mr Winter submitted, whether an extended period of licence begins to run on release from custody or at the beginning of the end of the ordinary period of licence. It is unnecessary for us to resolve this particular point today because of the view which we have formed that extended sentences were not here appropriate. 148. In our judgment, there was no basis for concluding that either of these two appellants is dangerous within the meaning of these provisions. Accordingly the appeals are allowed. The extended sentences are quashed. Taking into account the statutory limitations as to the length of detention and training orders, but also the need to reflect, so far as is possible, both the pleas of guilty and the differing levels of culpability of these two appellants, we pass, in relation to Armitage, a detention and training order for 2 years and in relation to Glave, a detention and training order for 18 months. Their appeals, in those respects, allowed. 149. Edwards : on 6th May 2005, at East Cornwall Magistrates' Court, this appellant pleaded guilty and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Court 2000. He was sentenced at Truro Crown Court on 9th June 2005, by Mr Recorder Sellick to 6 months' detention in a young offender institution suspended for 18 months. He was ordered to perform 200 hours of unpaid work in the community and a curfew order from 9.00 pm (or from midnight if in employment) until 7.00 am on the Fridays, Saturdays and Sundays was imposed for 6 months. He appeals against sentence by leave of the Single Judge who, in the light of such library facilities as were available to him, thought there might be no power to suspend a sentence of detention in a young offender institution under section 96 of the Powers of Criminal Court Act 2000 or to impose a suspended order under section 189 of the Criminal Justice Act 2003 , when sentence of imprisonment is less than 28 weeks. 150. However, section 189 of the 2003 Act, which came into force on 4th April relates to offences committed on or after that date, as is apparent from this judgment. That section empowers the court to suspend a sentence of imprisonment where a sentence of at least 28 weeks but not more than 51 weeks is imposed. But the Criminal Justice Act 2003 (Sentencing) (Transitory Provisions) Order 2005, Statutory Instrument 2005 No 643 modifies section 189 , so as to enable the Court to suspend custodial sentences of less than 28 weeks in the case of an offender who is at least 18 but under 21. The consequence is, as Mr Linford on behalf of this appellant recognised, that the appellant got leave to appeal on a ground which is simply not arguable. 151. The reason why this case has been included in this group of cases is because it illustrates, in a simple fashion, how wide the scope of the new regime can be. The offence of affray is a specified offence in schedule 15 of the Act. If the appellant had had a previous similar conviction, which in fact he did not, the possibility of dangerousness under the new regime would have had to been considered. 152. The sole submission advanced on behalf of this appellant is that the custodial threshold was not passed so far as this offender is concerned. He participated in an incident on 25th April 2005 with other co-accused. The incident, so far as this appellant is concerned, involved him felling the victim unconscious to the ground with a single punch. The victim had given no cause to be treated in that way. Stated in those terms, we have no doubt that, even in relation to a young offender of previous good character, the custody threshold was passed. Accordingly his appeal against sentence is dismissed. 153. It would be inappropriate to conclude these proceedings without expressing our sympathy with all those sentencers whose decisions have been the subject of appeal to this Court. The fact that, in many cases, the sentencers were unsuccessful in finding their way through the provisions of this Act, which we have already described as labyrinthine, is a criticism not of them but of those who produced these astonishingly complex provisions. Whether now or in the fullness of time the public will benefit from sentencing provisions of such complexity is not for us to say. But it does seem to us that there is much to be said for a sentencing system which is intelligible to the general public as well as decipherable, with difficulty by the judiciary.	```yaml citation: '[2005] EWCA Crim 2864' date: '2005-11-03' judges: - (LORD JUSTICE ROSE) - MR JUSTICE NELSON - MRS JUSTICE SWIFT ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical 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: 200401864/D1 Neutral Citation Number: [2004] EWCA Crim 1798 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday, 28th June 2004 B E F O R E: LORD JUSTICE KEENE MR JUSTICE MITTING SIR JOHN ALLIOTT - - - - - - - R E G I N A -v- OREN ATLAN - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS L JONES appeared on behalf of the APPELLANT MR R KEENE appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE KEENE: This is an appeal against conviction. On 3rd March 2004 in the Crown Court at Harrow before Miss Recorder Mensah, this appellant was convicted of common assault contrary to section 39 of the Criminal Justice Act 1988 . He was subsequently sentenced to two months' imprisonment. 2. Leave to appeal against conviction was granted by Crane J, who also referred the application for leave to appeal against sentence to the Full Court and granted bail. 3. There were four counts on the indictment: racially aggravated assault was count 1; then there were two counts of criminal damage; and a count of common assault, count 4, which was an alternative to count 1. The appellant was acquitted on counts 1, 2 and 3 by unanimous verdicts of the jury. 4. The facts of the fact are not complicated. At about midday on 12th June 2001 there was an altercation between a parking attendant in Wembley, Middlesex, and members of the public. The attendant, a parking warden, was assaulted. The issue was whether or not the appellant was one of his assailants. 5. The parking attendant gave evidence that he was about to issue a parking ticket when the appellant approached and told him to go away, calling him, amongst other things, "a black African". The attendant said that he ignored him, but the appellant seized his notebook and tore it up. He then seized the attendant, held him against a fence with one hand and punched him in the face with the other. About five other men then pulled the attendant away and kicked and punched him, but he managed to call for help on his radio. When his supervisor arrived, the men ran away. As a result of this assault his shirt was damaged. The damage to the notebook and the shirt formed the basis of counts 2 and 3 on the indictment. 6. The appellant denied assaulting the attendant, or damaging the notebook. He said that he had asked the traffic attendant why he was being given a ticket and the attendant was then abusive about Jews. There were three Jewish men nearby and one of those punched the attendant. His own shirt, said the appellant, was grabbed by the attendant, and in his struggles the attendant's shirt may have become damaged, but not deliberately by him. There was evidence before the court that the notebook had indeed been torn by somebody. 7. The jury retired at 1.07 p.m.. At 2.45 p.m. the court reconvened because there was a note from the jury. The note itself is not available to this Court, but according to defence counsel's note at the time, which the Crown accepts forms a reasonable representation of its contents, it stated as follows: "We are unanimous on all counts except count 4 on which we cannot reach a verdict. We would ask the judge for some assistance." 8. The learned Recorder discussed this note with counsel. She said in the absence of the jury: "I am not sure what further guidance I can give them. If they simply are undecided amongst themselves then they must go away and just try a bit harder with a bit of give and take because it is not yet time to give them a majority direction." Defence counsel agreed. It was then agreed that it was too early for a majority direction and that the jury could be told that. 9. The jury returned to court at 2.50 p.m.. After some introductory remarks, the Recorder said this: "I think the only assistance I can give you, if it's assistance at all, is to ask you to go away and try a bit harder. I'm afraid that the law doesn't allow me to take a majority verdict from you at this stage. All I can say is that whoever is your foreman or forewoman needs to perhaps direct the discussion so that you all have an opportunity of saying what you want to say, and there might have to be a bit of give and take in your deliberations and your thoughts. I am afraid I can give you no further guidance than that. I cannot accept a majority verdict from you at this stage. So could you go away and try a bit harder for a little bit longer." 10. The jury retired again at 2.51. At 3.40 p.m. they returned with not guilty verdicts on the first three counts and a guilty verdict on count 4, all those verdicts being unanimous. 11. The criticism made of the judge's directions to the jury focus on that reference to: "... there might have to be a bit of give and take in your deliberations and your thoughts." 12. Miss Jones, who appears for the appellant, submits in her written argument that the Recorder fell into error by giving a modified Watson direction: see Watson [1988] QB 690 and 87 Cr App R 1. It was, it is submitted, inappropriate to do so at this stage. Moreover, the direction did not follow the wording set out in Watson , and the end result is that it may have put pressure on the jury to reach a verdict on count 4 with which some of them did not truly agree. 13. For the Crown Mr Keene submits that no improper pressure was put on the jury, as one can see from the fact that they deliberated for some time after this direction had been given. That does not suggest that they felt under any particular pressure. The Recorder had been careful to adopt throughout an approach which encouraged the jury to express their individual views. It is, however, conceded by the Crown that the direction to which we have referred was a loose paraphrase of the Watson direction. Neither counsel has known of such a direction in any form being given at this stage in a trial. 14. This Court has said before on a number of occasions that there is rarely any need for the Watson direction to be given. The danger is always that jurors may feel under pressure to reach a verdict which is not a true verdict in the terms of their oath. It is right that the Recorder here did not give a full blown Watson direction, but simply made reference to the need for "give and take". But that, in our view, does not avoid the danger. 15. As was said in Watson by the then Lord Chief Justice, Lord Lane: "... a jury must be free to deliberate without any form of pressure being imposed upon them, whether by way of promise or of threat or otherwise. They must not be made to feel that it is incumbent upon them to express agreement with a view they do not truly hold simply because it might be inconvenient or tiresome or expensive for the prosecution, the defendant, the victim or the public in general if they do not do so." 16. In the present case two aspects of the judge's direction trouble this Court in particular. First, when a Watson direction is given the jury is told that there must necessarily be "give and take within the scope of your oath." Those last six words are extremely important. They remind jurors that, while they listen to others and while there may have to be give and take, there are limits as to how far they should go. They must remain true to their oath. That phrase was omitted in the present case by the Recorder when she spoke of give and take. The problem with that is that the direction in that form suggests compromise without any reminder of the need to remain true to the oath which they have taken. It was said in the case of Buono 95 Cr App R 338 by this Court that it is unwise for judges to add anything to the Watson wording. We would emphasise that it can be just as dangerous to omit part of it. 17. We are also concerned at the timing of the direction in the present case. Although the authorities indicate that a Watson direction can be given during the summing-up, or after a majority direction has been given, it is the experience of this Court that the latter is the more normal timing. But what is most unfortunate is to give some such direction after the jury has retired but before a majority direction can be given. That is what happened here. That timing is likely to add to the sense of pressure on jurors. We would say in clear terms that a Watson direction should not be given after the jurors' retirement, but before it becomes possible to give a majority verdict direction and such a direction has in fact been given. 18. Ultimately the test which we, of course, have to apply is whether this conviction is safe. It seems to us to be relevant that the jury appears to have been unanimous by the time of its note that the appellant should be acquitted on all three other charges which he faced. They were divided on count 4. Following this direction by the Recorder, they ultimately convicted on that charge. Moreover, they were unanimous in acquitting the appellant on charges on which, if the parking attendant were to be believed by them, the appellant was apparently guilty. The criminal damage to the notebook is an obvious example of that. Had it not been for this direction there might well not have been a conviction on the common assault charge. 19. In those circumstances, we can only conclude that the appellant's conviction is not safe. We order, therefore, that it be quashed. This appeal is allowed. 20. Mr Keene, is there any application? 21. MR KEENE: My Lord, there is no application. 22. LORD JUSTICE KEENE: Very well, thank you very much.	```yaml citation: '[2004] EWCA Crim 1798' date: '2004-06-28' judges: - LORD JUSTICE KEENE - MR JUSTICE MITTING - SIR JOHN ALLIOTT ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	Case No: 201006930/A2 Neutral Citation Number: [2011] EWCA Crim 1159 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 5th April 2011 B e f o r e: LORD JUSTICE LEVESON MR JUSTICE TUGENDHAT MR JUSTICE BLAIR - - - - - - - - - - - - R E G I N A v LEWIS GILDER - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - Mr A Wallace appeared on behalf of the Applicant - - - - - - - - - - - - J U D G M E N T MR JUSTICE BLAIR: 1. This is an appeal by Lewis Gilder, aged 27, who pleaded guilty at Coventry Crown Court to an offence of theft and an offence of handling stolen goods. He was sentenced by His Honour Judge Ross QC to a term of 15 months' imprisonment in relation to the theft, in respect of which he was also disqualified from driving for three years, and one month's imprisonment on the handling charge, which was consecutive. He appeals against sentence by leave of the single judge. The only issue relates to the three year disqualification from driving. 2. Nothing need be said about the handling charge, which involved a gold watch and which was unrelated to the theft charge. 3. The theft involved diesel fuel from a depot which was broken into. It was, as the learned judge said, a highly sophisticated and planned operation by professional criminals including the appellant. A group of them came to the depot in two trucks. The locks were changed and the men broke in, the appellant being a passenger in one of the trucks. They had plastic containers on the back of the trucks, which they filled up with diesel. On the first evening they went to the depot twice and on the second evening, three times. The total value of the amount stolen was £9,116. 4. The appellant has a poor record, including five previous convictions for theft and similar offences. The pre-sentence report recommended a suspended sentence. There is nothing in it which deals with disqualification. There was discussion in the prosecution opening about the truck, or presumably one of them, which had been used in the theft and seized subsequently by the police. The prosecution said it did not believe that it belonged to the appellant. 5. In his sentencing remarks the judge said: “I make a forfeiture order for the van that was seized by the police. I disqualify you from driving for three years”. He added a reference to the Powers of Criminal Courts (Sentencing) Act 2000 . 6. There are two relevant sections in that regard, namely sections 146 and 147 . In R v Sofekun [2009] 1 Cr App R (S) 78 , Sir Igor Judge, President, giving the judgment of this court, consisting of Leveson LJ and Penry-Davey J, held that section 146 of the Act provides a court with jurisdiction to order a defendant to be disqualified from holding or obtaining a driving licence for such period as it thinks fit instead of, or in addition to, dealing with him in any other way. The power is an additional punitive power available to the court whether or not the defendant is committed for a driving related offence. 7. Further, it was held that section 147 provides a specific power to order disqualification where, in relation to an applicable offence, the Crown Court is satisfied that a motor vehicle was used by the person convicted or by anyone else for the purpose of “committing or facilitating the commission of the offence in question”. Facilitating the commission of an offence includes the taking of any steps after its commission for the purpose of disposing of any property to which it relates or of avoiding apprehension or detection. The section applies, so far as relevant, where a person (a) is convicted before the Crown Court of an offence punishable on indictment with imprisonment for a term of two years or more, or (b) having been convicted by a Magistrates Court of such an offence is committed under section 3 to the Crown Court for sentence. Both sections were potentially applicable in the present case. In Sofekun the court made it clear that the decision whether to disqualify, and if so for how long, is fact-specific. 8. It is said on the appellant's behalf that the driving disqualification and the period of that disqualification were wholly wrong and not merited on the facts of the case. The essential point that has been advanced is that the appellant was not driving. So, it is submitted, disqualification would not be a punishment in relation to the offence in question, namely theft of the diesel. It is said that in Sofekun the car was essentially a delivery vehicle for drugs and so was integral to the offence. 9. Then it is said that disqualification for three years was too long; the point being made is that that is an equivalent period to that imposed compulsorily on a second conviction for drink driving. 10. In our view, the judge was fully entitled to impose a period of disqualification on the appellant since the trucks were evidently being used for the purposes of crime. Further, they were not in any way incidental to the crime, but an essential part of the crime because they were used to load up the stolen diesel oil and drive it away. It was not, in our view, a bar to disqualification that the appellant was a passenger, rather than a driver. However, there is, we consider, merit in the argument as to the length of disqualification imposed by the learned judge. We bear in mind the young age of the appellant and the fact that three years is a long period of disqualification for someone of such an age. We have decided therefore that the period of disqualification in this case should be 18 months, rather than three years. To that limited extent only this appeal is allowed.	```yaml citation: '[2011] EWCA Crim 1159' date: '2011-04-05' judges: - LORD JUSTICE LEVESON - MR JUSTICE TUGENDHAT - MR JUSTICE BLAIR ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical 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 1137 Case No: 201701486, 201702522, 201703184 C4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM INNER LONDON CROWN COURT HHJ Madge T20167162, T20167174 Royal Courts of Justice Strand, London, WC2A 2LL Date: 04/07/2019 Before: LORD JUSTICE IRWIN MR JUSTICE GOOSE and HIS HONOUR JUDGE POTTER - - - - - - - - - - - - - - - - - - - - - Between: (1) ASHRAF ABDULLAH (2) ALEXANDER PULULU Appellants - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Peter Corrigan (instructed by Lam and Meerabux Solicitors ) for the First Appellant The Second Appellant was unrepresented Nicola Shannon (instructed by The Crown Prosecution Service ) for the Respondent Hearing date: 28 June 2019 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Irwin: Introduction 1. On Friday 28 June 2019, we dismissed the appeal of Abdullah, and refused permission to appeal on further grounds as to his conviction. We refused leave to appeal against sentence to both Abdullah and Pululu. We now give our reasons. 2. This case arises from events taking place at the flat of a Mr Maloney on 6 October 2015. Two men, Ary Mohammed and Bahman Ahmadi went to the flat of Mr Maloney in Brighton intending to buy a cheap iPhone. When they got there, they were attacked by a group of men. They were tied up, belongings were taken and then, in order to get information from Mr Mohammed about the whereabouts of money, he was effectively tortured over the course of 5-6 hours using knives, a hot iron, an axe or hammer, and in other ways. In the course of this mistreatment a number of threats to kill were made. Eventually both men were taken out to Mr Maloney’s car, which was in the car park outside. Both men were put in the boot, tied or restrained, and the boot was closed. Mr Mohammed had suffered serious injuries. Mr Ahmadi managed to get the boot open and then raised the alarm. 3. From this incident arose a number of charges against a number of men. Both the Appellant Ashraf Abdullah and the Applicant Alexander Pululu were charged and in June and July 2016 were tried in front of HHJ Madge and a jury at the Inner London Crown Court. At the conclusion of that trial [the first trial] Mr Abdullah was convicted of robbery, count 3 on the indictment. The jury were unable to agree on other counts. Pululu was convicted on 26 July 2016 of false imprisonment (count 1), robbery (count 3), wounding with intent to do grievous bodily harm (count 5) and issuing threats to kill (count 7). 4. In late January and February 2017, Abdullah was tried again on the outstanding counts against him. On 16 February 2017, he was convicted of false imprisonment (count 1 on that indictment), wounding with intent to do grievous bodily harm (count 3) and issuing threats to kill (count 4). 5. On 5 May 2017, both men were sentenced by HHJ Madge, again at the Inner London Crown Court. Abdullah fell to be sentenced for robbery (first trial), false imprisonment, s.18 wounding and threats to kill (second trial). The judge passed concurrent determinate sentences of 14 years imprisonment in respect of the robbery, s.18 and false imprisonment offences and 6 years concurrent imprisonment in respect of the threat to kill. He concluded that Abdullah was a dangerous offender and therefore passed extension periods of five years in relation to the sentences for false imprisonment, robbery and s.18, making a total of 19 years imprisonment for those three counts, comprising the custodial term of 14 years and an extension period of 5 years. 6. In respect of Pululu, the judge passed sentences of 17 years custodial term with an extension period of 5 years, a total of 22 years, in respect of the false imprisonment, robbery and s.18 offences concurrent in each case. He also passed a concurrent sentence of 6 years in relation to the threats to kill, a total of 22 years imprisonment. 7. Abdullah applied for leave to appeal his conviction. The single judge refused leave on four grounds but gave leave on one, hence he is an appellant. Through his new counsel, he renews his application for leave in respect of two of the other grounds bearing on his conviction (grounds 3 and 5) and renews his application for leave to appeal his sentence after refusal by the single judge. 8. Pululu renews his application for an extension of time in which to apply for leave against his sentence after refusal by the same single judge. Pululu is unrepresented before this court. The facts in fuller summary 9. On 6 October 2015, the victim Mr Ahmadi spoke to the co-defendant Ben-Sellem in Brighton. Ben-Sellem sold Apple products cheaply and told Ahmadi that he had a phone for sale. Ahmadi’s friend arranged with Ben-Sellem to attend Maloney’s flat in Brighton later that day. When Mohammed and Ahmadi got to the flat Ben-Sellem let them in. Thereafter they were set upon by Abdullah, Pululu, Ben-Sellem, Maloney (the flat occupier) and another man called Tando. Mohammed and Ahmadi were tied up and robbed of their possessions and the cash they had on them. Their eyes were covered. Mohammed had a towel and a ligature put round his neck. Over the course of the next six hours, both men were the subject of violence, more serious violence in respect of Mohammed. Mohammed was tortured because the group in the flat suspected he had a large amount of money. He was beaten and had noxious liquid applied to his face; he was burnt with boiling water and with a hot iron; he had his arm slashed with a machete-type knife. He had boiling water poured over his feet and ankles and he had a sock stuffed into his mouth. Throughout the attack those present threatened to kill him. 10. During the incident Mohammed attempted to satisfy the attackers by saying he had money in his car, but giving a false location for where his car was parked. Two of the men went to check this out, but returned empty handed and the violence continued. After further violence Mohammed told the men that he had cash at his flat. Two of the men left and retrieved £3370 from the premises. 11. It was after that that both victims were placed in the boot of Mohammed’s car and the men left in another vehicle. The victims managed to get out of the boot and got members of the public to call the police, who attended speedily. They found Maloney in his flat, clearing up. There were bindings in the bin and extensive fresh blood stains and skin residue stuck to the iron, which was sitting on an ironing board. 12. Mohammed suffered serious injuries. He had a 2cm laceration to the head, bruising and facial injury to his right cheek, swelling and a displaced fracture to the right eye orbit, a loose tooth, burns to the right upper arm, to the right neck and to the right side of his abdomen and chest. He had a left elbow laceration 5cm down into the muscle. He had burns and lacerations to the feet, as well as bruising and more minor lacerations. He had to be an in-patient in hospital for seven days and has continuing effects from his injuries. Ahmadi’s injuries were minor. 13. Abdullah and Pululu were arrested in Pululu’s hire car, when it was stopped on 14 October 2015. Inside this car was found Mohammed’s satnav and keys for his address, but the satnav had been wiped of information about past movements. The Appellant’s case 14. Abdullah was interviewed on 15 October. He told the police that he worked at night as a train cleaner and that on 6 October he was at home. He stayed in his room and did not leave the house at all, being unwell. He knew nothing of the incident and did not know of the address where the attack had happened. Throughout his interviews and in evidence he maintained his innocence. He admitted to lying in his first police interview about his absence from work. He had told his employer that his young son had fractured his arm. This was a lie given because he did not wish to say that he was unwell again after previous absences. He also admitted in evidence that he had lied about his movements on 6 October. He had in fact left his house to buy some drugs, but had not wanted to say so because it would incriminate him and put his job at risk. Abdullah: the grounds of appeal 15. As we have said, Abdullah originally sought to advance five grounds of appeal, although he has leave in respect only of one. He now seeks to advance three. We take them in turn. We begin with the ground in respect of which the single judge gave leave, Ground 4. 16. Bad character . The Appellant has previous convictions for the supply of heroin and cocaine. In the course of the second trial, Abdullah’s counsel put to the victim Ahmadi that not only was he (Ahmadi) a drug user, which was accepted, but further that he (Ahmadi) had made a deliberate attempt to pervert the course of justice and was part of a joint enterprise to commit offences of violence and dishonesty. At the time of the trial, Ahmadi was serving a prison sentence in France for an offence of making a threat to a person in public office. Further, Abdullah gave evidence suggestive of his own current good character. As a result of this approach to the case, Abdullah’s previous convictions for supplying drugs were admitted before the jury, at the application both of the prosecution and of the co-defendant Maloney, hence through the Gateways laid down in s.101(1)(f) and (g), and s.101(1)(e). 17. At the second trial, the prosecution sought leave to adduce before the jury the convictions of Ben-Sellem, Tando and Pululu from the first trial, alongside the Appellant’s conviction for robbery in the first trial. Those applications were supported by Maloney whose defence was duress at the hands of the others. The prosecution argued that these convictions were evidence that the events took place, as well as supporting evidence of participation, association and links with the other defendants. The Crown also argued that without knowing of Abdullah’s robbery conviction, the jury would be mystified as to why he was not facing a robbery count with the others. Abdullah opposed the admission of his conviction from the first trial. He argued that this conviction would have a disproportionate and prejudicial effect. 18. The judge ruled the convictions admissible. He ruled that the second trial would make no sense to the jury unless there was an explanation as to why the other named individuals were not present and why the Appellant was not facing a robbery charge. It was still open to Abdullah to argue the conviction was wrong and he was not guilty of robbery. The jury would be directed that the convictions were not evidence that the Appellant committed the outstanding offences. Ground 4 19. The ground upon which leave was granted is not directed to the admission of this bad character evidence but concerns the summing up following admission of these convictions. The Appellant complains that the judge should have tailored his direction to the actual facts of the case and in failing to do so he erred in law. It is said it was essential for the jury to understand the purpose for which the convictions had been admitted. It was no part of the prosecution case, submits the Appellant, that the Appellant had a propensity to commit offences of this kind, or to be untruthful. 20. Mr Corrigan, who appears before us for the Appellant Abdullah, did not appear below at either trial. Trial counsel in the second trial, Mr Rashid, prepared the advice and perfected grounds that were before the single judge. That is a regrettably long and diffuse document. 21. The passages from the summing-up addressing the previous convictions read as follows. The first extract is directed to Abdullah’s robbery conviction: “Ashraf Abdullah has already been found guilty of robbing Ari Mohammed. He denies his guilt. He says that the jury which convicted him in the earlier trial were wrong. That conviction for robbery in the earlier trial means that as a matter of law he is to be taken to have committed that offence of robbery unless the contrary is proved. In other words, you can work on the basis that Ashraf Abdullah took some part in robbing Ari Mohammed unless he has satisfied you that it is more likely than not that the earlier jury was wrong to convict him of the robbery. However, guilt in respect of the robbery by itself is no indication of his guilt in relation to the other offences. As you know, in this case Ashraf Abdullah and Martin Maloney both deny involvement in these offences. Ashraf Abdullah says that he was not present, that he had never been to Barclay House, and he says that he took no part in the attack upon Ari Mohammed.” “Bad character. You have heard about the character of Ashraf Abdullah and Martin Maloney. Ashraf Abdullah has convictions for supplying heroin and cocaine and separately possession of heroin and crack cocaine with intent to supply.... In the old days, juries were sometimes not told about defendants' previous convictions or other bad character. That was because of the fear that such information would prejudice the jury against the defendant and that they would give it more weight than it deserved. Today such evidence is often admitted because juries understandably want to know whether what the defendant is alleged to have done is out of character or whether he has behaved in a similar way before. Of course a defendant's bad character is only background. It does not tell you whether he has committed the offences with which he is charged in this case. What really matters is the evidence that you have heard in relation to the offences which the defendants are charged with now. So, be careful not to be unfairly prejudiced against the defendants by what you have heard about their previous convictions or character. The prosecution say that their bad character shows their propensity or tendency to commit offences of the kind alleged and to be dishonest; in other words, they are less likely to tell the truth in this courtroom. The defence deny that. They say none of the offences previously committed by either defendant is of a similar nature or approaches the gravity of the offences you are considering, and members of the jury, we've been told that the defendants pleaded guilty to the previous offences. It is for you, members of the jury, to decide the relevance, if any, of their bad character. If you think it right, you may take it into account when deciding whether or not they have committed the offences or whether or not their evidence to you was truthful. However, it does not inevitably follow that a person with bad character has committed the offences with which they are charged or are incapable of telling the truth. You must decide to what extent, if at all, their character helps you when you are considering whether or not they are guilty and whether or not they are telling the truth. But bear in mind that their bad character cannot by itself prove that they are guilty. It would be wrong to jump to the conclusion that they are guilty just because of their bad character.” 22. The written submissions prepared by previous counsel submitted that the direction was wrong in fact and law. These convictions had not been admitted on the basis of an application of demonstrating propensity or as establishing untruthfulness. 23. Mr Corrigan’s submissions to us can be summarised as follows. There was a need for a carefully crafted direction on how the jury should approach the robbery conviction. The jury had to decide the factual issue: was Abdullah in the flat? They needed a crafted direction to explain to them he could be guilty of robbery, through joint venture, without being in the flat, and thus not a participant in the false imprisonment or the torture. They also needed guidance in that the robbery conviction was not adduced to show propensity to commit the other offences charged. 24. The Crown’s response on ground 4 is that the bad character evidence was properly admitted and that it is well-established that, once admitted, it may be used for all relevant purposes, subject to the safeguard of a proper bad character direction. It is agreed that the bad character evidence of Mr Abdullah was admitted at the request both of the Crown and of the co-defendant Maloney. In the course of the trial, Abdullah’s defence attacked the witness Ahmadi as we have indicated. Mr Abdullah gave evidence of his own positive character and introduced elements which the Crown say gave a misleading and false impression. 25. In the course of his evidence as summed-up by the learned judge, the Appellant had said the following: “After his last conviction he said that he was not involved in drugs. He wanted to be a role model for his two children and show his family that he could be a better man. His probation officer had given him advice, and he told us that the probation officer had said that selling drugs was not the life for him. He told us that he had taken that advice. He told us that he had changed. He got himself a job working doing night shifts for Southern Railways and had been working for three years as a train cleaner. He said that he liked the job and hoped that he could move up the ladder to become a driver.” 26. The Appellant Abdullah’s defence was of course that he had nothing to do with these offences, had never seen Mohammed and did not know where the relevant flat was. He had never been there. He had never seen Maloney until he was in prison on remand. Thus, his defence was not: “I was guilty of the robbery but not guilty of the other offences”. Rather the opposite. His defence was he was not part of any of the offending. He adduced no other evidence to show the robbery conviction was wrong. 27. The Crown rely on a number of features of the case following upon that evidence. The evidence had given a misleading and false impression. He had admitted lying in relation to his absence from work that day. Maloney was running a defence of duress by his co-defendants which, if the jury accepted the prosecution case, included Abdullah. Hence, the Crown say Abdullah’s previous convictions were potentially relevant to a number of issues in the case, and not merely justified but rendered necessary a full bad character direction, irrespective of the specific basis upon which the convictions had been admitted in evidence in the first place. Ms Shannon fairly makes the point that whilst the judge in his ruling admitting the robbery conviction implied there would be a crafted direction on the implications, by the time of the summing up, the nuanced arguments had been overtaken by the defence offered by Abdullah. The issue was straightforward: the robbery conviction was wrong, and he had no part in any of this. Our conclusions on ground 4 28. We consider this ground is without merit, essentially for the reasons given by the Crown. It is a long-established principle that previous bad character once admitted can be relied on as evidence in support of any inference or conclusion which may properly be drawn from it: see Highton [2005] 1 WLR 3472 , and subsequent authorities helpfully digested in the current edition of Blackstone Criminal Practice at paragraphs F13.24 and 25. In our judgment this case, particularly given the way it developed, is a classic example of why that must be so. If the judge had confined his direction to letting the jury know that the robbery conviction was relevant only, for example, to counter Abdullah’s claim that he was a reformed man, that would have been highly artificial. If he had given an elaborate direction that the robbery conviction could mean involvement other than by presence in the flat that would have been confusing. Without a direction, there was a risk that the jury would conclude Abdullah was guilty as a simple consequence of his robbery conviction; they needed a proper direction to cover such possibilities. Indeed, in the absence of a broad bad character direction there might be a legitimate complaint that a jury had gone too far in applying the robbery conviction, or indeed Abdullah’s other bad character, without the necessary direction as to how to proceed. We accept this direction could have been more precise, but it was sufficient and cannot render the convictions unsafe. Grounds of appeal the subject of renewed application for leave 29. As we have indicated, Mr Corrigan has abandoned Grounds 1 and 5. Ground 2 30. This ground concerns the admission of Abdullah’s previous convictions in the second trial (as opposed to the direction given to the jury in respect of them). Once again, the written grounds of appeal are diffuse and somewhat unclear. The submission of previous counsel appears to be that the admission of the robbery conviction reversed the burden of proof, or indeed was so prejudicial to Abdullah that it dominated the proceedings and prevented a fair trial. 31. Although formally standing over this ground, Mr Corrigan’s submissions did not in practice expand on the written submissions of his predecessor. 32. In their response the Crown note that the trial judge considered the admissibility of the robbery conviction in accordance with s.74 of the Police and Criminal Evidence Act 1984 [“PACE”] and relevant authorities. He gave a reasoned ruling, which the Crown submits was correct in law and in the application of the facts. The Crown emphasise that this application was supported by counsel for Maloney, in support of his defence of duress. The learned judge thus had to consider the overall fairness of the trial in respect of Maloney as well as the issue between the Crown and Abdullah. The Crown also emphasised the fact that the judge permitted an amendment to the indictment so as to add the phrase “and others” in respect of each allegation, making it clear that the Crown’s case was there may have been others involved not identified to the second jury, demonstrating it was not the Crown’s case that the robbery conviction meant it was only Abdullah who had participated in the matters charged. Part of the purpose in doing so was to ensure that the issues of identification and participation by Abdullah were left open for decision by the jury and did not represent a foregone conclusion. 33. In his ruling, the single judge observed: “The judge made no arguable error in admitting the convictions for the reasons he gave in his ruling and those set out in the Respondent’s Notice.” 34. We agree. Particularly in the face of the application by Maloney it was inevitable that Abdullah’s robbery conviction should be before the jury. Leave is refused in respect of this ground also. Ground 3 35. This ground of appeal is addressed to the direction on identification evidence which is said to have been wrong in law, inadequate, unfair and not reflective of the evidence. Mohammed gave descriptions of those involved in the offences. He said that three black men and two white men were involved and the prosecution case was that the man described by Mohammed as “the third black man” was in fact Abdullah. Mohammed attended identification procedures, including one involving Abdullah but Mohammed did not pick him out. Ahmadi attended identification procedures, including one involving Abdullah. The jury saw the visual record of that twice. Ahmadi knew that one suspect only was on the procedure but he in fact picked out two men. In cross-examination, Ahmadi accepted he had identified two people and also accepted that he had been told he should choose only one person. Ahmadi said the two he picked out looked like each other. 36. In directing the jury, the judge stated that “the case against Ashraf Abdullah depends to some extent on the correctness of the identification of him by Bahman Ahmadi”. The judge gave a full and conventional direction about the care that must be taken in relation to identification evidence, including a direction as to the time and circumstances in which Ahmadi could have observed Abdullah. The judge directed the jury to consider whether there was other evidence which supported the identification: evidence of association, telephone evidence, and Abdullah’s conviction for the robbery. The Judge also directed the jury as to the factors which may have made identification more difficult enumerating a number of specific matters, including the “double identification”, or as the judge put it the identification of “a stooge” who it was agreed was not present at the offending. 37. In addition to the identification by Ahmadi, Mohammed identified Abdullah in the dock. As the judge reminded the jury during his summing-up, he had immediately warned them to place “little or no reliance on that purported identification. There is an obvious danger that a defendant occupying the dock might automatically be assumed by even a well-intentioned witness to be the person who committed the crime”. He concluded by directing the jury that the reference to Abdullah in that way carried “little if any probative value”. 38. In the formulated grounds of appeal the submission is that the judge failed to put the defence case adequately, or at all, in respect of this issue; that Ahmadi was “complicit” in the incident, and had given a number of inconsistent statements in relation to the episode; that the conduct of the identification procedure by Ahmadi was defective and that the direction “was designed to underplay the true weaknesses of the identification of [Abdullah] by [Ahmadi] and to exaggerate its reliability by the use of the previous convictions in an impermissible way”. This submission represents not merely a criticism of the summing-up but in fact an allegation of deliberate injustice by the judge. It is wholly unfounded. 39. Mr Corrigan makes no such assertion. His simple argument is that instead of telling the jury to place “little or no reliance” on the dock identification, the jury should have been told to disregard it entirely. 40. Ms Shannon responds by submitting that Ahmadi’s credibility and reliability were not crucial to Abdullah’s conviction. There was sufficient evidence, the Crown say, from Mohammed alone, for a jury properly directed to convict on all counts. The identification procedure by Ahmadi was recorded and presented as a “negative” and was never advanced by the Crown as other than a partial or qualified identification. The issue was fully explored in cross-examination as was the allegation of complicity and dishonesty by Ahmadi. The jury were well able to consider whether his imperfect identification represented meaningful evidence or not. Moreover, the direction by the learned judge was careful, explored the difficulty fully and warned the jury appropriately, both as to the Ahmadi identification procedure and as to the difficulties attendant on a dock identification. The dock identification had to be seen in context. It was the response of the witness at the end of a long and “aggressive” crossexamination. It was not a pre-planned implication of Abdullah but a spontaneous and exasperated reaction. 41. In refusing leave the single judge expressed the matter simply: “As to the Ahmadi video identification evidence, it was correctly admitted as potentially probative and its weaknesses were properly identified in the Turnbull direction. As to the dock identification, the direction given was sufficient.” 42. Once again, we agree with the conclusions of the single judge. Dealing with the dock identification, the judge’s immediate direction to the jury and his final direction in the course of his summing up were impeccable. As to the Ahmadi identification, it was properly admitted, a point which does not seem to have been contested by Abdullah. The carefully crafted direction given by the judge was, in our view, entirely appropriate in guiding the jury with proper care and caution to assess this evidence. Here too we reject leave to appeal. 43. For these reasons the appeal on ground 4 is dismissed and the renewed applications for permission to appeal on the other grounds are also rejected. Abdullah’s convictions stand. Sentence – Abdullah 44. In sentencing, the judge, who had of course conducted both trials and was fully familiar with all the facts, began his consideration of the roles played by each by emphasising that the convictions were on the basis of joint enterprise. All the defendants were culpable and responsible for the harm caused. As we have noted, this extended episode can properly be described not merely as false imprisonment and the infliction of serious injury accompanied by threats to kill, but can properly be termed torture, in respect of Mohammed. The judge was satisfied that Pululu, Tando and Ben-Sellem all played a leading role in the planning and commission of these offences. He accepted that there was no evidence Abdullah played any role in the planning of the offence before his arrival at the premises. The judge also accepted that it was Pululu who used the heated iron on Mohammed, who hit him on the head with the hammer or axe and who Sellotaped his mouth and head. It was Tando who caused the serious injury to Mohammed’s arm with the sword and who held him down whilst he was burned. Ben-Sellem was the first to punch Mohammed in the face and was involved in tying him up. It was Ben-Sellem who sprayed Mohammed’s face with the noxious liquid, in addition to punching and kicking him. Ben-Sellem cut Mohammed three times on the face with a knife and it was he who applied a wet towel to Mohammed’s face. 45. The judge noted that “the third black guy” who “in view of the jury’s verdicts was clearly Abdullah” had a large knife and who hit Mohammed in the back and in the chest and kicked him in the head and chest. The judge noted that Abdullah “did not personally employ the extreme violence used by Pululu, Tando or Ben-Sellem but as part of the joint enterprise, provided additional muscle which enabled them to carry out the most brutal aspects of the attack”. It was for those reasons that the judge distinguished Abdullah’s role while still “extremely serious was less than that of Pululu, Tando or Ben-Sellem”. 46. The judge noted that Pululu, at 33, had 23 convictions for 32 offences, although none approached the seriousness of this offending. Tando, aged 28, had 22 convictions for 30 offences, including assault, robbery and burglary as well as involvement with class A drugs. Ben-Sellem also had a number of previous convictions, which were in some measure more minor but did include two convictions for threatening witnesses in order to obstruct or pervert justice. 47. The judge noted that Abdullah had four convictions for nine offences, all of which were drug-related. 48. The judge also considered the background of Maloney. 49. The judge had adjourned sentence so as to obtain reports as to the potential dangerousness of all these offenders. The report relating to Abdullah recorded that he continued to deny any involvement in the offending. Whilst the report acknowledged that the victim Mohammed “would have suffered significant emotional and physical harm” it went on to observe that it was unclear whether Mohammed remained affected. The judge disagreed, having seen more material as to the effect on the victim. The pre-sentence report confirmed that Abdullah did not understand the impact of his criminal behaviour. The probation officer concluded there was a medium risk of re-offending but a high risk of harm to members of the public, suggesting that Abdullah had a propensity towards the use of violence. Nevertheless, the author of the report concluded that the dangerousness threshold had not been passed. 50. The judge noted the mitigation advanced on behalf of Abdullah, including the submission that he was the only one of all the defendants who had no previous conviction for a specified offence, or for offences of violence. 51. The judge made specific reference to relevant Sentencing Council Guidelines. He observed that these offences “do not fit precisely within any guidelines. No guideline considers the combined effect of false imprisonment, robbery, s.18 and the making of threats to kill. However, the most helpful guideline is in my judgment the robbery guideline”. The judge went on to consider the relevant factors under the robbery guideline, in particular the extreme violence and the degree of harm caused. The judge then concluded that the appropriate determinate sentence in relation to Abdullah was 14 years imprisonment in total in respect of all the offences, save the threats to kill. 52. He also separately considered the question of dangerousness. For reasons which he set down, he did not accept the conclusion of the pre-sentence report. He noted that the author of the pre-sentence report cannot have seen the victim personal statements of Mohammed which set out the long-term effects of the offending, including a continuing need for psychiatric support and continuing physical consequences, particularly to the eye. In the light of the facts of the offending, Abdullah’s previous convictions, the content of the pre-sentence report, Abdullah’s total lack of remorse, and even considering all that has been said in mitigation, the judge concluded that Abdullah was dangerous, and hence passed the extension of five years. 53. We have not the slightest hesitation in saying that the judge’s conclusions on this issue were not merely defensible but correct. They were correct for the reasons he gave. He was very well positioned to make the relevant judgment, having seen Abdullah over two extended trials. There is absolutely no prospect of successful appeal and permission to appeal the sentence is rejected. Renewed Application to appeal sentence: Pululu 54. The facts of the offending are by now clear, as is the role played by Pululu in the offending. He was directly responsible for planning this episode and for carrying out some of the most brutal actions. In rejecting his application for permission to appeal, the single judge said: “The offences were … extraordinarily brutal, including sustained torture over a period of six hours and causing not only serious physical injury but also lasting psychological trauma. You were identified as one of the leaders, responsible for the planning and for hitting the victim on the head with the hammer or axe, Sellotaping his mouth, and using the heated iron to torture him. It is not arguable that a determinate term of 17 years was wrong in principle or manifestly excessive.” 55. We agree. The application for permission to appeal is refused.	```yaml citation: '[2019] EWCA Crim 1137' date: '2019-07-04' judges: - HHJ Madge - LORD JUSTICE IRWIN - MR JUSTICE GOOSE - HIS HONOUR JUDGE POTTER ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	Case No: 2000/02934/X3 Neutral Citation No: [2003] EWCA Crim 680 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM: THE HON. MR. JUSTICE JOWITT AND JURY IN THE CROWN COURT AT SHEFFIELD Royal Courts of Justice Strand, London, WC2A 2LL Date: 19 th March 2003 Before : LORD JUSTICE AULD MR. JUSTICE GRAY and MR. JUSTICE CRANE - - - - - - - - - - - - - - - - - - - - - Between : REGINA The Crown - and - THOMAS SHANKS Defence - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr T F H Cassel QC and Mr C Mendoza for the Defence Mr R Smith QC and Mr S M D Jackson for the Crown Hearing dates : Friday 7 th February 2003 - - - - - - - - - - - - - - - - - - - - - JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS) Lord Justice Auld : 1. On 19 th April 2000, following a second trial before Jowitt J. and a jury in the Crown Court at Sheffield, the appellant was convicted of murder and sentenced to life imprisonment. 2. In an earlier trial before Holland J. and a jury on the same charge and on a charge arising out of the same facts of possessing a firearm with intent to endanger life, the jury could not agree on the charge of murder, but found him guilty of the firearm charge. The appellant had pleaded guilty to a third charge in the indictment of possessing a prohibited weapon, again arising out of the same facts. Jowitt J. sentenced him to 12 and 9 years imprisonment for those offences respectively, the sentences to be served concurrently. 3. The appellant, with the leave of the Full Court, appeals against the conviction of murder on two grounds, the Full Court having refused him leave to appeal on many other grounds on which he had sought to rely. 4. The brief facts giving rise to the prosecution for murder were as follows. 5. The appellant was a practising doctor and former soldier. He had had a relationship with a nurse, Victoria Fletcher, with whom he had worked in a hospital. There came a time when their relationship broke down, causing the appellant much distress. Shortly afterwards, on the evening of 7 th May 1998, the appellant cleaned and assembled a Kalashnikov AK 47 assault rifle at his home, a weapon that he had had for many years. He fed 21 rounds of ammunition into its magazine and attached the magazine to the rifle. He then put the rifle, along with an axe, a sheath knife and a baseball bat, into the boot of his car and drove to a public house to look for Miss Fletcher. She was not there. Having asked there as to her whereabouts, he drove to another public house where he found her with a new boyfriend. After a heated exchange he pushed her out into the street, and there followed a scuffle between the appellant and the boyfriend. 6. Miss Fletcher, her boyfriend and others with them moved off to the public house where the appellant had first sought her that evening. He followed them there. While he was outside Miss Fletcher went out to talk to him by his car. There was a further exchange of words and she then turned and began to walk away from him. As she did so, the appellant took the rifle from the boot of his car and fired a burst of several rounds at her, which felled her. She got up and attempted to stagger away from him. He moved forward behind her and fired another burst at her, which brought her to the ground again. He hit her in all with ten bullets, causing wounds from which she died shortly afterwards. He then drove off, taking the rifle with him. Later that evening he telephoned his former wife and told her that he had shot Miss Fletcher. At some stage he made a note in a notebook, subsequently recovered by the police, that he had shot her in “[a] moment of rage”. He also told a doctor, in response to the doctor’s comment that he had been lucky not to have hit others, that he had aimed at the middle of the target. 7. At both trials the prosecution case was that the appellant shot Miss Fletcher as she tried to flee – more particularly, that after felling her with the first burst of fire, he shot her again after she had got up and continued to move away from him. The appellant did not dispute that he shot her. His main defence at trial was that he was guilty of manslaughter, not murder, because, at the time of the killing, he had been suffering from diminished responsibility. He also advanced two other defences, neither of them in the circumstances with much force or much chance of success. They were that he had not intended to kill her or endanger her life, or even to hurt her, alternatively that if he had had any of those intents, he was guilty of manslaughter, not murder, by reason of her provocation. As to the rifle, he had admitted in the course of his examination in chief at the first trial, and again at the second trial, that he had brought it back from the Gulf many years before and had kept it with the intention of killing anyone who did him harm in the way that he had suffered in a serious stabbing attack on him in 1981. 8. The issue of diminished responsibility took up most of the trial before Jowitt J. and was the subject of a great deal of evidence. The defence case was that the appellant, at the time he killed Miss Fletcher, was suffering from an abnormality of mind contributed to by clinical depression and post-traumatic stress disorder arising from military service and exposure to neurotoxins in the Gulf War. Thus, the prime issues for the jury were the appellant’s mental state and, to a less extent, his intent at the time of the killing. 9. The only two issues for determination in this appeal arise out of directions of Jowitt J. to the jury about the appellant’s conviction in the earlier trial of possessing the rifle with intent to endanger life. The Judge had canvassed with counsel at the start of the trial whether the jury should be informed of the conviction. He took the view that, as that charge had laid the offence on the same day as of the alleged murder, it was relevant to the issue of the appellant’s intent on the latter charge and that the jury should be told about it. He added that, given the first jury’s verdict, though the appellant could not maintain that he did not have the rifle in his possession at some time on that day with intent to endanger life, it would be open to him to maintain that he had no such intent at the time he killed Miss Fletcher. 10. In the Judge’s discussion with counsel and in his ruling on this point, neither he nor they mentioned section 74 (3) of PACE, which enables previous convictions to be put in evidence in proof of guilt, nor section 78 of PACE as to the fairness of the evidence. However, it is likely that this experienced Judge had both in mind. At all events, Sir Timothy Cassel, QC, who appeared for the appellant at both trials and on this appeal, did not resist his ruling. Pursuant to it, Mr. Robert Smith, QC, counsel for the prosecution at both trials, who appears for the Crown on this appeal, informed the jury of the conviction in his opening address. Thereafter, little or no reference was made to it in the trial until the Judge mentioned it in his summing-up. 11. In his summing-up the Judge gave the jury the following directions: “Dr. Shanks was convicted in the first trial of having that gun in his possession, on the day of the killing, with the intention at some stage during the day of endangering life ; that is to say with the intention of putting someone other than himself at risk of death. Dr. Shanks denies that he ever had that intention on that day, and certainly [that] he had no intention to kill, endanger, or hurt, Vicky. “The Jury’s verdict – that is the first Jury’s verdict – does not of itself tell you whose life Dr. Shanks intended to endanger, or whether it was the life of one particular person . However, despite his denial, it is not open to him before you to challenge that verdict of the jury in the first trial. It is binding upon him, members of the jury, and it is binding upon you. Now, whether or not it assists you on the question of Dr. Shanks’ intent is for you to say, but it is part of the material that you are entitled to consider in deciding whether you are sure that when Dr. Shanks fired his gun he intended, either to kill her, or cause her serious bodily harm May I make this clear, though, in view of something that Mr. Cassel said to you this morning. The conviction was not on the basis that Dr. Shanks brought the gun back intending to use it to kill anyone who attacked him. He was convicted, as I have said, of possessing the gun with intent on the 7 th of May of endangering life .” [the Court’s emphases] 12. Sir Timothy has submitted that those directions were defective in two respects: first, that they amounted to a misdirection of the effect of the conviction at the first trial of possessing the rifle with intent to endanger life; and second, that they wrongly indicated that that conviction bound this jury. Ground 1 – suggested misdirection as to the effect of the firearm conviction on the appellant’s credibility 13. As to the first of those complaints, Sir Timothy submitted that the Judge should not have mentioned the firearms conviction to the jury. He maintained that it had no relevance to the issues of diminished responsibility or of provocation and was only marginally relevant, if at all, to the issue of intent, the weakest of the three defences as he acknowledged. And, he said, such relevance as it had on that issue was of so little probative effect that the Judge should have excluded it in the proper exercise of his discretion under section 74(3) and/or as unfair under section 78. 14. However, as Sir Timothy developed his argument, it became plain that his real concern was not about the effect of the admission of the first jury’s conviction into evidence, which he had not resisted when the Judge first raised the matter at the beginning of the trial, and which is not the subject of appeal. Nor was it about the effect of the Judge’s direction on the issue of intent, on which, as we have noted, Sir Timothy acknowledged that the defence had been weak. His complaint was that the Judge’s direction had had an unfairly prejudicial effect on the appellant’s credibility on the issue of diminished responsibility and, to a lesser extent on that of provocation. He said that the Judge wrongly told the jury that that the earlier conviction had not been on the basis that the appellant had brought the gun back from the Gulf intending to use it to kill anyone who attacked him. Sir Timothy suggested that the firearm conviction at the first trial had indeed been on that basis. 15. In so submitting, Sir Timothy relied on the fact that Holland J. had directed the first jury that, in view of the appellant’s account in that trial of why he had brought the rifle back from the Gulf and had retained it, the appellant had effectively admitted guilt of the firearm offence. As a result, Sir Timothy submitted that the only possible effect of Jowitt J’s direction that the first conviction had not been on the basis of such an admission of a continuing intent to endanger life in the event of a further similar attack was to undermine the appellant’s credibility as to his mental state on the defences of diminished responsibility and provocation. 16. We deal first with Sir Timothy’s “scene-setting” complaints as to the Judge’s admission into evidence of the previous conviction and as to his mention of it in his summing-up to the jury. Section 74(3) provides, so far as material: “(3) In any proceedings where evidence is admissible of the fact that the accused has committed an offence, in so far as that evidence is relevant to any matter in issue in the proceedings for a reason other than a tendency to show in the accused a disposition to commit the kind of offence with which he is charged, if the accused is proved to have been convicted of the offence … he shall be taken to have committed that offence unless the contrary is proved. 17. For obvious reasons, section 74(3) is not so familiar a provision as section 78. But when the prosecution resorts to it, and/or a judge considers whether such evidence should be put before a jury, he should consider under section 78 the fairness to the defence of admitting it into evidence. Section 74(3) is one of a pair of provisions in the section providing for the admissibility in similar circumstances of a previous conviction. Section 74(1) and (2) provide for the admissibility of evidence of a conviction of a person other than the accused where it is relevant to an issue in the proceedings, and provides that, if such evidence is admitted, that person shall be taken to have committed the offence unless the contrary is proved. Section 74(3) provides in similar terms for the admission of evidence of an accused’s previous conviction. 18. Most of the jurisprudence on section 74 concerns the admission into evidence of convictions of persons other than the accused under section 74(1) and (2), which was a legal innovation intended to provide in the main for charges of conspiracy and other jointly committed offences where not all the conspirators or alleged accomplices, whether charged as such or otherwise, were before the same jury. Section 74(3), on the other hand, was not, as a concept, such a newcomer to our system. The common law and individual statutes had already made provision for it, the former, for example in rules enabling the admission of proof of previous convictions where relevant to an issue in the trial under the similar fact evidence rule in Makin v. Att-Gen of New South Wales [1894] AC 57 , PC and Thompson v.R [1918] AC 221 , HL. And it is to section 74(3), rather than to section 74(1) and (2), to which the saving provisions in section 74(4) for pre-existing law are mainly directed. Section 74 provides: (4) Nothing in this section shall prejudice – (a) the admissibility in evidence of any conviction which would be admissible apart from this section; or (b) the operation of any enactment whereby a conviction or a finding of fact in any proceedings is for the purposes of any other proceedings made conclusive evidence of any fact ” 19. As Potter LJ observed, giving the judgment of the Court in R v. Harris (19 th April 2000 - unreported), at para. 21, the purpose of section 74(3) was “not to define or enlarge the circumstances in which evidence is admissible of the fact that an accused has committed an offence, but simply to assist in the mode of proof of that fact (which it does in section 75): “21. … This is made doubly clear by the words which make clear that the conviction may not be adduced simply for the purposes of proving or inferring disposition. We also consider that the requirement that the evidence should be relevant ‘to any matter in issue’ is one which falls to be read not as confined to an issue which is an essential ingredient of the offence charged, but as extending to less fundamental evidential issues arising in the course of the proceedings: cf. the decision of this court in R v. Robertson (1987) 85 Cr App R 304 in relation to the words ‘any issue in those proceedings’ as contained in s. 74(1) of PACE. ” 20. Sir Timothy submitted: first, that section 74 as a whole was a provision that should be sparingly used, as this Court said in relation to section 74(1) and (2) in R v. Roberston & Golder (1987) 85 Cr App R 304 , CA, at 312; second, that a judge, before admitting such evidence, should make a properly informed consideration of the purpose for which it is to be put before the jury; and third, that there should be a careful direction to the jury as to that purpose and its limitations, citing R v. Kempster (1990) 90 Cr App R 14 , CA, at 22; and R v. Hillier & Farrer (1993) 97 Cr App R 349 , CA, at 355-6 . 21. All of those strictures in the authorities cited by Sir Timothy clearly govern the admission into evidence of a previous conviction of someone other than the accused under section 74(1) and (2), and the second and third are logically equally applicable to the admission into evidence of an accused’s previous conviction under section 74(3). Given the pre-existing law as to the latter, there may be some scope for debate as to the applicability of the first, that it should only be sparingly used. But the scope for differentiation between the two provisions in that respect must be so narrow as to be insignificant and - since the ultimate gatekeepers are the rules as to the admissibility of similar fact evidence in R v. Clarke [1995] 2 Cr App R 425 , CA, at 433, and DPP v. P [1991] 2 AC 447 , at 460, and as to fairness in section 78 – academic. 22. Now, as we have said, Sir Timothy’s true complaint under this first ground of appeal was that Jowitt J. wrongly told the jury that the first jury’s conviction of the appellant on the firearm charge had not been on the basis that the appellant had brought the rifle back from the Gulf with the intent to use it kill anyone who attacked him. He maintained that, in so directing the jury, the Judge was wrongly attributing to the appellant something he had not said at the first or the second trial. He pointed out, as was the case, that the appellant had said just that. He suggested that the Judge’s observation was a mistake that unfairly undermined the appellant’s credibility before the second jury because it may have persuaded them that the first jury had disbelieved some of his evidence, when he had effectively admitted the firearm offence – one of a continuing nature - in evidence at the first trial. He placed much emphasis on this complaint because the appellant’s credibility was a central issue on his main defence of diminished responsibility and to a lesser extent on that of provocation. 23. As to the admissibility of the evidence of the conviction, Mr. Smith submitted, in reliance on section 74(3), that the evidence of the previous conviction was highly relevant to the issue of the appellant’s intent at the material time, an issue which, though not in the forefront of the defence case, was nevertheless a significant part of it. Indeed, the clear thrust, as Mr. Smith put it, of the appellant’s evidence was that he had no such intent on that day. He had called in support of that contention a consultant psychiatrist, Dr. Jones who had suggested that he may have been suffering from mindlessness or automatism at the time so as to deprive him of the capacity to form the requisite intent for the offence of murder. It followed, said Mr. Smith, that the facts of the conviction and that the appellant on the day of the killing had cleaned, assembled, loaded and taken the rifle in his car when he set out to find Miss Fletcher were both highly relevant to the prosecution contention that he had had the rifle at the time with intent to endanger life and to the appellant’s case that he had had no specific intent to endanger Miss Fletcher’ life. He added that, although the Judge in his initial ruling on the matter had not expressly referred to section 74(3) or, in the absence of any challenge by the defence, to section 78, the evidence was so obviously relevant and probative on the issue of intent raised by the defence, that his decision to admit it into evidence could not have been properly challenged. 24. As to Jowitt J’s. reference to the conviction in his summing-up, Mr. Smith submitted that the Judge dealt with the matter fairly, correctly identifying the precise charge of which the first jury had convicted the appellant and its relevance to the issue of the appellant’s intent when he set out to find Miss Fletcher on the day that he killed her. He also submitted that the prosecution’s case and evidence as to intent at the material time were overwhelming, instancing: the appellant’s careful and deliberate preparation of the rifle for use, his stowage of it in the boot of his car, his conduct and movements preceding his final fatal confrontation with Miss Fletcher, his deliberate and well-aimed shooting of her in two separate bursts of fire and his conduct afterwards. 25. We agree with Mr. Smith’s contentions. As Jowitt J. said, when he canvassed the matter with counsel at the start of the trial, the firearm charge of which the first jury had found the appellant guilty was not of a continuing offence. It was confined to the day of the killing of Miss Fletcher, 7 th May 1998, and clearly to the circumstances of that day leading up to and connected with the appellant’s use of the rifle to shoot her. And, as Jowitt J. pointed out at that early stage, what mattered in the context of the first jury’s conviction of that offence and of the appellant’s admission of the conviction was not what the appellant had admitted or intended to admit at the first trial. What mattered was the form of the charge, how the prosecution and Holland J. had put the case to the jury and the jury’s verdict of guilty of the offence as charged. It is plain from Holland J’s summing-up, of which the Court has a transcript that, although such an offence was capable of being charged as a continuing one, the prosecution and he focused, true to the confines of the charge in question, on the circumstances of 7 th May 1998 leading to the shooting of Miss Fletcher. 26. This is how Holland J. had dealt with the matter in his direction to the first jury, a direction that conformed with this Court’s analysis in R v. Bentham & Ors [1973] QB 357 , at 362-363, of the mischief at which that statutory offence is aimed. Having defined the offence to the jury, he said: “The Prosecution say that is the offence that Dr. Shanks committed, as it is alleged, on the 7 th of May, and they say you can be sure and satisfied about that. There are two elements to it. The first is, they say you can be sure and satisfied that he had had in his possession on that day that AK 47 rifle with a loaded magazine attached to it. And they say you can be further sure and satisfied he had the intent to endanger life with it. Now, as to that last concern, what this part of the law is aimed at has been said to be as follows, I quote, ‘The mischief at which the Section is aimed must be that of a person possessing a firearm ready for use, if and when the occasion arises, in a manner which endangers life.’ … The Prosecution say, a very clear case. First, look at the AK 47. It is, they submit, effectively a machine for killing, that is people, it has no other function. Second, on the 7 th May it was made ready for use; it was cleaned and, more importantly, the magazine with 21 rounds was attached to it. When it was in that state the only function it could conceivably have was to endanger life if and when the occasion arose. And finally they would point to certain things said by Dr. Shanks when he gave evidence to you which, they would submit, is consistent with effectively admitting the offence. …..” 27. Now, Jowitt J., in his direction to the second jury, did not misrepresent the effect of the first jury’s conviction by emphasising in the passage that we have set out that it had not been on the basis of some general admission of the appellant to a continuing offence of possessing the rifle with intent to kill anyone who might attack him. The conviction was, as he made plain to the second jury, of possession of the gun on the day he killed Miss Fletcher with intent to endanger life, whatever may have been his mental state at the time when he shot her and regardless of whatever other explanation he had given for his long-standing possession of the weapon. Nothing that Jowitt J said went to undermine the appellant’s account about the latter or could, on that account, have gone to his credibility on the issues of diminished responsibility or provocation. Accordingly, we dismiss the first ground of appeal. Ground 2 – the direction that the jury were bound by the first jury’s conviction of the firearm offence 28. Sir Timothy’s second complaint was that the second jury were not bound by the first jury’s conviction on the firearm offence as to the state of mind of the appellant at the time he killed Miss Fletcher and that the Judge should not have told them that they were. The first point to make about that submission is one that we have just made in relation to the first ground of appeal. Jowitt J. did not direct the jury that the effect of the first jury’s verdict was that at the time of the killing of Miss Fletcher he must have possessed the rifle with intent to endanger life. True to the indication that he had given when first discussing the matter with counsel, he clearly distinguished between the effect of the first jury’s verdict that, “at some stage during the day” of the killing he had had the rifle with intent to endanger life, and the issue for the jury on the charge of murder as to his intent when he shot her with it. 29. It follows, therefore, that to the extent that the Judge told the jury that they were bound by the first jury’s conviction on the firearm offence, he correctly directed them of the effect of the first jury’s verdict on the charge before them, namely that he had had the rifle at some time on the day of the killing of Miss Fletcher with intent to endanger someone’s life, not necessarily hers. Sir Timothy’s reliance on high authority, including the House of Lords’ decision in R v. Humphrys [1977] AC 1 , against importing notions of issue estoppel or res judicata into the criminal law to overcome that legal outcome, ignored the specific statutory exception to such notions introduced by section 74(3) of PACE, the provision on which Mr. Smith has relied. 30. It is true that, under that provision, the binding effect of a previous conviction properly admitted into evidence is not absolute, since section 74(3), in its concluding words, enables a defendant, if he can, to prove that he has not, despite the conviction, committed the offence. As Mr. Smith submitted, there is thus a statutory presumption of the correctness of a previous conviction unless a defendant proves to the contrary on a balance of probabilities, similar to that in the comparable provision in section 11 of the Civil Evidence Act 1968 ; see Hunter v. Chief Constable of the West Midlands [1982] AC 52 , HL, per Lord Diplock at 544. As it happens, the Judge, in giving this part of the direction about the previous conviction, did not tell the jury that it was only binding on them if the appellant did not prove to the contrary But, as we have said, that is not what the appellant sought to do here, quite the contrary. At the first trial he had effectively admitted the offence of which he was convicted, and at the second trial he admitted that conviction, whatever the basis upon which he made that admission. 31. In the result, the fact that the Judge did not inform the jury of the qualifying provision of section 74(3) is academic on the issue of intent on the charge of murder. He had correctly directed them as to the relevance and limitations of the conviction as to proof of intent to kill her, and with obvious regard to the other and more central issues of diminished responsibility and provocation. The jury clearly found against the appellant on those issues, in respect of which there is no appeal, and, on the issue of intent, in respect of which the prosecution case and evidence were, as we have said, overwhelming. Accordingly, we also dismiss the second ground of appeal. 32. The appeal against conviction of murder is, therefore, dismissed. _____________________	```yaml citation: '[2003] EWCA Crim 680' date: '2003-03-19' judges: - LORD JUSTICE AULD - MR. JUSTICE GRAY - MR. JUSTICE CRANE ```
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Neutral Citation No. [2023] EWCA Crim 65 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202203554/A2 Royal Courts of Justice Strand London WC2A 2LL Thursday 19 January 2023 Before: LORD JUSTICE DINGEMANS MRS JUSTICE MAY DBE HIS HONOUR JUDGE CONRAD KC (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 REX V “WVF” _________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR J SMITH appeared on behalf of the Attorney General. MS C FRASER appeared on behalf of the Offender. _________ J U D G M E N T (Draft for Approval) LORD JUSTICE DINGEMANS: Introduction 1. This is the hearing of an application by His Majesty's Solicitor General for leave to refer a sentence which the Solicitor General considers to be unduly lenient. The sentence was imposed on the respondent (who we will refer to as "WVF" to protect the identity of her daughter). WVF's daughter is, as a victim of sexual offending, entitled to lifelong anonymity pursuant to the provisions of the Sexual Offences (Amendment) Act 1992. 2. WVF is 43 years old and was of previous good character. The Reference raises issues about what was the appropriate Sentencing Council Guideline to consider for these offences and whether there was an abuse of trust. 3. On 9 August 2022 WVF pleaded guilty at the PTPH to the offences of: (i) making indecent photographs of a child contrary to section 1(1)(a) of the Protection of Children; (ii) distributing indecent photographs contrary to section 1(1)(b) of the Protection of Children Act; and (iii) taking indecent photographs of children contrary to section 1(1)(a) of the Protection of Children Act; and four separate offences of causing or inciting a child under 13 to engage in sexual activity (no penetration) contrary to section 8 of the Sexual Offences Act 2003. One of the four separate offences of causing or inciting a child under 13 to engage in sexual activity was a multi-incident count of at least two occasions. All of the offences involve WVF's daughter. 4. On 8 November 2022 WVF was sentenced for these offences to a total of 18 months' imprisonment suspended for 24 months for the offences of causing or inciting a child under 13 to engage in sexual activity and to 15 months' imprisonment suspended for 24 months concurrent for the offences of making, distributing and taking indecent photographs of children. We grant leave for the Reference. The factual background 5. WVF, who lived with her partner and three children, was in financial difficulties. WVF persuaded her 12-year-old daughter to engage in sexual behaviour which was photographed or video recorded or took place on the telephone for men that WVF had met on line. Some of the photographs were taken by WVF's 9-year-old son. The offending took place over a period of around 2 weeks in February to March 2020. The offending was for payment because WVF received around £1350 for selling images of her daughter and herself online. 6. The first incident of offending took place in late February or early March 2020. WVF asked her daughter to come into her bedroom in the evening and told her to undress to her underwear. WVF arranged for her 9-year-old son to photograph the two of them posing in their underwear. The posing lasted for around half-an-hour. When asked why this was taking place WVF lied to her children, telling them that it was in response to a challenge circulating on Facebook. The images were actually being recorded so that WVF could circulate them online for money. This incident was count 4. Thereafter WVF and her daughter regularly took photographs together which WVF would sell online. Her daughter would either wear only her underwear or only her knickers and would be photographed with her breast area exposed. On occasion WVF asked her daughter to change her underwear as she did want "him" getting disappointed. The further posing was reflected in count 5, the multiple incident count which required at least two occasions of offending. 7. On another evening WVF called her daughter downstairs and told her to undress to her bra and knickers. Despite her daughter making it clear that she did not want to do this, WVF was insistent. WVF then posed with her daughter exposing her own breasts. She also told her daughter to remove her bra which her daughter did but then tried to obscure her breast area by placing her arms across her chest. WVF took photographs and a video on her mobile phone (count 6). 8. The daughter eventually challenged WVF as to why she was being asked to pose in this way. WVF said that the family was struggling financially. She was acting as a "Sugar Baby" and was taking photographs for a "Sugar Daddy" in exchange for money. The daughter understood that there was more than one Sugar Daddy. The daughter was asked to speak to the Sugar Daddies over the phone. They asked her about her school day and called her "Princess". The daughter thought she spoke to three Sugar Daddies on five or six occasions. She was also asked to record voice messages for the Sugar Daddies. On a further occasion WVF engaged in phone sex with a Sugar Daddy at the family home. The daughter could hear WVF screaming "Faster Daddy" in a neighbouring room. WVF's partner entered the room and WVF ended the call. The next day however WVF called the Sugar Daddy back with her daughter present. WVF blamed her children for the interruption the previous day and continued the phone sex. The Sugar Daddy asked WVF to slap her daughter's legs. Her daughter was told to bend over and WVF slapped her daughter's legs until they were read and raw with handprints. The Sugar Daddy listened in over the phone and her daughter could hear him saying "Harder, harder. Slap her harder". After around 5 to 10 minutes the Sugar Daddy asked WVF to put cream on her daughter's leg which WVF did. WVF promised her daughter a payment of £150 to £200 although this was never made. That offending is reflected in count 7 and it is relevant to record at this stage that no photographs or video was made of that. 9. During the phone sex the daughter described her younger siblings asking her what their mother was doing and having to hide the offending from them, telling them to stay out of WVF's way and play on the computer. 10. Financial enquiries carried out by the police indicated that WVF had received four payments totalling £1350. The payment references referred to the daughter's name and said on one of the references "Enjoy Ladies". All payments came from the same man. 11. The offending came to light in June 2020 after an intervention by Social Service which revealed domestic violence between WVF and her partner and resulted in the daughter being interviewed by Social Services. During that interview the daughter disclosed drug and alcohol abuse at the home address and that WVF had sold the daughter's property to get money and the daughter also disclosed this offending. The daughter and her two siblings were removed from WVF's care as the children were considered to be at risk of significant harm. The address was searched, the phone seized which contained images, both videos and photographs and the voice notes. Seven videos were recovered on WVF's mobile telephone. These showed first (March 2020) a 10-second video of WVF and the daughter, both sat on the bed wearing underwear. WVF said "Hi Daddy" looking into the camera. WVF then said to her daughter: "You didn't want to wear my underwear, did you?" The daughter replied "No". They were both smiling throughout. Another video on 1 March, a 10-second video of WVF and her daughter both sat on a bed with underwear. WVF says to her daughter: "So tell me how you've been feeling today", and the daughter replied. Then there was a further video on 1 March, a 2-second video of WVF and her daughter lying on a bed in underwear. WVF said to the camera: "So I've told my daughter that you're going to be helping us and looking after us and spoiling us. You're happy with that baby?" and the daughter replied "Yeah". Yet a further video on 1 March, a 2-second video of WVF and her daughter lying on a bed. They could only be seen from the waist upwards. They were wearing underwear tops. WVF was smiling and laughing and nothing was said. On 17 March, a 10-second video of WVF and her daughter, sat on a bed wearing only knickers. The daughter was covering her breasts with her arms. WVF was displaying her breasts. WVF said: "Hi Daddy" to the camera, the daughter said "Hi" to the camera and the video was graded as category C as the daughter was topless. On 17 March 2020 a 10-second video of WVF and her daughter sat on a bed wearing only knickers. WVF was filming and displaying her breasts. Her daughter was covering her breasts with her arms and there was no speech. Then again on 17 March a 2-second video of WVF and her daughter sat on a bed with no tops on, which was also graded as category C. 12. Three further indecent images of the daughter were recovered from WVF's mobile phone, all categorised as C. These were an image of WVF and her daughter naked. They were posing for a selfie-style image taken by WVF. The daughter and WVF were side by side facing the camera and WVF's breasts were exposed, the daughter was naked and posing with her arms across her stomach area. Her breasts could be seen. There was an image of WVF semi-naked and wearing only a pair of black knickers, sat next to her was her daughter who was also naked from the waist down. WVF's breasts were exposed while the daughter covered her breasts with her crossed arms. There was a 21-second film in which the daughter and WVF were naked from the waist upwards and clearly posing. Both WVF and the daughter were smiling. The camera then panned down to their bodies showing WVF's naked breasts. The camera moved to show the daughter who had covered her breasts with her crossed arms before moving back up to their faces. There were four images recovered from the phone which were the subject of the indictment, all classified as category C. 13. Also recovered from the phone were 23 voice recordings dated between 28 February 2020 and 15 March 2020. These included WVF leaving a message for Daddy in which she referred to her daughter saying: "She didn't take up much encouragement. I told her that it was for fun and that was it. She's more adventurous than what I thought. She really enjoyed it and thought it was fun so I didn't tell her she'd be completely undressed but I did tell her she could wrap a towel around but she was happy to be how she was. So I'm just happy that you're happy. Let me know if I can do anything else for you. Bye Daddy". 14. The transcripts continued with talk about spoiling and further displays for the purposes of Daddy. 15. WVF was arrested after the disclosures on 2 June 2020. In interview WVF said that she had taken photographs with them when they were both wearing underwear and that her son had been present when some of the photographs had been taken. She claimed that she had asked her daughter if she wanted to do modeling together and it was like an amateur art hour. That had happened on between two and five occasions. She accepted that she had taken some photographs to send to men, both to some she knew and to a website called "Panty Deal". However she denied sending images of her daughter only of herself. The website allowed users to upload videos or photographs for money. WVF said she had met a man on the site called "Sugar Daddy" but that he had also used other more explicit names and she had stopped contact after he had begun to pester her online. She denied receiving any money. She denied that her daughter had ever spoken to him or that she had sent images of her daughter. 16. Of course, the effect of those denials meant that a full police investigation required to be undertaken. That is relevant because a point relied on in mitigation was delay. WVF was interviewed again in December 2020. The daughter's account to police was put to WVF as was the content of electronic devices which had now been examined. It is only fair to WVF to record that she had provided the police the PIN numbers for her mobile phone and access to her email addresses and financial evidence showing the evidence of the payments. In that interview WVF made no comments to the questions asked. The sentence 17. So far as sentencing was concerned, there was no victim personal statement from the daughter but she had said in her interview with the police that she considered the offending to be her biggest secret. She had cried about it when returning home from school as she felt so ashamed and embarrassed. The daughter had threatened to tell family members about the offending but WVF had told her that the shame and shock would be so great that it would kill them. 18. There was a pre-sentence report before the court. WVF told the author of the report that she had struggled financially during the Covid pandemic and had sold underwear on a website called Panty Deal. She had met a user who identified himself as "Sugar Daddy". She said she was disgusted by her behaviour. The author of the pre-sentence report formed the view that WVF had huge deficits in her thought processes and decision making as her actions had led her to groom, exploit and expose her daughter and that there was a gross breach of trust and that WVF had failed in her duty as a mother to protect her daughter. She was assessed as posing a high risk of harm to children especially those within her care. She was assessed as a low risk of reoffending more generally. The report recommended rehabilitation activity requirement days or unpaid work if appropriate. 19. WVF also relied on references from her employer, which spoke of her as a diligent and consciousness staff member and confirmed that her job would remain open to her if she was not sentenced to immediate custody. She relied on a reference from her ex-partner currently caring for their children, who stated that WVF had shown remorse for the offending and continued to see the children regularly. He also confirmed that WVF was providing financial support. WVF relied on a reference from her mother and uncle. Her mother had suffered a stroke and her uncle had rheumatoid arthritis. Both said that WVF helped them attend appointments, shopping and day-to-day life. The letter said that WVF had undertaken charity work before becoming homeless and she had struggled after becoming homeless and had lost weight. 20. At the hearing it was submitted on behalf of WVF that there was no abuse of trust within the meaning of the Sentencing Council Guideline for causing or inciting a child under 13 to engage in sexual activity and that the relevant Guidelines which should be applied were for posing, distributing and producing indecent photographs of children, all of which led to a starting point of about 18 months. 21. The judge must have accepted the submissions made on behalf of WVF because he said when sentencing that he had to follow the Guidelines but that whichever way one looked at it there was a start point of 18 months under the Guideline. The judge then imposed the sentence already indicated. The relevant sentencing council guideline 22. There are relevant Sentencing Council Guidelines. These are for indecent photographs of children and for causing or inciting a child under 13 to engage in sexual activity. In our judgment, the judge was wrong to ignore the Guideline for Causing or Inciting a Child under 13 to engage in sexual activity and to concentrate only on the starting point in the Guidelines for indecent photographs. 23. This is because section 59 of the Sentencing Act 2020 requires that every court must in sentencing an offender follow any Sentencing Guidelines which are relevant to the offender's case unless the court is satisfied it would be contrary to the interests of justice to do so. The judge did not make a finding that it would be contrary to the interests of justice to ignore the Guideline on causing or inciting a child under 13 to engage in sexual activity, and it is in the interests of justice and compliant with section 59 to have regard to that Guideline. This is because WVF's most serious criminality was the causing or inciting her 12-year-old daughter to strip naked, pose and engage in sexualised conversations with an older man and to engage in sexualised behaviour, namely the spanking and rubbing of cream onto her to satisfy the requests of an older man. This caused real harm to her daughter and feelings of shame and embarrassment. As was noted in the course of submissions, the behaviour in relation to the spanking and cream did not in any event involve the taking of any photographs. Abuse of trust 24. The fact that the causing or inciting of a child under 13 to engage in sexual activity is the most serious offence part appears from the starting points under the relevant Guideline. The category 3A offence for causing or inciting sexual activity in a child under 13 had a starting point of 5 years for a single offence and a range of 3 to 8 years. The Guideline for the category C images has starting points as follows: possession had a starting point of high level community order; distribution had a starting point of 13 weeks' custody and production had a starting point of 18 months' imprisonment. 25. We therefore turn to the causing or inciting a child under 13 to engage in Sexual Activity Guideline. One of the culpability A factors is abuse of trust. We deal with the submissions made to the judge below that this offending by WVF did not involve an abuse of trust because it was said that the decision in R v Forbes [2016] EWCA 1388; [2017] 1 WLR 53 meant that there needed to be something more before a parent was guilty of breach of trust in sexual offending against children. 26. The submission below seems to have been based on a passage in Archbold Criminal Pleading Evidence and Practice 2022 repeated in 2023 at paragraph 20-386 at (v) where it is said: " Abuse of trust In determining whether abuse of trust amounts to an aggravating factor, whilst in the colloquial sense, a parent, other relation or neighbour is in a position of trust, the phrase 'abuse of trust', as used in the guideline, connotes something more than that. The phrase plainly includes a relationship such as pupil and teacher, priest and child, scoutmaster and boys in his charge, or for example an ad hoc situation such as a late night taxi driver who takes a lone female fare; what is necessary is a close examination of the facts and clear justification if abuse of trust is to be found." 27. It is submitted by Mr Smith on behalf of the Solicitor General that the passage in Archbold runs together two separate paragraphs in Forbes and therefore misrepresents the guidance given by Forbes . Ms Fraser, on behalf of WVF, does not submit to the contrary. The relevant paragraphs in Forbes are paragraphs 17 and 18 which read as follows: "17. Whilst we understand that in the colloquial sense the children's parents would have trusted a cousin, other relation or a neighbour (as in the case of Forbes – see paragraph 47, and Farlow - paragraph 208) to behave properly towards their young children, the phrase 'abuse of trust', as used in the guideline, connotes something rather more than that. The mere fact of association or the fact that one sibling is older than another does not necessarily amount to breach of trust in this context. The observations in para 54 of R v H (J) [2012] 1 WLR 1416 should be read in this light. 18. The phrase plainly includes a relationship such as that which exists between a pupil and a teacher (as in the case of Clark, who grossly abused his position of trust as a teacher at a boys' preparatory school by a sustained course of conduct over 7 years – see paragraphs 70 and following), a priest and children in a school for those from disturbed backgrounds (as in the appeal of McCallen - see paragraphs 86-92 and 97) or a scoutmaster and boys in his charge (as in the case of Warren to which we have already referred). It may also include parental or quasi-parental relationships or arise from an ad hoc situation, for example, where a late night taxi driver takes a lone female fare. What is necessary is a close examination of the facts and clear justification given if abuse of trust is to be found ." 28. In our judgment, Forbes did not say that a parent was not in position of trust so far as the meaning of 'abuse of trust' in the Guidelines was concerned. Indeed the reasons why school masters or scoutmasters are in a position of trust is because, according to the common law, they are acting in the place of parent. A parent is always likely to be in a position of trust so far as their own non-adult children are concerned. We accept that there might be different situations, for example, if a parent is estranged and has lived away from the children. Forbes was addressing the sentencing of historic sexual offences and the passages at paragraphs 17 and 18 quoted above were intended to address the situation of where, for example, an older sibling has looked after a younger sibling and committed a sexual offence. As was noted in Forbes , that might colloquially be considered to be an abuse of trust but was not the situation aimed at by the reference to "abuse of trust" in the culpability sections of the relevant Guidelines. That said, it is of course always important to have a close examination of the facts and a clear justification for any finding of abuse of trust. 29. We should record that even if it had been necessary to show something more to establish a breach of trust, which it it is not, there was something more in this case. WVF manipulated her 12-year-old daughter into posing for photographs by lying about her Facebook challenge and then persuaded her daughter to strip naked to be photographed and to indulge in role play and sexualised conversations. The pre-sentence report writer was, in our judgment, right to describe this as a "gross breach of trust". The appropriate sentence 30. We find that the offences of causing or inciting a child under 13 to engage in a sexual activity was harm category 3 because harm categories 1 or 2 did not apply. We find that this was culpability A because there was abuse of trust. There was also another culpability A factor, being commercial exploitation and/or motivation. The starting point for a single offence is 5 years with a range of 3 to 8 years. There were four separate such offences, one of which was a multiple incident count of at least two instances. This means there were at least five separate offences. 31. We consider it right to reflect all of the criminality in the sentences for the counts for causing or inciting a child under 13 to engage in sexual activity and to make those sentences concurrent with each other and the indecent photograph offences. 32. We have to have regard to the fact that the offending occurred within a 2-week period and issues of totality. In our judgment, to reflect all of the criminality disclosed by the relevant counts would take the appropriate sentence up to about 7 years or just over before addressing WVF's considerable mitigation in this case. That mitigation included WVF's previous domestic situation, her financial situation at the time of the offending, her good character, her remorse and her attempt to re-build her relationships with her children. We consider that after a trial a sentence of 5 years was the least that could be imposed to reflect all of the offending and the mitigation. 33. We turn then to the issue of credit for the plea. At the Magistrates' Court no plea was indicated and it was submitted that that was because there was a requirement to get advice. In circumstances where the charges had been set out clearly in relation to the sexual offending which have occurred the need for advice might not have been obvious, because any individual who would certainly have known exactly what she had done. In circumstances however where it does seem that the lawyers then representing WVF were seeking advice from counsel, and in circumstances where WVF was of previous good character, and where as soon as she had advice from counsel she did before the PTPH indicate that she was going to plead guilty, we are persuaded that is one of those exceptions to which F1 of the relevant Overarching Guideline applies. This is that in considering whether this exception applies sentences should distinguish between cases in which it is necessary to receive advice and/or have sight of evidence in order to understand whether the defendant is in fact guilty of charges and cases in which a defendant merely delays guilty pleas in order to assess the strength of the prosecution evidence and the prospects of conviction or acquittal. 34. In those circumstances we are persuaded that WVF was entitled to credit of 33 per cent for her plea. Taking a sentence of 60 months, a discount of one-third gives a sentence of 40 months, which is 3 years 4 months. Therefore the Reference succeeds and we impose an overall sentence of 3 years and 4 months on counts 4 to 7 concurrent both with each other and the sentences on counts 1 to 3, which remain at 15 months but which are obviously no longer suspended. 35. We are very grateful to both Mr Smith and Ms Fraser for their written and oral submissions. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]	```yaml citation: '[2023] EWCA Crim 65' date: '2023-01-19' judges: - LORD JUSTICE DINGEMANS - MRS JUSTICE MAY DBE - HIS HONOUR JUDGE CONRAD KC ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	Neutral Citation Number: [2008] EWCA Crim 370 Case No: 2007/06392/C5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CROYDON HHJ Tanzer T20060494/T20070024 Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/02/2008 Before : LORD JUSTICE DYSON MR JUSTICE COLLINS and MR JUSTICE MADDISON - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr T Fitzgerald (instructed by CPS) for the Appellant Christina Lambert & Matthew Barnes (instructed by Eastwoods Solicitors ) for the Respondent Hearing date: Friday 22 February 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Dyson giving the judgment of the court: 1. This is an application by the Crown for leave to appeal against a ruling made by HHJ Tanzer sitting at Croydon Crown Court on 3 Dec 07 whereby pursuant to rule 24.3 of the Criminal Procedure Rules, he refused to grant the Crown leave to adduce the expert evidence of a Dr Martin Harris. The application is made under section 58 of the Criminal Justice Act 2003 (“ the 2003 Act ”). On 22 February 2008, we dismissed the application. We now give our reasons for doing so. 2. Two issues arise on this application. The first is whether this court has jurisdiction to entertain the application at all (“the jurisdiction issue”). The second is whether, if the court does have jurisdiction, we should reverse the judge’s ruling under rule 24.3 on the grounds that it was a ruling “that it was not reasonable for the judge to have made”: see section 67(c) of the 2003 Act (“the reasonableness issue”). The jurisdiction issue turns on a question as to the true interpretation of section 58(8) which, so far as we are aware, has not been the subject of previous authority. The relevant statutory provisions 3. So far as material, the 2003 Act provides: “ 58 General right of appeal in respect of rulings (1) This section applies where a judge makes a ruling in relation to a trial on indictment at an applicable time and the ruling relates to one or more offences included in the indictment. (2) The prosecution may appeal in respect of the ruling in accordance with this section. …. (4) The prosecution may not appeal in respect of the ruling unless— (a) following the making of the ruling, it— (i) informs the court that it intends to appeal, or (ii) requests an adjournment to consider whether to appeal, and (b) if such an adjournment is granted, it informs the court following the adjournment that it intends to appeal. … (8) The prosecution may not inform the court in accordance with subsection (4) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in subsection (9) is fulfilled. (9) Those conditions are— (a) that leave to appeal to the Court of Appeal is not obtained, and (b) that the appeal is abandoned before it is determined by the Court of Appeal. … (13) In this section “applicable time”, in relation to a trial on indictment, means any time (whether before or after the commencement of the trial) before the start of the judge’s summing-up to the jury. … 62 Right of appeal in respect of evidentiary rulings (1) The prosecution may, in accordance with this section and section 63 , appeal in respect of— (a) a single qualifying evidentiary ruling, or (b) two or more qualifying evidentiary rulings. (2) A “qualifying evidentiary ruling” is an evidentiary ruling of a judge in relation to a trial on indictment which is made at any time (whether before or after the commencement of the trial) before the opening of the case for the defence. … (9) In this section— “evidentiary ruling” means a ruling which relates to the admissibility or exclusion of any prosecution evidence, … (11) Nothing in this section affects the right of the prosecution to appeal in respect of an evidentiary ruling under section 58 . … 63 Condition that evidentiary ruling significantly weakens prosecution case (1) Leave to appeal may not be given in relation to an appeal under section 62 unless the judge or, as the case may be, the Court of Appeal is satisfied that the relevant condition is fulfilled. (2) In relation to an appeal in respect of a single qualifying evidentiary ruling, the relevant condition is that the ruling significantly weakens the prosecution’s case in relation to the offence or offences which are the subject of the appeal. … 67 Reversal of rulings The Court of Appeal may not reverse a ruling on an appeal under this Part unless it is satisfied— (a) that the ruling was wrong in law, (b) that the ruling involved an error of law or principle, or (c) that the ruling was a ruling that it was not reasonable for the judge to have made.” 4. So far as material, the Criminal Procedure Rules provide: “24.1 (1) Following…. (b) the committal for trial of any person… if any party to the proceedings proposes to adduce expert evidence (whether of fact or opinion) in the proceedings (otherwise than in relation to sentence) he shall as soon as practicable, unless in relation to the evidence in question he has already done so or the evidence is the subject of an application for leave to adduce such evidence in accordance with section 41 of the Youth Justice and Criminal Evidence Act 1999- i) furnish the other party or parties and the court with a statement in writing of any finding or opinion which he proposes to adduce by way of such evidence and notify the expert of this disclosure, and … 24.3. A party who seeks to adduce expert evidence in any proceedings and who fails to comply with rule 24.1 shall not adduce that evidence in those proceedings without the leave of the court.” The facts 5. The defendant is a medical practitioner. He faces an indictment which contains 4 counts that he indecently assaulted 3 women contrary to section 13(1) of the Sexual Offences Act 1956 . The offences are alleged to have been committed at various times between 1990 and 2000. The women were all patients of his and the assaults are alleged to have occurred during what purported to be medical examinations of them by the defendant. He was committed for trial on 9 August 2006 and 10 January 2007. Neither committal bundle contained any expert evidence. On 9 March, the trial was fixed to start on Monday 3 December with an estimate of 3 weeks. On 15 August 2007, the defendant’s solicitors informed the CPS that they were intending to adduce expert evidence on his behalf and asked whether the Crown was also intending to rely on expert evidence. Further letters were sent to the CPS asking them what they intended in relation to expert evidence, but no response was forthcoming. 6. It seems that the Crown did not consider the possibility of adducing expert evidence until about October 2007. The defence were not notified that the Crown were intending to rely on expert evidence until 23 October 2007 when the CPS wrote saying that they were in the process of instructing an expert. 7. On 14 November, HHJ Stow made an order that the Crown serve any evidence on which they intended to rely by 1 pm on Friday 23 November. On 23 November, they applied to HHJ MacKinnon for the trial date to be vacated on the grounds that their expert evidence was not ready. The application was refused. Dr Harris’s report was served during the afternoon of Friday 30 November. In summary, it stated that, on the basis of the symptoms described by the 3 women, the medical examinations which they said the defendant had conducted were unnecessary and inappropriate in a number of respects. 8. The case then took an unexpected turn. Miss Lambert, counsel representing the defendant, first saw the report on Saturday 1 December. She immediately noticed that the expert was Dr Harris. This caused her professional embarrassment because he is a client of hers in some wholly unrelated civil proceedings. Understandably, she did not feel able to continue to represent the defendant in the criminal proceedings if Dr Harris was to be an expert witness called to give evidence on behalf of the Crown. 9. On the morning of Monday 3 December, in the presence of counsel for the Crown, she informed the judge of the position in his chambers. During the discussion, the judge indicated that he would not be willing to adjourn the case for 1 week to enable the Crown to find another expert. An adjournment of 1 week would run the risk that the trial could not be completed before Christmas. It was elicited from the list office that, if the trial were to be adjourned, it could not be heard until September 2008. When the matter was raised in open court, Miss Lambert submitted that the problem had arisen because Dr Harris’s report had been served out of time and she argued that the Crown should be debarred from relying on his evidence. The judge pointed out that, if the Crown wished to rely on it, they would have to make an application for leave to adduce the evidence out of time. 10. Mr Fitzgerald proceeded to make that application. He did not tell the judge that, if the application was dismissed, the defendant would have to be acquitted on the grounds that without the evidence of Dr Harris, the Crown case would be fatally damaged. Rather, he submitted that the real reason why the trial could not proceed then and there was that, unforeseeably, Miss Lambert was professionally embarrassed. The problem was, as he put it, caused by something outside the Crown’s control. It would not be in the interests of justice to prevent the Crown from relying on the evidence of Dr Harris. The case would have to be adjourned, so that the defendant could find a replacement for Miss Lambert, but that was preferable to denying the Crown the evidence of Dr Harris. 11. Miss Lambert submitted that the real reason for the difficulty was the late service of the report. She rehearsed the procedural history of the case which we have summarised and submitted that, against that background, it was wholly unacceptable that the expert’s report should be served on the afternoon of 30 November. It would be unfair to the defendant to adjourn the case. 12. The judge gave a detailed ruling. He referred to rule 24.1 of the CPR and said that “it would be risible to say that the Crown has even begun to comply with that requirement of the rules”. He then turned to rule 24.3 and said: “Now clearly 24.3 grants me a general discretion. That discretion is to be exercised having regard to not only the overriding objective, giving a balance between the parties so that criminal cases be dealt with justly, but also having regard to rule 1.2, which is the duties of the participants in a criminal case, which is to prepare and conduct the case in accordance with the overriding objective, and (b) comply with these rules, practice directions and directions made by the court. And, importantly, 1.3, that I must further the overriding objective, in particular when exercising any power due to it by legislation, including these rules, applying any practice direction or interpreting any rule or practice direction.” 13. He continued: “In applying the provision, one of the overriding objectives is that cases be dealt with efficiently and expeditiously. I have, of course, to take into account the gravity of the offences alleged, the complexity, the consequences for the defendant, and the needs of other cases. This case cannot be more grave for the defendant. If I grant leave, then in reality the defendant is looking at not having a trial until some time in the middle of next year, some two years and more after he was first questioned about part of the indictment. That, for a man whose whole life and professional career hangs in the balance, appears to me to be wholly undesirable. But it would be the only choice. It would have a second implication, namely that having lived in the expectation of counsel, as I said, familiar with his case, conducting his defence, he would have to find new counsel. Again, of itself not determinative, but an indicator of the impact on the defendant of granting leave. As far as the Crown is concerned, I have to ask myself whether it is right that a party who fails to comply with the rules should then be able to act to the detriment of the defendant, placing an argument as to the public interest as a reason. Now the public interest may well override any detriment. But here, it is not submitted that the Crown would not be able to continue its case in the absence of this evidence. It is not submitted that this would operate in any way as a terminating ruling. It is a request that I balance the competing interests of the parties. In my judgment, this is a case where the history and, on its somewhat exceptional facts, the interests of the defendant to have his trial, and have his trial when he expects to, must take precedence over the Crown’s interest in the late production and adducing of evidence. For those reasons, I decline to grant leave under rule 24.3. ” 14. After the judge had so ruled, Mr Fitzgerald told the judge that he accepted that he had not submitted that this was a “terminating ruling”. By that, he meant a ruling whose effect was that in the opinion of the Crown the defendant should be acquitted. But he said that he needed to speak to those instructing him before he could say what the effect of the ruling would be on the case. During the exchange that followed, the judge said that whether his ruling was a terminating ruling or not would have made no difference to his decision. 15. There was further discussion the following day, when Mr Fitzgerald told the judge that he needed more time to consider the implications of the ruling with those instructing him. The judge granted an adjournment until the morning of 5 December when Mr Fitzgerald told the judge that the Crown were intending to appeal the ruling under section 58 of the 2003 Act . In addition to giving notice pursuant to section 58(4)(a)(i) of the Crown’s intention to appeal, Mr Fitzgerald informed the judge of the Crown’s agreement, in respect of each of the offences with which the defendant was charged, that he should be acquitted if leave to appeal to the Court of Appeal was not obtained or if the appeal was abandoned before being determined by the Court of Appeal. 16. Mr Fitzgerald explained to the judge that, without expert evidence as to the necessity for and propriety of the medical examinations allegedly conducted by the defendant on the 3 women, the Crown would not have a realistic prospect of securing convictions in this case. 17. The judge refused permission to appeal in a written ruling. He expressed his conclusion in these terms: “5.1 This is a case where the Crown can be said to be entirely the author of its own misfortune as a result of failing to comply with the CPR and thereby precipitating the embarrassment of counsel which is a matter which could have been cured had the breach not occurred. The interests of the prosecution have to be balanced against those of the defendant within the context of the overriding objective. 5.2 Having reviewed the background, I can discern no reason to revise my views as to where the balance lies and in the circumstances decline to grant leave.” The jurisdiction issue 18. This issue raises the question whether the ruling can be appealed under section 58 at all. It is an evidentiary ruling within the meaning of section 62(9), since it is a ruling which relates to the exclusion of prosecution evidence. But section 62 has not yet been brought into force. It is also, however, a ruling “in relation to a trial on indictment at an applicable time” within the meaning of section 58(1) . A ruling can be both an evidentiary ruling within the meaning of section 62(9) and a ruling within the meaning of section 58 . That is confirmed by section 62(11) and was decided by this court in R v Y [2008] EWCA Crim 10 . 19. The scheme of section 58 is clear. The Crown may not appeal a section 58 ruling unless inter alia it informs the court that it intends to appeal (subsection (4)(a)(i)). The Crown may not inform the court that it intends to appeal unless at or before that time, it informs the court that it agrees that the defendant should be acquitted if either of the conditions in subsection (9) is fulfilled (subsection (8)). We shall refer to such an agreement as an “acquittal agreement”. If the Crown informs the court in accordance with subsection (4) that it intends to appeal, the ruling continues to have no effect whilst the appeal is pursued (subsection (10)). Where the Crown has informed the court under subsection (8) and either of the conditions mentioned in subsection (9) is fulfilled, the judge or the Court of Appeal must order the defendant to be acquitted (subsection (12)). It will be seen, therefore, that an acquittal agreement is fundamental to an appeal under section 58 . Without an acquittal agreement, there can be no appeal under section 58 . 20. At first sight, there was an acquittal agreement in this case and the jurisdiction of this court was engaged. In her skeleton argument, however, Miss Lambert submitted that: “It is accepted that no definition of a terminating (as opposed to evidentiary) ruling is supplied in the Act. However, it can not reasonably be argued that any ruling which might retrospectively be categorised by the Crown as a terminating ruling falls within the scope of section 58 . It is submitted that, for a ruling to be a terminating ruling it must be one which, viewed objectively, is capable of being considered in good faith by a reasonable and fair-minded prosecutor as so damaging to the Crown’s case that there remains no reasonable prospect of conviction.” 21. In her oral submissions, she modified this somewhat and submitted that the Crown cannot invoke section 58 unless it is obvious that the ruling fatally undermines or at least seriously weakens its case in a way which can be demonstrated without any investigation of the facts. 22. Miss Lambert submits that it is by no means obvious that the Crown case would be fatally undermined or even seriously weakened without the evidence of Dr Harris. The 3 women could give their evidence and describe the examinations they say were conducted on them by the defendant. No doubt the evidence of Dr Harris would strengthen the Crown case, but it would have reasonable prospects of success even without his evidence. This is well demonstrated by the fact that the CPS did not even consider obtaining expert evidence until long after the defendant was committed for trial. 23. We accept that it is necessarily implicit in section 58(8) that an acquittal agreement must be made by the Crown in good faith and not for some improper purpose. It must be based on an assessment made in good faith. In some cases, it will be obvious that a ruling will bring the prosecution to an end: for example, a ruling that there is no case to answer. In such cases, an acquittal agreement does not call for an exercise of judgment on the part of the Crown. But in other cases, the effect of a ruling is less clear-cut. Evidentiary rulings which seriously weaken the Crown case are an example of cases in this category. Here, an acquittal agreement is far from being a mere formality. It requires an exercise of judgment on the part of the Crown to decide whether a ruling so damages the prosecution case that, unless it is overturned on appeal, there is no real prospect of a conviction. In our view, provided that an acquittal agreement is made in good faith, the Crown is the sole judge of whether the consequence of a ruling which it wishes to appeal should be that a defendant should be acquitted. 24. The language of subsection (8) is clear and unqualified. If the requirement of good faith is left out of account, there is no basis for reading into the subsection words that are not there. Parliament must be taken to have decided that the Crown is to be trusted to act conscientiously and competently in the public interest in determining whether to make an acquittal agreement. An acquittal agreement is the price that the Crown must pay for exercising its right of appeal under section 58 . The court has no role to play and in particular has no power to decide whether an acquittal agreement is objectively justified on the facts of the case. This conclusion is consistent with what this court said at para 20 in R v Y : “For s 58 the critical condition which must be met before any appeal can be launched is that contained in s 58(8). In effect the Crown is bound to accept, as the price of bringing an interlocutory appeal under s 58, the consequence that if it fails the Defendant must be acquitted (as well as the possibility that this Court may order such acquittal on the grounds that it is necessary in the interests of justice to do so). It is no doubt this s 58(8) condition which led to the use of the expression "terminating ruling" during the consultation process preceding this part of the Act and its passage through Parliament. It is no doubt true that the Crown will not ordinarily embark on an appeal against a ruling which requires the giving of the s 58(8) undertaking, unless the ruling, if effective, will bring the case to an end. But whilst the expression "terminating ruling" may have, and have had, its convenience as shorthand, its use is best avoided when considering how the Act must be construed, for it appears nowhere in the statute. For that reason, we do not think that it is helpful to try to answer the jurisdictional question by asking whether or not the ruling presently in question would bring the prosecution to an end. As a matter of law, it would not; in practice, unless the Crown altered its position, it would. It would not in law because the Crown could continue with the trial and seek to persuade the Judge that other evidence establishes a prima facie case against the Defendant Y. That in this case the Crown told the Judge that it did not feel able to argue that there is a prima facie case unless the hearsay evidence goes in does not alter that legal position. However, no doubt if that is the Crown's view the effect of the ruling, in practice if not in law, would be to bring the case to an end.” 25. The contrast between the language of section 58(8) and that of section 63(2) is striking. In section 58(8) , the relevant condition is an acquittal agreement. In section 63(2) , the relevant condition is that the ruling significantly weakens the prosecution case. Unlike section 58(8) , section 63(2) imports an objective test as to the actual effect on the prosecution case. For the purposes of a section 58 appeal, the only relevant condition which must be fulfilled to the satisfaction of the court is that there is an acquittal agreement. For the purposes of a section 62 appeal, the relevant condition which must be fulfilled to the satisfaction of the court is that the ruling significantly weakens the prosecution case. 26. If Miss Lambert were right, the court would be required in a section 58 appeal to undertake an investigation similar to that required in a section 62 appeal (the fact that section 62 has not been brought into force is immaterial to the construction of section 58 ). If Parliament had intended that the court should undertake such an investigation in a section 58 appeal, it would surely have introduced into section 58 language similar to that found in section 63 . The fact that there is no such language in section 58(8) is a strong indication that Parliament had no such intention. 27. For these reasons, we are satisfied that the jurisdiction issue must be decided in favour of the Crown. The acquittal agreement made in this case was sufficient to give this court jurisdiction to entertain the application for leave to appeal in this case. It is to the merits of that application that we now turn. The reasonableness issue 28. Mr Fitzgerald submits that the judge was unreasonable to make the ruling because he gave too much weight to the importance of maintaining the trial date and insufficient weight to the public interest in the prosecution of the defendant for these serious offences. The real reason for the need for an adjournment was Miss Lambert’s unforeseeable professional embarrassment, which was an unforeseeable incident of litigation. 29. In our view, this application for leave to appeal has no merit. Mr Fitzgerald has not begun to show that the ruling was one which it was not reasonable for the judge to have made. The alleged offences were committed between 1990 and 2000. The defendant was committed for trial in August 2006 and January 2007. The trial date was fixed on 9 March 2007. The Crown did not consider whether to obtain expert evidence until October 2007. It was treated generously when on 14 November, the court allowed it until 23 November to serve an expert’s report. That was no more than 1 working week before the start of the trial. In these circumstances, it was deplorable that the Crown did not serve the report until the afternoon of 30 November. As the judge said, there was a serious failure by the Crown to comply with the overriding objective of dealing with cases justly, which includes dealing with cases “efficiently and expeditiously”: CPR 1.(2) (e). 30. Once it became clear that, if Dr Harris were to be allowed to give evidence, the trial would have to be adjourned until September 2008, the judge was fully entitled to decide not to give the Crown leave to adduce the evidence of Dr Harris. The decision involved an exercise of discretion. It has not been suggested that the judge failed to take into account a material factor or took into account an immaterial factor. The sole complaint is that he gave too much weight to one consideration and insufficient weight to another. It is trite law that the weight to be given to relevant factors is for the decision-maker and the court will not interfere unless the decision is perverse. Mr Fitzgerald submits, albeit somewhat faintly, that this was a perverse decision. In our judgment, that is a submission that is as extravagant as it is hopeless. 31. The decision was entirely reasonable in the light of the delays that had already occurred and the judge’s correct assessment of where the blame for the need for an adjournment lay. Conclusion 32. For these reasons, we refused leave to appeal against the judge’s ruling.	```yaml citation: '[2008] EWCA Crim 370' date: '2008-02-29' judges: - LORD JUSTICE DYSON - MR JUSTICE MADDISON ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2022/03421/A3 [2023] EWCA Crim 370 Royal Courts of Justice The Strand London WC2A 2LL Tuesday 14 th March 2023 B e f o r e: VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION ( Lord Justice Holroyde ) MR JUSTICE HILLIARD MR JUSTICE CHAMBERLAIN ____________________ R E X - v - PAUL HARRIS ____________________ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _____________________ Mr P Pride appeared on behalf of the Appellant Miss I Delamere appeared on behalf of the Crown ____________________ J U D G M E N T Tuesday 14 th March 2023 LORD JUSTICE HOLROYDE: I shall ask Mr Justice Chamberlain to give the judgment of the court. MR JUSTICE CHAMBERLAIN: 1. On 20 th June 2022, in the Crown Court at Aylesbury, the appellant Paul Harris pleaded guilty to four counts on an indictment: arranging or facilitating the commission of a child sex offence, contrary to section 14 of the Sexual Offences Act 2003 ("the 2003 Act") (count 1); making indecent images of a child, category B (count 2); and making indecent images of a child, category C (counts 3 and 4). 2. On 26 th October 2022, Her Honour Judge Tulk imposed a sentence of seven and a half years' imprisonment, after credit for the guilty plea, on count 1. No separate penalty was imposed on counts 2, 3 and 4. A Sexual Harm Prevention Order was imposed and an order for forfeiture and destruction of the devices on which the images were stored was made. 3. The appellant appeals against sentence by leave of the single judge. It is contended that it was manifestly excessive. The Indictment and the Relevant Statutory Provisions 4. The indictment alleged that between 8 th July and 4 th August 2021, the appellant had "intentionally arranged or facilitated an act which he intended to do in any part of the world, which would involve the commission of an offence under any of sections 9 to 13 of the Sexual Offences Act 2003, namely sexual activity with a child". 5. Sexual activity with a child is the offence created by section 9 of the 2003 Act. At the time the offences were committed, this was the most serious of the substantive offences whose arrangement or facilitation was prohibited by section 14. However, with effect from 28 th June 2022 that provision was amended to cover arranging or facilitating a wider range of substantive offences, including, in addition to those previously listed, those created by sections 5 to 8. Section 5 creates the substantive offence of rape of a child under 13. The Facts 6. The appellant engaged in online chats via social media with two individuals, "Nick" and "Lucy", who he believed were the parents of three children: a 10 year old girl, described as "non-verbal" and autistic; a 7 year old boy; and a 2 year old girl. "Nick" and "Lucy" were in fact undercover police officers and the children were fictional. 7. "Nick" explained to the appellant that the children had been trained over many years to be abused and were available for others to abuse at the discretion of "Nick" and "Lucy". The appellant described to "Nick" his sexual interest in children and claimed to have engaged in sex acts with children approximately 40 years ago. He said that he would like to meet "Nick" and "Lucy" and wanted to have full penetrative vaginal and anal sex with the 10 year old girl, to engage in oral and anal penetration of the 7 year old boy, and oral penetration of the 2 year old girl. 8. During the online chats the appellant questioned how and where the sexual activity would take place. "Nick" confirmed that penetrative sexual activity would take place in the bedroom, with "Nick" watching, and that the appellant would then watch "Nick" rape the 10 year old girl. The plans were discussed in considerable detail in several telephone calls between the appellant, "Nick" and "Lucy". The appellant asked whether he could ejaculate inside the 10 year old, to which "Nick" said no; and whether he could perform oral sex on the 2 year old. It was agreed that the appellant would bring sweets. 9. Arrangements were made for the appellant to meet "Nick" and "Lucy" with the children at a house in Milton Keynes on 3 rd August 2021. The appellant said that he had booked a day off work for this purpose. 10. He then travelled from his home in Daventry to the agreed meeting point by car. He stopped en route to buy sweets and condoms. These, along with Viagra and the phone recording the online chat, were found when the car was searched after the appellant's arrest at the meeting point. 11. On the phone were four category B indecent photographs of children (the subject of count 2). When his home was searched, police found an iPad on which were stored the category C images (to which counts 3 and 4 related). The indicative search terms the appellant had used included references to incest and special needs related paedophilia. 12. In interview, the appellant admitted that it had been his intention to have penetrative sex with the 10 year old, receive oral sex from the 7 year old, and lick the vagina of the 2 year old. He could not be 100 per cent sure that he would have gone through with it, but he may have done. He said that comments about his previous abuse of children were fantasy. They were made to keep "Nick" and "Lucy" engaged. The Sentence 13. The judge took count 1 as the lead offence and indicated that she would treat counts 2, 3 and 4 as aggravating it. She noted that she had initially not understood why count 1 had been arranging or facilitating sexual activity with a child, since the most serious offence which the appellant would have committed, if he had gone through with the plan, was rape of a child under 13. However, section 14 had been amended with effect from 28 th June 2023. The consequence, the judge said, was that if the offending had occurred 11 months later, it would have had a maximum sentence of life imprisonment, and the guideline would have been very different too. 14. The judge found that there was no doubt that when he set off on 3 rd August 2022, the appellant intended to commit the offences discussed. She noted that these facts placed the offence in category 1A in the Sentencing Council guideline for the section 9 offence. That gave a starting point of five years' imprisonment, with a range of four to ten years. However, the judge regarded it as significant that had the offence been committed 11 months later, the maximum sentence would have been life imprisonment, with a starting point of 16 years and a range of 13 to 16 years. She considered that she had to take into account current sentencing practice. The maximum was now significantly higher. She had to made allowance for the fact that these were not real children, so no activity took place, or could have taken place. She also bore in mind that up to the age of 58 the appellant had led an exemplary life (apart from what was going on late at night on his computer), and that his relationship with his wife, children and grandchildren had been destroyed. 15. The judge said that the shortest term she could impose was one of ten years' imprisonment, before credit for the guilty plea, giving seven and a half years, to reflect the guilty plea at the plea and trial preparation hearing. Discussion: The Law 16. Section 59 of the Sentencing Codes provides as follows: "(1) 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 exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so." 17. The Sentencing Council guideline for the offence of arranging of facilitating the commission of a child sex offence provides as follows: "When sentencing a section 14 offence, sentencers should refer to the guideline for the applicable substantive offence of arranging or facilitating under sections 5 to 12 …" It goes on to indicate, however, that the guideline for the substantive offences created by sections 5 to 8 are of relevance only where the offence is committed on or after 28 th June 2022. In our view, this is the correct approach, and nothing in the case law undermines it. 18. In R v H [2011] EWCA Crim 2753, [2012] 2 Cr App R(S) 21, this court considered and gave general guidance on "issues which arise in the context of crimes brought to justice many years after they were committed, sometimes described as 'historic' or 'cold cases'": see [1]. It made clear that its conclusions were not confined to sexual crime: see [5]. The principles enunciated by the court at [47] include these: "(a) Sentence will be imposed at the date of the sentencing hearing, on the basis of the legislative provisions then current, and by measured reference to any definitive sentencing guidelines relevant to the situation revealed by the established facts. (b) Although sentence must be limited to the maximum sentence at the date when the offence was committed, it is wholly unrealistic to attempt an assessment of sentence by seeking to identify in 2011 what the sentence for the individual offence was likely to have been if the offence had come to light at or shortly after the date when it was committed. Similarly, if maximum sentences have been reduced, as in some instances, for example theft, they have, the more severe attitude to the offence in earlier years, even if it could be established, should not apply. (c) As always, the particular circumstances in which the offence was committed and its seriousness must be the main focus. …" The court noted that this approach did not offend article 7 of the European Convention on Human Rights, or the common law prohibition on retrospective penalisation, provided that the sentence imposed did not exceed the maximum that could have been imposed when the offence was committed: see [18] and [19]. This was reiterated in R v Clifford [2014] EWCA Crim 2245, [2015] 1 Cr App R(S) 32, at [38] and [40]. 19. The reasoning in H was reflected in the definitive guideline on historic sexual offences published in 2013, which applied to offences under the Sexual Offences Act 1956, or other legislation predating the 2003 Act. Paragraph 3 of Annex B to that guideline provided as follows: "The court should have regard to any applicable sentencing guidelines for equivalent offences under the Sexual Offences Act 2003." 20. In R v Forbes [2016] EWCA Crim 1388, [2016] 2 Cr App R(S) 44, Lord Thomas CJ, with whom the other members of the five-judge constitution agreed, made clear that the intention was that historic offences should be sentenced "by measured reference to" the current guideline. This meant that the judge should not simply apply the current guideline, subject to any maximum applicable at the time, but should use it in a "measured and reflective manner" to arrive at the appropriate sentence: see [9]. This applied to the selection of an "equivalent offence" and also to the determinate of the appropriate sentence, having regard to that guideline, as adjusted by reference to the maximum sentence applicable to the offence charged; see [10]. In selecting the equivalent offence, the judge might have to refer to more than one guideline: see [12]. 21. The guideline for historical sexual offences has since been updated to reflect this reasoning, so that it now provides as follows: "The court should sentence by measured reference to any applicable sentencing guidelines for equivalent offences under the Sexual Offences Act 2003." 22. In our judgment, the problem under consideration in H , Clifford and Forbes was one which arose in the particular situation where the offence of which the offender had been convicted was "historic" in the sense that it was one for which there was no currently applicable guideline. That was what necessitated the identification of an equivalent offence. 23. In the case with which we are concerned, by contrast, the appellant was convicted of the offence of arranging or facilitating the commission of the section 9 offence. That is not a historic offence in the sense in which that word was being used in H and subsequent cases. It is an offence of which he could still be convicted today, and for which there remains an applicable guideline. That guideline, and no other, was "relevant to the offender's case" for the purposes of section 59(1)(a) of the Sentencing Code. In our view, the judge was therefore mistaken in referring to the guideline for the section 5 offence. 24. Comprehensive guidance on the section 14 offence is given in R v Privett [2020] EWCA Crim 557, [2020] 2 Cr App R(S) 45. The offence is a preparatory one, which is complete when the arrangements for the commission of the offence are made, or the intended offence has been facilitated. Guilt is not dependent on the completed offence happening, or even being possible. So, the absence of a real victim does not reduce culpability: see [59] and [60]. The correct approach to sentencing is to identify the category of harm on the basis of the sexual activity the defendant intended, and then to adjust the sentence to ensure that it is commensurate with, or proportionate to, the applicable starting point and range if no sexual activity had occurred, including in cases where the victim was fictional: see [68]. Discussion 25. Was the sentence imposed on the appellant manifestly excessive? The judge was entitled, on the evidence, to conclude that the appellant intended to commit the offences he had arranged to commit. He had said so himself when interviewed by the police. Moreover, his admissions were consistent with the items found in his car. 26. Under the guideline for the section 9 offence, there was no doubt that these were category A offences in terms of culpability: there was a significant degree of planning; there was an abuse of trust, because the offence was to involve the parents of the fictional children; there was specific targeting of a vulnerable child, because the 10 year old was said to be non-verbal and autistic and there was evidence that the appellant had a particular interest in children with special needs; and there was a significant disparity in age. There was also no doubt that the harm was in category 1, because the appellant intended to penetrate the girl vaginally and anally, and to watch while her father did so. These elements alone would place this offending near the top of the range for the section 9 offence. In this case the plan involved the abuse of three children and was truly depraved. It included oral and anal penetration of the 7 year old boy, and abuse involving oral penetration of the 2 year old girl. The children were to watch their siblings being abused in the presence of their parents and with their parents' complicity. 27. In our judgment, completed offences on these facts would justify a starting point right at the top of the category range for the section 9 offence. A modest uplift would be justified to reflect the indecent images offences, for which no separate penalty was imposed. A reduction would then have to be applied to reflect the fact that these were not completed offences because, although the appellant had gone some distance towards executing the plan, the fact remained that no real children were harmed. 28. It should also be borne in mind that the precise details of the plan reflect a scenario created by undercover police officers, albeit one with which the appellant was happy to go along. A further reduction was called for given that the appellant had no previous convictions and to reflect the complete destruction of his relationship with his wife, children and grandchildren. 29. Taking all these matters into account, a sentence of ten years' imprisonment, before credit for the guilty plea, was in our judgment manifestly excessive. We consider that the correct sentence was one of eight years' imprisonment, before credit for the guilty plea, giving a sentence of six years' imprisonment, after taking account of the guilty plea at the plea and trial preparation hearing. 30. We shall therefore quash the sentence imposed by the judge and substitute a sentence of six years' imprisonment. To that extent the appeal is allowed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] ______________________________	```yaml citation: '[2023] EWCA Crim 370' date: '2023-03-14' judges: - MR JUSTICE HILLIARD - MR JUSTICE CHAMBERLAIN ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical 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 1055 Case No: 201803556 C2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM EXETER CROWN COURT MR RECORDER MEEKE QC T20160431 Royal Courts of Justice Strand, London, WC2A 2LL Date: 07/08/2020 Before : LORD JUSTICE DAVIS MRS JUSTICE ANDREWS DBE and HIS HONOUR JUDGE MARKS QC, COMMON SERJEANT OF LONDON - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - JON ANDREWES Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mrs Nadine Radford QC and Mr Richard Reynolds ( instructed by Harris Cuffaro & Nichols) for the Appellant Mr Martin Evans QC and Mr Cameron Brown QC ( instructed by the Crown Prosecution Service) for the Respondent Hearing date: 24 th July 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment LORD JUSTICE DAVIS: Introduction 1. In the aftermath of the decision of the Supreme Court in Waya [2012] UKSC 51 , [2013] 1AC 1028 , s.6 (5) of the Proceeds of Crime Act 2002 (“the 2002 Act) was amended so as to add the words: “Paragraph (b) applies only if, or to the extent that, it would not be disproportionate to require the defendant to pay the recoverable amount.” But what does the word “disproportionate” connote in this context? That question, and questions of causation, fall to be answered in this case in circumstances where the appellant obtained remunerative employment and appointments after having made dishonest statements as to his qualifications and experience. This is a case of a kind expressly left open by the Supreme Court in Waya for decision in an appeal in which such issues directly arise. Here such issues do directly arise. 2. In confiscation proceedings in the Crown Court, the Recorder on 26 July 2018 assessed benefit in the sum of £643,602.91: representing the amount of pay (net of Income Tax and National Insurance Contributions) received by the appellant in the years of his employment and appointments before his dishonesty was discovered and he was dismissed. The available amount was assessed in the sum of £96,737.24. The recoverable amount was thus assessed in the latter sum: and the Recorder decided that it would not be disproportionate to order the appellant to pay that sum. A term of one year’s imprisonment in default of payment was set. 3. Leave to appeal was granted by the Full Court on a previous occasion. At the appeal hearing before us, the appellant was represented by Mrs Nadine Radford QC and Mr Richard Reynolds. The respondent was represented by Mr Martin Evans QC and Mr Cameron Brown QC. Of counsel, only Mr Brown had appeared in the proceedings below. We are grateful to counsel for their careful and skilfully presented submissions, both written and oral. Background Facts 4. We will give a relatively short summary of the background facts. 5. In September 2004 the post of Chief Executive Officer at St Margaret’s Hospice, Taunton (a registered charity) was advertised in the national press, following the retirement of the previous Chief Executive Officer. The appellant was one of those who applied for the post. A detailed application pack was provided to him and to other candidates. It was among other things made clear that, in addition to his other duties, the Chief Executive Officer would act as the Responsible Person in accordance with the National Care Standards Act 2001. The tasks and responsibilities attached to the post were fully set out. 6. Of the requirements described as “Essential” in the “Person Specification”, there was included the requirement, as being “necessary for effective performance in the job”, of a first degree. Also described as “Essential” were, among other things: “10 years management experience with 3 years in senior appointment. Wide experience.” Attributes listed as “Desirable” included holding an MBA and 5 years in senior appointment. 7. In his signed application form, dated 3 October 2004, the appellant expressly acknowledged that the appointment, if offered, would be subject to the information given on the form being correct. 8. In that form he claimed, under the heading of University Education, a joint honours degree from Bristol University in Social Policy and Politics (1976-1979) and an MPhil in Poverty and Social Justice from the same university. He claimed to have an MBA from Edinburgh University in Management Science (1982-1984) and to be in the course of studying for a PhD in Ethics and Management at Plymouth University (from 2003). Under the heading of Professional Qualifications he claimed to have an Advanced Diploma in Management Accounting (CIMA). 9. None of this was true. 10. In addition, in giving details of his employment history he variously stated that he had been on secondment at the Home Office between 1979 and 1982; chief executive of the Barrand Partnership between 1985 and 1993; Managing Director of the Sydenham Charitable Trust between 1993 and 1998; Chief Executive of the Groundwork Devon and Cornwall charity between 1998 and 2002 and Chief Executive of Groundwork South West from 2002. 11. The actuality was very different. The appellant had not been seconded to the Home Office. He had worked as a social worker between 1975 and 1984. Between 1990 and 1995 he had been employed by Somerset County Council; and subsequently had been employed by Plymouth Council. Between 1999 and 2000 he had been employed at Plymouth Groundwork Trust for one year, with no record of him being designated Chief Executive. He was then employed between 2003 and 2004 by Groundwork Plymouth, at a salary of £54,631. Although having claimed to be Chief Executive of the Groundwork Charity between 1998 and 2004, he was not registered with the Charity Commissioners until 2004. There was no record of him having worked at the Sydenham Charitable Trust. 12. Overall, therefore, his representations as to the essential requirements of continuous and senior management experience in the charitable sector, as well as to his educational qualifications, were false or dishonestly inflated and were misleading. 13. Unfortunately, these falsehoods were not picked up at the time. The appellant was one of two candidates to be interviewed. He was offered, and accepted, the post of Chief Executive Officer of the St Margaret’s Hospice in December 2004, at an initial annual salary of £75,000. He remained in that post until 2015. 14. In 2006, the appellant falsely told staff that he had obtained a PhD from Plymouth University (he had not). He required that he be addressed as Dr Jon Andrewes, a title which in due course appeared in, for example, staff structure diagrams and his email footers. 15. In July 2007 the appellant applied for the role of non-executive director at Torbay NHS Care Trust, a remunerated position. His application form was certified by him to be complete and correct. It contained the like falsehoods as to his academic qualifications. But now he also added a DPhil qualification and styled himself “Dr.” His application also contained the like falsehoods as to his employment history. He was appointed – this being a public appointment – on 19 September 2007 for an initial four year term which thereafter was periodically renewed until termination on 30 September 2015. He was also appointed Chair from February 2012. 16. On 1 July 2015 the appellant was further appointed as Chair of the Royal Cornwall NHS Hospital Trust, a remunerated position. His application for that position had included corresponding (even if not identical) falsehoods as to his academic qualifications and his employment history. Five candidates had been interviewed; he was successful. Requirements of honesty and integrity were explicit requirements for the post. He subsequently resigned when he was challenged about his academic history. 17. In a witness statement dated 24 November 2016 Mr Michael Clark, Chair of the Trustees of St Margaret’s Hospice at the time of the appellant’s appointment, stressed that significant relevant previous experience had been viewed as essential: had candidates not had such experience, the post would have been re-advertised. He confirmed that the appellant would not have been offered the role if it had been known that he was lying about his previous experience and education. The need for integrity and honesty was emphasised. Mr Clark did, however, make clear that, at all events until Mr Clark himself retired in November 2008, the hospice had made significant progress and that he had never entertained any doubts about the appellant’s ability to carry out his role as Chief Executive Officer. It seems, in fact, that the appellant throughout was regularly appraised as either strong or outstanding in annual reviews. 18. His employment, and his two appointments, came to an end in 2015 when the truth started to emerge. In fact, criminal proceedings were then also commenced against the appellant, and others, in respect of the procurement of certain contracts placed by the hospice. In the event, the appellant was acquitted on those matters and, as we see it, they are irrelevant to the present appeal. The Crown Court Proceedings 19. The present proceedings were instituted in 2016. There were three counts on the indictment which were pursued. Count 1 (which related to the St Margaret’s Hospice job application) was charged as obtaining a pecuniary advantage by deception, contrary to s.16 (1) of the Theft Act 1968: the pecuniary advantage being particularised as the opportunity to earn remuneration or greater remuneration in an office or employment, by deception. Counts 2 and 3 related to the application to the Torbay Care NHS Trust and Royal Cornwall NHS Hospital Trust. Those counts were charged as fraud (by false representation) under the Fraud Act 2006, which statute had in the meantime been introduced. 20. The appellant pleaded guilty to those three counts. (A further count of possessing an article for use in fraud was left to lie on the file.) He was sentenced in the Exeter Crown Court on 6 March 2017 by His Honour Judge Mercer QC. A very detailed (amended) Basis of Plea had been proffered. The prosecution did not necessarily accept all of it; but it was not thought necessary to hold a Newton hearing. 21. The appellant was 63 years old at the time and with no previous convictions. The judge remarked that for a period of over 10 years his outwardly prestigious life had been based on a lie: “more accurately, a series of staggering lies”. The judge said of those lies that by them the appellant had secured responsible positions, in which honesty and integrity were essential qualities: “positions which you, at least probably if not certainly, would not otherwise have obtained”. The judge sentenced on the basis that the appellant had worked hard in all the dishonestly obtained posts and had achieved success. 22. The judge also noted that the appellant had received income over the ten year period in excess of £1 million (“income you should not have received”): but accepted that was not, for the purpose of the sentencing guidelines, loss caused or intended to be caused. He further noted that the dishonesty had denied others the positions which he had obtained: “but, above all, what you did means that you were performing roles which you should not have been performing and, inevitably, that causes real damage to the public’s confidence in the organisations which you deceived.” 23. Giving full credit for the plea, and having regard to other mitigation, the judge imposed a sentence of two years’ imprisonment. He set a timetable for the confiscation proceedings, as requested by the prosecution. 24. In the event, Judge Mercer was not available to undertake the confiscation hearing. The matter was dealt with by Mr Recorder Meeke QC. There was a two-stage hearing in June and July 2018. 25. It should be made clear that, throughout, the proceedings were conducted by reference to the asserted benefit from particular criminal conduct. At no stage had the prosecution sought to rely on the criminal lifestyle provisions of the 2002 Act. 26. At the initial confiscation hearing the appellant’s counsel placed some reliance on the Guidance issued to prosecutors by the Crown Prosecution Service (in 2009) on the discretion to institute confiscation proceedings, and in particular the concluding paragraphs of that Guidance. It was also, among other things, said that the asserted benefit (in the form of remuneration received over the period) was too remote from the conduct. The Recorder rejected that. He found that the dishonest representations were continuing representations; further, “by his pleas to counts 1-3 … he plainly accepts, in terms, that he had [benefited from his particular conduct].” 27. As to the valuation of the benefit so obtained, the first year’s remunerated employment was left out of account, apparently because for some reason no reliable figures were available. From May 2006 to the termination of his employment, his remuneration (net of tax and National Insurance Contributions) was, ignoring pence, £547,748. For the Torbay NHS Care Trust, the net income over the relevant period was £62,156; for the Royal Cornwall Hospitals NHS Trust it was £33,687. The Recorder valued the benefit as £643,602, before adjustment for inflation. 28. The recoverable amount, together with the issue of proportionality, was determined at a later hearing. In the event, the recoverable amount was agreed as £96,737.24. 29. As to proportionality, the Recorder referred to Waya and certain other authorities. The Recorder went on to hold that honesty and integrity had been fundamental to the appellant’s role: “qualities he clearly lacked”. He also went on, at paragraph 48 of his ruling, to state: “That said, few would regard as proportionate an order, were I in a position to make it, which deprived [the appellant] of the whole of his earnings for 10 years ….” In this regard, the Recorder had in fact declined – perhaps strictly incorrectly –to adjust the benefit figure for inflation, on the footing that it would be academic. 30. The Recorder further said that it would be impossible to assess arithmetically the value of the appellant’s work for the hospice and the two Trusts but in any event he was not required to do so. All that he was required to do was to assess whether the recoverable amount was disproportionate. As to that, he said at paragraph 50: “Given the recoverable amount is £96,737.24 I have determined that it would not be disproportionate to order D to pay a confiscation order in that sum and accordingly I make such an order. It represents less than 15% of the benefit figure as I have found it to be, a benefit figure which does not include D’s first year’s salary from SMH and which has not been adjusted per sec. 80 (2) (a) of the Act.” 31. In the result, therefore, the confiscation order was in the sum of £96,737.24. The Recorder had also been asked to make a compensation order in favour of the hospice and the two Trusts out of that sum (see s.13 (6) of the 2002 Act), pro-rated to the amounts of remuneration each had paid out. He acceded to that request. On this court’s query as to how the asserted losses had been calculated, we were told, rather vaguely, that, at least as far as the hospice was concerned, donations had fallen markedly when the allegations first surfaced – although whether this was because of the allegations about his qualifications or because of the other criminal proceedings about the procuring, with others, of contracts for services is wholly unclear. The Legislative Scheme 32. The structure of the 2002 Act, for the purposes of calculating the recoverable amount, is all too familiar. 33. Where the prosecutor has asked the court to proceed under s.6, the court must decide whether or not the defendant has a criminal lifestyle. If the defendant does not, then the court must decide, on the balance of probabilities, if the defendant has benefited from particular criminal conduct. Section 6 (5) of the 2002 Act, as amended, provides as follows: “(5) If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must— (a) decide the recoverable amount, and (b) make an order (a confiscation order) requiring him to pay that amount. Paragraph (b) applies only if, or to the extent that, it would not be disproportionate to require the defendant to pay the recoverable amount.” 34. Section 7 then relates to the recoverable amount: which, put shortly, is the lower of the benefit or the available amount. Section 8 relates to benefit and s.9 to available amount. Section 10 then turns to the criminal lifestyle provisions: those provisions are not in point in the present case. 35. The overall approach for these purposes is, as is well known, succinctly summarised in May [2008] UKHL, 28 , [2008] 1AC 1028 : (1) Has the defendant benefited from relevant criminal conduct? (2) If so, what is the value of the benefit so obtained? (3) What sum is recoverable from the defendant? It can be noted that the third question remains apt to cover the assessment of disproportionality introduced by the subsequent amendment to s.6. 36. Given the nature of some of the arguments in this case, s.76 of the 2002 Act is of importance. In the relevant respects, that section provides as follows: “(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. (6) References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained both in that connection and some other. (7) If a person benefits from conduct his benefit is the value of the property obtained.” Submissions 37. We will briefly outline the parties’ respective stances at this stage, because they set the scene for the review of the legal authorities which we are required to undertake. 38. For the appellant, Mrs Radford QC emphasised that the appellant had provided full value for the remuneration which he had received. Until the truth emerged, he had performed his roles competently and satisfactorily: and there was no evidence, for example, to rebut what Mr Clark had said in his witness statement. 39. She very fairly – and in our view correctly – accepted that, in the present circumstances, the false representations were to be regarded as ongoing throughout the periods of employment or appointment, as the case may be: she did not seek to limit the false representations to the date on which the dishonest job applications were submitted. She also accepted the gravity of the appellant’s conduct, the ongoing breach of trust involved and the effect on public confidence. But she emphasised that those factors should be reflected in the sentence (here, two years’ imprisonment) imposed by way of punishment: and it would be wholly wrong, she said, to reintroduce those factors in support of the assessment of benefit and of recoverable amount. 40. Moving on from that, she submitted that, whilst the appellant had made false representations in his applications, the actual work which he then did (competently, as it is to be taken) was lawful and of full value to his employers and appointers. It was, she said, too far removed from his actual criminal offending to constitute benefit from particular criminal conduct. 41. Her alternative and perhaps principal argument, albeit to an extent linked to her first argument, was to the effect that, at all events, the confiscation order was disproportionate. It was disproportionate because it in substance required the appellant to make payment back of his remuneration in circumstances where he had already given full value for his employment and appointments, even if he had obtained the employment and appointments dishonestly. Thus the appellant had in effect made restoration; and it was contrary to the scheme of the 2002 Act that he should have to make restoration again. That would in effect be double punishment. In the present case, she concluded, there was no benefit from the particular conduct and at all events no confiscation order should have been made. 42. For the respondent, Mr Evans QC submitted that the arguments based on remoteness were misplaced. Here, applying (as one should) a conventional “but for” approach, there was no doubt but that the employment and the appointments, and remuneration therefrom, were obtained by reason of the false representations. That is what both Judge Mercer QC and the Recorder had found on the evidence and that was plainly justifiable on the evidence. It was true that the appellant had then continued in post for several years. But, as conceded on behalf of the appellant, the false representations were to be taken as continuing throughout; and there was no question of any waiver, as the hospice and Trusts were unaware of the dishonesty and, indeed, the employment and appointments were terminated once the truth emerged. Unquestionably, therefore, the appellant had benefited from conduct, having obtained the remuneration “as a result of or in connection with” the conduct. 43. As to disproportionality, Mr Evans emphasised that the purpose of the 2002 Act is to deprive criminals of the proceeds of their criminality. Here, the remuneration represented the proceeds of the appellant’s dishonest representations; and there was, he said, nothing disproportionate in requiring him to disgorge that benefit, even if he had worked during those years. Mr Evans accepted, indeed averred, that, on his argument, had the appellant had available assets worth in excess of £1 million then a confiscation order in the full amount of the remuneration (net of tax) over the ten year period, and inflation adjusted, should have been made. 44. Thus the two arguments could hardly be more diametrically opposed. Mrs Radford was arguing, in principle, for no order. Mr Evans was arguing, in principle, for an order in the full amount (subject to the limit of available assets) of the remuneration received. Neither party, it may be added, showed much, if any, enthusiasm for the approach taken by the Recorder: which in effect was to uphold a confiscation order in the amount of the available assets as that represented only some 15% of the benefit figure. The Legal Authorities 45. Against that context, we turn to a selection of the legal authorities. 46. In Carter and others [2006] EWCA Crim 416 , one of the defendants had obtained a pecuniary advantage by deception, in the form of wages received by him when he was living unlawfully in the United Kingdom and when he had no legal right to work at all. The court approached the case on the basis of asking whether the deception was an operative cause of obtaining the property in question (that is, the wages received). The court held that it was, noting also that the deception continued throughout the employment. An argument on proportionality based on Article 1 Protocol 1 of the Convention was also raised. But it was rejected: although it is right to say that that was before the much more extensive and authoritative consideration in Waya itself. 47. In Nelson, Pathak and Paulet [2009] EWCA Crim 1573 , [2010] QB 678 , in one of the cases, Paulet , the defendant had obtained remunerated employment by falsely representing that he was lawfully entitled to work in the United Kingdom. The court took the same approach as in Carter : an argument that the wages were to be taken as paid in return for the efficient performance by the defendant of his duties was rejected. After referring to Carter , the court said: “49. It seems to us to be obvious that where you obtain an opportunity to work from an offer of employment being made to you, and the offer has been induced by a false representation that you are entitled to work, then the false representation continues thereafter for the benefit of the offender who, permitting the representation to continue, is able to obtain employment. Once made, it continues to have effect throughout the employment which has been taken up. At any stage, had the representation been corrected, it is plain that the employment would have ceased. … 50. Paulet's case cannot be distinguished. The reality is that throughout the period of his employment he was relying on a continuing dishonest representation to three different employers. He deceived them into thinking that he was entitled to obtain employment with them. That was a crucial element of his criminality.” The court in that case did acknowledge that in some cases the passage of time might cause the deception to cease to have any meaningful effect on the decision to continue the employment. But self-evidently, we note, that is not the present case. It is clear in this case that the employment and appointments would have been terminated had the truth emerged sooner. 48. Paulet did in fact eventually end up in the European Court of Human Rights (and after the decision in Waya ): (2015) 61 EHRR 39 . The court there held, by a majority, that the approach of the Court of Appeal had been too narrow: and that the requirements of Article 1 Protocol 1 had not been taken sufficiently into account. It was held for this purpose that there had to be a reasonable relationship of proportionality between the means employed and the aim to be realised. Accordingly, the matter was remitted so as to enable the proportionality exercise to be undertaken. Mrs Radford did particularly refer to the minority opinion of two judges of the court who would, as a matter of substance and not simply as a matter of procedure, have found in favour of the defendant. However, given that that was a minority opinion, and given too that it was seemingly strongly marked by an in rem approach to the proceeds of criminality (whereas the English confiscation system is geared to an in personam approach), we do not think that over-much weight should, for present purposes, be accorded to that minority opinion. 49. We consider that in so far as the domestic cases touch upon proportionality they are all, in so far as they pre-date Waya , to be treated with a degree of circumspection. Correspondingly, in Shabir [2008] EWCA Crim 1809 , [2009] 1 Cr. App. R (S) 84 an outrageously unjust result was averted by resort to principles of oppression and abuse of process. It is doubtful whether resort to such principles would be necessary nowadays, if ever such facts were to recur. 50. That, then, leads to Waya itself. 51. Waya, which was not a criminal lifestyle case itself, was quite complicated on its facts. But, shortly put, the key point was that although the defendant had made a dishonest misrepresentation to the lending institution, thereby inducing it to make the loan, that deception caused no loss to the lender: it was fully secured and was in due course repaid, by remortgage honestly obtained. The Supreme Court, having regard to the provisions of Article 1 Protocol 1 and to considerations of proportionality, held that an order made in the amount of the loan obtained would be disproportionate. Nevertheless, a confiscation order corresponding in effect to the prorated increase in the value of the property attributable to the loan was, in the opinion of the majority, justified and proportionate. All nine members of the court, it should be emphasised, were agreed as to the general statements set out in paragraphs 1-34 of the joint judgment of Lord Walker and Lord Justice Hughes: all of which paragraphs are in point for present purposes. As to the actual outcome, the minority (Lord Phillips and Lord Reed) considered that there was no “real” benefit to the defendant and that it was disproportionate to base the confiscation order on the increase in the value of the flat: and would have made no order at all. 52. At paragraph 12 of the judgment, the court accepted, by reference to Article 1 Protocol 1, that there was imported a requirement that there must be a reasonable relationship of proportionality between the means employed by the State in the deprivation of property and the legitimate aim which was sought to be realised by the deprivation. The court went on to say that the essence, or “grain”, of the 2002 Act was not deterrence (although that may be a concomitant). Rather, its essence and purpose was to remove from criminals the proceeds of their crimes: paragraph 21. Further, the power of the court to refuse to make a confiscation order on grounds of disproportionality was not to be equated with a general residual discretion: paragraph 24. The court went on to note, with examples, at paragraph 26, that a confiscation order may properly and proportionately remove from a defendant a sum larger in fact than his net proceeds of crime. The focus is on what is obtained: not on what is retained. 53. In the course of the judgment of Lord Walker and Lord Justice Hughes, this was then said at paragraphs 27-29: “27. Similarly, it can be accepted that the scheme of the Act, and of previous confiscation legislation, is to focus on the value of the defendant’s obtained proceeds of crime, whether retained or not. It is an important part of the scheme that even if the proceeds have been spent, a confiscation order up to the value of the proceeds will follow against legitimately acquired assets to the extent that they are available for realisation. 28. The case of a defendant such as was considered in R v Morgan [2008] 4 All ER 890 is, however, a different one. To make a confiscation order in his case, when he has restored to the loser any proceeds of crime which he had ever had, is disproportionate. It would not achieve the statutory objective of removing his proceeds of crime but would simply be an additional financial penalty… 29. The principle considered above ought to apply equally to other cases where the benefit obtained by the defendant has been wholly restored to the loser. In such a case a confiscation order which requires him to pay the same sum again does not achieve the object of the legislation of removing from the defendant his proceeds of crime, but amounts simply to a further pecuniary penalty - in any ordinary language a fine. It is for that reason disproportionate. If he obtained other benefit, then an order confiscating that is a different matter.” 54. After going on to deal with various authorities, the court further went on to say this at paragraph 34: “34. There may be other cases of disproportion analogous to that of goods or money entirely restored to the loser. That will have to be resolved case by case as the need arises. Such a case might include, for example, the defendant who, by deception, induces someone else to trade with him in a manner otherwise lawful, and who gives full value for goods or services obtained. He ought no doubt to be punished and, depending on the harm done and the culpability demonstrated, maybe severely, but whether a confiscation order is proportionate for any sum beyond profit made may need careful consideration. Counsel’s submissions also touched very lightly on cases of employment obtained by deception, where it may well be that difficult questions of causation may arise, quite apart from any argument based upon disproportion. Those issues were not the subject of argument in this case and must await an appeal in which they directly arise; moreover, related issues are understood to be currently before the Strasbourg court.” (It is understood that the last reference was to the case of Paulet. ) As we have already indicated, the present case is precisely one of those cases of employment obtained by deception to which the Supreme Court was there alluding. 55. It is plain that the subsequent amendment to s.6 (5) of the 2002 Act is directly founded on the decision in Waya and on the words suggested in the judgment in that case (in paragraph 16). The amended statute does not of itself proffer any definition of “disproportionate” or any criteria for the assessment. It is thus to be assumed that it is to be interpreted in the light of the decision in Waya itself. 56. The relatively rigorous approach to disproportionality laid down in Waya , and as reflected in the actual decision of the majority, also finds its reflection in subsequent decisions. 57. Thus the decision of the Supreme Court in Ahmad and Fields [2014] UKSC 36 , [2015] AC 299 is essentially founded on the same proposition that a defendant in confiscation proceedings is not to be made the subject of a confiscation order to the extent that restoration has already been made. Likewise, in Harvey [2015] UKSC 73 , [2017] AC 105 , the majority in the Supreme Court held that VAT which had actually been paid should not be included in a confiscation order against a defendant convicted of handling stolen goods: to do so would otherwise constitute disproportionate double recovery by the Executive. 58. Nevertheless, the courts have generally been strict in requiring restoration to be in full before a confiscation order may be mitigated on grounds of disproportionality. Thus if a stolen car is restored in a damaged state the value of it in such damaged state will not be taken into account. Likewise, the making of a compensation order will not of itself render a confiscation order in the entire amount disproportionate unless the rendering of compensation is certain; although if it is certain, or has already been made, then it would be disproportionate double counting also to make a confiscation order in the full amount: see Jawad [2013] EWCA Crim 644 , [2013] 1 WLR 3861 . (That is not to say that in some cases partial restoration may not suffice. For example, if a burglar steals six valuable items of jewellery and restores three of them when apprehended, a confiscation order in the amount of all six items is not, post- Waya , to be anticipated. Likewise, if a thief steals £10,000 and restores £5,000 a confiscation order in the sum of £10,000 is not to be anticipated.) 59. We were also referred to a number of cases where it was held that, in certain circumstances, the courts are not required to make a confiscation order in the amount of the gross turnover (as opposed to net profits). Mrs Radford relied on these as showing the courts distinguishing between cases where goods or services were provided by way of lawful undertaking but where there was associated illegality, on the one hand, and cases where the entire undertaking was unlawful, on the other hand: see, for example, King (Scott) [2014] EWCA Crim 621 , [2014] 2 Cr. App. R (S) 54; Reynolds [2017] EWCA Crim 1455 , in particular at paragraph 58 of the judgment. Thus in King (Scott) , where the disproportionality of a confiscation order was under consideration, the court, after a review of the authorities, said this at paragraph 32: “The authorities reveal there is a clear distinction to be drawn between cases in which the goods or services are provided by way of a lawful contract (or when payment is properly paid for legitimate services) but the transaction is tainted by associated illegality (e.g. the overcharging in Shabir or the bribery in Sale ), and cases in which the entire undertaking is unlawful (e.g. a business which is conducted illegally, as in Beazley ). When making a confiscation order, the court will need to consider, amongst other things, the difference between these two types of cases.” Mrs Radford’s submission was that that approach applied by analogy here: the appellant’s employment and appointments at the hospice and at the Trusts was lawful in itself; the sole taint was the dishonest method by which he had obtained and then retained such employment and appointments. 60. In this regard, the high water-mark of Mrs Radford’s argument, in terms of legal authority, perhaps was the case of Sale [2013] EWCA Crim 1306 , [2014] 1 WLR 124 . 61. In Sale , the defendant was the sole shareholder and director of a company bearing his name. It carried on the entirely legitimate business of installing air-conditioning units and undertaking electrical engineering works and had done so for a number of years. Latterly, the company secured some valuable contracts, albeit at a proper price, from Network Rail by reason of financial inducements made to a manager at Network Rail. The company then fulfilled those contracts efficiently and for the proper price, receiving in total some £1.9 million of which £200,000 would represent net profit. For reasons which are not readily apparent, it was held that the corporate veil should be lifted and that Mr Sale should in effect be equated with the company. 62. The Court of Appeal concluded that it was disproportionate to make a confiscation order in the gross amount of £1.9 million. The court carefully considered Waya . The court accepted that Network Rail had received full value for money, money which it would have had to pay some other contractor to perform had it not engaged this company. The court went on to hold that the case was not entirely analogous to one where goods or money had been entirely restored to the loser; nor, given the advantage obtained by obtaining a market position and other advantages at the expense of legitimate competitors, had there been full recompense or divesting of the benefit of the crime. Referring to the case of Jawad and to paragraph 34 of Waya , the court said this at paragraph 56 of its judgment: “…had this been an offence whose only criminal effect was upon Network Rail which had been provided with value for money achieved by the performance of a contract which required the company to expend moneys in the ordinary course of business, it would have seemed to us proportionate to limit the confiscation order to the profit made, and to treat the full value given under the contract as analogous to full restoration to the loser.” 63. In the result, the court held it disproportionate to make a confiscation order in the amount of £1.9 million. It held that the appropriate order would have been for the net profits on the Network Rail contracts but which should have been further increased to reflect the pecuniary advantage gained by obtaining market share and so on (on which, however, the court had no evidence). 64. For completeness, we would also refer to two other cases, amongst the plethora of authorities in this field. 65. The first is the case of Box [2018] EWCA Crim 542 , which concerned the tainted gift provisions of the 2002 Act. At paragraph 20 of the judgment of the court this was said: “…the word ‘disproportionate’ used by Parliament in the amendment to s.6 (5) of the 2002 Act has in UK domestic law a particular meaning. In this context it means that the order must be proportionate to the achievement of the statutory aim [recovery of the amount the defendant has obtained from crime]. In almost all cases an order made in accordance with the provisions of the Act will satisfy that test. In some entirely different situations … that may produce disproportionality …” 66. The second is the decision in Morrison [2019] EWCA Crim 351 , [2019] 2 Cr. App. R (S) 25. The court there engaged in a wide-ranging review of many of the authorities on the concept of disproportionality in the context of confiscation proceedings including, but not limited to, the context of tainted gifts (with which much of that case was concerned). It helpfully summarised some of the relevant principles at paragraphs 62 to 68 of the judgment. In particular, for present purposes, it said this at paragraph 67: “67. Fifthly, the exception concerning proportionality in s.6(5)(b) is not to be equated with a general discretion in the court; nor even with a provision requiring or permitting the court to avoid the risk of serious injustice. It does not call for nor does it permit a general balancing exercise, in which various interests are weighed on each side of a balance, including the potential hardship or injustice which may be caused to third parties by the making of an order which includes a tainted gift. The proportionality exception in s.6(5)(b), although important, has a more limited scope.” The court went on to stress that all cases were fact specific. Disposal 67. Against that citation of authority, we turn to our disposal of this appeal. (1) Causation 68. The arguments of the appellant on this aspect of the appeal are to be rejected. They fail at every level. 69. First, the appellant had actually pleaded guilty to obtaining a pecuniary advantage (in the form of an opportunity to earn remuneration) by deception and to fraud. As the Recorder crisply put, by his pleas to the three counts the appellant accepted in terms that he had benefited. 70. Second, the actuality, as found by the Recorder on abundant evidence, was that the dishonest representations made by the appellant in his applications were causative of his obtaining the posts in question. But for those dishonest statements he would have been turned down for the posts and so would have gained no remuneration from them. Those findings amply confirm that the particular pecuniary advantage and benefit obtained was “as a result of or in connection with” the alleged conduct. 71. Third, the words used in s.76 (4) and (5) are framed in broad terms: see, for example, Morgan [2013] EWCA Crim 1307 , [2014] 1 WLR 3450 at paragraph 55 of the judgment. 72. Fourth, and yet further, the attempt to say that the appellant’s benefit (in the form of his remuneration from such posts) was too remote from the dishonest conduct and was, instead, to be taken as derived from his performance of the roles for which he had been employed or to which he had been appointed, is also inconsistent with authority. Thus the same argument had been run in Carter (cited above) but rejected: as it likewise had been in Paulet, at paragraphs 49 to 50 of the judgment (cited above). The court in each case further had pointed out that the false representations were continuing representations: as conceded to be so in the present case. 73. Generally speaking, the courts in confiscation proceedings have been disinclined to pursue a technical or artificial approach to causation or unduly to restrict the width of the words “as a result of or in connection with”. 74. Thus in the admittedly very different context of confiscation proceedings where there has been a breach of an Enforcement Notice under s.179 of the Town and County Planning Act 1990, attempts have been made by defendants, in seeking to resist an assessment of benefit by reference to, for example, rents received, to argue that the rents accrued from a lawful activity (viz. renting out property): and so were too remote to constitute benefit. That is an argument broadly corresponding in nature to the present argument. But the courts in such cases have consistently rejected that, holding that the courts should adopt the “familiar and straightforward test where issues of causation are in play”. On that approach, it is appropriately to be held in such a case that but for the criminal conduct in ignoring the Enforcement Notice the rents in the relevant period would not have accrued to the defendant at all: see Hussain [2014] EWCA Crim 2344 , at paragraph 21 of the judgment; del Basso [2010] EWCA Crim 1119 , [2011] 1 Cr. App. R (S) 41; Boruch Roth [2020] EWCA Crim 967 . Although the statutory and regulatory context in those cases is of course different from the present kind of case, it can be seen that the approach there adopted is consistent with the approach taken in cases such as Carter and Paulet . 75. It may of course be that in some employment cases, depending on the facts, the false representations, depending on their nature, can be adjudged never to have had or to have ceased to have had operative effect, or to have been implicitly waived. But even if that can be so, this most certainly is not such a case. 76. We do not propose to say more on this aspect of the appeal. The remuneration derived from the employment and appointments was correctly adjudged by the Recorder in his first ruling to be benefit obtained as a result of or in connection with the conduct. (2) Proportionality 77. We turn, then, to the issue at the heart of this appeal: the issue of disproportionality by reference to s.6 (5) of the 2002 Act. It is clear, we add, from the wording of that sub- section that disproportionality is to be assessed by reference to the making of a confiscation order: it is not to be assessed by reference to the amount of benefit as such. 78. As we have said, the 2002 Act proffers no criteria by reference to which an assessment of disproportionality, for the purposes of making a confiscation order, is to be made. So what does the word “disproportionate” connote in this context? 79. The authorities summarised above at all events make clear what the word “disproportionate” does not connote. (1) First, it does not reintroduce by the back door the notion of a residual judicial discretion. The wording of s.6 (5) is plainly founded on the lead judgment in Waya and that judgment is specific on the point: see paragraph 24. Moreover, it is striking that in s.10 (the criminal lifestyle provisions) limitations on the making of the assumptions are permitted where there would be a “serious risk of injustice” if the assumptions in question were made. But “serious risk of injustice” is not the language of s.6 (5). (2) Second, and reflecting that, an assessment of disproportionality is not to be made by a balancing of factors and competing interests in the way that may be appropriate in some public law or procedural law or family law contexts: see, for instance, Morrison at paragraph 67. (3) Third, disproportionality cannot for these purposes properly be assessed by reference to the proportion which the available amount bears to the benefit. Although that approach was the one adopted by the Recorder in the present case, that, with respect, cannot be right (and indeed counsel before us did not seek to support it). It cannot be right just because such an approach both would be arbitrary and would be contrary to the scheme and purpose of the 2002 Act. 80. Turning from the negatives, one then has to ask what the word “disproportionate” does connote. 81. The answer to this is central. And the answer, in our opinion, is given by posing the notional question “disproportionate to what?”. For the authorities, and in particular Waya itself, make it quite clear that that assessment of disproportionality is made by reference to the aim of the 2002 Act: which is to deprive criminals of the proceeds of their criminality. Consequently, Crown Court judges in assessing disproportionality always should, in considering whether or the extent to which a confiscation order should be made, ask themselves if such an order is disproportionate to the achievement of the statutory objective of depriving criminals of the proceeds of their criminality. So to approach matters would then avoid wrong notions of some kind of a residual discretion or a perceived need for either a draconian outcome or a “just” outcome, as the case may be, and the like. 82. It also, we might add, is precisely for that reason that where the criminal lifestyle provisions or the tainted gift provisions have been correctly applied, the outcome will only exceptionally be capable of being adjudged disproportionate. It will be exceptional just because the statutory provisions on criminal lifestyle (which also include an entitlement to disapply the assumptions) and on tainted gifts are themselves geared to the objective of depriving criminals of the proceeds of their crimes: as the observations in Box illustrate. 83. But how then, in a case which is not a criminal lifestyle case but a case of benefit from particular conduct, does the Crown Court go about the assessment of whether the making an order in the postulated recoverable amount is disproportionate to the achievement of the statutory objective? 84. It is noticeable, in our view, that the Supreme Court in the cases of both Waya and Harvey have eschewed approaching the issue of proportionality in confiscation proceedings under the 2002 Act in the way taken in the civil courts. Indeed, familiar cases such as de Freitas v Permanent Secretary of Ministry for Agriculture, Fisheries, etc. [1999] 1 AC 69 and (post- Waya ) Bank Mellat v HM Treasury [2013] UKSC 38 , [2014] AC 700 are neither cited nor discussed in those cases. Rather, the underpinning, even if not an absolute principle as such, for the assessment of disproportionality in this particular context (that is, whether the making of the confiscation order in the recoverable amount is disproportionate to the achievement of the statutory aim of depriving criminals of the proceeds of crime) is indicated to be by reference to whether such an order will constitute a double recovery from, or double penalty on, the defendant and will not achieve expropriation of the proceeds of his crime. 85. For this purpose, it is essential to bear in mind the fundamental point that a confiscation order is not designed to be a punishment (although no doubt some defendants may choose not to see it that way). As Mrs Radford rightly emphasised, the punishment is to be contained in the sentence of imprisonment or fine or other penalty imposed by the judge. The confiscation order itself, on the other hand, and consistently with the statutory aim, is restorative, in the sense of requiring the defendant to disgorge, to the extent that he is able, the product of his criminality. Thus it was that Lord Walker and Lord Justice Hughes in Waya emphasised that a confiscation order which requires a defendant who has made full restoration of the benefit to pay the same sum again does not achieve the object of the legislation of removing from the defendant the proceeds of crime but amounts simply to a further pecuniary penalty. 86. The proposition that, in cases of benefit from particular conduct, the notion of double recovery or double penalty is a mark of disproportionality is, we think, borne out in cases subsequent to Waya , such as Ahmad and Fields and Jawad and Harvey . On one view, it is quite a restricted approach – but, as against that, it is conceptually clear and accords with the identified statutory objective. Indeed, as cases such as Jawad or Harvey in the Court of Appeal [2013] EWCA Crim 1104 , [2014] 1 WLR 124 indicate, a strict notion of restoration is liable to be adopted: thus, as we have indicated, promises of restoration (as opposed to actual restoration) ordinarily will not suffice, any more than will, say, restoration of stolen goods in a damaged or depreciated state. 87. Against those considerations we turn to the outcome for the present case. 88. Mr Evans submitted that the entirety of the remuneration over the 10 year period (albeit he conceded that it should be net of all tax) represented the proceeds of the criminality and, consistently with the statutory aim of the 2002 Act, should be confiscated. But that submission in effect makes the determination on the issue of causation of itself determinative of the issue of disproportionality: and that cannot of itself be right. 89. Nor does it follow that the only way in which restoration can be made for this purpose is by the appellant restoring the same sum of money as he had received in net remuneration over the ten-year period. If that very restrictive approach were the required approach, the court in Waya surely would not have left open for further decision in later cases the examples given in paragraph 34 of the judgment. It is plain that the Supreme Court contemplated the possibility of cases of disproportion “analogous” to those of the goods or money entirely restored to the victim. 90. Sale , we consider, is an important and illuminating example of that. The defendant was not required to restore, by confiscation, the gross value of the contracts dishonestly obtained. Rather, he was only required to restore his net profits on those contracts (with a further sum, had it been capable of assessment, for any additional pecuniary advantage obtained). The rationale for that is clear: Network Rail was regarded as recompensed by its receiving full value for its monetary outlay (see paragraph 56 of the judgment). Providing full value, by performing lawfully the services under the contracts, thus was taken, to that extent, as analogous to restoration; and thus in turn required limitation of the confiscation order accordingly, on grounds of disproportionality. A corresponding approach underpins cases where it is adjudged disproportionate to make a confiscation order in the amount of gross proceeds or turnover and appropriate to restrict such an order to net proceeds where the overall business has been operated legitimately: as cases such as King (Scott) and Reynolds illustrate. 91. It can surely appeal to no sense of the merits in the present case if the appellant, had he had sufficient realisable assets, had been made subject to a confiscation order in the full amount of the benefit, representing all his earnings obtained over the ten year period, and inflation adjusted. As the Recorder himself said, “few would regard as proportionate” such an order. Of course, merits, as such, is not the test. But the reason why such an order would be disproportionate is, we think, precisely because the appellant is to be taken as having over the years given full value, in terms of the services he provided, to the hospice and Trusts in return for the remuneration which he obtained (remuneration which they would have had to pay to others if they had not employed or appointed him). Issues of quantum merit have no part to play in this case: as the Recorder rightly held. 92. The example was raised in argument by reference to a person applying for a post as a surgeon at a particular hospital. Suppose (no doubt implausibly) that an applicant has no surgical qualifications at all but nevertheless, by a false application, dupes a hospital into appointing him to a surgical post. Now suppose that the applicant does have the requisite surgical qualifications and experience, but nevertheless dishonestly embroiders his application form and thereby is the successful candidate: thereafter performing competently and diligently his surgical duties until he is dismissed when the truth emerges. On Mr Evans’ argument, as he conceded, in both cases the whole amount of the remuneration (albeit net of tax) is to be confiscated without differentiation. It is to be confiscated without differentiation because in each case, on his argument, both have obtained the employment and thereby the remuneration by reason of their fraudulent misrepresentations. That lack of differentiation in outcome is unappealing. Similarly, for example, we suggest, there can be a real distinction between a person applying for appointment as a company director who falsely exaggerates his credentials and a person applying for such an appointment who, in addition, suppresses the fact that he is the subject of a current Director’s Disqualification order. 93. A further example was put to Mr Evans by the Common Serjeant in argument. Suppose that a company employs a shelf-stacker on express terms that he has no prior criminal convictions but which he dishonestly fails to disclose. He thereafter works diligently and well until the truth emerges and he is dismissed. Again, on Mr Evans’ argument, the individual would potentially be liable to a confiscation order in the full amount of his remuneration. That too is unappealing. At one stage, Mr Evans suggested that such a scenario is distinguishable from the present as no breach of fiduciary duty would be involved. But that distinction is of no validity for these confiscation purposes – rather, such a factor is to be marked in the punishment appropriately to be imposed: precisely Mrs Radford’s point. 94. It might be objected that if that were so then how could the outcomes in domestic cases such as Carter and Paulet have been as they were? One answer is that Carter and Paulet were in fact decided long before Waya . But, quite apart from that, there is also this point of distinction. In Paulet , for example, the jobs undertaken were certainly of a kind which in themselves were lawful: in recruitment, in a cash-andcarry operation, as a forklift driver. But the point remained that, because of his unlawful immigration status, he could not lawfully work in the United Kingdom at all . The position is analogous to the rent receipt cases where there is a breach of an Enforcement Notice under the Town and Country Planning Act 1990. Renting out property is, in itself, lawful: but in such a scenario the rents derive from the occupation of property which the defendant has no lawful right to rent out or permit to be occupied at all. It can thus be seen that such cases correspond to the approach acknowledged in cases such as King (Scott) and Reynolds . This also explains how the approach, in terms of confiscation, could legitimately differ in terms of the two examples of the surgeon application given above. In the first scenario, the applicant has no qualifications and no lawful right to work, and cannot lawfully give value, as a surgeon at all. In the second scenario, on the other hand, the applicant does. 95. The conclusion thus has to be that where disproportionality is being assessed by reference to arguments raised as to restoration (in whole or in part) the court ordinarily will need to be satisfied that the postulated restoration has been lawful. We say “ordinarily”, however, just because it would be wholly wrong to rule out potential exceptions. This may particularly be so in, albeit not limited to, the sensitive area of employment where the individual has no lawful right to work at all because of his immigration status (as the outcome of Paulet in the European Court of Human Rights indicates): the more so where, perhaps, the employer may have been entirely indifferent as to the employee’s status. At all events, these sorts of considerations, in our opinion, should properly be left to determination on the particular facts of the particular case, and on a case by case basis. 96. Mr Evans objected that such an approach could lead to uncertainty and give rise to the difficulties and potential fine distinctions exemplified in the outcome of cases such as McDowell and Singh [2015] EWCA Crim 173 , [2015] 2 Cr. App. R (S) 14. We are not moved by that. All such cases have to be decided in the particular statutory or regulatory context in which they arise and by reference to the particular facts of the case. That (possibly) some individual cases may be difficult to decide in terms of the assessment of disproportionality is not a reason for, in effect, disabling the court from even making the attempt. 97. We would, in fact, at this stage wish to emphasise a point made in Waya at paragraph 19. This is that the prosecuting authorities have no obligation to institute confiscation proceedings: they have a discretion (having regard also to the relevant Crown Prosecution Service Guidance). In the employment context in particular, in cases of what is known as CV fraud, prosecuting authorities may need to reflect long and hard before deciding on confiscation proceedings. In saying that, we express no criticism of the prosecution in this case. The decision may well have been influenced by the other criminal proceedings that were started and in any event the prosecution here actually succeeded before the Recorder. But in other such cases very careful consideration should be called for, before confiscation proceedings are requested and pursued. 98. Turning to the facts of the present case, the proper outcome is, in our view, clear enough. The appellant made dishonest representations causative of his obtaining remunerative employment and appointments. He thereby benefited as a result of or in connection with his particular conduct. But throughout, as is to be taken, he properly performed his duties. Further, whilst he had obtained the positions dishonestly, they were positions which he was otherwise lawfully entitled to hold. There was, for example, no legal bar on his being employed or appointed as he was, and indeed no legal bar in principle on the hospice and Trusts waiving their requirements as to what they considered to be essential or desirable attributes. In all the circumstances, he is, in our judgment, to be taken as having given full value for his remuneration. He thereby is to be taken to have made full restoration. A confiscation order would accordingly be disproportionate to the aim of the 2002 Act: it would involve a double penalty. 99. There was some brief discussion before us as to whether at least the appellant should be required to be subject to a confiscation order reflecting a sum equivalent to the difference between his prior earnings and the increased earnings he received at the hospice. But such an approach does not fit with the approach we have outlined above and indeed, as Mr Evans fairly accepted, could be said to be arbitrary in its outcome. (Why, for example, should the outcome on benefit be different simply because he may have been unemployed before he gained the post?) Conclusion 100. In the present case, the Recorder’s assessment of the benefit and of the available amount was justified. However, given the particular facts of the present case and on a proper application of s.6 (5) of the 2002 Act, it was disproportionate to make a confiscation order in the recoverable amount. Accordingly, we allow the appeal and quash the Confiscation Order dated 26 July 2018.	```yaml citation: '[2020] EWCA Crim 1055' date: '2020-08-07' judges: - LORD JUSTICE DAVIS - MRS JUSTICE ANDREWS DBE - HIS HONOUR JUDGE MARKS QC, COMMON SERJEANT OF LONDON ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical 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: 2004/02746/D3 Neutral Citation Number: [2006] EWCA Crim 3062 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Derby Crown Court His Honour Judge Benson T20030317 Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/12/2006 Before : LADY JUSTICE SMITH MR JUSTICE MACKAY and HIS HONOUR JUDGE CHAPMAN (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : W B Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - The Appellant appeared in person Mr K Talbot (instructed by Crown Prosecution Service ) for the Respondent Hearing dates: 16/17 October 2006 - - - - - - - - - - - - - - - - - - - - - Judgment Lady Justice Smith : Introduction 1. This is an appeal against a confiscation order imposed by His Honour Judge Benson at the Derby Crown Court on 7 th April 2004. The circumstances leading to its imposition are as follows. 2. On the 29 th April 2003, at Derby Crown Court, the appellant pleaded guilty to an offence of the theft of a Porsche motor car. On the 12th May 2003, he pleaded guilty to four counts of making off without payment for petrol and one count of dangerous driving. He also appeared before the court in respect of 3 offences of theft of petrol for which he had been committed for sentence by the Magistrates Court. 3. On 17 th July 2003, the prosecution served a statement showing the results of an investigation into the appellant’s financial affairs. They sought a confiscation order under the Criminal Justice Act 1988 , as amended by the Criminal Justice Act 1993 and the Proceeds of Crime Act 1995 . We will refer to this legislation as ‘ the Act ’. 4. On 6 th October 2003, a confiscation order for £18,650 was made pursuant to section 71 of the Act in respect of the stolen Porsche motor car, with 12 months imprisonment in default of payment. 5. On 4 th March 2004, before HH Judge Benson, the appellant was sentenced to a custodial sentence of 27 months comprising 12 months imprisonment for dangerous driving, 9 months consecutive for making off without payment and 9 months consecutive for theft of the Porsche. There was a concurrent sentence for the offences of theft for which he had been committed for sentence. 6. On the 7 th April 2004, Judge Benson made a confiscation order under section 71 of the Act in the sum of £1,566,911 with a default period of 6 years imprisonment. The appellant was also ordered to pay prosecution costs in the sum of £65,348. On 14 th April, a Recovery of Defence Costs Order was made in the sum of £88,681.15 and the prosecution costs order was increased to £71,592.57. 7. The appellant now appeals with leave of the single judge against this second confiscation order. As the main grounds of appeal are that the judge was biased and the hearing unfair and because of the view we have taken of these grounds, it is necessary to set out in some detail a history of the course of the proceedings and the evidence given. The Facts of the Offences 8. The offences of making off without payment were committed over a period of time. On two occasions in October 2001 and two in August 2002, the appellant made off from petrol stations in Derbyshire and Nottinghamshire without paying for the fuel he had put in his tanks. His cars had been adapted to provide additional fuel capacity. On 8 th August 2002, police saw the appellant at a petrol station. The car he was driving had false registration plates. After filling the tanks, the appellant drove off without paying with the police in pursuit. The appellant drove very dangerously in his attempt to shake off the police. The police gave up the chase but the appellant was identified from CCTV film. The total value of the petrol taken was £219.58. 9. The theft of the Porsche occurred in the following way. The vehicle was stolen by a person unknown from the person entitled to possession. It had been bought on hire purchase so that when it was stolen the finance company became entitled to possession. The finance company discovered that the vehicle was at the appellant’s house and sent an agent to take possession of it. When the appellant realised that the car had been taken, he pursued the agent and demanded that it be handed over to him. He was not entitled to it. The demand was reinforced by threats of violence and the agent allowed the appellant to take the car. Initially the appellant was charged with robbery but a plea to theft was accepted. The Preliminary Stages of the Confiscation Proceedings. 10. On 8 th April 2003, that is shortly before the appellant pleaded guilty to the qualifying offences, the Crown sought a civil restraint order in the High Court. The witness statement in support set out the basis of the confiscation case which was to be presented. The Crown proposed to rely on the provisions of Section 72AA. The Crown would allege that very large sums of money had been transferred into various bank accounts in the appellant’s name during the six years prior to his expected conviction and the Crown would contend that these receipts were derived from criminal activity. The High Court granted a restraint order governing all the appellant’s property, whether in the UK or elsewhere. 11. It is convenient at this stage to set out the provisions of section 72AA. “72AA (1) This section applies in a case where an offender is convicted, in any proceedings before the Crown Court or a magistrates’ court, of a qualifying offence which is an offence of a relevant description, if – (a) the prosecutor gives written notice for the purposes of subsection (1)(a) of section 71 above; (b) that notice contains a declaration that it is the prosecutor’s opinion that the case is one in which it is appropriate for the provisions of this section to be applied; and (c) the offender – (i) is convicted in those proceedings of at least two qualifying offences (including the offence in question); or (ii) has been convicted of a qualifying offence on at least one previous occasion during the relevant period. (2) In this section ‘qualifying office’, in relation to proceedings before the Crown Court or a magistrates’ court, means any offence in relation to which all the following conditions are satisfied, that is to say – (a) it is an offence to which this Part of this Act applies; (b) it is an offence which was committed after the commencement of section 2 of the Proceeds of Crime Act 1995 ; and (c) that court is satisfied that it is an offence from which the defendant has benefited. (3) When proceeding under section 71 above in pursuance of the notice mentioned in subsection (1)(a) above, the court may, if it thinks fit, determine that (subject to subsection (5) below) the assumptions specified in subsection (4) below are to be made for the purpose – (a) of determining whether the defendant has benefited from relevant criminal conduct; and (b) if he has, of assessing the value of the defendant’s benefit from such conduct. (4) Those assumptions are – (a) that any property appearing to the court – (i) to be held by the defendant at the date of conviction or at any time in the period between that date and the determination in question, or (ii) to have been transferred to him at any time since the beginning of the relevant period. was received by him at the earliest time when he appears to the court to have held it, as a result of or in connection with the commission of offences to which this Part of this Act applies; (b) that any expenditure of his since the beginning of the relevant period was met out of payments received by him as a result of or in connection with the commission of offences to which this Part of this Act applies; and (c) that, for the purposes of valuing any benefit which he had or which he is assumed to have had at any time, he received the benefit free of any other interests in it. (5) Where the court has determined that the assumptions specified in subsection (4) above are to be made in any case it shall not in that case make any such assumption in relation to any particular property or expenditure if - (a) that assumption, so far as it relates to that property or expenditure, is shown to be incorrect in the defendant’s case; (b) that assumption, so far as it so relates, is shown to be correct in relation to an offence the defendant’s benefit from which has been the subject of a previous confiscation order; or (c) the court is satisfied that there would (for any other reason) be a serious risk of injustice in the defendant’s case if the assumption were to be made in relation to that property or expenditure. (6) Where the assumptions specified in subsection (4) above are made in any case, the offences from which, in accordance with those assumptions, the defendant is assumed to have benefited shall be treated as if they were comprised, for the purposes of this Part of this Act , in the conduct, which is to be treated, in that case, as relevant criminal conduct in relation to the defendant. (7) In this section ‘the date of conviction’ means – (a) in a case not falling within paragraph (b) below, the date on which the defendant is convicted of the offence in question, or (b) where he is convicted of that offence and one or more other offences in the proceedings in question and those convictions are not all on the same date, the date of the latest of those convictions, and “the relevant period” means the period of six years ending when the proceedings in question were instituted against the defendant.” In the event, it was never to be disputed that Section 72AA applied in the appellant’s case because he had been convicted of the necessary qualifying offences. The Prosecutor’s first Section 73 Statement 12. On 17 th July 2003, the Crown served the prosecutor’s first statement pursuant to section 73 of the Act in which they set out their case on unexplained transfers into the appellant’s bank accounts made during the relevant six year period (1 st December 1996 to end November 2002). The Prosecution had identified 16 such accounts but it was later found that there were in fact 17. The statement invited the court to apply the statutory assumption that the transfers were made in connection with the commission of criminal offences. If the court were prepared to apply the assumption, the effect would be that the appellant would bear the burden of showing, on the balance of probabilities, that the transfers were not made in connection with criminal offences but were the result of lawful transactions. The Crown alleged that the assumption should be applied to transfers into his accounts in the sum of £7,673,637.66. The Crown also contended that the assumption should be applied to other items of property so that the total benefit from criminal activity contended for was £7,803,857.24. This did not include a sum, believed to be of the order of £50,000, which the Crown alleged the appellant had received as state benefits to which he was not entitled. 13. The Crown alleged that the total value of the appellant’s realisable property was £669,058.03. This property comprised the contents of his various bank accounts, (most notably £500,000 in an account with Lloyds TSB, Geneva), a property known as The Barn and a Land Rover worth £10,000. 14. The Crown asserted that the appellant was a single man, born in 1960. At the time of his arrest he was living at a house in Sheffield. He had sold that property in March 2003 and by July 2003 was living at The Barn which was outside Sheffield. It was alleged that, although this property was not in the appellant’s name, it belonged to him. It had been subject to a number of transfers between the appellant and his associates, Ms L and Mr F. At the time of his arrest, the appellant had said that he was a mobile phone dealer. The Crown alleged that the appellant was the controlling director of two companies. One, named Windyacre Ltd, had recently purchased a business called Edgley Distribution Express Ltd (Edgley) for an estimated purchase price of about £650,000. The value of this company had not at that time been included in the assessment of the appellant’s realisable assets. The other company, Hillfoot Developments Ltd (Hillfoot), was thought to be a property development company. 15. Further, the Crown alleged that a firm of solicitors named Taylor and Emmett were acting for the appellant in connection with the proposed purchase of a number of companies. This firm had provided the police with a copy of a curriculum vitae (CV) by which the appellant had introduced himself to them as a client. It stated that from 1981 to 1990, the appellant had been a sole trader as a building contractor and shopfitter. From 1990, he had been a property developer and property investor. It claimed that the appellant was a typical self made man without formal qualifications who had relied on hard work and a shrewd grasp of the mechanics of property investment and development. It said that he had turned a very modest starting capital into a sizeable asset base. Apart from property and other holdings, he had provable funds of about £1million on deposit with clearing banks and had a similar sum on deposit in offshore accounts. His standing with many major lending institutions was such that very extensive credit lines were available to him. He was now wishing to move some of his investments into ‘more corporate areas’ and was seeking suitable acquisitions. He was a ‘hand’s off’ investor preferring to acquire companies with incumbent management or companies into which he could introduce one or more specialists from a small team he retained for the purpose. His preferred operating strategy was to acquire, expand, restructure, consolidate and exit in around five years, a strategy which had paid handsome dividends in the past. The Crown’s case was that this was a work of fiction. 16. The Crown pointed to evidence which it was suggested indicated dishonest dealing. The appellant and two associates had cross-fired cheques for very large sums of money. Adjournment of Confiscation Hearing 17. The confiscation hearing had originally been fixed for 24 th November 2003, but this date was vacated at the appellant’s request and a new date fixed for the hearing to begin on 1 st March 2004. This was to allow further time for the appellant’s accountant to prepare a report to accompany the appellant’s response. The Appellant’s Response 18. On 30 th January 2004, the appellant served his response, to which was annexed his accountant’s draft report. We do not intend to set out all the contentions advanced in this response. Suffice it to say at this stage that the accountant had identified a seventeenth bank account in the appellant’s name and had demonstrated that the Crown’s calculation of the transfers into the accounts was seriously inaccurate. He calculated that the sums transferred into the accounts during the relevant period amounted in total to £4,558,765. Of that total, the appellant claimed that £2,533,941.43 could be attributed to lawful trading in mobile phones. The rest (£2,085,130) could not be specifically accounted for but, it was contended that they had in fact arisen from lawful trading. The appellant claimed that he had been ‘actively involved in providing finances to entrepreneurs to establish business links regarding motor vehicles and also mobile telephones and property transactions’. Evidence of this would be set out in his accountant’s report. The appellant claimed that he had also been actively involved in the purchase and sale of companies. 19. In the response, the appellant accepted that he had received some state benefits to which he was not entitled. If that was intended to suggest that he had been entitled to some of the benefits received, he did not say how much he had been entitled to. 20. The appellant described the purchase arrangements for The Barn, which he said had been bought by Ms L (his girlfriend) in 1999. He accepted that the property had been transferred to him (but in the name of W. Sherwin) in November 2000. Mr F had witnessed the transfer. In November 2002, he had transferred the property to Mr F for no consideration. Ms L had witnessed this transfer. The property had been sold to a third party in October 2003. The appellant claimed that, before this sale, he had not owned the property but had had an equitable interest in it. Pursuant to the restraint order, the proceeds of sale were frozen in an account with Taylor and Emmett. 21. As to the CV, the appellant said that he had not typed it. He claimed, however, that in some important respects it was accurate or nearly so. At the time, he had had £890,000 in a Bank of Scotland account. Moreover he had wealthy backers. He mentioned one Alan Arnold who he said had access to ‘extensive credit lines, funds and investors’. Mr Arnold had provided him with £500,000 which had been used to finance the purchase of motor vehicles and business interests in mobile phones during the period 1997/98. 22. The main thrust of the accountant’s report was that, during the relevant period, 1996 to 2002, the appellant had been involved in the business of buying and selling second hand cars. It was accepted that there were no accounts to demonstrate this but reference was made to a diary on which it was said the appellant would rely to demonstrate that he had been trading lawfully in motor cars. The accountant said that he had not had time to complete his examination of this diary and to take full instructions from the appellant. Mention Hearing 23. On 13 th February 2004, there was hearing for mention not attended by the appellant. The judge learned that the appellant, who was on conditional bail at the time, had breached the terms of his bail on 8 th January 2004 by travelling to the Cayman Islands, where he had been refused entry. 24. On this occasion, the appellant’s counsel asked for a further adjournment of the hearing date so that the accountant could complete his report. This was refused and the mention was adjourned to 20 th February. Hearing on 20 th February and Service of the Prosecutor’s second Section 73 Statement 25. On 20 th February the appellant surrendered to bail . The judge was dissatisfied with his explanation about his trip to the Cayman Islands and remanded him in custody awaiting sentence. 26. On the same day, the Prosecution served a second statement in which it was accepted that the sums allegedly transferred into the bank accounts had previously been overstated. The sum now alleged as benefit from crime was £4,932,832.55 of which £52,454.97 was interest. The Crown was now prepared to accept that £2,533,941.43 of the transfers into the accounts had been referable to mobile phone trading. This was not accepted to be the product of lawful trading. In addition to the banking benefits, the Crown was contending that about £50,000 had been received in state benefits. £219.58 (from the theft of petrol) was to be included as a benefit. The Crown contended that the statutory assumptions should be applied to all those sums. The grand total of benefit to which the assumptions should be applied was alleged to be £5,412,915.23. 27. By this time, the appellant’s realisable assets had been reassessed. Included on this occasion was the value of Edgley, estimated at £1,076,227 (on a company breakdown basis rather than as a going concern). Also included was some £337,000 held to the appellant’s account at solicitors Halliwell Landau in Manchester. A further sum of £227,252, the proceeds of sale of The Barn was held at Taylor Emmett. It had been found that the appellant had insured various items of jewellery with Norwich Union, with alleged values totalling £83,600. The total alleged value of realisable assets was £2,236,411. The Confiscation Hearing 1 st to 3 rd March 28. The confiscation hearing began on 1 st March. At that time, the appellant was represented by solicitors and two counsel. Both sides disclosed additional material. The appellant had still not disclosed any of the usual range of business records that would normally be kept evidencing the transactions of a legitimate business. A Collins Diary printed for use in 1996 was to be relied on as evidence of the appellant’s legitimate dealing in second hand cars and other goods during the years 1996 to 2000. The appellant was also claiming that business documents (including other diaries) had been seized from his home during a search conducted upon his arrest for the offence relating to the Porsche motor car. He was alleging that the police had failed either to return these diaries and business documents to him or to disclose them in the course of the confiscation proceedings. The Crown’s case was that everything that had been seized had been either disclosed in the course of the confiscation proceedings or returned to the appellant as irrelevant. 29. Shortly before the hearing began, the Crown said that it would no longer allege that the sums received into the bank accounts which were attributable to mobile phone dealing were the product of criminal activity. Accordingly, the Crown’s new figure for alleged benefits, to which the statutory assumptions should apply, was £2,255,267. 30. DC Mapp, who had conducted the financial investigation for the Crown, gave evidence. He produced his reports and said that he had found no evidence that the appellant had been involved in a legitimate trade of dealing in second hand cars. He had seen some documents from various auction houses that showed that cars had been purchased at auction in the name of Autoways of Sheffield which was a business name associated with the appellant but these documents did not show that the appellant had been the purchaser. The appellant was later to accept that other people besides himself bought cars under the name of Autoways. DC Mapp was cross-examined by counsel on a limited range of issues, mainly the origin of some transfers into the accounts and the officer’s method of valuing Edgley. 31. The court did not sit on 2 nd March but, on 3 rd March, as the result of the previous cross-examination of DC Mapp, the Crown made further concessions in respect of the unexplained transfers into the accounts. The battle lines were finally drawn with the Crown alleging that the statutory assumptions were to be applied to £1,884,523 (unexplained transfers into bank accounts) and Social Security payments received which were agreed at £57,446. Thus the total alleged benefit was £1,942,188. The Crown’s position on realisable assets was £2,378,639. The valuation of some items was agreed. There was before the court a list of issues which the judge had to determine. These were: 1. Whether the judge should exercise his discretion to make the assumption in respect of some or all of the transfers into the appellant’s bank accounts. He should not, if to do so would give rise to a serious risk of injustice. 2. If he did draw the statutory assumption, whether the appellant had satisfied the Court that the transfers (or any of them) into his bank accounts were from lawful activity. 3. Whether the appellant had been lawfully entitled to some or all of the social security payments received. 4. The valuation of Edgley. 5. The value of the appellant’s interest in The Barn. 32. Also on 3 rd March, the appellant was taken through his evidence-in-chief by counsel. First, there was evidence about car dealing. The appellant referred extensively to the 1996 Collins diary and explained that it illustrated his business dealings with various colleagues (mainly in respect of motor cars) and showed his position at the bank, in particular in respect of what he claimed was his main ‘trading’ bank account with the Royal Bank of Scotland (RBS). The gist of his evidence was that he had started to trade in second hand cars at the age of 21. In 1993 he had received a large injection of cash (£500,000) which was a loan from Alan Arnold. He had then traded in cars more extensively until 1996. At that time, he was injured in a road traffic accident. Also in 1996, the local authority stopped him from trading from his home. After that, he had stopped trading in cars himself but had financed others to trade in cars and other things, such as motorcycles and watches. In particular, he named two colleagues whose purchases he regularly financed; they were DH and GP. It was later to transpire that DH had convictions for ‘clocking’ cars, as did the appellant himself. The appellant later named another man ‘Matt’ whose trading he had financed. He too had convictions for ‘clocking’ cars. 33. So far as state benefits were concerned, the appellant accepted the Crown’s figure but did not give evidence that he had been entitled to receive the benefits. 34. When asked why he had purchased Edgley, the appellant said that he wished to purchase several distribution companies and put them together so that they would be more valuable. He hoped in this way to be in a position to repay Mr Arnold. He claimed that interest had been accruing on the £500,000 loan at 8% compound since 1993 so that by 2003 he owed Mr Arnold well over £1 million. He produced what purported to be a loan agreement with Mr Arnold’s company, Kerdiala Investments Ltd as evidence of the terms of the loan. When asked how he had purchased Edgley, he said that he had put up £120,000 (in February and April 2003) and the rest (£555,000) had been raised by mortgaging Edgley’s own assets, a process which the appellant described as ‘whitewash’. He said that he had sold Edgley to Mr Arnold in March 2003 and the value (£170,000) had been set against his outstanding debt. There were no documents to evidence this transaction. 35. The next topic was The Barn and the various financial dealings and transfers associated with that property. The appellant’s evidence was confused and confusing but in essence was as follows. The purchase price in 1999 had been £40,000 of which he had provided £4,000 and Ms L the rest. It was purchased in her name. It required renovation. The appellant said that he lent Ms L £56,000 for that purpose and told her to put it into seven different building societies because there was a chance of a windfall if one of them demutualised. However, he asked for that money back and it was not spent on renovation. He then lent Ms L £36,000 which was spent on renovation. Some of the work was carried out by Mr F who was a plasterer. He was not paid for his work at the time. Before the work was finished the property was transferred, for no consideration, to the appellant, but in the name of W. Sherwin. Sherwin was his mother’s maiden name and he had intended to change his name by deed poll. In the event he never did. He was advised that it would cause problems for his business dealings in Denmark and would affect his credit rating. The reason for the transfer to him was so that he could raise a mortgage on the property when it was finished. In the event he did not do so because he already had a mortgage on his house in Sheffield. So then, in 2002, the property was transferred to Mr F, again for no consideration. He was suffering from cancer at the time. He was going to raise a mortgage on it but in the end he did not. There were no documents evidencing the financial contributions which Ms L and the appellant had made. 36. The appellant was asked about the cross-firing of cheques between himself, Mr F and Ms L. His explanation was that he had had to move large sums of money about because he was expecting to complete two property deals and was afraid that he would be away on business at the moment of completion. 37. The day’s hearing ended with a session in camera, in which the appellant’s counsel explained that the appellant’s relationship as an informant with Customs and Excise (Customs) and the HM Inland Revenue (IR), which were then separate organisations, explained the absence of any business records. He had been encouraged not to keep accounts. The judge appeared sceptical but made it clear that, if this assertion was to be advanced, it would have to be proved by evidence. It appeared that the appellant would need an adjournment. Counsel was given time and permission to consult with the appellant (who was in the middle of his evidence). Meanwhile the judge enquired as to dates when the hearing could be resumed. Three days could be made available, 5th to 7 th April, which were the last 3 working days before the Easter vacation and, as it happened, the last three working days before the judge was due to retire. The appellant’s counsel gratefully agreed that the confiscation hearing be adjourned to 5 th April. 38. The judge was asked to issue various witness summonses and/or production orders to compel the appellant’s proposed witnesses to attend court with any relevant documentation. Various summonses were issued returnable on 22 nd March. 39. The following day, 4 th March, the appellant was sentenced to 27 months imprisonment. The Hearing on 22 nd March 40. On 22 nd March, the parties attended for the return date of the summonses. Counsel for the appellant immediately informed the judge that the appellant wished to change solicitors. The judge was agreeable to that provided that the new solicitors would be ready to resume the hearing as arranged on 5 th April. Counsel informed him that they would not be; the appellant wanted a further adjournment to allow his new solicitors to prepare. The judge asked whether counsel was still able to accept instructions from the appellant. Counsel said that they were, provided they had a solicitor. The judge was of the view that that the new solicitor could accept instructions given that he had counsel familiar with the case. When he was told that the new solicitor was not prepared to accept instructions if the hearing was to resume on 5 th April, the judge formed the view that the application for an adjournment was a ruse, designed to achieve a fresh start in front of another judge. He refused the application. Counsel indicated that they would have to withdraw from the case and from that time onwards the appellant acted in person. 41. Witnesses who had brought documents were then dealt with. The South Yorkshire Police had not attended as required. Another date was fixed for their attendance. Also the appellant asked for and obtained another production order, this time against the RBS, whom he said had frustrated his attempts to secure documents. A production order was issued returnable on 29 th March. The Hearing on 29 th March 42. On 29 th March, a representative of the RBS attended and averred that the bank had no more documents relating to the appellant’s affairs. They had produced all they could to the police some time earlier. The police and prosecution stance was that everything they had received from the bank had been disclosed to the appellant. Other persons summonsed had attended and had produced documents which were later handed to the appellant. 43. The judge informed the parties that, since the last hearing, he had been asked by South Yorkshire Police, (to whom a production order and/or witness summons had been issued) to hear their representative in camera for public interest reasons. The judge had done so. In the light of what he had heard, he had directed two police officers to prepare statements of what they would say if asked to give evidence. These statements were given to the appellant. It is apparent that the witnesses were not going to say what the appellant hoped they would say. The judge explained to the appellant that, if he called these witnesses, he would not be able to challenge their evidence. 44. At the appellant’s request, the court then sat in camera. The appellant wanted to see files produced by the police, Customs and Excise and what he described as the Department of Health and Social Security, probably meaning the Department of Work and Pensions. The judge allowed the appellant to see some of this material but refused access to any police material partly on public interest grounds and partly on the grounds of irrelevance. The judge told the appellant that the case was concerned with where the money in his accounts had come from and his contention that it had come from lawful activity. It would not help him to show that he had been encouraged to act unlawfully. Counsel for the Crown reminded the judge that, in addition to considering where the money had come from, the judge also had to decide whether there would be a serious risk of injustice in making the assumptions. 45. The appellant also asked about the summons issued to the Inland Revenue. Counsel for the Crown said that the witness would attend court with the file and that he would call the witness so that the appellant would be able to cross-examine. The appellant had also indicated that he wanted to cross-examine the police officers who had searched his home because he was convinced that documentation (including diaries) had been taken and not returned. The Crown offered to call these witnesses so that the appellant would be able to cross-examine them. The appellant also asked if he could cross-examine DC Mapp and the judge agreed that he should be recalled for that purpose. The Resumed Confiscation hearing. 46. At the resumed hearing, on 5 th April, the appellant was permitted to interpose the evidence of his accountant, Mr Paul Burke, notwithstanding the fact that his own evidence was not complete. Mr Burke’s report was put in and he explained that it dealt mainly with his attempts to prove that the figures in DC Mapp’s report were wrong. In fact, he had succeeded in that to a large extent. He said that due to difficulty in obtaining further funding he had not yet had time properly to examine the appellant’s claim that the bulk of the unexplained transfers into his accounts could be attributed to car dealing. He had not had the chance properly to correlate the entries in the diary, the bank statements and some information from car auction houses which had come to hand only on 19 th February. This correlation would not be a straightforward process and at present he could not say whether it would be possible to explain the unexplained transfers. 47. As is often the way when litigants in person are questioning a witness, the appellant himself was at times giving evidence rather than posing questions. It emerged that that appellant was contending that he had had a turnover from car trading in the relevant period of about £1.5 million to £1.8 million from which there had been very little profit. After taking into account the losses he had made on mobile phones, there would have been virtually no profit and no income tax to pay. When the judge pointed out that the appellant seemed to have £2.3 million in assets, the appellant replied that he did not. Edgley had debts because it had been bought by mortgaging its own assets. Also he, the appellant, owed Alan Arnold more than £1 million pounds. 48. The judge then asked Mr Burke whether it was possible for him to estimate the profitability of ‘what had been going on’ meaning, we understand, the alleged car dealing in cars or the financing of car dealing. The witness said that £1,837,346 of transfers into the account were unexplained. Assuming that that represented the turnover from car trading, he would expect a tax inspector to assess the profitability at 7% of that sum. That was an approach that would be taken by a tax inspector to whom no detailed accounts had been produced. Adopting that rule of thumb, Mr Burke assessed the profit which the appellant would have made from car dealing at £128,614. However he accepted that he could not say that there had been a turnover of £1.8 million from car trading. He said that if he had the time it might be possible to demonstrate what the turnover from car trading was. At present he could not. 49. In cross-examination he agreed that however much time he had it would be impossible to carry out a full reconciliation between the bank statements and the diary entries. Counsel also suggested to Mr Burke that the bank accounts showed that year on year about 10% more money was going into the accounts than was coming out. Mr Burke did not dissent. He agreed that the movement of money into and out of the accounts could represent many other kinds of transaction which was nothing to do with car trading. 50. When this evidence was completed, the judge asked whether any evidence was going to be heard from Mr Alan Arnold. The appellant told him that he had been told by his former solicitor that the Crown had accepted that the loan had come from Mr Arnold and that there was no need to call him. The judge was plainly surprised to be told that and asked when the solicitor could attend court. There was a discussion about legal privilege. The applicant said he would waive privilege so as to enable the solicitor to give evidence about what had been said. That was arranged. In due course the solicitor attended. 51. DC Mapp was recalled for cross-examination by the appellant personally. The point he wanted to explore was why the police had decided to investigate his finances. He had only been convicted of the theft of petrol and a motor car. Thousands of others are convicted of offences of that nature and are not investigated. The judge wanted to know why the appellant was asking these questions. The appellant said that he believed that he had been targeted by a particular police officer named Walker who had a grievance against him. The appellant claimed that he had reported Walker for improper conduct. He believed that documents in police files would reveal this. The judge said that he was satisfied (from the PII hearing he had conducted) that there were no such files. The judge said that in any event it was irrelevant what motive the police had; they were entitled to investigate because the appellant had been convicted of the qualifying offences. However, later in the day, the judge’s attention was drawn to a document disclosed at the time of the application for a civil restraint order which made it plain that the investigation had been begun because various banks and building societies had reported to NCIS the movement of large sums of money through accounts belonging to the appellant, Ms L and Mr F. 52. The appellant also alleged to DC Mapp that the police had taken a large amount of documentation and diaries from his house at the time of the search in 2002 and had not been returned. Without them he could not prove his case. He contended that the diaries would help to show that the investigation had been initiated for improper motives. DC Mapp said that he had not been involved in the search. He had only seen very limited documentation and he had never seen any diaries other than the one which had been produced in evidence. 53. The court then heard the first of several witnesses to the appellant’s arrest and the search of his home in 2002. We will summarise their evidence later. The Crown also called a witness, Mr Honeywell, from the Inland Revenue (IR). He had produced a file of papers relating to the appellant from which it emerged that, in about 1992, the appellant had told the IR that he had never submitted a tax return since he left school. He had then been investigated and in 1995 the IR had agreed his tax liability for past years at £12,000. £10,000 of that had been paid. There was evidence that the appellant had filed a nil tax return for the year 1997/98. That return had been accompanied by a letter in the appellant’s own hand, dated July 1998, saying that he had closed his business down in 1996 and had been unemployed and on sickness benefit ever since. He hoped to start a job in August that year, health permitting. 54. Mr Honeywell also said that there was a record to the effect that in 1995 the appellant had offered to provide information about traders which would be of assistance to the IR. Mr Honeywell said that the IR had never encouraged the appellant to be lax in the keeping of his accounts, had never encouraged him not to keep proper books of account and had never suggested to him that laxity would be acceptable because he was an informant. 55. In cross-examination, the appellant suggested to Mr Honeywell that, in 1997, he had called the appellant in to challenge the nil tax return he had submitted for the previous year. Mr Honeywell had in his possession a document which showed that the appellant had transferred a large sum of money to Denmark. He had accused the appellant of submitting a false return. The appellant had explained that he was working covertly for Customs and Excise on mobile phone fraud and had given Mr Honeywell a contact at Customs who could confirm this story. It was put that the contact, Mr Norcliffe, had indeed confirmed the position and that Mr Honeywell had then taken no action on the nil return. Mr Honeywell said that he could not remember any such conversation. Although the name Norcliffe sounded familiar, he could not recall in what context. The appellant told the judge that he had made a tape recording of Mr Norcliffe admitting that this conversation had taken place. However he no longer had this tape as the police and taken it. He claimed that, in 2001, the Home Secretary Mr David Blunkett had arranged for him to see the ‘Chief Investigating Officer’ in London. He asserted that the Home Secretary knew about his involvement as an informant for Customs and how this involvement had resulted in him losing money in mobile phone deals in Denmark. When the judge asked what the relevance of this evidence was, the appellant said that it explained why he had not kept proper books of account during this period. He had been in real financial difficulty because he had sent £1 million to Denmark, helping Customs in respect of mobile phone fraud. His money had got stuck in Denmark and he did not know how much he was going to get back. At that stage, he owed £700,000 to Mr Arnold and so he did not know where he was. He had ‘just stalled’. That was why there were no proper books of account. 56. On 6 th April, the Crown called Miss Rowland from the solicitors, Taylor and Emmett, who had formerly acted for the appellant. This was at the appellant’s request. She produced a file of papers related to the purchase of Edgley by Windyacre. She said that the appellant had contributed £85,000. The firm was holding on to the file because they had not been paid for some of their professional services. Asked how the CV had come into the possession of her firm, she said that it had come from either the appellant or the man who had introduced the appellant to the firm. In cross- examination, she agreed that at the time of buying Edgley in 2002/2003, the appellant had been trying to buy three transport companies. The appellant told the judge that the relevance of this evidence was that it showed that what he was doing was ‘above board’. However, the judge explained that what the court was interested in was where his acquired wealth had come from in the relevant six year period and not what he was doing with it afterwards. 57. We have said that the Crown called a number of the officers who had taken part in the search of the appellant’s premises. The appellant was able to cross-examine them. Much of the appellant’s questioning was discursive and irrelevant and the judge found the process trying. The effect of the evidence was that all the officers denied that there had been any diaries taken from the house and that all the documentation taken had been disclosed. They had been investigating only the theft of petrol and the Porsche; they were not seizing property for the purpose of a financial investigation. In the event, some of the papers taken had been used in the financial investigation and had been disclosed. 58. This evidence revealed that the search had not been conducted to proper professional standards – the judge described it as ‘a shambles’. It had not been done methodically with the identity and position of each item taken recorded. The contents of some items such as briefcases were not individually listed. At the end of this evidence the judge said that the officers’ credibility had been ‘pretty well destroyed’. However, the judge went on to express the view that, even if there had been other diaries taken and not returned, they could only account for a ‘trifling amount’ of the money involved in the case. The appellant disagreed. The judge said that the appellant’s own accountant had only assessed his profit from car trading at £128,000 over the whole period. The appellant agreed but said that what the other diaries would show was how he was operating with the police and Customs. The judge asked him whether he had been getting money for passing information to these bodies. The appellant said that he had not but that the diaries contained details of the deals that were done; these were not dishonest deals but were deals by which he lent money to someone to buy something and that was how he found out information about what was ‘going on’. 59. At that stage, the long interruption of the appellant’s evidence-in-chief was brought to an end. He returned to the witness box and the judge asked him what else he wanted to say about the source of his wealth. He said that he had borrowed £500,000 from Alan Arnold in 1993. It had been given to him in cash (£20 and £50 notes), in instalments of about £100,000 paid over a period of about 5 weeks. Originally it was intended for buying cars. The judge pointed out that the written agreement did not refer to instalments. Asked where Mr Arnold lived, the appellant said that he did not know the address either of his present or former homes, although he had visited the former one. He said that Mr Arnold was a very secretive man. If the appellant needed to contact him, it would be by telephone. Ms L had the number in her mobile phone. But, he said, it would not be possible to telephone Mr Arnold now because he had just had heart surgery and was in hospital. The appellant said he had last been in touch with Mr Arnold in February 2004 when he had promised to look out some paperwork that the appellant needed. The appellant had told Mr Arnold that he would resolve the debt which was now over a million pounds and Mr Arnold had accepted that. 60. The appellant then produced a file of papers relating to property deals connected with Hillfoot. He said that the documents showed that at the time when the Crown contended he was cross-firing cheques for dishonest reasons, he was in fact doing property deals. That was why he had been moving money from one account to another. He said that one property deal had been for £300,000 and he had made £50,000 out of it. That money was frozen in an account with Halliwell Landau. There had been another deal for just over £500,000 to which he had contributed two-thirds of the purchase price and had reaped two-thirds of the profit. It should be noted that the evidence of apparent cross-firing had been adduced as evidence of general dishonesty. All the sums involved in cross-firing had been excluded from the unexplained transfers. 61. It was put to the appellant that his car business was ‘totally crooked’. The appellant denied it but admitted that he had convictions for ‘clocking’. He said that he could not say how many; he had lost count. He agreed that ‘Matt’ also had convictions for ‘clocking’. Counsel drew attention to the fact that at a time (in 2002) when the appellant appeared to be involved in business deals of about £0.75 million, he was stealing petrol. He suggested that this was because the appellant was ‘totally dishonest’. 62. The appellant said that the sum of £500,000 in the Lloyds TSB account in Geneva had come from a balance of £890,000 which had been in a tracker account. £300,000 of the balance had gone into one of property deals that he had described. He had sent £500,000 to Geneva in April 2003 for the purpose of paying Mr Arnold. He had not sent it to Mr Arnold directly because he did not have his bank details at the time and Mr Arnold had not decided where he wanted to have the money sent to. The appellant then said that, in September 2003, he had transferred the money to Mr Arnold at his account with Bank of Scotland in London. However, the judge had before him a statement dated 2 nd February 2004 obtained by the appellant’s former solicitors which described the transactions on the Geneva account between December 2002 and September 2003. It said nothing about a transfer out to a bank in London. The appellant said that the transfer out must have been a little later, possibly in October 2003. For the sake of completeness we mention at this stage that at the end of the appellant’s case, the Crown called evidence in rebuttal to show that neither the Bank of Scotland nor the Royal Bank of Scotland had an account in the name of Alan Arnold. 63. After the short adjournment, Mr Booth, the appellant’s former solicitor came to give evidence on the question of whether he had ever told the appellant that the prosecution had accepted that he had received a loan of £500,000 from Mr Arnold in 1993 and that there was therefore no need to call any evidence about it. Mr Booth said that he had attended a conference with counsel in early March at which that had been said. He was released from the court but did not immediately leave. 64. There followed a discussion between the judge and counsel for the Crown at which the judge expressed concern that, due to an apparent misunderstanding, the appellant could properly say that he had good reason not to call any evidence on what was plainly an important issue. Counsel for the Crown submitted that, if there had been a misunderstanding, it could not have arisen until March 2004. Before that the appellant must have believed that he would have to call evidence to prove that the source of the loan was a lawful banking source and he must have prepared that evidence in readiness for the trial. 65. Matters were left there and the appellant returned to the witness box for cross-examination. However, soon afterwards, Mr Booth sent a message to counsel that he wished to say something further and a while later he returned to the witness box. He said that, when preparing the appellant’s case for the confiscation hearing, he had wished to secure Mr Arnold’s cooperation. He had taken instructions from the appellant and the appellant had made himself responsible for any contact with Mr Arnold. The appellant had told Mr Booth that he had seen Mr Arnold on 10 th February 2004. However, he did not tell Mr Booth in any detail what had been discussed; nor did he provide Mr Arnold’s address or telephone number. Asked if he had received any instructions about the possibility of calling Mr Arnold as a witness at the hearing, Mr Booth said that the appellant had been ‘reticent’ about that. Mr Booth had the impression that the appellant was rather in awe of Mr Arnold. The appellant’s attitude was that it was the company that would provide any assistance. Accordingly, on 23 rd February 2004, he, Mr Booth, had written to Mr Arnold’s company, Kerdiala Investments Ltd, at the address in Jersey shown on the loan agreement. He had explained that, for the purpose of confiscation proceedings, it was hoped to demonstrate that a loan of £500,000 made in 1993 had come from a legitimate banking source. Mr Booth had received no reply to that letter. 66. The appellant’s cross-examination was resumed. Asked about the loan from Mr Arnold, the appellant said that he had first met Mr Arnold at Doncaster Races. He had agreed to lend him £500,000 at 8% compound interest. He had not provided any security and had not submitted a business plan, as required by the letter preceding the loan agreement. The appellant agreed that the transfer of the £500,000 to Geneva had been shortly before the civil restraint order was made but he said that at the time of the transfer he had not known that the civil restraint order was to be made. He agreed that, if there had been a transfer out of the Geneva account in September or October 2003, it had been made after the restraint order. He claimed that that transfer did not amount to a breach of the order because this was not a British account. It was pointed out to him that the order covered all the appellant’s assets wherever they were. The appellant’s answer to that was that the £500,000 in the Geneva account was not his asset; it was Mr Arnold’s. He also said that he had not read that part of the order which restrained him from dealing with assets wherever they were. 67. The appellant said that when he had told Mr Arnold that he had £500,000 for him, Mr Arnold had told him to put the repayment on hold. He did this because he knew that the appellant was buying some companies. This was all a verbal arrangement. When asked what Mr Arnold thought about the fact that the appellant was facing confiscation proceedings, he said that he had not told him that, only that he was having some trouble with his tax. 68. There were then some questions about the insurance of valuable watches. The gist of the appellant’s response was that he had an insurance policy with Norwich Union which covered various identified items of jewellery, mainly expensive watches. The policy was renewed from year to year although the actual items he had in his possession would change as he traded in them. He said that he would buy and sell watches and would also take them on sale or return from a jeweller in Sheffield. 69. He was asked about cross-firing of cheques. Mr Mapp’s schedule showed that sums totalling about £5.5 million had been cross-fired during the relevant six year period. The appellant’s explanation was that all these transactions related to legitimate mobile phone deals. He denied the suggestion that the money was being moved about so that his accounts looked busy and the introduction of a large amount would not stand out. 70. The appellant was also asked at some length about the financing of work done on The Barn while it was in the name of L. Also he was asked about his reasons for having the house transferred to himself in the name of ‘W. Sherwin’. He was also asked about transactions involving Edgley and Hillfoot. Finally it was put to him that everything in his business life had been dishonest. He denied that. It was put to him that even his CV was dishonest. He accepted that it was, in his words, ‘slightly misleading’ but stressed that it had not been used to gain anything. Anyway he had not written it himself. 71. The appellant then called Ms L. He asked her questions about their life and financial dealings. The questions were usually of a leading nature and the answers were accordingly of little forensic value. From time to time the judge intervened. On one such occasion he asked Ms L if she knew Mr Arnold. She said she knew of him. She did not know his telephone number but she said that it was stored inside the appellant’s mobile phone. That was at home. The appellant said he would ask Ms L to bring the mobile phone to court the next day. The appellant observed that Mr Arnold was in hospital having a heart operation. Further leading questions were put to Ms L and the hearing was adjourned until the next day. 72. Ms L did not provide Mr Arnold’s telephone number. She produced a broken mobile phone and another mobile phone on which there was a text message which apparently contained information about Mr Arnold’s medical condition. The explanation seems to have been that he had initially had treatment for a heart condition but then it was suspected that he had cancer of the thyroid. Tests showed that this was so and he had been taken back into hospital only the day before for the removal of that organ. 73. The appellant resumed examination-in-chief of Ms L. Still the questions were in leading form. He put it to her that she had helped him with record keeping because he was ‘a bit dyslexic’. The judge expressed surprise at this as the appellant’s writing in the 1996 diary appeared clear, well-formed and free of spelling mistakes. Ms L said that there had been more diaries than the one which was available and she used to write down all the things that the appellant had done. She also gave some evidence about the police search. 74. In cross-examination, she was asked about transactions relating to The Barn and the £56,000 which she had put into seven different building societies. She denied that these transactions were, in truth, money laundering activities for the appellant. It was also suggested to her that £890,000 that had gone into her account was for the purpose of money laundering but she said it had just been put there in case it was needed for property deals while the appellant was away on holiday. When it was suggested that the appellant could have left cheques for her to hand over if necessary, she said that the appellant never dealt in cheques because he was not confident in writing them. The judge found that answer incredible in the light of the writing he had seen in the 1996 diary. 75. The appellant called Mr F and asked leading questions about the £890,000 that had been through his account as well as Ms L’s. The judge attempted to stop the appellant from asking leading questions and to prevent him from answering questions put by the judge which the witness could not answer. It is clear to us that this evidence was utterly worthless. Much of it was concerned with the reason why The Barn had been transferred into his name. In cross-examination, it was put to Mr F that his dealings with the appellant and Ms L and their plan to raise a mortgage on The Barn had been a fraud on the building society and, after being warned against self incrimination, the witness declined to answer detailed questions. 76. The appellant then called DH, one of the colleagues to whom he claimed he lent money to finance dealing in second hand cars. Again many of the appellant’s questions were in a leading form. The gist of the evidence was that the witness had worked for the appellant in his car dealing business until 1996 when the appellant had ceased to trade on his own account but had lent DH money to trade in cars. He would buy cars at auction, using the name Autoways. Usually he would pay in cash. The appellant would lend him money and he would use that to trade and from time to time he would repay the loan and draw some more cash from the appellant. He said that he had burned any records he had had in 2002. By leading questions, the appellant suggested and the witness agreed that the business had run into difficulties in 1998 due to bad debts and to the purchase of some almost unsaleable cars. He also volunteered that he had had a number of ‘wrong cars’ and had gone to prison for that. The judge asked what he meant by ‘wrong cars’ and he said that he meant cars that had been ‘clocked and things like that’. He said that it was not he who had ‘clocked’ the cars and it was not the appellant either, although he knew that the appellant had convictions for ‘clocking’ cars. The judge asked him what profit margin he put on the cars he bought and sold and he said he put on a mark-up of £1,000, whether the purchase price had been as little as £4,000 or as much as £7,000. 77. In the course of DH’s evidence, the judge told the appellant that he was prepared to accept that he (the appellant) traded in cars. The appellant replied that he did not; it was DH who was trading. 78. In cross-examination, DH admitted that his method of trading was to buy fairly new high mileage cars, the kind of cars that an unscrupulous dealer would like to have because it could be ‘clocked’. Then most of the cars would be put out to dealers on a sale or return basis. It was put to him that he used this method in order to distance himself from the transaction but he denied this. 79. The appellant called GP, the other colleague whose car dealing he claimed to have financed. Before the questions began, the judge intervened to say that he had already said that he accepted that the appellant dealt in motor vehicles and he was prepared to accept the figures produced by the accountant. The appellant replied that the issue was that he did not make all that money because he was lending the money to other people for them to trade. The judge questioned the witness who said that the appellant had lent him money; he could not say how much. They had a running account. He would repay the appellant and borrow more. The judge seemed satisfied with that. The appellant wanted the witness to explain how the business had become insolvent. The witness said that this was due to bad accountancy and ‘owing people’. He said that no accounts had been kept and no tax or NIC ever paid. The appellant wanted the witness to explain how it had come about that the appellant had received a cheque for £50,000 in 2000. The witness said that when he decided to stop trading in cars with the appellant because he was not making money, his brother bought all the remaining stock from the appellant for £50,000. 80. As the appellant was not represented, the Crown was not allowed to make a closing submission. When asked to make his closing submission the appellant said that he did not feel that he had the chance to put his case properly. He had been in difficulty because of being in prison and not having photocopying facilities. The judge said that had been able to look at all the papers produced by the appellant but that they did not address the main issues. The appellant said that he had had the money from Alan Arnold in his accounts in 1995. He said that, although he had a lot of bank accounts, only four of them were active. He said that he had not laundered any money. He said that he had ‘signed on’ because he owed £1 million. He said that he had been unable to prove what had been going on with the mobile phone business because he could not call David Blunkett. He complained that he had not been able to get the RBS to court. He submitted that it would be unfair to draw the assumptions. The judge asked whether he was submitting that he had shown on the balance of probabilities that his funds had been tracked down and had been acquired honestly. The appellant replied that his funds had been honestly borrowed. They had been used for the purposes of the police and Customs as a ‘worm to catch the crooks’. He alleged that the police were aware of all that and the confiscation proceedings had been brought by way of revenge for what he had done to Walker six or seven years earlier. The judge put it to him that he had voluntarily committed the qualifying offences. He agreed but said that he had been ‘set up’ in relation to the theft of the Porsche. In summary, he submitted that everything he had done had been honest; he had borrowed money from Alan Arnold and, in 2002 he was collecting together all his assets so that he could repay the loan and interest. The Judgment 81. The judgment was given ex tempore as soon as the submission was complete. It began with a summary of the applicable law. This was correct save that the judge became slightly confused as to the test by which his discretion should be exercised to make the statutory assumptions. He said that he should not make the assumption if he was “satisfied that there would be a further risk of injustice, a serious risk I should say, of serious injustice by doing so”. He continued: “The obligation requires the court to stand back and decide whether there is or might be a risk of serious or real injustice, and if there is or might be, not to make the relevant assumption or a confiscation order, as the case may be.” In fact, section 72AA(5)(c) directs that the judge should not make the assumption if he is satisfied that there would be a serious risk of injustice in the defendant’s case. 82. The judge then rehearsed the circumstances in which the appellant had lost his representation and had continued in person at the adjourned hearing. He considered that the appellant and his team had had plenty of time to prepare for the hearing and the adjourned hearing. 83. As to the evidence, the judge declared himself satisfied that the CV was a ‘work of fiction’ designed to delude the solicitors to whom he was introduced into believing that the appellant was a man of substance. 84. The judge held that the loan agreement with Mr Alan Arnold was a sham. He was of the view that any money the appellant had received was part of a money laundering exercise. He considered that Ms L and Mr F were also involved in laundering. He did not accept the explanation for the transactions in respect of The Barn. 85. The judge expressed his indignation that the appellant should have drawn some £57,000 in state benefits while holding assets of the order of £1 million. 86. He described the police search of the appellant’s house as ‘inept, shoddy and pathetic’. However, he did not accept that the police were part of a conspiracy against the appellant; they were just inept. 87. Turning to the appellant’s evidence and his reliance on the 1996 Collins diary, the judge said that although the appellant had been dishonest in many aspects of his evidence and had tried to pull the wool over the judge’s eyes, he did accept that the 1996 diary was a genuine document. He did not accept that there were any others as alleged. He said that the appellant had some income from trading in cars although the time had come when he was not conducting the business but was having intermittent contact with DH and GP. The judge then accepted Mr Burke’s theoretical assessment of the profit (£128,614) which the appellant would have made over the years from trading in cars if his turnover had been £1.8 million. He did not apply his mind to the question of whether or not that trading was honest. 88. The judge then referred again to the appellant’s evidence in relation to Mr Arnold and dismissed it all as untrue. He dealt with the appellant’s claim that Mr David Blunkett had been involved in helping him in relation to his problems with the money which was stuck in Denmark. He referred to a letter produced by Mr Blunkett’s department to the effect that the appellant’s foray into the mobile phone business in Denmark was ‘a frolic of his own’. He referred to the statements taken from the South Yorkshire Police which denied that they were involved as the appellant claimed. He referred to the evidence of Mr Honeywell which he said showed that the IR had not in any way sanctioned the appellant’s failure to keep proper accounts. He described the appellant as ‘more extraordinary than Walter Mitty’. The judge also dealt with various other aspects of the appellant’s evidence, in each case rejecting his evidence as inconsistent or otherwise incredible. He was satisfied that the appellant had been cross-firing cheques for the purpose of suppressing anxiety in the banks about the passage of unexpected large transfers. He summarised his view of the appellant’s credibility by saying that he would not believe anything the appellant said unless there was independent support. 89. The judge’s conclusion was that the appellant had failed to discharge the burden which lay upon him. Moreover, having considered whether there was a serious risk of injustice, he did not believe there was any injustice in the findings he was about to make. 90. The judge then embarked, mistakenly, on the process of confiscating various specific assets. In fact, when it was pointed out to him, he accepted that what he had meant to do was to assess the value of the assets. He accepted all the prosecution figures save for the value they had put on the shares in Edgley, which he thought were over valued. He assessed Edgley at £700,000, a reduction of £376,227 from the Crown’s figure. He then asked for assistance with the arithmetic and there was further confusion. The judge then deducted £376,227 from the Crown’s benefit figure (rather than the asset figure) and announced that the asset figure was £1,565,911. That was a mistake in that he had deducted the £376,227 from the total benefit figure rather than the asset figure. Counsel tried to explain and the judge said that he was going to take the same sum off the benefit figure. Then he realised he was wrong and said that the benefit figure should remain the same and only the asset figure should be reduced. Counsel then mistakenly advised the judge that the sum of £376,227 should be taken from the benefit figure, thereby producing a total benefit of £1,566,911. That was accepted by the judge and that sum became the confiscation order. Everyone seems to have forgotten that the judge had said that he was going to accept that the appellant had made some money from car dealing as suggested by the accountant Mr Burke. He had never said how he was going to deal with that issue and he never did deal with it. 91. The judge went on to consider whether he could make an order for costs against the appellant. He concluded that he could because the asset figure (which he mistakenly thought was £1,828,341) exceeded the benefit figure (which he had mistakenly set at £1,566,911) by £261,223. After some discussion, the judge ordered the appellant to pay £62,864.50 towards the prosecution costs. The proceedings concluded with the judge fixing a term of six years imprisonment in default and warning the appellant that he would make another costs order later. In the event, the judge later made two costs orders, a recovery of defence costs order in the sum of £88,681 and the prosecution costs order was increased to £71,592. The Appeal 92. The appellant instructed solicitors and counsel and a notice of appeal was drafted. Leave was granted in respect of three grounds. First, it was said that the judge had wrongly exercised his discretion in considering the issue of whether there would be a serious risk of injustice if the assumptions were made. The judge had already pre-judged the appellant as evidenced by a number of comments made both before and during the confiscation hearing. Second, it was said that the order had been made on a wrong factual basis. The judge had found that the appellant had made some profit from car trading as suggested by the accountant Mr Burke. The judge should have reduced the benefit figure by the turnover on which Mr Burke had made his profit estimate. Had that been done, the confiscation order would have been only £104,842. Third, it was alleged that the hearing had been unfair because the appellant had been unrepresented. He had been unable adequately to present the evidence relating to car trading. 93. An application was made to this court for the provision of funding for further work to be done by Mr Burke. It was contended for the appellant that Mr Burke had never had the opportunity to analyse the contents of the Collins diary and the schedules of cars purchased at auction in the name of Autoways and to attempt a reconciliation between them and the appellant’s bank accounts. Further funding was granted. The Crown was given leave to put in further accountancy evidence in response to Mr Burke’s further work. 94. Shortly before the appeal was due to come on for hearing in October, the appellant’s counsel sought yet further funding. A limited sum was allowed and directions given for the exchange of any further accountancy evidence. 95. When the appeal came on for hearing, we were informed that the appellant’s solicitor and counsel had felt obliged to withdraw from the case. No explanation was offered. The appellant asked for an adjournment to instruct another team but in view of the history, we directed that the appeal must continue. Fortunately, the appellant’s counsel had submitted a detailed skeleton argument, upon which the appellant could still rely. Also, counsel remained in court so as to assist with the documentation with which he was fully familiar. We were grateful for his help. 96. The appellant presented his own appeal. We gave him a good deal of assistance by steering him through the issues set out in the skeleton argument. For reasons we will explain in due course, we also allowed him a good deal of latitude to digress into explanations of factual matters which he felt the judge had not understood or had not been properly presented at the hearing. We allowed him to put in additional documents, for example a schedule by which car deals were related to transactions in the bank accounts. We received Mr Burke’s additional report but no application was made to call Mr Burke, as it appeared that he was unwilling to give evidence due to the fact that the solicitor who had instructed him had withdrawn. The First Ground of Appeal 97. This was fully set out in counsel’s skeleton argument. It was alleged that the judge had formed an unfavourable view of the appellant even before the hearing began. He made a number of remarks from which it appeared that he was biased. Also, it was alleged that the judge’s tone and manner, which are not always apparent from the transcript, demonstrated bias. The following complaints were made: (i) On 13 th February 2004, at an application for an adjournment for the appellant accountant to complete his work, the judge observed that it was outrageous that the public should be paying for the appellant to obtain accountancy evidence to ‘try and prove that he is entitled to keep some of his money’. We agree that this was an inappropriate remark. As counsel had pointed out, the appellant bore the burden of proof. Moreover, the accountant had successfully demonstrated that the Crown’s initial figures were grossly in error. (ii) On 20 th February, the judge refused to renew the appellant’s bail. He had breached its terms and gone to the Cayman Islands. While that decision itself cannot be criticised, complaint is made of the judge’s words to the effect that he was not going to take any risk with “somebody who has assets overseas which he has not disclosed”. He added: “for all I know there may be other assets in the Channel Islands, the Isle of Man, Lichtenstein, all sorts of places where people can keep money and this man has been going through huge sums of money. He will remain in custody.” We accept the submission that these comments were unwarranted. There was no evidence of hidden assets and it was no part of the Crown case that there were such assets. (iii) On 1 st March, the first day of the hearing, when the judge asked where the appellant’s business accounts were, counsel told him that the appellant’s case was that the diaries containing his records of car trading had been seized by the police and not returned. The Judge said: “Call me an old cynic, but it is one of the oldest tricks in the book isn’t it? The police have seized all my business records and they are not prepared to let me have them”. We accept that this comment, made without hearing any evidence on the subject, was quite inappropriate. It gave the impression of bias. In the event, however, the judge did hear evidence about the search, concluded that it had been ‘a shambles’ but also that the officers involved had been inept rather than dishonest. (iv) On 3 rd March 2004, the judge made an observation which showed that even at that early stage he had decided that the appellant would be paying the costs of the case. He said: “In due course he will be paying the total costs of the case and so each side is now to start preparing and that includes all the accountant’s expenses, every single last penny, because he has got the wherewithal, on any basis …every last penny and he will pay the lot. I do not see why the public should contribute a penny toward the expense”. We accept that these remarks were inappropriate and appeared to show that the judge had made his mind up before hearing the evidence. (v) Also on 3 rd March, before evidence had been heard, the judge made the observation that, if he gave evidence, the appellant would be asked “what he was doing cross-firing all these cheques and manipulating all these bank accounts other than to make it extremely difficult for anybody to establish what he had been doing. In other words he was, as they say in the Navy, making smoke”. We accept the submission that this comment was inappropriate and gave the impression that the judge had already decided that the cross account transfers had been made for a dishonest purpose. 98. Those were the only examples cited by counsel in the skeleton argument. However, as we have read through the transcript for ourselves, we have noted numerous occasions when the judge made a sarcastic remark. We regret to say that we have no doubt that an impartial observer, sitting in court on these various occasions, would have had the impression that the judge was biased against the appellant. We will return to the consequences of that finding in due course. The Second Ground 99. This ground concerns the way in which the judge dealt with or failed to deal with his acceptance that the appellant had been trading in cars. As we have already explained in our summary of the evidence, the judge said that he accepted that the appellant had made some money from car trading. He told the appellant that he did not need to adduce further evidence about car trading. In his judgment the judge said (starting at page 72 of the day’s transcript): “I do accept that he had some income from trading in cars, albeit that there came a time on his own account if it when he was not conducting the business at all and having intermittent contact with (H and P). His accountant has produced figures which show a total profit of £128,614, which works out at approximately £18,373 per annum during the period under review, and I am prepared to accept that there was some profitability to that extent. So I need not dwell any further on the question of the diary and anything to do with trading in cars.” 100. The point made by Counsel in the skeleton argument was that, if the judge was accepting that there was a profit from car trading of £128,614 on the basis of the estimate made by Mr Burke, he was also, by implication, accepting the premise underlying Mr Burke’s calculation. This was that the turnover which had produced that profit was of the order of £1.8 million. As the whole exercise was to establish the origin of unexplained transfers into the accounts, it was clear that, if there was a profit of £128,614, there had been a turnover of £1.8 million which accounted for £1.8 million of transfers into the accounts. 101. We can see the logic of counsel’s argument. But it is apparent to us that the judge had completely lost sight of the basis on which Mr Burke had given his evidence. Mr Burke had not said that £1.8 million transfers-in came from car trading. Indeed he specifically said that he could not say how many transfers-in (if any) were attributable to car trading. He only said that, if it were assumed that the £1.8 million of transfers-in came from car trading it would be reasonable to infer (and a tax inspector would so infer) that the profit would have been about 7% of turnover, namely £128,614. The only evidence about the extent of car trading turnover came from the appellant who asserted that, over the six year period, it amounted to between £1.5 and £1.8. However no documentary evidence was produced to back up that estimate. 102. It seems to us that the judge’s finding was completely without evidential foundation. All he was in a position to say was that he accepted that the appellant had been involved in car trading. He never properly applied his mind to how much car trading there had probably been. Even on the appellant’s own evidence, it could not seriously have been suggested that all the unaccounted for transfers-in related to car trading. He acknowledged that he did other types of dealing (besides cars and mobile phones). Even more importantly, the judge never applied his mind to the question of whether the car trading had probably been honest. 103. In any event, it is clear that, although the judge said he was satisfied that there had been some profit from car trading, he did not reflect that in his assessment of the benefit which the appellant had received from criminal activity. He did not deduct £128,614 from the benefit figure as the skeleton argument suggests that he intended to do. Instead he quite mistakenly deducted £376,227 which was his estimate of the overstatement of the value of Edgley. He was confused about that but he never stopped himself to wonder what had happened to his supposed intention to deduct £128,614. 104. We would accept that, if the judge had found, on a tenable basis, that the appellant had made profit of £128,614 from lawful car trading, that trading would have accounted for £1.8 million transfers-in. But he did not and there was no evidential basis on which he could have done. We will return to this issue later. The Third Ground of Appeal . 105. The third ground argued by counsel in the skeleton argument was that the proceedings were unfair. It was said that the appellant had to shoulder the burden of proof and yet was unrepresented for much of the hearing. He was unable to present his case adequately. Particular reliance was placed on the appellant’s alleged failure to deal properly with the schedules of car trading. 106. Second, it was said that on 13 th February, the judge had unfairly refused to adjourn the main hearing beyond 1 st March in order to allow the appellant’s accountant to complete his examination of the documents. We do not think that the judge could be criticised for that decision. He did not say that the accountant would be prevented from putting in additional work. There was still two weeks’ further preparation time. 107. Next it is said that, when on 22 nd March, the judge was told that the appellant wanted to instruct new solicitors, he should have vacated the date for the resumed hearing (5 th April) and put the case back more generally, even if that meant that there would have to be a fresh start because he was due to retire at Easter. We think that the judge was right to refuse this application. The new solicitors had two weeks in which to prepare for the resumed hearing. They had two counsel fully familiar with the case. They did not advance any adequate reason as to why they could not be sufficiently prepared within that time. There is no merit in that submission. 108. Fourth it is said that, had he been represented, the appellant could have been advised as to which evidence of car trading should have been put in. That is so and we readily accept that in most cases an unrepresented party will not present his case as well as his advocates would have done. But that cannot amount to unfairness. This appellant made his own decision to withdraw instructions from his solicitors. We pass no comment on the judge’s conclusion that this was a ruse to try to secure a fresh start. The motive is irrelevant for present purposes. The fact is that there was no unfairness in what happened. 109. Finally, it is said that the judge was disparaging of Mr Paul Burke. We accept that the judge’s language was ill-advised particularly when he referred to the fact that Mr Burke was not a qualified chartered accountant but a tax specialist. Mr Burke had never claimed to be a chartered or even a certified accountant. Moreover, it is apparent that Mr Burke had done some valuable work on the prosecution’s statement of case. Also it seems to us that when he gave his oral evidence, he was very careful not to overstate the appellant’s case. He explained frankly the basis of his conclusion. He should not have been disparaged in any way. That said, this treatment cannot have made any difference to the result because, as we have explained in respect of the second ground of appeal, the judge purported to accept Mr Burke’s evidence, and mistakenly purported to give it far greater effect than Mr Burke had ever suggested it should have. 110. We observe also that, although complaint was made of the judge’s conduct and appearance of bias, it was not alleged that the judge was actually biased. He made a number of decisions favourable to the appellant. 111. We have read the whole of the transcripts of the preliminary and substantive hearings of this case. We deprecate the way in which the judge expressed himself from time to time but we are quite satisfied that all his decisions were appropriate. We have dealt with the two failed applications for adjournment, noting in passing that there were two applications for adjournment which had been granted. No criticism is made of the conduct of the hearing while counsel were involved. It seems to us that, once the appellant was acting in person, the judge gave him a great deal of leeway. He allowed him to call witnesses in any order he chose and to recall witnesses to ask questions he had forgotten to ask. He was allowed to put in additional papers throughout the trial. The prosecution undertook to call various witnesses at the appellant’s request, thereby allowing him to challenge their evidence in cross examination if they did not say what he hoped they would say. Standing back and looking at the proceedings as a whole, we are quite satisfied that they were fair. 112. Considering now our conclusions in respect of all three grounds of appeal, we have come to the conclusion that the judge’s decision cannot stand. He gave an appearance of bias which leads to a concern that he did not approach the appellant’s evidence with an open mind. Moreover, we are satisfied that the judge was confused about the process of assessing the amount of the confiscation order. Also, he appeared to make a finding of fact which was without evidential foundation and failed also to give the supposed finding any effect. 113. We have given anxious consideration as to what course we should take. The making of a confiscation order is a part of the sentencing process. If the judge below has fallen into error, we cannot remit the matter for rehearing. Are we to say, as the appellant urges us to do, that because the proceedings below were flawed, we should simply quash the confiscation order? Or should we, as the prosecution argues, substitute our own decision for the flawed decision of the judge? There is no doubt in our minds that we have the power to do so by virtue of section 11(3) (b) of the Criminal Appeal Act 1968 , this being an appeal against sentence within the meaning of that section. If we do so, we must allow such reinvestigation of the issues as we think fair and just. 114. We have reached the conclusion that we should make our own decision on the basis of all the information that has become available to us. We have so decided for the following reasons. First, as we have said, we consider that the conduct of the hearing was perfectly fair. It was long and the evidence given was detailed. We have read all the transcripts and seen the documentary evidence. The prosecution was conducted with exemplary fairness. True the appellant was in person but that was of his own making. Second, the appeal hearing lasted for one and half days and for most of that time, the appellant was addressing us. As is often the case with litigants in person, he found it difficult to make submissions to us; in effect he gave evidence again, seeking to explain why the judge had not understood this point or that and telling us what the real position was. We allowed him a good deal of latitude, in effect allowing him to give evidence again without the disadvantage of being cross-examined. It was because we realised, from our reading of the papers, that we might reach this position that we gave the appellant a generous allowance of time to address us. 115. We received the new accountancy evidence although we did not hear from the accountant. In the event, it was apparent from reading Mr Burke’s second report and the prosecution’s response to it that the accountancy evidence was not controversial. Our Review of the Decision 116. It will now be apparent why we have set out the evidence given at the hearing in such detail. We propose to analyse the issues again on the basis of the evidence before us. We start from the premise that, although the appellant is a man with convictions for dishonesty, it must not be assumed that everything he says is untrue or that everything he does is dishonest. Having said that, it must be stated immediately that there were many features of the evidence which pointed to dishonest conduct besides that of which he had been convicted. We mention the use of the dishonest CV. The appellant may not have written it himself but he allowed it to be put forward and it was thoroughly misleading. Second, we have seen the breakdown of the benefits the appellant received between 1996 and early 2003. He received income support and sufficient to cover his mortgage payments, water rates, and community charge - later council tax. These were plainly means-tested benefits and he was claiming them at a time when he had substantial amounts of money in the bank. That was dishonest. His attitude to the insurance of property was plainly less than honest. He had convictions for ‘clocking’ cars and was associating with others who had similar convictions. He was in possession of the stolen Porsche in unexplained circumstances. At the time of his arrest for dangerous driving and making off without payment he was driving a car on false plates. Those matters were not seriously contested. 117. Other matters were contested. The Crown alleged that the cross-firing of cheques was dishonest. The appellant said that it was not. These movements of money were related either to property deals (of which there were only two) or to mobile phone transactions. We have looked at these movements and we find ourselves unable to accept as capable of belief the suggestion that these movements were for genuine and honest reasons. 118. At the heart of the appellant’s explanation as to how he had been able to trade in such large sums of money as shown in the bank statements, was that he had borrowed £500,000 from Mr Arnold in 1993. This had been his working capital. Without that, it would be hard to imagine how a man with this appellant’s humble commercial beginnings could ever have traded at the level he achieved. The documentary evidence relating to the loan was not satisfactory. The letter accompanying the loan agreement was on paper headed ‘Kerdalia Investments Limited’ but there was no telephone or fax number; nor was there a typist’s reference. That is unusual. The letter offered a loan of £500,000 subject to sight and approval of two years’ accounts. None existed so could not have been submitted. The loan was stated to be for a period of 6 years at the end of which time capital and rolled-up interest were to be repaid together. That had not happened and there was no evidence of any attempt by Mr Arnold to recover his money in 1999 or thereafter. On the contrary, the appellant claimed that, when offered £500,000 on account of repayment in 2003, Mr Arnold had postponed acceptance. Without confirmation from Mr Arnold, we find that incredible. That confirmation was not forthcoming in circumstances we outlined earlier. We think it much more likely that the £500,000 was put into an account in Geneva in the hope that it would be out of the way of the British authorities. We also cannot accept the truth of the appellant’s claim that he had transferred £500,000 to Mr Arnold’s account at the Bank of Scotland in London in October 2003. In short, so far as Mr Arnold is concerned, we cannot accept that the appellant has demonstrated, on the balance of probabilities, that he had in his possession, for use as trading capital, any substantial sum from a legitimate source. 119. The explanations proffered by the appellant, Ms L and Mr F as to the transfers of ownership of The Barn seem to us to be inherently unlikely to be true. We consider that it was far more likely that those transactions were effected in order to keep a distance between ownership of that property and the appellant. 120. One of the appellant’s major difficulties in shouldering the burden of proving that the unaccounted for transfers into his accounts related to legitimate business deals was the absence of any records or trading accounts. His explanations for the absence of these were twofold. First, he claimed that he had been told by the Inland Revenue that he need not keep books of account or submit tax returns. Mr Honeywell said that was not true. The appellant claimed that he had been summoned to see Mr Honeywell because he believed that the nil tax return recently submitted was false. However, it was the appellant’s case that by this time he was in financial difficulty in Denmark to the knowledge of Customs and he gave Mr Honeywell the name of Mr Norcliffe who could and did verify those facts. Thereafter, the appellant was not pursued in respect of the nil return. Mr Honeywell admitted that the name of Norcliffe rang a bell. Giving due allowance to the appellant’s case, it does seem to us possible that Mr Norcliffe told Mr Honeywell of the appellant’s Danish difficulties and that satisfied him that he had been mistaken in thinking that the nil tax return was false. But that evidence falls far short of showing, on a balance of probabilities, that anyone in either the IR or Customs told the appellant that he need not keep accounts. 121. The appellant’s second argument was that, although he had not kept formal accounts, he had kept informal records. But these had been taken by the police. The judge accepted that the search of the appellant’s home had been a shambles. We accept that assessment as it is in the appellant’s favour. We discount the judge’s finding that the police were simply inept but not dishonest. We are prepared to acknowledge that there might have been some other diaries besides the Collins 1996. We cannot say. 122. If there were what might they have shown? We have regard to Ms L’s account of what the diaries contained. She said that she made notes of what the appellant told her he had done, what transactions he had entered into. We accept that it is possible that there was some more information about dealings, in particular covering the years 2000 to 2002 which were not covered by the Collins 1996 diary. We find it hard to understand why the appellant would want to keep a second set of notes about the transactions in the years 1996 to 2000 which had already been recorded in the 1996 diary. Also we have regard to what the appellant told us about the nature of his activities in the last two years of the relevant period. He told us that after 2000 the car trading ceased and he sold all the remaining stock to GP’s brother for £50,000. After that, he was much occupied with trying to recover money he had lost in Denmark. He had also turned his mind to property and company deals and, through Windyacre, had bought Edgley. 123. There is nothing in the evidence to suggest that the other diaries would have been more informative than the 1996 diary (other than that they might have covered the later period). The appellant suggested that if he were to have the diaries he would be able to show that his transactions were entered into for the purpose of getting close to crooked dealers so that he could give useful information to the police. We find it hard to understand how the kind of diary notes that we envisage he is talking about could help him show that his own dealings were honest. 124. We turn now to consider each of the types of benefit which the Crown alleges have come from criminal conduct and in particular to those for which the Crown relies on the statutory assumption. 125. First, there is no need for the statutory assumption in respect of the value of the stolen petrol, namely £219.58. 126. Second, the Crown claims that the appellant received state benefit of £57,446.86. That was agreed as a figure. 127. The appellant argues that the assumption should not be made in respect of this sum. He admits that he received these sums but says that he has never accepted that he was not entitled to them. He claims that he has been prevented from proving that he was so entitled. He says that the Department of Work and Pensions had asked to see him about his past claims for benefit but then cancelled the appointment, thereby preventing him from sorting the matter out. On the face of it, this appellant would not be entitled to receive means tested benefits at any time between July 1996 and February 2003 because he had substantial sums in his bank accounts as we can see. Moreover, his own evidence is that he was in business in effect as an entrepreneur, lending money to others to trade in cars and other things. We think it is clear that this money was obtained dishonestly. But, if the statutory assumption is needed, it should be made. The appellant has failed to show on the balance of probabilities that he was entitled to the money and has failed to raise any concern in our minds that there would be any risk of injustice if the assumption is applied. We find that the appellant has benefited during the relevant period to the extent of £57,446.86. 128. We turn to the unexplained transfers into the accounts. Before we deal with the main issue, there is a matter of calculation which we think should be raised in fairness to the appellant. The Crown’s calculation of the unexplained transfers-in came to £1,884,523 and that sum was agreed as a figure. However, that included interest of £52,454.97 which had accumulated over the relevant period. The Crown contended that it was entitled to include interest as, if the principal sum came from crime, interest followed the principal and should be included. That we accept is so. However, it appears to us that the Crown had calculated the interest on the whole of the unexplained transfers before deducting those which they were eventually to accept were referable to mobile phone trading and not the product of crime. It seems to us that the interest sum should be reduced pro rata We cannot do a precise calculation but taking a broad brush approach, we think it would be fair to the appellant to reduce the unexplained receipts by £30,000 to £1,854,523. 129. We now turn to the main areas of contention which are whether the statutory assumptions should be applied to any or all of that sum. 130. The appellant argues that we should not apply the assumption at all because he has been hindered - even prevented - from demonstrating how those sums came to be lawfully transferred to him. He relies first on his claim that he had been encouraged not to keep proper accounts. We have already dealt with that. He relies next on his claim that the police have stolen his diaries. We have already dealt with that. Next he submits that he was at a grave disadvantage at the hearing and on this appeal because he was unrepresented. He did not have the skill to present the material as clearly as it could have been. His difficulties during the hearing were compounded by the fact that he was in prison. We acknowledge his difficulties but nonetheless we reject that submission. We do not know the circumstances in which the appellant came to act in person so we will assume that it was not through any fault of his own. However, we are quite satisfied that he was given a great deal of leeway at both hearings and that he is capable of getting his points across. He was allowed to put in documents throughout the hearing even though they had not been copied as they should have been. We do not underestimate the difficulty that litigants in person experience but, if the hearing is conducted fairly, these are not such as render the result unreliable. Indeed, to hold to the contrary would mean that any defendant could torpedo any proceedings by dismissing his representatives. We consider that although, as we have said, the judge gave a perception of bias, he did conduct the proceedings fairly and we are satisfied that the appellant had a very fair hearing in this court. 131. The appellant also claimed that he had been prejudiced by his inability to obtain from RBS the vouchers which would show from whom he had received money by cheque. He had asked RBS to provide them but RBS said that they did not have them; they had given everything they had to the police. The prosecution contended that they received only bank statements from RBS and that when they had asked for further help, RBS had provided annotated statements showing which payments-in had been in cash and which by cheque. That was all the information available. We accept that there is some mystery about why RBS could not provide these vouchers. If available, they might have been helpful to the appellant. But in our view, it does not avail a man who has not kept any proper records himself, as he should have done, to complain that other people are unable to provide the records they once had. 132. Next, the appellant relied on the judge’s refusal to allow him to see files held by Customs and the police. This he submitted had hindered him and gave rise to the risk of injustice. The judge had refused disclosure on the ground of relevance, it being the appellant’s case that the files would disclose that he had been working for or ‘assisting’ both organisations. The appellant did not allege that he had received money for these services. His case was that because of the assistance he had rendered to the state, he had been encouraged not to produce any accounts or to file any tax returns. In effect, he had been encouraged or allowed to ‘drop out of the system’. The judge heard evidence in camera from the police and said that he was satisfied that there was nothing held by the police which would assist the appellant. The appellant did not suggest that the judge had been untruthful about that and we must be satisfied that what he said about the police material was true and accurate. 133. Accordingly we conclude that the appellant has not been significantly hindered from demonstrating how the transfers came about by anything other than his own free choice not to keep proper records and accounts. 134. The appellant also contends that it there is a risk of injustice if the assumptions are made because he was unable to demonstrate satisfactorily that the police had only embarked upon confiscation proceedings as an act of revenge against the appellant who had drawn attention to the improper conduct of the officer named Walker. He alleged that the investigation had been commenced and conducted in bad faith. We accept his submission that it is unusual for a full-blown investigation to follow upon minor convictions of the kind with which we are concerned. However, those submissions are completely undermined by the evidence that the NCIS had received information from banks and building societies about the amounts of money going through the appellant’s accounts. These financial institutions are now under a duty to disclose information to the authorities where they have reason to suspect the possibility of money laundering. It seems to us that, having received this information, the Crown was obliged to investigate the appellant’s financial affairs once it was clear that he had committed two qualifying offences. We do not think that there is any basis to suspect that the confiscation proceedings were brought in bad faith. 135. We recognise that, if the assumption is drawn, the burden of explaining the origin of over £1.8 million of transfers into his accounts will be shifted onto the appellant. Standing back and looking at all the factors raised by the appellant, we do not think that either separately or cumulatively they give rise to any serious risk of injustice if the assumptions are made. Accordingly we make the assumption in respect of all the unexplained transfers. 136. We turn to consider to what extent if any the appellant has satisfied us on the balance of probabilities that any or all of the transfers resulted from lawful activity. The appellant’s case is that he had legitimate business activities, mainly relating to the second hand car trade. He was lending money to his colleagues so that they could buy and sell cars and other things. It was not helpful to his case that he had never produced any proper books of account for what was, if he was to be believed, quite a substantial business. Nor had he submitted any tax return that might help to explain his business. His contention was that all or virtually all the transfers into his accounts in the years 1996 to 2000 were explained by his business activity as evidenced by the diary. The trade had not been very profitable; indeed the business had folded in 2000 and all remaining stock had been sold for £50,000. 137. As we have said, Mr Burke’s second report contained an analysis of the diary entries for some specific periods. He was able to show that there was a possible correlation between the diary entries, the information from the car auctions and the bank statements. It was not possible to establish this with any degree of certainty. For one thing, much car trading took place for cash and one would not expect to see exact correlation between the amounts of cash drawn out or paid into the accounts and the amounts paid for or received for individual cars. Also when a car was sold, sometimes another car was taken in part exchange. The evidence was that lump sums would be put into the bank when surpluses had accumulated. One would not expect those sums to tally with the proceeds of sale of any particular car. Mr Talbot for the Crown agreed that it was possible to identify either 31 or 32 cars where there was an exact correlation between the bank statements and the diary. These transactions amounted in total to about £138,000. 138. The appellant was anxious that we should examine some schedules which the judge had either not seen or had not referred to. We have done so. We acknowledge that the appellant has put an enormous amount of work into these schedules and that to some extent it is possible to find a correlation between the diary, the statements and the car auction documents. 139. We are prepared to accept, as was the judge, that the appellant was providing money to DH, GP and ‘Matt’ for them to trade in second hand cars. We think it quite likely that the appellant also continued to do some trading on his own account. We think that he also traded in jewellery, mainly high value watches. We accept that the 1996 diary was an informal running record of his activities and his financial position. We would be prepared to accept that most of the unexplained transfers into his account were to be explained by some form of trading, whether by himself or through friends. However, where, as here, the assumption is made that he has acquired his property through criminal activity, he cannot rebut the assumption merely by showing that he has traded. He has to go further and show that the trade was probably honest. 140. We are far from being satisfied that on the balance of probabilities that the appellant’s trading was honest. There are many reasons why we should not be satisfied of that. He had a stolen Porsche in his possession in 2002. When arrested, he was driving a car on false plates. He had convictions for ‘clocking’ cars in 1998. So did DH and Matt. DH, who was working quite closely with the appellant admitted that he had had ‘wrong cars’. He admitted that his policy was to buy fairly new high mileage cars which he accepted would be suitable for ‘clocking’. We accept that cars bought at auction are acquired lawfully. But if they are then ‘clocked’ and sold, the proceeds are the proceeds of crime. We think it likely that a significant proportion of the dealing done by the appellant and his colleagues involved ‘clocking’. In any event, the number of cars purchased at auction cannot account for all the car dealing over the period 1996 to 2000. Cars must have been acquired in other ways. There is no record of legitimate purchases and we have not been satisfied that they were probably acquired honestly. We think it likely that some cars had been stolen. That is not to say that we think there was no honest trading. There almost certainly was some. The problem is we have no idea how much. 141. We are prepared to accept that the receipt of £50,000 from GP’s brother was probably honest. That was received in payment for the appellant’s residual stock. He says the stock was not good; some bad purchases had been made. He got rid of them for a lump sum. We do not know the origin of these cars and it is possible that some of them had been dishonestly acquired but, as they were apparently not readily saleable, we are prepared to accept that at least they had probably not been clocked. 142. We have considered whether we should be satisfied that the deals involving the 32 cars which the Crown was able to identify by reference to a specific entry in the bank statements were honest deals. We regret to say that we are not. The mere fact that a cheque was accepted does not indicate to us either that the car had not been clocked or that it had been honestly acquired in the first place. 143. We have said that some of the appellant’s trading was not in cars but in other things such as watches. We were concerned about the appellant’s description of his trading in watches. It seemed to us to be redolent of handling stolen property. We cannot say that it was but we have certainly not been satisfied on the balance of probabilities that it was not. 144. The appellant also told us of two land deals which he claimed were honest. They might have been. In any event, he has not identified the transfers into his account which relate to these transactions. If he is right, they must have been large sums and should be readily identifiable. Further it is not clear to us when these deals took place and whether they were within the relevant six year period. 145. Our impression of the appellant derived both from the transcript evidence and from his submissions to us is that he is an energetic and intelligent man but is completely without any sense of right or wrong. We think he is highly motivated to make money and will deal in anything from which he can make a profit. From the totality of the evidence, we think that the appellant lives his life on either side of the law without discrimination. If he has the chance to make money by an honest deal, we have no doubt that he will do it, but we do not think that the fact that the deal is dishonest would make any difference to his willingness to enter it. In the end, although we accept that some of the appellant’s dealing probably was honest, we cannot say how much. There is not even any proper basis on which we could estimate which deals were honest or what proportion of deals were honest. That being so, we have no alternative but to hold that, save for £50,000, the appellant has failed to satisfy the evidential burden upon him. 146. There has been no challenge to the judge’s assessment of the value of the appellant’s assets. He considered that Edgley had been overvalued by the Crown and the true value was £700,000. Accordingly, the true figure for assets should have been £2,002,412. To the figure we found as the total unexplained transfers, (£1,854,523) we add £57,446.86 in respect of state benefits and £219.58 for stolen petrol. That gives a total benefit of £1,912,189.44. From that we deduct £50,000 (the cheque from P’s brother) and find that the appellant has benefited from criminal conduct to the extent of £1,862,189.44. As that figure exceeds the sum mistakenly ordered by the judge and as we cannot increase the order, the effect is that the judge’s order will stand. No issue as to the costs order was raised on this appeal. Accordingly for the reasons we have given the appeal is dismissed. We direct that time for payment should be allowed. Subject to the receipt of further submissions on this topic, we propose that the appellant should have six months from the date of this decision in which to satisfy the order. The term in default will remain 6 years. 147. In view of the criticisms of the judge’s decision which we have upheld and the fact that we have had to exercise our discretion afresh in this matter, we do not think that it would be appropriate to make any further order for costs.	```yaml citation: '[2006] EWCA Crim 3062' date: '2006-12-06' judges: - LADY JUSTICE SMITH - MR JUSTICE MACKAY - HIS HONOUR JUDGE CHAPMAN (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	Neutral Citation Number: [2010] EWCA Crim 378 Case No: 200906250 D5 IN THE COURTS MARTIAL APPEAL COURT Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 17th February 2010 B e f o r e : LORD JUSTICE HUGHES VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION MR JUSTICE MACKAY MR JUSTICE LLOYD JONES - - - - - - - - - - - - - - - - - - - - R E G I N A v WAYNE DANIEL PHILLIPS - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - Mr C Wing appeared on behalf of the Appellant Mr D Richards appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE HUGHES: This defendant was convicted at Court-Martial of assault occasioning actual bodily harm. The allegation was that he was one of a number of people who went during the night into the barrack hut, where the complainant was sleeping, and one of two of those who went to the bed, punched the complainant a number of times as he lay there, told him off for "gobbing at my LACs", warned the other occupants of the hut, who had been woken up, that they had heard and seen nothing and should go back to sleep, and then left. 2. The defence was that he had not been present. He said that, to the extent that anyone said that he had been in the hut, they had mistakenly remembered his being there about two hours earlier on an innocent errand. 3. The defendant was tried, together with another man called McMullen, who in eventual course was acquitted by the court. 4. The injured man insisted, plausibly or otherwise we do not know, that he could not remember the following morning what had happened, that he thought he had fallen out of bed and had no idea who had injured him. The only thing that he did say was that the speaker of the two visitors spoke with a Liverpool accent. That is true of the defendant but no doubt true of other people as well. Indeed, the complainant, if anything, tended to exonerate the defendant because he said that he knew him and would recognise him. 5. There were, however, four people present in the hut who gave some evidence of what they saw. Their names were Baldwin, Sheppard, Chaisty and Benjamaa. On behalf of the defendant, Mr Wing's argument focuses upon a narrow point relating to the evidence of Benjamaa. He contends that that witness' evidence identifying the defendant as one of the two assailants was inadmissible because it was based upon hearsay. The reason why that suggestion is made is that it transpired, at a very late stage in the witness' evidence and after he had been recalled, that he had not known the surname of the person who he was saying was the assailant until some time after the incident in question. His evidence was that he had been on the same exercise as the person he was saying was the assailant for very nearly a week. His evidence was that he had seen him about a couple of times per day, he knew that he spoke with a Liverpool accent, he knew that he was a member of the Support Weapons Flight and he knew that his nickname was Scouse, but he did not, until after the incident, know his surname. 6. It does not follow from those facts that this is an identification inadmissible because it is hearsay. An identification certainly can be inadmissible by reason of hearsay. If the witness has not seen the assailant but asserts that he has been told by somebody else that the assailant is X, that, of course, is hearsay. That, however, was not this case. In this case, the identification was not based upon hearsay, the only thing that was hearsay was the attribution of the surname. The witness had always been clear who it was he saw. It was the person that he knew as Scouse from the Support Weapons Flight. The only thing that he had not known was the surname. 7. It is no doubt true that the attribution of the surname in due course was based upon what the witness was told by others. Knowledge of a surname almost always is. Very few people know of their own uninformed knowledge what another person's surname is. A parent will, and so will somebody who has seen the person in question habitually answering to a particular surname, but most of us know other people's surnames, and other names for that matter, because we have been told by other people that that is the name they go by. Moreover, the evidence of reputation for identity was always a common law exception to the rule against hearsay and is preserved by section 118(1) rule 3(c) in the Criminal Justice Act 2003 . 8. In the present case, there was really no dispute that Benjamaa recognised the person who is in fact the defendant. The case which was put on the defendant's behalf to the witness was that he had indeed seen Phillips in the barrack hut that night but that that had been approximately two hours earlier on the occasion of an entirely innocent errand. That raised an issue of fact which had to be decided by the board. Benjamaa was firm in his assertion that that was not so and that what he had seen was the defendant at the bed of the complainant at the time of the assault. But the issue demonstrates that this was not a case in which the identification of the defendant was founded upon hearsay. The only thing that was founded on hearsay was the attribution of the surname and the attribution of the surname by reputation is and always has been an exception to the rule against hearsay. If the exception did not apply, section 114(1)(d) of the Criminal Justice Act 2003 undoubtedly would have justified the admission of the evidence and there could, in the circumstances of this case, have been no realistic basis for opposing it. 9. In those circumstances, it is not necessary for us to examine the alternative submission on behalf of the Crown that the evidence of other witnesses was sufficient to demonstrate that the conviction of the defendant is safe. It is certainly true that there was evidence of at least two other people which very significantly supported the evidence of Benjamaa, including that of Sheppard, who on any view knew the defendant well and identified him as being one of those responsible for the incident. That Sheppard had been prepared to concede that he might have misread his watch as to the time of the incident would not have prevented the board from relying on his evidence, but it is not necessary to examine the strength of the other evidence because the evidence of Benjamaa was not inadmissible. If it had been, we take the view that, despite the strength of the other evidence, it might have been improper for this court to say that the board would necessarily have come to the same conclusion in the absence of Benjamaa's evidence, but that does not arise for the reasons which we have given. 10. In future cases, careful consideration ought to be given at the investigation stage to whether an identification parade is appropriate, but that does not affect the outcome of this appeal, which must be dismissed.	```yaml citation: '[2010] EWCA Crim 378' date: '2010-02-17' judges: - LORD JUSTICE HUGHES - MR JUSTICE MACKAY - MR JUSTICE LLOYD JONES ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	No: 2008/2847/A9 and 2008/2848/A8 Neutral Citation Number: [2008] EWCA Crim 2761 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 7th November 2008 B E F O R E: LADY JUSTICE HALLETT DBE MR JUSTICE KING HIS HONOUR JUDGE PATIENCE QC ( sitting as a judge of the Court of Appeal, Criminal Division ) - - - - - - - - - - - - - - R E G I N A -v- NICHOLAS STEVEN JAMIESON JOHN MICHAEL JAMIESON - - - - - - - - - - - - - - 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 P Kaufman (Solicitor Advocate) appeared on behalf of the Appellant Nicholas Jamieson Mr B Myers appeared on behalf of the Appellant John Jamieson Mr N Paul appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T 1. JUDGE PATIENCE: On 26th November 2007 at the Stratford Magistrates' Court, the first appellant, Nicholas Jamieson, pleaded guilty to an offence of burglary in public house premises and was committed for sentence to the Crown Court at Inner London. On 2nd April 2008, at that court, he pleaded guilty to four offences of administering a poison or noxious substance with intent, contrary to section 24 of the Offences Against the Person Act 1861 . In addition, he pleaded guilty to nine offences of theft and one offence of assault occasioning actual bodily harm. The second appellant, John Jamieson, his brother, pleaded guilty to three section 24 offences and seven offences of theft. 2. On 24th April 2008, each appellant asked the court to take into consideration a further eight offences of theft. The first appellant was sentenced to consecutive sentences of 2 years' imprisonment for each of the four section 24 offences, making a total of 8 years' imprisonment. He was further sentenced to six months' imprisonment for each of the nine offences of theft, which were ordered to run concurrently with each other but consecutive to the earlier sentence. He was further sentenced to six months' imprisonment consecutive for the offence of assault occasioning actual bodily harm and, finally, to a concurrent sentence of 12 months' imprisonment for the offence of burglary, for which he had been committed for sentence. 3. The second appellant, John Jamieson, was sentenced to consecutive sentences of 2 years' imprisonment for the three section 24 offences, making a total of 6 years' imprisonment, and to six months' imprisonment for the seven offences of theft, which were ordered to run concurrently with each other but consecutive to the earlier sentence. 4. In the event, the first appellant was sentenced to a total period of 9 years' imprisonment, less 150 days spent on remand, and the second appellant was sentenced to a total period of 6½ years' imprisonment, again less 150 days spent on remand. 5. The appellants now appeal to this court against their sentences by permission of the single judge. 6. The first offence in time was the offence upon which the first appellant was committed for sentence. It occurred at 6.45am on 21st October 2006, when he was observed by the manager of the Duke's Head public house in Barking Road, East Ham, as he looked out of the window, to be, with the aid of another man, taking items up through the premises' cellar hatch. The police were called, found the first appellant hiding in a cupboard and arrested him. At the same time they recovered a cordless drill and other related items. Two days later he appeared before magistrates and was granted bail. 7. During 2007 both appellants embarked on what can only be described as a systematic campaign of theft from shops in the Beckton Triangle Industrial Estate. They entered stores and stole items there and on a number of occasions sprayed acid in the face of members of the security staff who sought to confront them. 8. A particular shop, the Co-operative Store in East Ham, was targeted, as was the meat cabinet within that store, the result being that there was a considerable loss of profit sustained. The organisation of the shop was made more difficult and staff morale was considerably undermined. 9. The campaign began on 11th February 2007, when both appellants entered that store and stole meat products between £50 and £60 in value. They returned to that shop on 23rd June, this time at 9.30 in the evening, and again stole meat from the cabinet. When confronted by a security guard the first appellant sprayed acid in his face, causing him to sustain burns, which left marks and scarring on his face and on his left eyelid. His jacket was also damaged. He had to take eight or nine weeks off work and has remained anxious and self-conscious about the scarring with which he has been left. 10. Almost two months later, on 15th August, at quarter to nine in the evening, the appellants once more returned to the same shop and stole a similar amount of meat from the cabinet. A different security guard tried to stop them. The first appellant knocked the guard's glasses off and punched him in the face, causing him to sustain a bloody nose and a black eye. Both appellants then made off. The guard experienced a number of nose bleeds in the subsequent week and was very self-conscious about the facial bruising which he had sustained. 11. Three days later, both appellants and another man entered this time the Sainsbury's Savacentre shop and stole a plasma screen television there. The security guard on duty tried to stop them from leaving, and he was sprayed in his face with a liquid and let them go. The guard sustained burn marks on the left side of his face, including his left eyelid; burn marks between his eyes and on the bridge of his nose; in the centre of his forehead; on and under his chin; and on his right ear lobe. He was off work for nearly three months. He is a man whose confidence has been seriously undermined. He cannot work on his own and he is very self-conscious about the scars with which he has been left. 12. On 27th September and 23rd October each appellant again returned to the East Ham Co-operative Store and stole meat from that shop. 13. Two days after the second of those two visits, on 25th October, at half past five in the afternoon, they both entered the Argos store, intimidating staff by their aggressive behaviour and stealing two toy cars. A staff team leader held onto one of them and, while doing so, was sprayed in his face with acid. He sustained scarring to his face, forehead, ear, neck, lower jaw, chest and forearm, and needed skin grafts. He also sustained damage to the sight in one eye and has to wear glasses to prevent headaches. He feels anxious and nervous in the presence of strangers as a result of his experience, having been off work for a total of five months. 14. On 13th November, the first appellant and two other men in the afternoon entered the Blakeberry Chemist's shop and stole two toiletry gift sets. 15. Five days later, on 18th November, both appellants, again in the afternoon, entered the premises of JD Sports and stole items of clothing. They were confronted by members of staff outside the shop. A car pulled up and the shop staff ran after the appellants as they ran to that vehicle. One member of the staff again was sprayed in his face with acid. He sustained superficial burn marks to his forehead and left eyelid, and a small long-term scar to his left eyelid. He was off work for two weeks, but happily his self-confidence was affected to a lesser extent. 16. The appellants are respectively, in the case of the first, 23 years of age and, the second, 24. The first appellant has appeared before courts on 12 previous occasions for 23 offences, between the years 1999 and 2006. Those offences have involved largely theft and failing to surrender, and have received a range of different disposals. He has also been convicted on three occasions of burglary. 17. The second appellant has appeared in courts on 19 previous occasions for 32 offences, between 1999 and 2007. His record includes offences of theft, threatening behaviour, common assault and criminal damage, for which he has received various sentences, both of a non-custodial and a custodial nature. 18. The sentencing judge had the advantage of reading two pre-sentence reports and a joint letter written by both appellants. He was also supplied with letters and certificates from the CARAT team. Both appellants had committed these offences to fund their drug habits. They posed a high risk of reoffending. Each accepted responsibility for what he had done. Both had suffered in their early years from a family breakdown, which had led to an offending lifestyle and to the abuse of drugs and alcohol. Both appellants had taken steps while in custody to address their drug problems. 19. In his sentencing remarks, the judge said that each appellant would receive full credit for his guilty pleas, entered at the earliest opportunity. He described the offending as brazen and arrogant. The most serious aspect, he observed, was the acid attacks on members of the staff trying to stop them. He pointed out that the first appellant had been involved in four such attacks and one assault occasioning actual bodily harm, and that the second appellant had been involved in three such attacks. He described their conduct as wicked, having the potential for grotesquely disfiguring injury and, as in the case of one victim, the potential to cause permanent eye damage. He said that the offences were so serious that they had to be marked with substantial sentences to reflect public horror and deterrence. He did take into account the age of each appellant and the lack of previous violence in their records. He said it was scant mitigation that each was under the influence of drugs at the time. 20. In their grounds of appeal and before us today, it is contended on behalf of each appellant that the sentencing judge was wrong to make the sentences consecutive, that he failed to have regard to the principle of totality because the maximum sentence for each section 24 offence was 5 years' imprisonment and that therefore the sentences were manifestly excessive. 21. The court has been referred to a number of authorities, including R v Smith , 13th February 1975, and to the case of R v Cooper (1983) 5 Cr App R(S) 295 and in particular to a passage in the judgment of the court at page 296. There Watkins LJ said: "It was wrong that three like offences should receive the identical term of imprisonment and those should be ordered to run consecutively. The principle of sentencing when there are like offences in the indictment is that the judge should pass a total sentence and then order each of them to run concurrently." It is to be observed that in that case the three offences were ones of obtaining money by deception to a total sum of £105. 22. In our judgment, applying the principles to be derived from the cases, a sentencing judge should pass a total sentence which properly reflects the overall criminality of the defendant and the course and nature of the criminal conduct disclosed by the offences for which he stands to be sentenced, while always having regard to the principle of totality. However, the imposition of concurrent sentences for like offences may not be appropriate where, as here, the statutory maximum sentence for an offence prevents the proper reflection of these matters. 23. In this case, having regard to the statutory maximum sentence for a section 24 offence, the sentencing judge cannot be faulted for his approach to his sentencing task. The spraying of acid in the face of anyone, and in particular a vulnerable person such as a member of staff working in a shop, is a particularly cruel form of attack, which carries with it a very real, if not inevitable, risk of lifelong disfigurement and catastrophic injury. Those who carry out such attacks must expect to receive severe sentences, the purpose of which must be not only to punish them but also to deter others who might be tempted to act in this way. 24. The imposition of consecutive sentences here was fully justified to reflect the criminality of each appellant. The resulting total sentence in each case, although severe, is not such in our judgment as to offend against the principle of totality. 25. An additional point is taken on behalf of the first appellant that there was objectionable disparity between the total sentences passed on him and those passed on the second appellant which was not justified by any distinction in their respective roles or any other circumstances of the case. We disagree. The first appellant was sentenced for a total of 14 offences, while the second appellant was sentenced for a total of ten. Further, the first appellant was concerned in an additional section 24 offence and also an offence of assault occasioning actual bodily harm. These differences amply justified the greater sentence which he received. 26. This was, in the judgment of the court, a sustained campaign of criminal conduct of the utmost gravity, akin to robbery. The total sentences imposed on each appellant were neither wrong in principle nor manifestly excessive. These appeals against sentence must be dismissed. 27. LADY JUSTICE HALLETT: Thank you, Mr Kaufman. Thank you, Mr Myers, Mr Paul.	```yaml citation: '[2008] EWCA Crim 2761' date: '2008-11-07' judges: - LADY JUSTICE HALLETT DBE - MR JUSTICE KING - HIS HONOUR JUDGE PATIENCE 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 2900 Case No: 2010/02046/A3 (1) 2010/02048/A3 (2) 2010/02045/A3 (3) 2010/02047/A3 (4) COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT HIS HONOUR JUDGE STEPHENS QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/12/2010 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE CALVERT-SMITH and MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - - - - - - - Between : R - v - Jumah (1) R -v- Maina (2) R -v- Osei-Owusu (3) R -v- Jammal Chambers (4) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr I Peart QC for Jumah (1) Mr J Hasslacher for Maina (2) Mr M Dennis QC for Owei-Owusu (3) Mr G Trembath QC and Mr A Bell for Chambers (4) Mr J Laidlaw QC for the Crown Hearing dates : 23 rd November 2010 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: 1. This is a Reference by Her Majesty’s Attorney General of sentences imposed on 22 nd March 2010 by His Honour Judge Stephens QC at the Central Criminal Court on four defendants who were part of a gang of seven men who fell to be sentenced on the same occasion for their involvement in a conspiracy to rob a store in Hackney which culminated in the murder of the duty manager. 2. The essential facts are summarised in Judge Stephens’ sentencing remarks. On the evening of 22 nd March 2008, when nearly £20,000 was being kept in the safe of the Matalan store in Hackney, the duty manager, Mr Jamie Simpson, went about his duties, collecting up the takings for the day, unsuspecting that any robbery was afoot, when he was suddenly confronted by Kobina Essel, who stabbed him three times, once in the neck, severing his carotid artery, and twice in the back. These events were shown vividly on CCTV. Those who were with Essel ran away, and no money was taken. 3. The seven defendants were part of the conspiracy to rob Mr Simpson. Although the robbery was bungled in its execution, it was carefully and professionally planned for a considerable period. The inside information came from a man called Williams, who, in gross betrayal of trust, provided all the necessary information about the layout of and security procedures at the store. The role of the remaining conspirators was described by the judge in clear terms. Jumah was the ringleader and main organiser, who recruited younger men to carry out the actual crime. Chambers was his right hand man in the planning and recruiting stage. Essel, Osei-Owusu and Maina entered the store as the perpetrators of the robbery, with assigned roles and wearing disguises. Owusu was the getaway driver, driving a stolen car which he later set on fire. 4. In due course Essel was convicted of murder. He was 17 at the date of the murder, a man without previous convictions. He was sentenced to detention during Her Majesty’s pleasure, and the minimum term to be served was assessed at 20 years. For conspiracy to rob concurrent sentence of 11 years in a YOI was imposed. This 20 year minimum term is the equivalent to a determinate sentence of 40 years. 5. After pleading guilty to conspiracy to rob three defendants were convicted by the jury not of murder, but of manslaughter. They were Jumah, Maina, and Osei-Owusu. After the jury was unable to agree verdicts on the murder charge, the Crown did not seek a re-trial. The basis of these convictions was that notwithstanding their denials each of them knew that Essel was carrying a knife, and that he might use it in the course of the robbery to cause some degree of physical injury. 6. Chambers, Williams and Owusu were acquitted of murder or manslaughter. They were convicted of conspiracy to rob. 7. (a) Jumah was born in August 1984. Apart from one minor conviction, he was a man of good character. He was sentenced to 14 years’ imprisonment for manslaughter and 12 years’ imprisonment concurrent for conspiracy to rob. (b) Maina was born in December 1989, therefore 18 years old at the date of the offences, and 20 years old when convicted. His previous convictions included a conviction for murder. This conviction arose from an incident in October 2007 when he committed a murder with a knife which he was carrying. He was arrested in October 2007 and bailed, and arrested again on 30 January 2009 and charged with murder. At the date of these offences he was on police bail on suspicion of murder and at the date when he was sentenced he was already subject to an order detaining him for life with a minimum period assessed at 14 years. His appeal against conviction was dismissed on 7 December. He was sentenced to detention for public protection (which meant detention in a Young Offenders Institution for this purpose) with a minimum term of 6 years for manslaughter, and 5 years concurrent for conspiracy to rob, both sentences to be concurrent to the sentence he was serving following his conviction for murder. (c) Osei-Owusu was born in March 1992. He was 15 years old, just coming up to 16 years, at the date of the offences, and 17 years old when he was convicted. He had no previous convictions. For manslaughter he was sentenced to 9 years detention under section 91 and 6 years concurrent for conspiracy to rob. (d) Chambers was born in May 1982 16 years old at the time of the offence, and 18 at the date of conviction. He had no previous convictions. For conspiracy to rob he was sentenced to 7 years detention in a YOI. 8. Williams was 29 years old at the date of the offence, and following his conviction by the jury of conspiracy to rob he was sentenced to 10 years’ imprisonment. Dwayne Owusu was 20 years old when he was convicted. He had previous convictions, but none in this category. Following his conviction by the jury for conspiracy to rob he was sentenced to 8 years’ imprisonment. 9. The sentences imposed on Jumah, Maina, Osei-Owusu and Chambers were referred by the Attorney General to this court, but we have examined them in the light not only of the sentences imposed on Essel following his conviction for murder, but the sentences imposed on Williams and Owusu. 10. The details of this crime are set out in the Reference itself. We shall adopt the summary for our purposes. i) The robbery was planned to take place on Easter Saturday when it was anticipated by the offenders that there would be a substantial amount of cash takings retained in the store. ii) Jumah had an old friend (Roy Williams) who was employed as a security guard at the Matalan store. He provided inside information to Jumah about how to commit the robbery. He was ultimately convicted of conspiracy to rob and sentenced to 10 years’ imprisonment. iii) Jumah and Chambers recruited first Essel and Osei-Owusu, and, latterly, Maina as the team of “youths” who would carry out the robbery. Telephone evidence established the extensive links between offenders at material times prior to the robbery. The plan was that Jumah and Chambers would not be present when the offence was committed. However, significant telephone contacts took place between Jumah and Chambers (who were together at the time) on the one hand and Essel, Maina and Roy Williams on the other while the latter group were there in the store. This showed their role as organiser and assistant respectively. iv) On the day before the robbery, Good Friday the 21 st March 2008, Jumah, together with Essel, Osei-Owusu, and Chambers, went to the Matalan store in order to carry out a reconnaissance. Osei-Owusu and Chambers remained in a taxi outside while the others went into the store. v) Essel, Osei-Owusu and Maina entered the store shortly before closing time on 22 nd March 2008 (7.00pm). They wore the hoods of their tops up so that they could not easily be identified. After the store closed, they lay in wait in the stairwell for about 1 hour while Mr. Simpson collected the takings from the tills. Essel and Osei-Owusu went on to the shop floor while Maina acted as the look-out on the stairs. Essel went to confront the deceased once all the takings were secured in the cash office. He stabbed him once in the neck and twice in the back. This was captured on CCTV. vi) Osei-Owusu, a close friend of Essel, was acting as a lookout at the time of the murder, standing some 12 metres behind Essel. Maina was also still acting as a lookout but out of view of the attack. vii) Among other significant telephone contacts, telephone records showed that Chambers phoned Essel at 19:11 while he was inside Matalan, and Maina at 19:37, and Owusu (the getaway driver) at 19:35. Chambers was with Jumah at this time. viii) After the murder, the three robbers fled empty handed and travelled to Jumah’s address where a meeting took place at which all these offenders were present. ix) The seventh man convicted of conspiracy to rob, Duane Owusu, supplied and drove the vehicle in which Osei-Owusu, Essel and Maina travelled to and from the store. The vehicle was stolen on 9 th March 2008 by persons using a vehicle which was later discovered to have fingerprints from Maina and Duane Owusu on it. Owusu burnt the car after the offence. x) ARRESTS a) Jumah was arrested on 4 th March 2009. He made no comment in interview, but produced a prepared statement which accepted some involvement in the robbery but denied any knowledge that weapons were to be used. He later spoke in interview and continued to admit the robbery but to deny any foreknowledge of the use of a weapon. b) Chambers was arrested on 7 th March 2009. He made no comment in interview, but produced a prepared statement which denied any involvement in any offence and denied knowing all co-defendants except Jumah. After being charged with conspiracy to rob, he issued a further prepared statement in which he admitted knowing Osei-Owusu and Essel. He admitted going on the reconnaissance trip but said that he had been unaware of its purpose. c) Osei-Owusu was arrested on 9 th March 2009. He made no comment in interview. d) Maina was arrested on 29 th September 2008. He made no comment in interview. 11. In summary therefore these four offenders were involved in a conspiracy to rob which culminated in the death of an innocent man, and for which, on the basis of the jury’s verdicts, three bore a measure of responsibility which did not extend to participation in his murder. The Reference distinctly identifies the aggravating features of the offences of manslaughter and conspiracy to rob. We understand the convenience of this approach, provided that it does not obscure the reality that for each offender the sentencing decision was a single decision intended by the judge to reflect his overall culpability, and the judge’s assessment of the relative criminality of each defendant in the light of the verdicts of the jury. 12. However it is examined, this was a serious planned and organised conspiracy to rob a store, focussed on a time and date when the proceeds of crime would be at their greatest, and all premised on the basis of inside information and preceded by a reconnaissance on the day before the attack. It was integral to this conspiracy that if necessary force would be used to achieve its objective, and three of the four offenders knew that one of their number who entered the premises would be carrying a knife, at the very least to threaten or cause minor injury. At the same time none of these offenders was convicted of murder, and the sentences on them had to be circumscribed by the jury verdicts. In particular the jury was not satisfied in the case of those who knew that a knife would be carried, that it would be used to cause really serious harm, let alone death, with the necessary intent for murder. Nevertheless the death was a direct consequence of a knife being taken to the scene of a planned robbery directed against an individual who was especially vulnerable just because he had been betrayed by the security guard. 13. Pre-sentence reports were available for the sentencing decisions for Jumah, Chambers and Osei-Owusu. They are summarised in paragraph 9 of the reference. i) Jumah: - There was a Pre-Sentence Report by Tamanna Sharma dated 18 th March 2010. Jumah told her that he was the organiser of the robbery, but that he had stipulated that no weapons were to be carried. The probation officer expressed the view that Jumah presented a low risk of re-offending. ii) Chambers: - There was a Pre-Sentence Report by Rebecca Warwick dated 19 th March 2010. He told her that he continued to deny any involvement in the offence. The probation officer expressed the view that he presented a medium risk of re-offending. She advised that he had clearly demonstrated the potential of dangerousness and that the Court could properly sentence “within the IPP framework”. iii) Osei-Owusu: - There was a Pre-Sentence Report by Melanie Benzie dated the 18 th March 2010. He told her that he committed the offence of conspiracy to rob because his family were in financial difficulties. He had been recruited by Jammal Chambers. He continued to deny that he had known that Essel had a knife. The probation officer expressed the view that he displayed genuine remorse although he “struggles to accept his conviction for manslaughter”. She recorded the fact that he had been excluded from school after threatening another pupil with a Stanley knife. This incident occurred in 2007 and was a response to Randy Osei-Owusu being bullied. The incident did not result in a prosecution and there had been no repetition of such behaviour once the defendant had moved to another school. She reported that although there was some risk of harm extant in his current circumstances “the risk is not imminent and he is unlikely to cause serious harm unless his situation changes”. She concluded that he was not a “dangerous offender” for the purposes of the Criminal Justice Act 2003 . iv) Maina:- There was no Pre-Sentence Report. 14. The sentencing decision was extremely difficult. Judge Stephens had to honour the verdicts of the jury, and to impose sentences which reflected the relative culpability of each of the defendants in the context of their ages and previous records, and in the light not only of the complicated statutory provisions which applied to the case, but also the developing jurisprudence of this court, in particular in the context of the relationship between the sentences now appropriate for murder, and the sentences for manslaughter. He was provided with copious material on these issues, which he obviously addressed. Judge Stephens is a highly respected judge, with years of experience of trials of criminal offences of great seriousness and magnitude. The trial itself lasted 33 days, and he would have been well able to form his own judgment on the relative culpability of each of the defendants. 15. We immediately acknowledge the care with which Judge Stephens approached these issues and the respect his conclusions command. He reminded himself in unequivocal terms of the recent observations of this court in the context of what he himself described as the horrors of knife crime and the terrible consequences following the use of a knife. He expressly identified as aggravating features that a knife was carried on the robbery expedition, that the robbery involved planning and premeditation and theft by violence of a large sum of money. 16. Dealing with the four offenders, when he sentenced Maina Judge Stephens recorded that there were substantial aggravating features, not least that he had already been convicted of committing murder with a knife. He recognised that Maina may have become involved very late in the crime, but he entered the store knowing that Essel was carrying a knife and that he might use it to cause harm to whomever got in his way. He took account of the late plea by Maina of guilty to conspiracy to rob. Before us, it was suggested that the sentence was within the appropriate range, but if lenient, not unduly so. In particular it was necessary to underline that despite his conviction for murder Maina was still a young man, and that he had come into this particular conspiracy at a late stage. 17. Judge Stephens then dealt with Jumah. He said to him in terms that he bore “very heavy responsibility” for Mr Simpson’s death. He had organised the robbery, planning it in detail and with care, and recruiting younger men in order that this would help him to distance himself from events which would inevitably take place in the store. He added that Jumah knew that Essel was carrying a knife and that he might use it, yet, as the judge put it, he “sent him off to do the robbery”. The crime was organised for financial gain without a concern for what might happen to a potential victim. He took into account the early guilty plea to conspiracy to rob but added that the aggravating features in his case were serious. It was submitted to us that Jumah had no relevant previous convictions. The plan for the robbery was put to him by Williams, and that, whatever his role in the recruitment of others, he did not corrupt any of them. He had not used a knife and notwithstanding his conviction his criminality was significantly lower than that of Essel. Moreover, there was evidence that Jumah was genuinely remorseful and that the risk of re-offending was low. 18. In the case of Osei-Owusu Judge Stephens immediately identified the particular problems which arose in his case because he was only 15 years old at the time of the robbery, some 9 days short of his 16 th birthday. He noted the many references which spoke well of him, and the shock expressed that he had become involved in these crimes. He considered the offender’s level of maturity, noting that he was described as “impressionable”. On the other, notwithstanding his age, he concluded that he entered into the offence with his eyes “wide open to make money”, and that although he had every opportunity to withdraw from it, he made a deliberate decision to participate in the crime. We were invited to bear in mind that in the present context this offender became involved when he was extremely young, that he was not involved in the planning, and since his arrest he has committed himself to rehabilitation which has continued to this day, with excellent reports on his progress. 19. In the case of Chambers, again Judge Stephens reflected the verdict of the jury, convicting him of conspiracy to rob, but acquitting him of manslaughter. He noted his age, that he had a supportive family who had given him every opportunity to make progress in life. He had become embroiled in the conspiracy “with the hope of making a lot of money quickly and easily”. He proceeded on the basis that he had been led into the scheme by Jumah, but however that might be, he had a heavy responsibility of his own as the recruiting officer who led others into taking part in the enterprise with, as he put it, such disastrous consequences. We were reminded that Chambers did not know that a knife or that any other weapon would be taken on the robbery. His real role was secretarial, subservient to Jumah, and led into it by him, as an older member of his extended family. Our attention was drawn to the sentence imposed on Williams, who in breach of trust had made the first suggestions for and was closely involved in the robbery. 20. Mr Jonathan Laidlaw QC on behalf of the Attorney General submitted that the sentences on all four offenders were unduly lenient, but he also highlighted a number of distinct features of the sentencing decision which required attention. We shall address them briefly, although in a different order. The first and main question was whether the sentencing on Jumah, Maina and Osei-Owusu for manslaughter was adequate to reflect the unlawful killing which occurred while the conspiracy to rob was being carried out. Two particular aspects of the argument need attention. The first is that it is now well established that in order to take account of the statutory guidance provided for sentencing in cases of murder enacted in schedule 21 of the 2003 Act , the approach of the court to sentencing in cases of manslaughter has been re-appraised. The outstanding examples are Appleby and others [2009] EWCA Crim 2693 , in particular at paragraphs 15 and 16 and Wood [2010] 1 Cr App Re (S) 2 where it was suggested that the inevitable conclusion was that Parliament intended that “crimes which result in death should be treated more seriously and dealt with more severely than before”. The second feature, identified by Judge Stephens, arises from the very simple fact that a knife was carried on this robbery and ultimately used to inflect death. This court has been at pains to indicate that this is a seriously aggravating feature of any case involving violence of any kind. ( R v M, AM and Kika [2009] EWCA Crim 2544 . For the offenders it is argued that the judge had these features well in mind. All the relevant authorities were before him. He identified the presence and the use of the knife as an aggravating feature of the case. Therefore, there is no reason to interfere with his conclusions. 21. We can express our own conclusions shortly. Manslaughter committed by the misuse of a knife in the course of a planned robbery is an offence of the utmost seriousness. That is what the pronouncements of this court have been driving at. Jumah was the organiser of this offence, the man who recruited younger men to participate in it, and then sought to distance himself from it by letting them commit the robbery while he kept his distance from it. A determinate sentence of 14 years’ imprisonment did not sufficiently reflect his overall criminality or the true measure of his culpability. The sentence was unduly lenient. The sentence for manslaughter will be increased to 18 years’ imprisonment. 22. In relation to Maina the sentence failed to reflect the fact that the second homicide offence of which he was convicted, committed while he was on bail for the first homicide offence, has resulted in no additional punishment at all. Although he is still young, it is inappropriate that the punitive element of the sentence to be imposed on him for this manslaughter should in effect be entirely subsumed in the sentence imposed on him for the earlier murder. We do not agree with the submission that at the end of the current 14 year minimum period to which he is subject, effect would be given to these elements by the Parole Board. 23. A number of different ways of dealing with this situation have been considered in argument. We have focussed on the practical realities, acknowledging that it is impossible to avoid, either the imposition of a shorter than merited sentence consecutive to the minimum term already being served, or, alternatively, a longer than deserved concurrent sentence for the instant offence in order to produce the element of further punishment. Overall the issue of totality is of importance in the context of this man’s age. The appropriate solution in this case is to make an order for detention in a Young Offender Institution for public protection to run consecutively with the existing mandatory life order, with a minimum period assessed at 6 years, also as we make clear for the avoidance of doubt, to run consecutively to the minimum term of 14 years already being served for murder. 24. Osei-Owusu was very young when the offence was committed. He was the youngest of those involved, a youth of excellent character, who has since made genuine efforts to put this offence behind him and who is working steadily towards his current target release date. Given all these factors, the sentence imposed on him was not unduly lenient, and we decline to interfere with it. 25. The remaining questions are directed to the sentence on Chambers. The first is the relevance, if any, of the fact of the death to Chambers’ conviction for conspiracy to rob. Our attention was focussed on section 143(1) of the 2003 Act which provides three ways in which the seriousness of an offence may be affected in the context of harm caused by the offence, or intended to be caused by it or harm which it might foreseeably have caused. On this basis Mr Laidlaw submitted that the seriousness of the conspiracy to rob, and therefore all those involved in it, was aggravated by the death. The problem with the submission is that Chambers was tried and acquitted of both manslaughter and murder, and the judge had to be loyal to that verdict. It would of course be wrong as a matter of principle for the provisions of section 143(1) of the 2003 Act to be used to impose a sentence on a defendant for an offence with which he has not been charged, or – as in this case - of which he has been acquitted. While Section 143(1) is concerned both with the harm caused and likely to be caused by the offence of which the defendant is convicted this offender had to be sentenced on the basis that he entered into an agreement to rob without the use of knife or other weapon. It was not a foreseeable consequence of his offence that the victim would be stabbed let alone fatally stabbed, during the course of the agreed offence. It would therefore be an injustice for him to receive additional punishment because, without his knowledge, and outwith the agreement which he had joined, one of his co-conspirators did take a knife and used it with fatal consequences. 26. We must now consider the sentence imposed on Chambers on the basis of the offence of which he was convicted. We accept that there is a hint of lenient disparity between his sentence and that of Osei-Owusu, who was aged 15 at the time of the offence, but equally, there may be a hint of disparity in the other direction, in relation to the sentence imposed on Williams. Our conclusion is that we can see no ground for interfering with the judge’s sentencing decision on this ground. That leaves the offender as a young man for whom rehabilitation remains a matter of cardinal importance, a young many who, as we have emphasised, has not been convicted of criminal involvement in the death. There is nothing in the pre-sentence report to indicate that he falls within the “dangerousness” provisions of the 2003 Act , and even if there had been such evidence, if the judge had chosen to ignore it and form his own judgment based on his assessment of Chambers throughout the whole trial we should have been most unlikely to interfere with it. 27. We therefore do not accept that the sentence on Chambers fell outside the reasonable ambit of the sentencing decision, we shall not interfere with it.	```yaml citation: '[2010] EWCA Crim 2900' date: '2010-12-09' judges: - MR JUSTICE GRIFFITH WILLIAMS ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION Neutral Citation Number: [2023] EWCA Crim 347 CASE NOS 202104018/B4, 202104059/B4, 202104061/B4 & 202200267/B4 Royal Courts of Justice Strand London WC2A 2LL Thursday 19 January 2023 Before: LORD JUSTICE LEWIS MRS JUSTICE CUTTS DBE HER HONOUR JUDGE NORTON (Sitting as a Judge of the CACD) REX V WASEEM KHAN TASWIR MOHAMMED MOHAMMED JAHANGEER __________ 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 G CARSE appeared on behalf of Waseem Khan MR B NEWTON appeared on behalf of Taswir Mohammed MR N WORSLEY and MISS N FATANIA appeared on behalf of Mohammed Jahangeer MR M SHAW appeared on behalf of the Crown _________ J U D G M E N T LORD JUSTICE LEWIS: 1. On 23 November 2021 in the Crown Court at St. Albans, Waseem Khan, Taswir Mohammed and Mohammed Jahangeer were convicted of conspiracy to supply a class A drug, namely cocaine. On 5 January 2022 Waseem Khan was sentenced to 15 years' imprisonment and Taswir Mohammed was sentenced to eight years' imprisonment. Mohammed Jahangeer was sentenced to 11 years' imprisonment for count 1 and received no separate penalty on a separate count. 2. Waseem Khan appeals against conviction with the leave of the single judge. He also renews his application for leave to appeal against sentence, leave having been refused by the single judge. Taswir Mohammed was refused leave to appeal against conviction and applies for an extension of time to renew his application. Mohammed Jahangeer was also refused leave to appeal against conviction and applies for an extension of time to renew his application. There may or may not be an application to renew leave to appeal against sentence but that matter is not before us today. 3. The facts in brief are as follows. Between 1 April 2019 and 4 October 2019 Ansar Akram masterminded a complex and large-scale conspiracy to supply high quality cocaine across the country from his base at Thumpers, Hemel Hempstead. He used various couriers to deliver cocaine to customers across the country before arranging for the profits to be delivered to his brother Ajmal Akram who effectively acted as his banker. 4. There were four trials relating to this conspiracy. At the first trial Ansar Akram pleaded guilty on the second day to conspiracy to supply cocaine and Ajmal Akram was convicted of the offence. At the second trial three of the couriers, one of whom was Raja Khan, pleaded guilty. Three other co-conspirators were convicted at the third trial. Two others, including Ryan Brockley from Leicester, pleaded guilty before their trials. The fourth trial involved Waseem Khan, Taswir Mohammed and Mohammed Jahangeer. 5. The prosecution case was that Taswir Mohammed and Mohammed Jahangeer were cocaine wholesalers who purchased drugs from Ansar Akram. Waseem Khan was a broker or a middleman, liaising between Ansar Akram and his customers, those customers including Taswir Mohammed and Mohammed Jahangeer. 6. To prove the existence of a conspiracy the prosecution relied on the previous convictions of the other co-accused in the other trials. 7. To prove the case against Waseem Khan the prosecution relied on the following evidence. First, the prosecution submitted that Waseem Khan used four "tumblr" phones to contact Ansar Akram and customers before and after drugs were delivered. “Tumblr” phones generate false IMEI numbers, thereby making it difficult to trace a call to a handset. The four phones were used at different periods. 8. Waseem Khan only accepted the attribution to him of one phone ending in the numbers 6528 and denied any connection with the four tumblr phones. The prosecution relied on the expert evidence of a person experienced in digital media to establish that the four tumblr phones were also attributable to Waseem Khan. That evidence was said to demonstrate that the pattern of use of the four phones, by reference to the masts to which they connected, were similar to the pattern of use of the phone that Waseem Khan accepted was his own phone. Further, there was evidence of a pattern whereby Waseem Khan's accepted 6528 number would call Ansar Akram and then immediately afterwards Ansar Akram would call back on the tumblr phone being used at that time. There was evidence that Waseem Khan's phone and one of the tumblr phones were used at the same time at the same locations. Furthermore, a handset was seized from a drawer in a desk at 40A Kimpton Road where Waseem Khan had an office and where he was arrested. Evidence showed that SIM cards for two of the tumblr phones had at various times been placed in that handset. 9. Secondly, the prosecution relied on the surveillance evidence showing couriers meeting customers shortly after periods of telephone activity between Waseem Khan, Ansar Akram and the customers. The prosecution submitted that this demonstrated that Waseem Khan was acting as a broker. 10. Thirdly, the prosecution relied on the fact that Waseem Khan did not give evidence at his trial. 11. Fourthly, the prosecution relied on text messages and voice recordings from Waseem Khan's own iPhone. The prosecution submitted that the messages and voice recordings showed that Waseem Khan was involved in drug dealing after the conspiracy ended. They submitted that that showed a propensity to deal in illegal drugs and so made it more likely that Waseem Khan was the user of the four tumblr phones. 12. To prove the case against Taswir Mohammed, the prosecution relied on the following. First, they submitted that the telephone evidence showed that between 25 and 26 July 2019 Taswir Mohammed was in contact with Waseem Khan. Following these calls Waseem Khan contacted Akram. It was the prosecution case that Taswir Mohammed was arranging to purchase cocaine from Akram through Waseem Khan. 13. Secondly, the prosecution relied on cell site evidence. At the same time on 23 July 2019 Taswir Mohammed's phone shared a mast with one of the convicted couriers, Raja Khan's, phone. 14. Thirdly, the prosecution relied on surveillance evidence from 29 July 2019. Officers observed Raja Khan deliver money to Akram before travelling to an address in Milton Keynes where it was accepted the cocaine was stored. He then went to an address in Aylesbury associated with Taswir Mohammed. It is accepted that he met Taswir Mohammed in Aylesbury. The prosecution case was that Raja Khan went into a property at 12 Oak Green which was connected with Taswir Mohammed. Approximately 10 minutes later Raja Khan left and returned to Milton Keynes. He spoke to Waseem Khan by telephone before returning to the Oak Green area of Aylesbury hours later where he met another unidentified male. Raja Khan then travelled to Leicester where he handed over cocaine to another conspirator, Ryan Brockley. Finally, the prosecution relied upon the failure by Taswir Mohammed to give evidence. 15. To prove the case against Mohammed Jahangeer, the prosecution ultimately relied on the following. First, there was surveillance evidence and cell site evidence from 30 July 2019. The prosecution submitted that Raja Khan, one of the convicted couriers, travelled to a location near Mohammed Jahangeer's parents' home. Mohammed Jahangeer was not living there at the time. A police officer described seeing a man approach Khan's car and hand him a small bag. Cell site evidence suggested that Mohammed Jahangeer's phone and Raja Khan's phone used masts in the same general area of Sheffield at the same time. 16. Secondly, and more significantly, the prosecution relied on cell site evidence and in particular fingerprint evidence from 2 October 2019. They submitted that the cell site evidence demonstrated that Ansar Akram used the same cell mast as Mohammed Jahangeer whilst Akram was in Sheffield. Mohammed Jahangeer accepted that they met. Following Ansar Akram's arrest later that day, his house in Hemel Hempstead was searched and a bag containing £54,950 was recovered. The money was in one plastic bag which was placed inside a second plastic bag. Mohammed Jahangeer's fingerprints were found on the outside bag and the outside of the inner bag. Mohammed Jahangeer accepted handling the bag and pleaded guilty to transferring criminal property to reflect this evidence. 17. Thirdly, Mohammed Jahangeer had a previous conviction for conspiracy to supply a class A drug, heroin, not as in this case cocaine. Fourthly, the prosecution relied on his failure to give evidence. 18. The jury convicted all three of conspiracy to supply a class A drug. 19. We deal first with Waseem Khan's appeal against conviction. Waseem Khan had denied being involved in the conspiracy. He had denied owning or using the tumblr phones. He had denied that he was responsible for the text messages or voice messages found on his phone. He did not give evidence at his trial. 20. In his written and oral submissions, Mr Carse for Waseem Khan submitted that the judge erred in admitting evidence of the text messages. Some of the phone messages had been served on the defence on 13 October 2020. The defence had instructed an expert in May 2021 and he had requested the raw telephone data. A number of requests were made for this raw data between June and August 2021. It seems that the prosecution and the defence agreed that the raw data would be provided in a particular format. On 10 August 2021 the Crown Court ordered that the prosecution must provide a download of the information within seven days. On 17 August 2021 the prosecution provided an Excel and a PDF document of the downloaded texts and messages. The defence expert who had been instructed notified those instructing him that he wished to have the data in an advanced logical or file system format in order to enable him to conduct certain analytical tests. The matter was listed for a hearing on 27 September 2021. It appears that finally on 8 October 2021, that is four days before the trial was due to begin, the prosecution provided the downloaded information in the format required by the defence. By that stage however the defence expert was unavailable to conduct the tests. On 11 October 2021, the day before the trial began, further messages including audio messages were served by the prosecution on the defence. 21. An application was made to exclude the text messages and the voice messages as, given the late service of the raw data, the defence said they were not in a position to check the data and instruct an expert if needed for a proper analysis of the data. The application stated that the prosecution had failed in its duty to disclose fundamental material and so an order was sought excluding any analysis of the messages. 22. The judge held a voir dire at which an expert witness, Stuart Banks gave evidence on behalf of Waseem Khan. In his ruling the judge described the nature of the text messages. What are described as "non-secret messages" are stored on the cloud and can be accessed from any device but you need a code number which is sent by text to the phone of the account owner. What are called "secret messages" are stored on the device being used, that is in this case stored on Waseem Khan's own phone. 23. As the judge noted in his ruling, counsel for Waseem Khan had submitted that Waseem Khan had instructed him that the messages were not his. As the judge noted, there was no evidence of this. The expert had given evidence saying that he had carried out a summary or cursory consideration of the Excel and PDF format material and there was nothing, no red flags, to lead him to believe that there was any discrepancy in terms of the information in the schedule being different from the information on the phone. However, he wanted to see the raw data to carry out checks to confirm that that was the case. 24. As the judge said, it was disappointing that the prosecution were not more efficient in understanding what it was that the defence expert was seeking and providing the material at an early stage. Ultimately, however, the position was that the messages were found on a phone that Waseem Khan accepted was his own phone. There was no evidence that a third party had interfered in some way with his text account. Contrary to the submissions of counsel for Waseem Khan, the defendant Waseem Khan could have a fair trial. The judge ruled that Waseem Khan could give evidence about the messages and explain why he said they were not his. The defence expert could give evidence about how the system worked and how a third party could access the information from a different device. The judge ruled that the messages could be adduced in evidence. 25. The judge further ruled that the evidence of the text messages was evidence of bad character. It related to a period outside the dates of the alleged conspiracy. He considered that it was relevant to an important issue between the prosecution and the defence, namely whether Waseem Khan was responsible for the tumblr phones and had used them and was a broker or a middleman in a conspiracy to supply class A drugs. He ruled that those messages which related to dealing in class A drugs could be admitted as evidence. 26. When giving his directions in his summing-up to the jury on this matter, the judge said this: i. "These [messages] are all dated January 2020, just a few days before his arrest. You'll appreciate therefore that they are outside the dates of the conspiracy alleged in this case, which the prosecution say came to an end shortly after the 2nd of October 2019 upon the arrest of the Akram brothers. It is not therefore by itself evidence of the conspiracy or Waseem Raja Khan's involvement in it. ii. However, the prosecution say that it shows that Waseem Raja Khan to have been involved at that later date in drug dealing, specifically cocaine and therefore it shows a propensity to deal in illicit drugs. So, it makes it more likely that he was the user of those tumbler mobile phones and therefore part of the conspiracy with which you are dealing. iii. It is a matter for you to determine whether you agree with the prosecution's proposition in this regard and if so what weight you attach to this aspect of the evidence. But bear in mind that being involved in drug dealing in January 2020 does not necessarily mean that he must have been part of the earlier Akram conspiracy. So, you should focus your attention on the evidence for this conspiracy but you may if you feel it appropriate to do so, treat the evidence of the January 2020 messages on that iPhone as some additional support for the prosecution case." 27. Some of the messages were audio messages. The judge directed the jury in the following terms: i. "A few further words of warning about this aspect of the evidence. If you have any doubts about the provenance of the messages and that somehow they have not come from Waseem Raja Khan, then obviously you must ignore them. Because if they did not originate from him or were not sent to him to his iPhone, then they cannot be evidence against him. As regards the voice messages, you must be sure that they are Waseem Khan's voice. That they are him speaking as regards the messages said to have been sent by him. ii. It is your judgment that matters, not what the prosecution or any prosecution witness has said. Although Waseem Raja Khan has not given evidence, you are able to listen to his voice in his police interview. If you have any doubt that those messages said to be from him and found on his iPhone are not his, then obviously you must ignore them." 28. Later, the judge further directed the jury about the difficulty of relying upon voice messages and in determining whether the voice messages found on Mr Khan's own personal phone were his. The judge emphasised that the prosecution had the burden of making sure that the messages on Mr Khan's phone were to and from Mr Khan. If they were not sure of that they could place no reliance upon them. The judge referred to the difficulties of identification by voice recognition and the difficulties that a lay listener could have in correctly identifying voices and their ability to do so is subject to a number of variable factors. He asked the jury to bear in mind when they came to listen to the police recording and the recordings of the audio messages the limitations he had described and approach the evidence with great care. 29. The judge also dealt with the delay in providing the raw detail in the appropriate format of the phone messages to the defence. He set out the chronology of the requests and when the material was finally provided. He explained that by the time they were provided it was too late for Waseem Khan's solicitor to instruct an expert who would be able to provide a report. 30. We turn then to the grounds of appeal. Ground 1 of the grounds of appeal is that due to the late service of the raw data of the downloaded material in an appropriate format the defence team had had no opportunity to verify that the data had been properly extracted. Mr Carse on behalf of Waseem Khan submitted that the judge was wrong to admit this evidence. It should have been excluded under section 78 of the Police and Criminal Evidence Act 1984 because of the unfairness and the prejudice to Waseem Khan. 31. Grounds 2 and 3 are that the judge was wrong to direct the jury to compare the audio messages with the police interview recording as the recording of the police interview was of such low quality and that the defence was prevented by late service of the audio messages for instructing an expert in auditory analysis to compare the recordings to see if they established that the voice was Waseem Khan's. In ground 4, Mr Carse submits that the judge erred in finding that the messages in any event demonstrated a propensity to deal in class A drugs. 32. The issue for this court is whether the conviction is unsafe. Whatever the position in relation to the text messages, we are satisfied that the conviction for conspiracy to supply class A drugs is not unsafe. The central issue in this case concerned the four tumblr phones used at different periods. There is no doubt that those phones were the means of communication between Akram who ran the conspiracy and a middleman, and between the middleman and the customers. The central issue was whether the four tumbler phones were used by Waseem Khan. The judge properly directed the jury on the evidence relating to the phones: that is the pattern of usage and the fact that SIM cards for two of the phones had been in a handset in a drawer in a desk at Waseem Khan's office where Waseem Khan was arrested. The jury must have been sure that the tumblr phones were used by Waseem Khan or they would not have convicted him. As the judge said to the jury, they should focus their attention on the evidence of this conspiracy, not the messages relating to the other conspiracy. If they felt it appropriate to do so they could treat the messages as some additional support for the prosecution. In any event, we do not consider that the judge erred in deciding to admit the evidence of the text messages. The starting point is that the text messages were found on Waseem Khan's phone, that is, on a phone that he admitted was his own phone. It is regrettable that the prosecution did not provide the raw data at an earlier stage in the format requested. This was a case where the request for data should have been dealt with by the prosecution earlier and if appropriate an application made for an order which would unequivocally have resulted in the provision of the information sought in the format needed at an earlier stage, thereby enabling the defence to carry out the tests they wished to carry out. Where disclosure of this kind of material is sought the preferable course of action is for the defence to serve on the prosecution a properly focused request, giving details of, amongst other things, the precise format in which material is sought and outlining the basis for that request. This will enable the prosecution, and if necessary the court, to understand with clarity what is required and why it is required. That would help ensure that there was no mistake or misunderstanding and would help ensure that any delay in the provision of disclosing material is minimised. If there is a risk of delay the defence can make an application to the court so that the matter can be listed for a hearing and appropriate directions given. If these steps are not taken, there is a real risk in other cases that such evidence might have to be excluded in order to avoid unfairness in those other cases. The importance of providing data following legitimate requests for that data and the importance of case management has been emphasised by this Court in R v Boardman [2015] 1 Cr.App.R 33. 33. Nevertheless, in this particular case the position was this. The messages were found on Waseem Khan's own phone. The prosecution were entitled to invite the jury to infer that the messages were therefore ones sent or received by Waseem Khan, the owner of that phone. Waseem Khan could have given evidence if he had wished to do so that even though the messages were found on his phone they were not in fact his messages. A defence expert could have given evidence explaining how the system operated and the circumstances in which a third party could have interfered with the system so that messages which were on a person's phone were not in some way actually his messages. In any event, the judge was entitled in principle on the facts of this case to decide to admit the text messages. 34. So far as the issue of bad character is concerned, the judge was entitled to find that the messages could establish a propensity to conspire to deal in class A drugs and so to make it more likely that Waseem Khan had used the tumbler phones as part of the conspiracy in this case. He was further entitled to conclude that admitting this evidence would not be so unfair that the evidence should not be admitted. In his summing-up the judge properly directed the jury as to the use to which they could put the evidence of bad character. 35. Finally, so far as comparison of the voice messages with the police interview recording is concerned, the position is this. The prosecution were inviting the jury to infer that the audio messages were Waseem Khan's as the messages were found on his phone. In addition, the judge directed that they could compare the audio messages with the recording of the police interview. The judge was satisfied that the quality of the recording was sufficient for that purpose. That approach was consistent with the decision of this court in R v Flynn [2008] 2 Cr.App.R 20. The judge did give an adequate direction about the care that needed to be taken with voice identification. 36. For all of those reasons we would dismiss grounds 1, 2, 3 and 4 of the appeal. Ground 5 is no longer pursued. Ground 6 alleges a misdirection or a failure properly to direct the jury in a number of respects. We have considered each of the alleged misdirections or failure to direct the jury carefully and we have considered carefully the transcript of the judge's summing-up. We are satisfied that the judge did not misdirect and did not fail properly to direct the jury. 37. For those reasons we are satisfied that the conviction of Waseem Khan is safe and we would dismiss this appeal against conviction. 38. In relation to sentence, the sentencing judge noted that Ansar Akram had received a sentence of 15 years' imprisonment following his guilty plea and his brother Ajmal Akram had received a sentence of 14 years. The judge took that into account as a benchmark. The judge described in detail the role played by Waseem Khan. He was a leading player in the conspiracy, acting as the broker or middleman between Ansar Akram and his regional customers, including in particular those in Milton Keynes, Luton, Aylesbury and Leicester. The operation was sophisticated. He considered that Waseem Khan performed a leading role in quantities that would have taken the case above Category 1 in the definitive guidelines issued by the Sentencing Council. The judge decided however to place the sentence within Category 1. For the substantive offence the guidelines indicate a starting point of 14 years with a range of 12 to 16 years' custody. The judge regarded Waseem Khan's role to be secondary to Ansar Akram but above that of his brother. He imposed a sentence of 15 years' custody. 39. In his written submissions, Mr Carse sought to renew the application for leave on three grounds, namely that the judge was wrong to place Waseem Khan in a role above that of Ajmal Akram; secondly, that the judge did not take into account the particular transactions in which Waseem Khan was involved; and thirdly, the judge should have recognised that Waseem Khan was involved to a lesser extent. 40. We do not consider that those grounds are arguable. The judge who had conducted the trial and heard the evidence was well-placed to assess the significance of the role played by Waseem Khan. He was entitled to describe him as performing a leading role in the conspiracy. He was entitled to place him at a level above the brother. He set out fully the extent of Waseem Khan's involvement and his sentence reflected the role that he found Waseem Khan performed in the conspiracy. We would therefore refuse leave to appeal against sentence. 41. We turn next to Taswir Mohammed's application. He seeks leave out of time to renew his application for leave to appeal against conviction. This application is based on the judge's decision to reject a submission that there was no case for Taswir Mohammed to answer. 42. Dealing first with the judge's ruling, as he noted this was a count of conspiracy to supply class A drugs. The conspiracy was proven. The prosecution had to prove that Taswir Mohammed had entered into that conspiracy intending that it be carried out. In that regard the judge analysed evidence of telephone contacts between Taswir Mohammed and the tumblr phone ending in the numbers 4735. That was the phone said to be used by the middleman who liaised between customers and Ansar Akram. Dealing with 23 July, for example, that phone was used to contact Ansar Akram on that day. There was a 20 minute call starting at 12.15 and, shortly after that ended, a call from the same number to Taswir Mohammed. There were further calls between Taswir Mohammed and that number and that number and Ansar Akram. On 29 July there were further telephone calls using those numbers and there was surveillance evidence of one of the convicted couriers first meeting Ansar Akram, then going to Milton Keynes where he stored and packed cocaine, then travelling to Aylesbury where he is seen meeting Taswir Mohammed. The judge concluded that there was evidence from which the jury could conclude that Taswir Mohammed had entered into a conspiracy. Further, if they concluded that, they could conclude from the wider evidence and the nature of the conspiracy that it was a conspiracy to supply a class A drug. In essence Mr Newton submits that the judge erred in rejecting Taswir Mohammed's submission that there was no case to answer applying the decision in Galbraith . Mr Newton relies on the detailed submissions drafted by Mr Smith in this case as to the many points where he submits that the judge erred. Mr Newton submitted that there was a number of strands that the prosecution relied on which were not sufficient to show a case to answer in relation to conspiracy and in particular conspiracy involving class A drugs. Whilst it was said that Taswir Mohammed was a customer, there was no evidence to connect Taswir Mohammed with the supply of drugs at any stage. Whilst there was evidence that Taswir Mohammed had on one occasion met a convicted courier at or near property with which Taswir Mohammed was connected and that the person had gone into that house, there was nothing taken in or out of the house, as one can see from the surveillance video, which is in contrast to the evidence of the way in which the conspiracy was carried out. In particular there was nothing to show that any conspiracy related to class A drugs. 43. Refusing leave to appeal, the single judge said this: i. "The judge proceeded on the basis that the evidence demonstrated the existence of a conspiracy in which Akram and Jameel Khan were involved and with which a particular telephone number was associated. He was right to do so. He then analysed the evidence in relation to two particular days. He concluded that a reasonable jury would be entitled to conclude that this evidence showed the applicant's participation in the criminal agreement on those days. It is not arguable that this conclusion was wrong. There were arguments to be put on both sides. Those arguments were properly the province of the jury." 44. We agree. As we do not consider that the appeal is arguable we would refuse leave to appeal and in those circumstances there is no purpose served in granting an extension of time to renew the application for leave. We refuse both applications. 45. In relation to Mohammed Jahangeer, the judge had, during the course of the prosecution evidence, admitted evidence of bad character, namely the fact that Mohammed Jahangeer had a previous conviction for conspiracy to supply class A drugs, in that case heroin. 46. At the end of the prosecution case, Mohammed Jahangeer submitted that there was no case to answer. The judge rejected that submission. First, there was surveillance evidence that on 30 July a car was parked outside an address in Sheffield which was his parents' home. That car had been driven by one of the convicted couriers. Secondly, on 2 October, Ansar Akram travelled to Sheffield and returned to Hemel Hempstead where he was arrested. The police found carrier bags containing approximately £54,000, equivalent to about two kilos of cocaine. The money was in one carrier bag which was inside a second carrier bag. Mohammed Jahangeer's fingerprints were on the outside of each of those bags. The judge considered that there was evidence upon which the jury could find that Mohammed Jahangeer had joined this conspiracy. 47. After that ruling counsel for Mohammed Jahangeer applied to discharge the jury on the basis that the evidence was now so weak against Mohammed Jahangeer that the previous conviction was being used to bolster a weak case. The judge did not accede to the submission that the jury should be discharged. He did not consider that the case against Mohammed Jahangeer was weak and he did not consider that the admission of the evidence of the previous conviction was being used to bolster a weak case. 48. Mr Worsley took us through the difficulties with the prosecution evidence, in particular in relation to the surveillance evidence. The convicted courier had parked in a car park which was close to Mohammed Jahangeer's parents' home but was also close to a business, a fish and chip shop, run by a different person who was investigated and prosecuted for drug dealing. The person who approached the car was a man of a different ethnicity from Mr Jahangeer. 49. In his written and oral submissions Mr Worsley submitted that the judge was wrong to refuse to discharge the jury and that it was unfair to allow them to proceed with the case on the basis of having been told about Mohammed Jahangeer's previous conviction. He submitted that the evidence against Mohammed Jahangeer properly analysed was minimal apart from the previous conviction. Therefore the judge erred in refusing to discharge the jury and he submitted the consequence was that the jury were left with minimum evidence propped up by the previous conviction and that rendered the convictions unsafe. 50. The fact is that the evidence relating to Mohammed Jahangeer included, critically, the fact that his fingerprints were on the two bags in which money (over £54,000) was contained. Those bags had been handed to Akram, the mastermind of the drugs conspiracy, in Sheffield and then taken by him to his home in Hemel Hempstead. In those circumstances the previous conviction was relevant when considering the evidence and the criminality to which that money related. The judge was entitled, indeed we would say correct, not to discharge the jury but to leave the matters to the jury. 51. For that reason, we do not consider that Mohammed Jahangeer's appeal is arguable and we would refuse leave to appeal. In those circumstances there is no purpose served in granting an extension of time to renew the application for leave. We refuse both applications. 52. For those reasons, we dismiss Waseem Khan's appeal against conviction and we refuse leave to appeal against sentence. We refuse an extension of time and we refuse leave to appeal against conviction in the cases of Taswir Mohammed and Mohammed Jahangeer. 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 347' date: '2023-01-19' judges: - LORD JUSTICE LEWIS - MRS JUSTICE CUTTS DBE ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	Neutral Citation Number: [2011] EWCA Crim 32 Case Nos: 201003452 A6, 201003017 A9, 201003447 A3, 201004146 A7 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Bristol Crown Court HHJudge Darwall Smith T20100199, T20100204, T20100202, T20100198 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/02/2011 Before : LORD JUSTICE PITCHFORD MR JUSTICE CRANSTON and HHJ WARWICK MCKINNON, RECORDER OF CROYDON - - - - - - - - - - - - - - - - - - - - - Between : Kirk Jordan Barclay Noah Ntuve Francis Cowan Trevor Junior Prince Campbell Appellants - and - Regina Respondent - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - David Miller (instructed by Allen Hoole Solicitors ) for the First and Third Appellant Mark Worsley ( instructed by Rodney King & Prtners) for the Second Appellant Ian Halliday (instructed by Elite Solicitors ) for the Fourth Appellant James Ward (instructed by CPS ) for the Respondent Hearing dates: 14 January 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Cranston : Introduction 1. These four appeals are not formally linked because they were tried under separate indictments. However, the offending of which they are part was uncovered as a result of the same police operation. Called Operation Polar, it was conducted in late 2009 in the St Paul’s area of Bristol with the intention of identifying and arresting street level Class A drug dealers. The catalyst for police action was the deleterious impact which open drug dealing had had on the St Paul’s area. The community and those working there in local government, housing and welfare services had identified as a major concern the open drug dealing on the streets of St Paul’s, the fear, nuisance and intimidation associated with it, and the general decline in the area which had resulted. The appellants’ offending and sentences 2. In the course of the police operation these four appellants all sold class A drugs to undercover police officers posing as retail purchasers. Mr Barclay was involved in five transactions, on 12 November, and 3, 4 and 9 December 2009. Each transaction involved a £10 deal of heroin or crack cocaine. The drugs were in the range of some 29-30 % purity. Upon his arrest, he was found with £1735 in cash. This offending was reflected on Mr Barclay’s indictment in three counts of the supply of Class A drugs, and two of being concerned in the supply of class A drugs, between the dates we have mentioned. 3. Similarly, on 6 occasions in November and December 2009 Mr Ntuve sold drugs to undercover officers. These were wraps of heroin, at an average weight of .21grams and an average purity of 52%. When he was arrested in mid January and police searched his residence they found a further 18 wraps of heroin weighing a total of 2.92 grams with a purity of between 43 and 49%. Also recovered were 7 wraps of cocaine, weighing a total of 1.58 grams, and £560 in cash. The counts on Mr Ntuve’s indictment covered the instances of supply of heroin to the undercover officers and his possession of heroin and cocaine with intent to supply, to reflect what was found at his home. 4. As for Mr Cowan, the 6 relevant counts on his indictment reflected his criminality in selling heroin to an undercover police officer on 2 and 3 November, offering to sell heroin on 14 December, and selling heroin and crack cocaine, or arranging for it to be sold, on 15 December 2009. All the heroin in Mr Cowan’s case was over 40% purity. 5. Finally, there was Mr Campbell, who sold either heroin or cocaine to an undercover police officer on 3 occasions in late November and early December 2009. On one such occasion he sold two different types of drug, so he faced four counts of his indictment. 6. Ultimately, all four appellants pleaded guilty to counts on their indictment and it fell to HH Judge Darwall-Smith to sentence them at the Crown Court at Bristol. 7. Mr Barclay was 19 years old. He had 9 previous convictions for 15 offences, including three of possessing a Class C drug, two of possessing a Class B drug and one of possessing a Class A drug (heroin). There was also an offence of assaulting a constable and one of battery. All these offences have been dealt with by the youth court or the magistrates and had led to community punishment or limited restrictions on his liberty. As well the appellant had warnings for possessing heroin, producing cannabis and possessing an offensive weapon. 8. In a pre-sentence report the probation officer recorded that Mr Barclay expressed remorse and demonstrated a good understanding of the impact of drug dealing on the community. There had been an escalation in his offending behaviour. He had decided to sell class A drugs to make a living. The report writer said that in the St Paul’s area of Bristol young men who had not finished their education and had poor employment prospects were liable to be targeted to enter into drug dealing. That seemed to have been the case with him. There was a medium risk of re-conviction with a medium risk of serious harm to the public. 9. In passing sentence on 25 March 2010, the judge said that Mr Barclay was one of a gang of drug dealers in the St Paul’s area of Bristol. He had previous convictions for the possession of drugs and thus was already part of the drug culture. His offending involved persistent selling of Class A drugs. The purity was high, indicating a closeness to the source of supply, and there were five matters. A sentence would be imposed of four years’ detention in a Young Offender Institution on each count concurrent. 10. The judge also imposed an anti-social behaviour order (“ASBO”) on Mr Barclay, despite submissions against this course. Under it he was prohibited from: “1. Entering the Ashley Ward, namely St Paul’s, Montpeller, Baptist Mills and St Andrews, as shown on the attached map. 2. Associating with Noah Ntuve (9/3/86), Harvey Jackson (11/11/87), Trevor Campbell (22/11/90), Francis Cowan (1/3/91), Carlton Wood (18/7/89), Narwayne Parchmert (10/2/89), Dwayne Clemmings (4/11/83), Julio Ljyer (21/1/85), Natasha Amso (22/12/89), Bomani Sokoni (6/1/91), Jamie Ivers (19/1/91), Joshua Woodbyrne (8/12/90) and Samuel Smith (25/12/65). 3. Carry or use a mobile phone which is not registered to his name: the mobile used and owned must be registered with the intelligence officer at Trinity Road Police Station, Bristol.” The judge said this in relation to the ASBO: “[A]n Anti-Social Behaviour Order is necessary, for people like you, to keep you away from making what was a no go area and a danger to vulnerable persons, the old and the children who are subjected to harassment and the like when entering such an area.” The judge said that given Mr Barclay’s age he would make it for three years only. The form as completed by the Crown Court records that Mr Barclay had acted in an anti-social manner which caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as the defendant, but without setting out details of this, and that an order was necessary to protect persons in England and Wales from further anti-social acts by Mr Barclay. It provides that the order is suspended until Mr Barclay is released from custody and that it is in force for 3 years. 11. With Mr Ntuve, the judge was faced with a 24 year old man of Tanzanian extraction, but of Swedish nationality, who had only arrived in this country in 2009 to visit his cousins living in St Paul’s and to watch his brother boxing. He had received a caution for theft in the short time he was here, but had no convictions. The writer of the pre-sentence report opined that there was a medium risk of his re-offending. She said that he was evasive when asked about the offences, which he appeared to have committed in the context of financial difficulties, a negative perception of his self-image and his wish to experience a more affluent lifestyle. There was a medium risk of his re-offending. 12. On 29 April 2010 the judge passed on Mr Ntuve a sentence of 5 years concurrent on each count, remarking that there was no suggestion that Mr Ntuve was addicted to drugs but rather that he was dealing on a persistent scale purely for commercial profit. The drugs were from a source of high concentration indicating his fairly elevated place in the hierarchy of street dealers. The judge also imposed an ASBO, its terms mirroring those in Mr Barclay’s ASBO, although it was to remain in force for 5 years from the date of release. In opening the facts prosecuting counsel, Mr Ward had explained that Mr Ntuve was part of a gang that controlled the streets around Argylle Road in St Paul’s selling class A drugs. In his sentencing remarks the judge said this: “But the seriousness of these offences is the fact that it blights the whole area of Bristol which the law abiding public are entitled to use without having to face those who have themselves chosen to sell class A drugs, to addicts mostly, in a particular area.” 13. Aged 19 years, Mr Cowan entered guilty pleas on the agreed basis that he was involved in the supply of drugs, as reflected in the indictment, in order to feed his addiction to crack cocaine and heroin. There was a previous conviction for burglary, albeit that it did not lead to a custodial sentence. He committed the offences during the currency of a referral order. On 1 June 2010 the judge sentenced him to concurrent terms of 3 ½ years detention in a Young Offender Institution in respect of each count. There was a pre-sentence report which recommended an adjournment for an assessment of his suitability for a drug rehabilitation requirement as part of a community order. The report writer said this: “In supplying illegal drugs to others, Mr Cowan was observed by the police to have worked closely with associates involved in such activities. Different individuals were responsible for supplying different types of drugs but they co-ordinated their activities.” Mr Cowan informed her that he was aware of the impact of drug use on himself and other users, but explained that his need for the substance he craved overrode considerations of the negative effects of selling the drugs. He was assessed as presenting a medium risk of re-offending. Mr Cowan was also made the subject of an ASBO for 3 years from release, along the lines of Mr Barclay’s ASBO. In imposing it the judge referred to St Paul’s becoming a “no go” area. He continued: “Young people, children, vulnerable people, old people want to be able to move round the City freely. Why should they have to be inhibited when an area is taken over by drug dealers as the area was?” 14. As for Mr Campbell, the judge sentenced him on 29 April 2010 to a total of 3 ½ years in respect of the 4 counts on his indictment. He was also subject to an ASBO, its term reflecting those of the other appellants’ ASBOs. He was 19 years old with multiple convictions as a juvenile for burglary, robbery and assault with intent to rob. At the time of his arrest he was subject to a community order for possession of class A and class C drugs. The Crown accepted his basis of plea, that he took drugs, that he was selling the drugs on behalf of another to pay a drug debt owed to the true owner, and that he had no stocks of his own. He told the probation officer who prepared the pre-sentence report that he had started smoking heroin and crack cocaine 8 months prior to the offences as a result of the company he kept. The report writer said that there was a high risk of reconviction and a medium risk of serious harm to the public. 15. Before the judge the imposition of the ASBO in relation to Mr Campbell was opposed as not demonstrably necessary, given the custodial sentence with ultimate release on licence; as disproportionate, in terms of the area covered and the individuals named when there was no evidence of Mr Campbell’s association with them; and as a restriction on freedom of association, because of the conditions about any mobile telephone Mr Campbell might have. In imposing the ASBO the judge observed that he considered it “entirely necessary and proportionate to make an ASBO in terms of the Crown’s draft” and that it was “necessary to keep this area clear of people like you and your colleagues”. The judge also added that he had already made ASBOs in 3 other Operation Polar cases, all without opposition. Mr Barclay’s sentence appeal 16. It is said that Mr Barclay’s custodial sentence is manifestly excessive, insufficient account being taken of his age. He was 18 at the time of the first offence on 12 November, although he had turned 19 by the time of the further 4 offences. A starting point of 6 years, discounted to 4 years because of his guilty plea at the earliest opportunity, was simply too high. A sentence of 3 to 3 ½ years was appropriate. 17. In our view there was nothing wrong with a sentence of 4 years in the circumstances of this appellant’s case. The guidance case of R v Djahit [1999] 2 Cr App R(S) 142 establishes a starting point of 5-6 years for a street retailer of class A drugs. Despite his age the appellant had previous convictions for possession of class A, class B and class C drugs. There were also the other offences we have mentioned. All this indicated a lack of respect for the authority of the courts and law-abiding behaviour. As the judge expressed it, there was an escalating pattern of offending. The pre-sentence report spoke of the future prospects being a medium risk of serious harm to the public. Although the sentence is severe, none of this suggests in any way that it is manifestly excessive, notwithstanding the appellant’s age which was, after all, 19 when most of the offending occurred. ASBOs: legal principles 18. The preconditions to imposing post-conviction ASBOs are laid down in section 1C (2) of the Crime and Disorder Act 1998 . “(2) If the court considers – (a) that the offender has acted at any time … in an anti-social manner, that is to say in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself, and (b) that an order under this section is necessary to protect persons in any place in England and Wales from further anti-social acts by him, it may make an order which prohibits the offender from doing anything described in the order.” An ASBO’s commencement can be suspended until the offender has been released from a custodial sentence: s. 1C (5). That in the case of a determinate sentence is as a matter of statute the half-way point, subtracting also appropriate periods of time spent on remand or under curfew ( Criminal Justice Act 2003, ss. 240 , 240A, 244). In practice an offender may be released before that point under an early release scheme. An offender is free to apply for the variation or discharge of a post conviction ASBO once 2 years have elapsed from the date when it was made: s. 1CA. 19. The language of section 1C (2) demands that the ASBO be tailored to the anti-social behaviour of the particular offender. It must be necessary to protect persons from further anti-social acts “by him”. That means as well that an ASBO’s terms must be proportionate to the risk of further anti-social behaviour which the offender poses. It follows also from basic principles that an ASBO must be precise and capable of being understood by the person subject to it: R v P (Shane Tony) [2004] EWCA Crim 287 ; [2004] 1 Cr App R (S) 343. In R v Boness [2005] EWCA Crim 2395 ; [2006] 1 Cr App R (S) 690 this court held that since the ASBO must be necessary to protect persons from further anti-social acts by the offender, the court should not impose an order which prohibits an offender from committing a specified criminal offence if the sentence imposed on conviction for the offence should be a sufficient deterrent: [30]. 20. R v Avery (Gregg) [2009] EWCA Crim 2670 ; [2010] 2 Cr. App R (S) 33 considered this latter principle. There a number of fanatical animal-liberation protestors were sentenced to terms of imprisonment ranging from 9 to 11 years. In each case an ASBO was imposed for an indefinite period. The judge said that given their fanaticism he had little if any confidence that the offenders would desist from their activities in the future. On appeal the ASBO was submitted to be unnecessary – it was premature and a counsel of despair – since it was impossible to say how prison might affect the applicants. This court said that the judge was uniquely well-placed to assess the gravity of the offence, the part played by each of the applicants and, most importantly, the need for public protection for those who had been the victims of their conduct. It was a matter of judgment and assessment: [29]. The judge’s assessment was, in the court’s view, overwhelmingly supported by the evidence. The likelihood of a Damascene conversion to good behaviour following release from prison was slight. There was the safeguard that if there was a genuine change of heart, the offenders could apply to have the order discharged or varied. “In our judgment it was not a counsel of despair but rather a counsel of reality”: [30]. 21. Especially relevant to the ASBOs imposed in this case is R v Dyer [2010] EWCA Crim 2096 . That was an appeal by a 26 year old offender also caught up in Operation Polar and sentenced to four years imprisonment. The ASBO for Dyer was for 5 years but otherwise its terms mirrored those in these appellants’ cases. In giving the judgment of the court, Thomas LJ referred to the relevant considerations in considering the impact of a sentence on the necessity for a post-conviction ASBO. As summarised in paragraph 9.5 of the Guidance on ASBOs, produced by the Judicial Studies Board, these are the nature and length of the sentence; its likely effect on the offender; the nature, length and effect (if any) of previous sentences; and the duration, conditions and likely effect of any period of licence. Thomas LJ said that the assessment was one for the trial judge. In that case it was open to the judge to decide that an ASBO was necessary and that the pre-conditions for the making of a post conviction ASBO were met. 22. In Dyer the court went on to consider the terms of the ASBO and held that it should be modified in two respects. First, the area from which the appellant should be excluded was confined to the area of St Paul’s, bounded by Ashley Road and Lower Ashley Road, which is where on-street drugs dealing had occurred. In the absence at the appeal hearing of the prosecution there was no justification available for extending the prohibited zone beyond this to the whole of the Ashley ward: [13]. Secondly, that aspect of the ASBO requiring registration of any mobile phone with intelligence officers at the Trinity Road police station was an intrusion of liberty and, in the absence of the prosecution at the hearing, there was no obvious justification advanced for it: [16]. However, the court upheld the condition that any mobile phone the offender had should be registered in his own name, since the use by drugs dealers of mobile phones, sometimes “pay as you go” mobile phones, was well known: [15]. Moreover, the court held that the prohibition of association with various named persons was justified. “14. The second condition related to a prohibition of associating with various named persons. It is submitted on the appellant’s behalf that he does not know any of these people and they happen to be people who were arrested as part of the same operation. We consider that the prohibition should be in force. The overwhelming likelihood is that drug dealers of this kind are known to each other, although maybe not by the name set out here but otherwise. Providing that sufficient identification is provided to this appellant so he knows who these people are, we consider that condition was necessary.” The appellants’ submissions 23. On behalf of these appellants it was submitted first, that there is no necessity for an ASBO in the light of the sentences passed and other factors; and secondly, that even if we uphold the ASBOs their specific terms should not in all respects be maintained. Overall, it was said, when imposing these ASBOs the judge failed as required by R v P to spell out the justification for them in the special circumstances of each appellant’s case. It seemed to be a matter of police policy to apply for a standard ASBO for each offender caught up on Operation Polar. The judge, it was said, appeared to rubber stamp the applications, most evident in his remarks in Mr Campbell’s case. 24. Regarding necessity, Mr Miller submitted on behalf of Mr Barclay, it had not been established that the ASBO was in fact necessary for him. He had been sentenced to a period of 4 years’ detention. During the period in custody he would undertake a number of programmes to address his offending. On release he would be subject to a package of licence conditions. The operative period of the ASBO, if it was taken as 3 years from his release, would not substantially exceed the licence period. He was a young man, and the experience with young people was that offending was a passing phase. In his case the probation officer had suggested in the pre-sentence report that he had just been caught up in dealing drugs like others of his background in the St Paul’s area. There was nothing to suggest that he would not learn from what had happened and respond to the sentence passed on him. 25. The submissions for Mr Barclay were echoed by those on behalf of the other appellants. For Mr Ntuve Mr Worsley submitted that given that he had had not previously been convicted of offences - any convictions of his in Sweden would be readily known to the police here – the judge could not properly have concluded that such a substantial prison sentence would not have a deterrent effect, making the ASBO unnecessary. On Mr Cowan’s behalf, Mr Miller highlighted his youth, the agreed basis of his plea (his involvement was to feed his own habit) and the three year period of the ASBO. On Mr Campbell’s behalf, Mr Halliday submitted that his bad record was in unrelated areas of offending, and that the probation officer who prepared the pre-sentence report must have thought that Mr Campbell was readily redeemable given the recommendation of a non-custodial sentence. As well as referring to the failure of the judge to consider the deterrent effect of the sentence, and the control Mr Campbell would be subject to as a result of the licence conditions, Mr Halliday made the additional point that the conduct which the court was attempting to prevent, dealing in class A drugs, is punishable with penalties far in excess of those available for breach of an ASBO, so that it is unclear why the lesser deterrent of the ASBO would be effective if the greater failed to secure the desired end. 26. As for the specific prohibitions in the ASBOs, objection was taken first, to the exclusion zone. On behalf of the appellants it was said that even its reduction in Dyer from the Ashley ward as a whole, to the St Paul’s area bounded by Ashley Road and Lower Ashley Road, could not be justified. Mr Barclay’s mother lived within that area, even if he lived elsewhere in Bristol at the time of his arrest. Mr Ntuve’s aunt lived in the St Paul’s area, as did Mr Cowan’s grandparents. Mr Campbell told the probation officer that at the time of the offence he lived in St Paul’s at his brother’s and his mother’s, although that he would occasionally fall out with his family and live elsewhere. Moreover, it was contended, to prohibit these young appellants from entering the St Paul’s area was to exclude them from the centre of cultural and community activities for the black community in Bristol. 27. The association prohibition was also challenged. In general terms that was because of what was said to be the lack of a firm evidential basis. All that was said by the prosecution was that all those mentioned had been caught up in Operation Polar. However, there was no evidence, even when particular appellants knew persons on the list, about whether they had associated with them, or the nature of the association. How, it was said on the appellants’ behalf, would they be able to check that the people they met were on the list? How, if they were in groups in social and other settings, could association with those on the list be prevented? What was the objection to the appellants associating with those on the list in private, when the anti-social behaviour objected to had occurred in public spaces? 28. Finally, it was submitted, the condition that appellants not carry or use a mobile phone, other than one which has been registered in his name, was a restriction upon an appellant’s freedom of association. Albeit that mobile phones can be used to facilitate crime, they are arguably a necessity in promoting freedom of association in a modern society. The proposed restriction would prevent the use of another’s mobile phone even in an emergency situation, or where an appellant’s own phone had run out of credit or power. Moreover, the enforcement of this condition would lead to intrusion, the harassment and even the arrest of the appellants, in the course of the police checking whether a mobile phone found on them was registered as required. The necessity for these ASBOs 29. In our view the challenge that the judge omitted to set out the factual basis for the ASBO in the case of each of these appellants fails. As this court said in R v Dyer , it will assist if judges making ASBOs consider the Guidance produced by the Judicial Studies Board. That will enable them readily to spell out the reasons behind the ASBO and its particular prohibitions. In these cases, however, the elliptical character of the judge’s reasons must be seen against the background of the information before the court on the occasion of the sentencing of these appellants. 30. In the case of each of these appellants, the judge had before him the application pack from the Avon and Somerset Constabulary for an anti-social behaviour order. At the outset that stated the reason for the application: “in order to protect the residents of St Paul’s from the nuisance and intimidation caused by his drug dealing and to prevent re-offending … Community meetings and surveys have revealed that drug dealing, and the associated nuisance and intimidation, continues to be the primary concern for local people.” Each application then detailed the relevant offending of the appellant, including any previous offences, and was otherwise tailored to his own circumstances. For example, with Mr Ntuve it was said that although he had previously claimed to live at 32 Argylle Road in St Paul’s, PC Adams’ statement, which was attached, confirmed that the legal tenants of that address did not want him at the property. It also stated that he had never been a tenant of the address, but had simply been allowed to use it as a bail address once. Bristol City Council confirmed that he was not registered as a legal tenant anywhere in Bristol and was not in receipt of any benefits. Mr Ntuve was officially of no fixed abode, and had no links with St Paul’s. He had no need to enter the area since he did not live or work there. 31. Each application also referred to the appellant’s involvement in open street drugs dealing and to the misery, fear and frustration to the area’s residents that this caused. To support this, attached to each application was a statement of Police Sergeant Aston. That began with a general account of how open street drug dealing can undermine a community’s cohesion. This usually emerges in diverse, transient communities, where the criminals involved already have a foothold, and by the use of threats and intimidation to force residents to turn a blind eye. Often the residents are sympathetic to the plight of the drug addicts. It is in the drug dealers’ interest to create conflict with authoritative figures to create an atmosphere of high tension so that all the community witnessed is a high profile, reactive style of policing. Vulnerable individuals such as the young and elderly are often coerced by fear or payment into taking small roles, such as runners, lookouts or allowing their properties to be used. Service providers are not welcome since broken street lights, damaged roadside furniture, derelict houses, abandoned cars, litter and overhanging shrubs are all conducive to the operation of the market. The surrounding area becomes unattractive to new businesses and those already in existence come under threat. 32. Specifically in St Paul’s, Police Sergeant Aston’s statement covers the open drug dealing. Attempts at conventional community policing had proved to be ineffective since it depends on consultation and interaction with local people. In St Paul’s they were too frightened to speak out. Drug dealers had gained support for their operations by infiltrating local communities, seeking their support when the police and local authority attempted to tackle the problems. Police used stop and search powers on the group but it escalated into a violent confrontation. The drug dealers claimed they were being unfairly targeted. This was raised at a community meeting. Attempts by the local authority to remove abandoned vehicles in Argylle Court could not be completed due to a large crowd gathering, from the gang. In conjunction with Bristol City Council a number of initiatives had been attempted by the Safer Bristol Partnership. The gating of Argylle Court, street cleans, and the boarding up of vacant premises were examples of work carried out in the face of extreme intimidation by the group of drug dealers who congregated. Within days of completion it had been rendered useless. Patrolling beat and community officers, housing officials, in fact anyone in authority had been met with the threat of violence and missiles, such as bottles and stones. While these people were on the streets service providers could only carry out their work while escorted by police. In October 2009 scaffolders employed by a housing authority were forced to leave Brighton St by the group, who threatened to use guns. There were regular reports by housing association representatives and local service providers, who were being confronted when attending St Paul’s by groups in the street, questioning them about their presence and accusing them of being undercover police officers. Some of these workers had been patted down and searched. Several local businesses, which are established in the local area, have come under threat from the gangs. 33. Against all the background material, which the judge had obviously read, we can well understand how he concluded that the statutory requirement of necessity for an ASBO was met in the case of each of these appellants. First to be considered was the potential deterrent impact of the sentence. In the case of Mr Barclay the background material before the judge was that, although he was only 19 years old, he had been in the drug culture since the age of 16 and had not responded to the previous punishments for earlier offending. As the judge expressed it, he had been caught up in the drug culture. There was an obvious basis for concluding that the custodial sentence might not dissuade him from future offending. Similarly with Mr Ntuve: he had had to be cautioned for theft, soon after he arrived in this country, and the pre-sentence report was hardly evocative of remorse. Mr Ntuve was older than the other appellants, had made a deliberate decision to enter the drugs’ trade and, as the judge put it, occupied a fairly elevated place in the hierarchy. By contrast Mr Cowan was an out of work addict, whose motivation was to finance his addiction. He had previous convictions but had not been subject to custody. It might well be that a period of custody, and drug treatment work there, could have been the basis for concluding that the statutory test had not been met on the basis of Mr Cowan’s individual circumstances. As for Mr Campbell, the judge could well have concluded that the ASBO was necessary, because the custodial sentence would not have the desired effect, given Mr Campbell’s failure to respond to the previous sentences of detention and community punishment. If a sentence involving a restriction on liberty had not deterred him in the past, an ASBO might be a useful tool to thwart any future attempts on his behalf to embark on the path to further offending. 34. Moreover, these post-conviction ASBOs were not simply directed at future drugs offending by these appellants but also, as each application said at the outset, at their involvement in the anti-social behaviour associated with the open street dealing of drugs and their contribution to making St Paul’s a “no go” area. This was not a point addressed in Dyer nor, we conceive, central in previous decisions of this court on post-conviction ASBOs, where the focus has been on whether the deterrent effect of the sentence made an ASBO necessary to address future offending of the same character. In the present appeals the evidence of Police Sergeant Aston identified a range of anti-social behaviour associated with open drug dealing on the streets, including making life difficult for local service providers in the maintenance of the St Paul’s area as a decent place for people to live. Open drug dealing in itself constituted only part of the problem, since there were the other factors conducive to an environment in which it could flourish. In the passages we quoted earlier, the judge referred to the need to protect people, the vulnerable in particular, and to prevent St Paul’s from becoming a “no go” area. It goes without saying there can be no “no go” areas in this country. St Paul’s, he also said, had been taken over by drugs dealers and it was necessary to clear it of those such as Mr Campbell. In other words, these ASBOs were also targeted at the nuisance, fear and intimidation which were conducive and preparatory to open drug dealing. The appellants had to be prohibited from contributing to this type of anti-social behaviour separate from, but essential to, the open market in drugs. So although his sentence may have deterred Mr Cowan from offending, the ASBO was necessary in his case, as for all appellants, to address other aspects of anti-social behaviour than the drugs offending itself. 35. So if ASBOs were justified in the case of these appellants, what of their scope? Before us the prosecution attempted to justify making the Ashley ward as a whole the exclusion zone on the basis that it is a clearly defined area and that, if exclusion is confined to the area identified in R v Dyer , the dealing will simply move to a few streets away outside it. We fail to see how the Ashley ward is any more definite than the area decided on by the court in R v Dyer , the St Paul’s area bounded by Ashley Road and Lower Ashley Road. As to the contention that drug dealing will simply move outside this area, the prosecution relies on assertion, rather than evidence. The assertion might be correct, but there is nothing in Police Sergeant Aston’s statement to explain why the movement of the drugs trade will be to other parts of the Ashley ward, rather than to elsewhere in Bristol. 36. As far as these appellants are concerned, however, we do not regard their exclusion from the part of St Paul’s identified in R v Dyer as disproportionate. The only one living there at the time of his arrest was Mr Campbell. Mr Barclay’s mother lives there, but Mr Barclay himself was living elsewhere in Bristol. Mr Ntuve had only recently arrived from Sweden, albeit that his aunt and cousins live in the location. Mr Cowan was not a resident of the exclusion zone. In each case, even Mr Campbell’s, we cannot regard exclusion from the area as disproportionate given the individual circumstances of these appellants and the broader picture which Police Sergeant Aston has painted. 37. Nor, for the reasons given in R v Dyer , do we regard the association prohibition as unnecessary or disproportionate, although providing each of the appellants with photographs and street names of those with whom they must not associate will make that part of the ASBO clearer, more understandable by them and easier to enforce. Nothing we have heard persuades us that it is unnecessary for these appellants to register their mobile phones in their own names, or that registration in their own names is a disproportionate response, trenching on their freedom of association. In that regard we adopt the reasoning of this court in R v Dyer . During the course of the argument, the prosecution accepted that the additional condition for registering mobile phones with the intelligence officers at Trinity Road police station was otiose, given the other registration requirement. 38. Thus we dismiss these appeals against the imposition of ASBOs. However, we vary the ASBOs so as to reduce the area from which the appellants are to be excluded from the Ashley ward as a whole to the St Paul’s area bounded by Ashley Road and Lower Ashley Road. We have marked that area on the map attached to the judgment. We also vary these ASBOs to remove the requirement that the appellants should register their mobile phones with the intelligence officers at Trinity Road Police Station. Otherwise the prohibitions the judge imposed in their ASBOs stand. 39. Finally, to facilitate certainty in respect of these ASBOs, we accede to the prosecution’s request to set definite dates for their duration. These are contained in the schedule to this judgment. As we explained earlier, the judge made orders which in effect meant that the ASBOs would run from release of the appellants from custody. As we have also explained, this may be prior to the half way point of the sentence, under early release arrangements. In the interests of certainty, however, we agree with the prosecution submission that although the ASBOs begin on release measuring their duration from the half way point is desirable. Unlike the prosecution, however, we have taken the last day of the previous month as the end date, which results in slightly more generous treatment. ANNEX Duration of ASBOs Mr Barclay Mr Ntuve Mr Cowan Mr Campbell Sentence Date 1/6/10 8/4/10 1/6/10 29/4/10 Length of custody 4 years 5 years 3 ½ years 3 ½ years Time on remand s240 137 days 104 days 137 days 104 days ASBO length 3 years from release 5 years from release 3 years from release 5 years from release Approximate Release date February 2012 July 2012 November 2011 October 2011 End date 31/1/2015 30/6/2017 31/10/2014 30/9/2016	```yaml citation: '[2011] EWCA Crim 32' date: '2011-02-01' judges: - LORD JUSTICE PITCHFORD ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	Neutral Citation Number: [2023] EWCA Crim 1005 Case No: 202200082 B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CHESTER CROWN COURT Sir Peter Openshaw Ind. No. T20207065 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/09/2023 Before : LORD JUSTICE DINGEMANS MRS JUSTICE CUTTS and HIS HONOUR JUDGE LICKLEY KC - - - - - - - - - - - - - - - - - - - - - Between : Christopher More Applicant - and - Rex Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Sam Stein KC and Danielle Cooper for Mr More Nigel Power KC and Martin Reid for the Respondent Hearing dates : 21 and 31 July 2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 14.00 hrs on 1.09.23 by circulation to the parties or their representatives by e-mail and by release to the National Archives . ............................. WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Lord Justice Dingemans : Introduction 1. This is the hearing of an application for leave, and if leave is granted the hearing of, an appeal by the appellant Christopher More against his conviction for murder and conspiracy to cause grievous bodily harm. 2. On 9 December 2021, in the Crown Court at Chester, Mr More (then aged 43 years) was convicted (by a majority of 10 to 2) of the murder of Brian Waters on 19 June 2003 (count 1) and conspiracy to cause grievous bodily harm with intent against Suleman Razak on 19 June 2003 (count 2). 3. On 10 December 2021 Mr More was sentenced to life imprisonment with a minimum term of 24 years (less 919 days spent in custody, 297 of which were spent in custody awaiting extradition from Malta) for count 1 and 14 years imprisonment for count 2, to be served concurrently. 4. James Raven and John Wilson had been convicted of the murder of Brian Waters after a trial on 18 August 2004. Otis Matthews had been convicted of the murder of Brian Waters after a trial on 25 October 2007. They were all sentenced to life imprisonment with a minimum term of 24 years. Ashley Guishard was acquitted. 5. The appeal raises issues, among others about the adequacy of the disclosure provided by the prosecution in this case. The disclosure related to material relevant to Mr More’s belief, as set out in his defence statement and repeated in his evidence, that Mr Wilson was a police informant, albeit one who had gone rogue. 6. The concerns about the adequacy of the disclosure process arose because there had been the late disclosure of material to the trial judge, on an ex parte on notice basis, which led to the making of agreed fact number 145. Agreed fact number 145 related to a shooting of Mr Wilson the year before the murder of Mr Waters, and Mr Wilson’s report to the police that some people in the criminal fraternity thought he might be an informant. 7. There had been a number of hearings at the trial to inform the trial judge of sensitive material, see the Criminal Procedure Rules Part 3.11. These hearings were ex parte hearings between the prosecution and Court on notice to the defence. 8. The formal grounds of appeal against conviction on behalf of Mr More are that: (1) the summing up was unbalanced and unfair so that the conviction was unsafe; (2) the very late disclosure of material helpful to Mr More’s case at the trial, which became an agreed fact, meant that there was a legitimate concern about the disclosure process overall which needed to be explored; and (3) the very late disclosure of the agreed fact could not undo the prejudice of evidence called by the Crown on the issue of whether John Wilson was a police informant, nor could it repair suggestions made in cross examination of Mr More. 9. The prosecution resist the appeal and submit that: (1) the summing up was fair; (2) there was late disclosure, but the disclosure process was properly carried out and there is nothing further to be disclosed; and (3) the defence had been able to make extensive use of agreed fact 145 at the trial, and the conviction was safe. 10. As the application for leave to appeal against conviction and grounds of appeal raised issues about the adequacy of disclosure the application was referred to the full Court of Appeal, Criminal Division for directions. There was an ex parte hearing between the prosecution and the full Court on notice to Mr More’s legal team on 13 January 2023, followed by an open directions hearing. The Court made an open direction that material known as the Operation Picking material should be reviewed by the Crown Prosecution Service reviewing lawyer (the prosecution reviewing lawyer). Following that review the prosecution identified further information which was set out in a note, which was referred to in submissions as the “2023 material”. 11. There was a further ex parte hearing between the Court and the prosecution on notice to Mr More’s legal team on 21 July 2023 and a hearing of: the application for further directions; the adjourned application for leave to appeal; and, if leave to appeal against conviction is granted, the substantive appeal against conviction. At the hearing on 21 July 2023, the Court directed that the materials from the Operation Picking reviews which formed the basis of agreed fact 145 and the 2023 disclosure note should be provided to the defence. The hearing was adjourned to a further hearing on 31 July 2023. 12. The disclosure of the documents underlying agreed fact 145 and the 2023 material was provided, although there were substantial redactions on the documents. There was a final hearing before the Court on 31 July 2023 at which submissions were made about those documents. Shortly after the conclusion of the hearing on 31 July 2023 the Court asked, on notice to the defence, to be provided by the disclosure officer with unredacted copies of the redacted documents. 13. This was done on 2 August 2023, and the Court has now seen unredacted copies of the documents underlying the 2023 materials. The Court directed disclosure of a few more lines of the redacted documents and gave Mr More’s legal team permission, if so advised, to put in further submissions. 14. Further written submissions were filed on behalf of Mr More on 9 August 2023 and by the prosecution on 10 August 2023. 15. We are very grateful to Mr Stein KC and Ms Cooper on behalf of Mr More, and Mr Power KC and Mr Reid on behalf of the prosecution, and their respective legal teams, for their helpful written and oral submissions. Grant of leave to appeal against conviction 16. We will grant leave to appeal against conviction because there are matters requiring the Court to review carefully the disclosure process in this case, and to consider the effect of the disclosure process on the safety of the conviction. Factual circumstances of the murder and conspiracy to cause serious bodily harm 17. On 19 June 2003, Brian Waters, then a 43 year old man, was attacked and tortured at Burnt House Farm in Cheshire. Although the plan had been to torture and inflict really serious bodily harm to Mr Waters, he was unable to breathe properly as he was being restrained and tortured, and died. There were a group of men in an outbuilding of Burnt House Farm who carried out the attack. Suleman Razak, was also attacked and seriously injured. 18. The prosecution case was that Mr Waters used the farmhouse to cultivate cannabis with Suleman Razak’s stepfather, John Majid. Mr Razak was employed to water the plants and assist with the harvest. Mr More’s co-accused, John Wilson, was a drug dealer who occasionally worked with Mr Waters. Mr Wilson came to believe that Mr Waters had made a mistake in a deal that resulted in money being seized by the authorities. As a result, Mr Wilson planned the attack in revenge on Mr Waters and to extract some form of payment from Mr Waters. 19. The prosecution case was that in the early hours of 19 June 2003, Mr Wilson sent Mr More and others to Burnt House Farm to torture Mr Waters and steal his cannabis as punishment for the money being seized. They drove to the farm and stole the cannabis before returning to wait for Mr Waters. When he returned, they tortured him and Mr Razak, leading to Mr Waters’ death. After Mr Wilson had that afternoon spoken to Thomas Darby, he told his driver (who was not involved in the attack) to telephone the police. 20. The prosecution relied on evidence that: Mr More was closely associated with his co-accused; Mr Wilson recruited Mr More to locate Mr Waters’ cannabis farm. Mr More successfully located the farm after following Mr Waters’ son; before the attack, Mr Wilson made efforts to confirm that Mr Waters was in the country; and Mr Wilson then telephoned Mr More. It was the prosecution’s case that Mr Wilson was providing information about the attack to Mr More. The prosecution case was that Mr More was involved in the purchase of a horsebox which was intended to be used to transport the cannabis to be stolen from Mr Waters. 21. There was also evidence that Mr Matthews stayed at Mr More’s home the night before the murder and Mr Raven arrived at Mr More’s home at 4am on the morning of the murder. DNA with a match probability to Mr More was recovered from cigarette butts, a drink bottle and faeces found in a carrier bag at the scene. The bag also contained drink bottles and cigarette butts that contained DNA with a match probability to Mr Raven and Mr Matthews. DNA with a match probability to Mr More was recovered from a glove at the scene. The glove was covered in brick dust that was indistinguishable from a brick wall that the attackers purportedly smashed to create a lookout spot, suggesting that Mr More was involved in the breaking of the wall. 22. There was evidence that Mr More returned home with Mr Matthews on the evening of the murder. Finally, there was evidence that Mr More fled the jurisdiction on 21 June 2003 after the murder and remained at large for 16 years. 23. The defence case was that Mr More was a documentary film maker who investigated serious criminal activity and police corruption. He had previously been involved in a project to make a documentary about cannabis farms. Whilst the project fell through, he remained interested in the subject and befriended Mr Wilson in the hope that he may uncover criminal activity that he could use in a documentary. Mr More stated that in 2002, he was shown stolen National Criminal Intelligence Service (“NCIS”) paperwork that suggested that Mr Wilson was an informant. Mr More could remember that Mr Wilson’s number seemed to be on the paperwork, which seemed similar to the number he still used. Mr More decided to gather information about Mr Wilson with the intention of selling any resulting story about rogue police informants to his media contacts. As part of his investigation, he agreed to locate Mr Waters’ home and go there with Mr Raven and Mr Matthews. He believed that the plan was to steal Mr Waters’ cannabis, which would be moved to another location. Mr More planned to film the cannabis in that other location so that he could use this material in a documentary. 24. There was evidence at trial showing that Mr More had worked as an undercover reporter on a number of programmes exposing wrongdoing. In 2002, plans were announced by the Secretary of State for the Home Department to reclassify cannabis from a class B drug to a class C drug. Cannabis was in fact reclassified as a class C drug from 2004 before it was classified again as a class B in 2009. Channel 4 had asked Stephen Boulton a television producer and Gregor Stewart, a television journalist specialising in undercover operations to film an illegal cannabis farm. 25. Mr Stewart had worked in the past with Mr More’s father, and Mr More was introduced to Mr Stewart. It was agreed by Mr Boulton and Mr Stewart that Mr More was a good undercover investigator, although he was also described as brash and overconfident. Some payments were made to Mr More but by October or November 2002, Mr Stewart was no longer involved in the proposed programme. A new journalist, Janice Finch, considered that Mr More was too expensive to use on the programme. Mr More’s case was that he continued to plan to make a programme by himself on a speculative basis. Ms Finch had a further call with Mr More in February 2003, but he was not in the event retained to work on the programme. The Channel 4 filming of the programme “Blunkett’s Reefer Madness” was completed on 2 June 2003. The programme was broadcast on 22 June 2003. The programme did not contain any material from Mr More. 26. Mr More gave evidence that he arrived at the farm on 19 June 2003 at 4am and remained on the perimeter as a lookout. He saw his co-accused steal the cannabis. However, Mr Raven returned and told Mr More that he had told Mr Wilson about Mr More’s plans for a documentary investigation. Mr More spoke to Mr Wilson by telephone, who told him to leave the scene. Mr More obeyed, leaving at about 8.30am. At the time that he left, he had not seen Mr Waters or Mr Razak. Mr More never assaulted them and had no knowledge of or involvement in any attack. Any murder must have occurred after he had left the scene. He had left the country after these events because he was frightened of what Mr Wilson might do to him. He gave evidence of what Mr Wilson had said by way of threat to him in the telephone conversation before he left the farm. It was submitted on behalf of Mr More that the fact that he believed Mr Wilson to be an informant: explained why Mr More was with Mr Wilson, which was to make a programme; meant that Mr More was unlikely to be involved in serious criminality such as torturing Mr Waters; and explained why Mr More was so afraid of Mr Wilson that he ran away, because Mr Wilson would have been well connected. 27. When summing up the judge reminded the jury of Mr More’s dealings with Channel 4 and investigative programmes, telling the jury that Mr More’s case was that “he was engaged in speculative covert surveillance to steal the cannabis plants and the equipment to set up a cannabis farm” and to film it and expose Mr Wilson as a police informant and make money by selling the film. The judge said that the prosecution case was that whatever his background Mr More “and James Raven had thrown in their lot with Otis Matthews to work with and for John Wilson” and “the story of the undercover investigation of a cannabis farm is a skilfully concocted fiction intended to explain away his otherwise incriminating continued dealings with Raven, Matthews and Wilson and maybe others as well.” Other relevant pre-trial matters 28. On 1 May 2002, Detective Inspector Phoenix, an officer in the National Crime Squad (a predecessor organisation to the National Crime Agency), was at Manchester Piccadilly railway station. He had a hardback notebook, which was sometimes described in the evidence as a day book, and a sheaf of confidential papers in a briefcase. The briefcase and the contents were stolen at the railway station. 29. The contents of the briefcase became known as the NCIS material, but were also sometimes referred to in submissions as the Phoenix material. The name of John Wilson was, among other names, mentioned in the NCIS material. It was apparent that the NCIS material had fallen into the hands of criminals and photocopies of some pages of the NCIS material were recovered from criminals during the police investigations into the theft of the papers. It is now apparent from agreed fact 145 that some of the criminals who had either seen or heard about the NCIS material, believed that Mr Wilson was a police informant. The prosecution case at trial was that the NCIS material showed that Mr Wilson was a target for police operations, and did not show that he was an informant. The National Crime Squad commenced an operation to recover the stolen NCIS papers. This was called Operation Picking. 30. It appears from a police statement made by Mr Wilson on 3 June 2002, that on 26 May 2002 (and so just over a year before Mr Water’s murder and shortly after the theft of the NCIS materials) Mr Wilson went to a pub in Manchester for a proposed meeting to discuss the NCIS papers. A male wearing a balaclava arrived on a bicycle and shot Mr Wilson in the back. Mr Wilson was admitted to Manchester Royal Infirmary for treatment and it seems that he had police guarding him at the hospital. On 3 June 2002, Mr Wilson made a police statement in which he stated that he refused to identify who he was meeting, and said he was not prepared to support a police prosecution and would not support the police in their inquiries. 31. Mr More was arrested in Malta on 6 June 2019, nearly 16 years after he had left the UK. He gave a false name on arrest and resisted his extradition in part on the basis that he was not Mr More. Mr More’s true identity was proved by fingerprints. Mr More was extradited to the United Kingdom. As Mr More had been extradited, he was brought before the criminal courts and he was not interviewed by the police. 32. Mr More served a defence case statement on 21 January 2021 before the trial in which he said that he believed that Mr Wilson was a rogue police informant, which fact was confirmed by stolen NCIS material he had been shown. He had agreed with Mr Wilson to attend the barn to steal cannabis as part of his efforts to research Mr Wilson for the purposes of a television programme. He had left the farm before any torture or murder. He sought disclosure of the NCIS material, which he believed had been seized from his home. There had been police searches of his home and car. 33. The prosecution asked for detailed particulars of how Mr More had got the stolen NCIS material. A reply was given saying that Mr More had received those papers from Mr Deaffern, who had died in November 2020. 34. On 18 March 2021 Ross Collison, a National Crime Agency Officer, made a witness statement. He referred to the theft of the NCIS material. He said in the third paragraph of that statement “following a request from CPS, I reviewed the paperwork from Operation Picking which included the original hard-back lined writing book containing sensitive information and the numerous sheets of A4 paper containing sensitive National Crime Squad information … the purpose of my review was to identify any entries in the aforementioned paperwork where the name `John Wilson’ or `John Godfrey Wilson’ was mentioned.” 35. It is apparent from the submissions before us that Mr Collison’s statement was interpreted by Mr More’s legal advisers to mean that Mr Collision had read through the whole of the Operation Picking material to search for Mr Wilson’s name, but that the prosecution had understood Mr Collison to have read through only the DI Phoenix papers, being the day book and the loose sheets of paper, in the Operation Picking material. We will return to this issue. The first trial – March 2021 36. On 22 March 2021, the first trial began. On 23 March 2021, the prosecution served the witness statement from Mr Collison, together with redacted copies of DI Phoenix’s day book and papers. 37. The material was served, rather than disclosed, because, as set out above, it was the prosecution’s case that the material suggested that Mr Wilson was the target of a National Crime Agency operation rather than an informant, and this therefore undermined Mr More’s defence that the NCIS material that he had seen had led him to believe that Mr Wilson was an informant. 38. On 25 March 2021, the jury were discharged after an issue had arisen in relation to a juror. 39. On 29 March 2021, a second trial started with a different jury. This trial, because it was the first to be completed, has been referred to in submissions as the first trial and we will refer to it in the same way. 40. On 5 April 2021, the police statement made by Mr Wilson on 3 June 2002 about his shooting and the handwritten notes and other documents were disclosed as part of what was referred to at trial as D2016. The handwritten notes refer to Mr Wilson and they refer to a gunshot wound to his back. There are also crime scene investigation exhibits which appear to relate to a car. There are also photographs of Mr Wilson and others. 41. The prosecution called evidence in accordance with their case. Mr More gave evidence at the first trial starting on 15 April 2021 saying he had been provided with the NCIS materials and had been told by Jez Deaffearn that Mr Wilson was an informant and had been shot because of the NCIS materials. Mr More was cross examined on 20 April 2021. 42. The jury could not agree. A further trial was ordered. Applications and the second trial 43. Prior to the start of the second trial, on 20 September 2021 Mr More made a section 8 application for disclosure of Mr Wilson’s status as an informant and for confirmation of whether D2016 represented the entirety of the material relating to Mr Wilson’s shooting. In paragraph 1 of the application, it was stated that Mr More “will state that John Wilson was a police informant and that this fact was widely known at the time. He discovered this fact from information in the NCA paperwork stolen from DI Phoenix on 1 May 2002 and subsequently found to have been copied and circulated.”. 44. In response on 5 October 2021, the prosecution disclosed further documents. Mr More was told that these documents and D2016 were the only records held by Greater Manchester Police about the shooting. 45. On 14 October 2021 a further section 8 application was made, seeking any material that suggested or confirmed that Mr Wilson was an informant. No further disclosures were made. The prosecution neither confirmed nor denied that Mr Wilson was an informant. 46. The second trial began on 1 November 2021. Mr Collison gave evidence at the second trial. He stated that he had reviewed the stolen NCIS material which suggested that Mr Wilson was the subject of an NCIS investigation rather than an informant. In cross-examination, he was asked whether a person could be a criminal and an informant. He stated that a criminal would not be recruited as an informant as they would be “flagged” as such. In re-examination, he suggested that prior to recruiting an informant, checks would be made to confirm whether a potential informant had been flagged as a criminal. At this point, the judge raised concerns that the line of questioning risked undermining the neither confirm nor deny approach adopted by the prosecution. 47. After Mr Collison’s evidence, Mr More lodged a further section 8 application seeking disclosure of whether there was intelligence suggesting that Mr Wilson’s life was in danger because of circulation of the NCIS papers. Mr More also applied to adduce D2016 as hearsay material and submitted that the prosecution should conduct a full disclosure review. The prosecution did not disclose any further material and opposed the application to adduce D2016 as hearsay on the basis that the evidence was unreliable. 48. Before there had been a ruling on that application, Mr More gave evidence commencing on 20 November 2021. In cross-examination, the prosecution suggested that he was lying about his belief that Mr Wilson was an informant. 49. Mr More gave evidence in accordance with his defence case that he was a documentary film maker who investigated serious criminal activity and police corruption. The NCIS paperwork shown to him by Mr Deaffearn suggested that Mr Wilson was an informant. Mr More decided to gather information about Mr Wilson with the intention of selling any resulting story to his media contacts. As part of his investigation, he agreed to locate Mr Waters’ home and go to Mr Waters’ home with Mr Raven and Mr Matthews. He believed that the plan was to steal and relocate Mr Waters’ cannabis, which he would then be able to film for his documentary. Although he had been at Burnt House Farm on the day of the murder, he was not party to any plan to torture Mr Waters or Mr Suleman and had left the farm after a phone call with Mr Wilson before they had arrived. The trial judge’s ruling on hearsay and neither confirm nor deny 50. On 22 November 2021 the judge gave a ruling identifying that in the light of the evidence given by Mr More it was irrelevant whether Mr Wilson was a police informant, and the only issue was whether Mr More believed him to be an informant. In the course of his ruling the judge said “for at least 200 years the courts have resisted attempts by a defendant to require the prosecution to say whether or not a named person was or was not an informant”. The judge identified the policy reasons for that. It is established that the policy extends to questions about persons who are not informers, but about whom the question has been asked whether they are an informer. This is because if one person’s status is revealed as not being an informer, any subsequent failure to reveal another person’s status becomes, in effect, a confirmation. The limitations of this general principle in order to achieve fairness in a particular case are set out in paragraph 122 of the Attorney General’s guidance on disclosure and paragraph 10.9 of the Code of Practice issued under the Criminal Procedure and Investigations Act. 51. The judge found that the key issue was whether Mr More believed, or might have believed, that Mr Wilson was an informant. It was not whether he was, or was not, in fact an informant. It was therefore not necessary to reveal whether Mr Wilson was an informant. Moreover, the judge refused to admit the material in D2016 as hearsay on the basis that it was unreliable and it was therefore not in the interests of justice to admit it. He noted that the jury had seen the redacted stolen material and was aware that Mr Wilson had been shot. It was for the jury to decide whether the redacted material supported Mr More’s claim that it caused him to believe that Mr Wilson was an informant. 52. At about this time the prosecution advised that they had asked for the Operation Picking papers to be recovered from storage and reviewed. 53. On 29 November 2021 the National Crime Agency indicated that it had completed its review of the Operation Picking papers and provided to the prosecution material. There was an ex parte hearing before the judge and proposed agreed fact 145 was provided to the defence. Agreed fact number 145 54. Following the ruling, the prosecution disclosed further information in the form of an agreed fact, which became agreed fact number 145. It was based on material recovered and reviewed by the National Crime Agency’s statutory disclosure team during Operation Picking. 55. Agreed fact 145 provided that “On or before 28 May 2002 John Wilson told the Greater Manchester Police that he had been shot as a result of the circulation of the stolen NCS documents amongst the criminal fraternity. He said that he might be regarded as a police informant. He said that his telephone number appeared in the stolen NCS documents and he had received a number of calls from people that he did not know. He said that he had arranged to meet someone at the location where he was shot, and that he attended the meeting in an attempt to obtain further documents. He also said that he was shot because he was about to find out from the promised documents who was an informant.” The agreed fact was put before the jury before the prosecution’s closing speech. It is apparent from the summing up that leading counsel for Mr More was able to make extensive use of agreed fact 145 and the timing of its disclosure in closing submissions. 56. The prosecution were asked by the defence why the disclosure had come so late. In a note dated 9 December 2021 the prosecution stated that the trigger had been the defence application asking whether there was intelligence in 2002 and 2003 that John Wilson’s life was in danger as a result of the circulation of the NCIS papers, see paragraph 46. The defence had asked whether there were rumours that Mr Wilson was a grass. The prosecution stated that D2016 had been held by Cheshire Police and it had been obtained by them as part of the investigation into the murder of Mr Waters. The material underling agreed fact 145 was the Operation Picking material. The material had been examined in response to the request. The summing up 57. The judge summed up to the jury on 1 and 2 December 2001. The judge directed the jury, among other matters, in standard terms that they were the ones who decided the facts, and no one else. Further he directed them before he started on his review of the evidence: “I must be selective, and so I will not repeat all the evidence that you have heard. I will not repeat each and every point that the barristers have made. If I did so, we would be here for another month. Therefore, if I mention or appear to stress something which you think to be unimportant, then you ignore it because your decision as to what is important or relevant matters and mine does not. Conversely, I may omit or underemphasise something which you think is important. You decide what is important, not me.” 58. The judge set out the respective cases for the jury and said that is the essential matter for you to decide where the truth lies. Later the judge summarised the defence evidence about his involvement being for an undercover film: “Well, let me then remind you of the evidence that was called. The background is that in 2002 the seriousness of cannabis offences was reduced by a change in the law. Channel 4 asked Stephen Boulton, a television producer, and Gregor Stewart, a television journalist specialising in undercover investigations, to make a programme examining the effects of this change. They hoped -- rather naively, you may think -- to film an illegal cannabis farm in operation. First of all, they hoped to have the cooperation of the cannabis farmers, but before doing so, of course, they needed to find a cannabis farm and so they engaged an investigator to try to do so. Stephen Boulton had in the past worked for the defendant's father, Christopher More Snr, who was a respected investigator. Through him, Boulton and Stewart met his son, the defendant. Boulton introduced him to Gregor Stewart and the defendant worked on various programmes for them. Boulton described him as cocky, brash and overconfident. Gregor Stewart said, well, he had a certain bravado but was often disorganised and he lacked calmness and professionalism, but both agreed that he was a good undercover investigator; he could associate with criminals and gain their confidence and he helped them to make a number of successful programmes which they listed. They knew that the defendant had used James Raven as an assistant and as security.” 59. In the course of the summing up the judge addressed the evidence given by Collison about the NCIS papers: “He examined the notebook to see if there were any references to John Wilson. He found 14 such pages which he copied in a redacted form, blocking out material which does not relate to Wilson or related to material names and tactics which are still sensitive. You have copies of that material as redacted, now filed at divider 11, which I do not think you need to turn up. He explained to you the references to Wilson on those 14 pages. He told you that there is a rule of practice soundly based on public policy which has been followed for many years by the police, by the security services and upheld by the courts that the authorities will never confirm or deny that any person was an informant. To do so would expose those who give information to risk and may deter others from giving valuable information in other cases. Mr Collinson said he saw nothing in those papers about Wilson which supported the suggestion that he was an informer. On the contrary, he said Mr Wilson appeared to be a target for a law enforcement operation which became Operation Flood, referred to at page 13 of that material. When examining the material recovered, there was a further typed document mockingly and ironically headed: "The green grass anti-bacterial monitoring unit," which referred to material “generously provided by the Detective Inspector.” The judge reminded the jury that in cross examination Mr Collinson had agreed that in the papers was one of Mr Wilson’s phone numbers, which was still in use at the time of the murder of Mr Waters. This, it was suggested on behalf of Mr More, did not suggest that Mr Wilson was a sophisticated criminal anxious to avoid police investigations, supporting the proposition that he was a police informer. 60. The judge also said: “I will remind you later of what the defendant said about it. I need to remind you of the evidence which relates to the shooting of Wilson. The NCIS material was stolen on 1st May 2002. Just over three weeks later on 26th May, John Wilson was shot. It is an agreed fact -- in fact, it is agreed fact 133 -- to the effect that Wilson was shot as he sat in a car outside the Stable Gate Public House in Denton. Police found a copy of the stolen NCIS papers in that car so Wilson at least was aware of the contents and, of course, you have the beginning of this week the further agreed fact, fact 145, which Mr Bennathan read to you yesterday and I need to read again, but from that it is clear that Wilson understood that others believed he was an informant having read the stolen NCIS papers which Mr Bennathan argues strongly supports the defendant's assertions that he so believed at the time. I will return to that when I review the defendant's evidence with you.” 61. During a short break for the jury leading counsel for Mr More made the following submission to the judge. “The second point, with great respect, is this: if the Court is to make comments that are supportive of the Prosecution case but were not advanced by the Prosecution, and on our note and our recollection this happened a number of times, this with great respect the Court should either not make those comments -- which would obviously be our preference -- or if the Court does so, should, as it were, own them as the Court's own comments and should not, if the Prosecution have not advanced submissions, should not say they are those of the Prosecution when they are not. That was one example. There were others.” The judge made some factual corrections as requested on behalf of Mr More. 62. At the conclusion of the summing up the jury retired to consider their verdicts. Mr More was convicted on 9 December 2021. He was sentenced on 10 December 2021. The judge noted that Mr More was being sentenced, under the transitional provisions, under the sentencing regime for murder applying at the time of the murder. The application for leave to appeal against conviction and further directions 63. As noted above on 13 January 2023 there was an ex parte hearing between the Court and prosecution, on notice to Mr More’s legal team. Following that hearing an open direction was made to the effect that the prosecution reviewing lawyer should review the Operation Picking material. It had become apparent that the Operation Picking material had been reviewed at the end of the trial by officers of the National Crime Agency. Those officers, although briefed by members of the prosecution legal team, had not been present at the trial and could not have known all of the relevant details of the case on behalf of Mr More. 64. Directions were also given for the parties to produce a schedule of relevant sections of the summing up about which complaint was made on behalf of Mr More, to which the prosecution could serve their response. The Court gave directions about obtaining transcripts of evidence. The parties were directed to prepare an agreed chronology, and to lodge skeleton arguments and authorities. The 2023 material 65. The prosecution reviewed the material arising from Operation Picking. There were various descriptions of the number of boxes, a point about which Mr Stein made complaint. It was suggested that there were six, nine or twelve boxes. In final submissions Mr Power confirmed with Mr Reid that it was six boxes. 66. In a note dated 10 February 2023 the prosecution disclosed what has been referred to as the 2023 material. This was to the effect: “Wilson spoke to the National Crime Squad on 30th May 2002 and 2nd July 2002. On both occasions, he was in the presence of his solicitor. On 30th May 2002, his solicitor said that there were two possible reasons why Wilson was shot. Either he was perceived to be an informant or another person was likely to be exposed as an informant and wanted Wilson out of the way. Wilson said that he wanted to see DI Phoenix’s day book so that he could carry out his own risk assessment. He had been called several times by a person that he would not name and whom he presumed to be the informant. He again asked the day book and refused to name the person who had lured him to the meeting where he was shot. He said he knew them very well. Later in the meeting he provided the name of the suspected informant. [It might be noted that it was originally stated that the meeting was held on 14th May 2022 but the prosecution said that this was a typographical error. We will return to this point] On 2nd July 2002, he said that following the shooting, his phone had been seized by police and he had purchased a pre-pay mobile phone. He received calls from people he was not prepared to name. They asked him why he was sending them blank messages. He threw away the phone and ordered a new SIM that used his old number (07768 800 548) but the same thing happened. He tried to convince the people receiving blank text messages that he did not send them. Sometimes he met with them to show them his phone. He felt that these calls were making his associates uneasy about him, as there was gossip suggesting that he was a police informant and the problems with the calls were hindering him from convincing people otherwise. He said that he had not received any direct threats since the shooting.” Further submissions 67. Following this disclosure, Mr More sought a further directions hearing, suggesting that a full investigation was required into the late disclosure of further evidence. This was because the prosecution asserted that a thorough review had occurred and there was no further material to disclose, but the subsequent disclosures demonstrated that these assertions were flawed and provided legitimate grounds to conclude that there had been persistent, and potentially deliberate, failings to disclose relevant material. 68. Mr More sought further information and directions. The prosecution made it clear that the Operation Picking material was never scheduled because it did not meet the disclosure test. 69. The Court did not direct a further disclosure hearing and directed that any issues could be addressed at the hearing of the application for leave to appeal against conviction. The hearing on 21 July 2023 70. The hearing of the application for leave to appeal, further directions if required, and the hearing of the appeal, if leave was granted, took place on Friday 21 July 2023. As there had been a change of part of the constitution of the full court which had heard the ex parte hearing in January 2023 there was again another ex parte hearing between the court and the prosecution, on notice to Mr More’s legal team. There were then submissions on both sides but the court was unable to conclude the hearing on the day. Directions were given for the prosecution to disclose the underlying materials from the Operation Picking papers, redacted as necessary, which had given rise to the note dated 10 February 2023. The hearing on 31 July 2023 and the provision of unredacted copies of certain documents to the Court 71. In the interim Mr Stein on behalf of Mr More had been in contact with former leading counsel for Mr More. Former leading counsel for Mr More had set out his recollections of various matters relating to disclosure, including counsel’s understanding of the extent of the task undertaken by Mr Collison. 72. The disclosure of the materials underlying both the making of agreed fact 145 and the 2023 material was provided, although there were substantial redactions on the documents provided to both the Court and to Mr More’s legal team. There was a final hearing before the Court on 31 July 2023 at which submissions were made about those documents. 73. As noted above, shortly after the conclusion of the hearing on 31 July 2023 the court asked, on notice to the defence, to be provided by the disclosure officer with unredacted copies of those documents. This was done on 2 August 2023 and the court has seen unredacted copies of the documents. The Court directed disclosure of a few more lines of the redacted documents and gave Mr More’s legal team permission, if so advised, to put in further submissions. 74. In a note dated 9 August 2023, it was submitted on behalf of Mr More that there should be another hearing, that it was now apparent that the date of 14 May 2002 was not a typographical error, that, exceptionally, disclosure should be made of Mr More’s status, and it was now apparent that more facts should have been added to agreed fact 145. 75. In a note dated 10 August 2023, it was submitted on behalf of the prosecution that: there was no need for a further hearing; the date of 14 May 2002 was a typographical error; and that the prosecution’s previous submissions answered the points made on behalf of Mr More and that there was nothing material to add to agreed fact 145. The revised issues on the appeal 76. At the conclusion of the various hearings it is now apparent that the following matters are in issue: (1) whether the summing up was so unbalanced that the conviction was not fair; (2) whether there has been such an absence of integrity in the disclosure process that: special counsel ought to be appointed; so that the court can consider whether the appeal ought to be allowed on the basis of an abuse of process; and further directions are required (3) in any event, whether the late disclosure of agreed fact 145, and the disclosure of the 2023 material, mean that there was not a fair trial and the conviction is not safe. Summing up fair (revised issue one) 77. It was submitted on behalf of Mr More that the summing up was biased because: judicial comments were erroneously put forward as prosecution arguments; judicial comments were exclusively supportive of the prosecution case; facts that were agreed were presented as part of the prosecution case; arguments were wrongly attributed to the defence; and the summary of Mr More’s evidence was focused on evidence given in cross-examination. 78. It was submitted on behalf of the prosecution that the summing up was balanced and fair. In particular: the judge reminded the jury of numerous points made on Mr More’s behalf and was reminded of the answers given in examination-in-chief and cross-examination; the agreed facts were part of the prosecution case and the evidence and competing arguments were presented in a balanced manner; the comments by the judge were setting out the prosecution case; and the judge reminded the jury of important defence points. 79. The relevant principles to be considered when assessing the fairness of a summing up were common ground between the parties and are set out in R v Reynolds [2019] EWCA Crim 2145 ; [2020] 4 WLR 16 at paragraphs 50 to 70. It is not necessary to repeat them in this judgment. It is necessary to look at the summing up as a whole and to consider whether the respective cases have been put fairly on behalf of the prosecution and defence. 80. It is important to record that the judge directed the jury in standard terms that they were the ones who decided the facts, and no one else. Further he directed them before he started on his review of the evidence, as set out in paragraph 56 above: “I must be selective, and so I will not repeat all the evidence that you have heard”. He told them that if he mentioned or appeared to stress something which they thought to be unimportant, then they should ignore it because it was their decision as to what was important. 81. At the outset of the summing up the judge summarised the defence case saying “I will later summarise the defendant's explanation for involving himself with Wilson, Raven, Matthews and maybe others, and that explanation is that he was engaged in speculative covert surveillance to steal the cannabis plants and the equipment to set up a cannabis farm at the Great British Car Wash to film it, thereby exposing Wilson as a police informant and, of course, to make money by selling the film to a television company.” The judge fairly also summarised the evidence about this being an undercover film in the terms set out in paragraph 57 above. 82. We have been through the schedule of complaints but we do not consider that the criticisms of the judge’s approach are well-founded. For example, so far as the first complaint is concerned, the judge said “The prosecution case is that John Wilson engaged the defendant whom he knew to have investigative skills to find out where Brian Waters’ cannabis farm was”. The complaint about that is that it was “presenting facts that were uncontroversial and undisputed as the prosecution case. Creating the impression that all of the reliable evidence came from the prosecution”. The real difficulty with this complaint is that this is a fair and accurate summary of the prosecution case. The prosecution case went on to suggest that Mr More was a willing accomplice in the plan to steal Mr Waters’ cannabis plants and torture Mr Waters, but Mr More denied that. It is right that part of the defence case was that Mr More worked for Mr Wilson so that he could carry out his speculative covert surveillance, but the judge had already reminded the jury of that part of the defence case. 83. We note the complaint made by leading counsel for Mr More during a break in the summing up that the trial judge was dressing up his comments as comments made by the prosecution. Mr Power submitted that the judge was in fact setting out the prosecution case. We have looked through the materials and it is apparent that whilst the judge expressed the prosecution case in a way which did not appear to mirror the words used by the prosecution (looking at the opening note, wording of prosecution applications, and transcript of cross examination – we do not have a transcript of the prosecution closing speech), we cannot see that he was adding to the prosecution case when he was summarising it for the jury. 84. We can see nothing in the comments made by the judge that would make this conviction unsafe. The disclosure process (revised issue two) 85. The Criminal Procedure and Investigations Act 1996 (CPIA) governs issues of disclosure. The updated Attorney-General’s Guidelines on Disclosure at paragraph 121 provide that it is essential that principles are scrupulously adhered to, to ensure that the procedure for examination of material in the absence of the accused is compliant with article 6 of the European Convention on Human Rights (ECHR). Reference is also made to R v H and others [2004] UKHL 3 ; [2004] 2 AC 134 ( R v H ). 86. In R v H at paragraph 36 a number of questions are identified: “(1) What is the material which the prosecution seek to withhold? This must be considered by the court in detail. (2) Is the material such as may weaken the prosecution case or strengthen that of the defence? If No, disclosure should not be ordered. If Yes, full disclosure should (subject to (3), (4) and (5) below) be ordered. (3) Is there a real risk of serious prejudice to an important public interest (and, if so, what) if full disclosure of the material is ordered? If No, full disclosure should be ordered. (4) If the answer to (2) and (3) is Yes, can the defendant's interest be protected without disclosure or disclosure be ordered to an extent or in a way which will give adequate protection to the public interest in question and also afford adequate protection to the interests of the defence? This question requires the court to consider, with specific reference to the material which the prosecution seek to withhold and the facts of the case and the defence as disclosed, whether the prosecution should formally admit what the defence seek to establish or whether disclosure short of full disclosure may be ordered. This may be done in appropriate cases by the preparation of summaries or extracts of evidence, or the provision of documents in an edited or anonymised form, provided the documents supplied are in each instance approved by the judge. In appropriate cases the appointment of special counsel may be a necessary step to ensure that the contentions of the prosecution are tested and the interests of the defendant protected (see para 22 above). In cases of exceptional difficulty the court may require the appointment of special counsel to ensure a correct answer to questions (2) and (3) as well as (4). (5) Do the measures proposed in answer to (4) represent the minimum derogation necessary to protect the public interest in question? If No, the court should order such greater disclosure as will represent the minimum derogation from the golden rule of full disclosure. (6) If limited disclosure is ordered pursuant to (4) or (5), may the effect be to render the trial process, viewed as a whole, unfair to the defendant? If Yes, then fuller disclosure should be ordered even if this leads or may lead the prosecution to discontinue the proceedings so as to avoid having to make disclosure. (7) If the answer to (6) when first given is No, does that remain the correct answer as the trial unfolds, evidence is adduced and the defence advanced? It is important that the answer to (6) should not be treated as a final, once-and-for-all, answer but as a provisional answer which the court must keep under review.” 87. If there are issues of non-disclosure the Court will scrutinise any further materials with particular care to decide whether the defendant has had a fair trial and whether the conviction is unsafe, compare R v Knaggs [2018] EWCA Crim 1863 . 88. It is submitted on behalf of Mr More that the late disclosure of agreed fact 145 raises legitimate concerns about the integrity of the disclosure process. It should have been disclosed during the first trial. The fact that the Operation Picking material has not been scheduled proves a failed disclosure exercise. The evidence of a flawed disclosure process renders the conviction unsafe because there were failings to address the defence requests and the investigation occurred over 20 years and the evidence was complex and came from multiple sources. This heightened the need for a proper disclosure process. It was submitted that a thorough and extensive review of the sensitive unused material, the disclosure process (including the actions of the various law enforcement authorities concerned) and the content of the private hearings should be conducted by independent counsel to ensure that no further material falls to be disclosed. 89. The prosecution submit that the disclosure process was not flawed. Disclosure was an enormous task not helped by the fact that Mr More had escaped for over 16 years. Mr More’s defence was first expressed in a defence statement served shortly before the first trial and in response, DC Collison’s statement and exhibits were served. D2016 was properly disclosed during the first trial. No further disclosures were made because Mr More did not seek any further disclosure during that trial. The prosecution was therefore entitled to conclude that in light of the lack of requests for further disclosure, the defence had decided against pursuing that line of enquiry. When Mr More eventually raised concerns at the retrial, the matter was further investigated and further material disclosed. 90. We agree that the late disclosure of agreed fact 145 does cause concern about the integrity of the disclosure process in this case, which is serious both for Mr Waters’ family and for Mr More. This is why we granted leave to appeal against conviction. As is apparent from the matters set out above this Court has attempted to undertake its duties to scrutinise the process of disclosure very seriously. At the end of the first ex parte hearing on notice, the Court directed the prosecution reviewing lawyer to review the whole of the Operation Picking papers. This led to the disclosure of the 2023 material. The Court has in later hearings directed the Court to disclose the materials underlying agreed fact 145 and the 2023 material, and, after the Court was provided with the unredacted materials, the Court has directed the prosecution to provide further unredacted parts of those materials. We have had the benefit of the notes prepared on behalf of Mr More and the prosecution following that further disclosure. We have considered carefully whether, exceptionally, it was necessary to instruct special counsel to conduct a review of the materials, but we have concluded that it was not necessary to do so. This is in the light of all the information which the Court has seen and in the light of what we have been told. We understand why it was submitted on behalf of Mr More that there should be a further hearing. This is because Mr More’s legal team have not seen all of the materials that this Court have seen. This is one of the weaknesses with a procedure, necessary though it is in order to preserve the policy of neither confirming nor denying a person’s status as an informant, where the defence will not see all that is seen by the prosecution or Court. However, in the light of all that this Court has seen and been told, we do not consider that it is necessary to have a further hearing in order to do justice, and be seen to do justice. There have been open hearings for directions, and the hearing of the applications for leave to appeal against conviction, and if leave is granted, the appeal itself, on 21 and 31 July 2023. There is nothing further, on the basis of what this Court has seen and been told, which can take this appeal against conviction any further at a future hearing. 91. It is fair to the prosecution to record that the focus of the earlier requests for disclosure appeared to be directed to finding out whether Mr Wilson was, in fact, a police informant and the effect of some of the submissions to this Court have been that this court ought to order disclosure of Mr Wilson’s status. The trial judge, however, identified that the real issue at the trial was not Mr Wilson’s status but Mr More’s belief in Mr Wilson’s status. We agree with the trial judge that was the relevant issue for Mr More’s defence. This is because Mr More’s belief was relevant to his defence that he was acting as an undercover reporter so that he might be able to make a programme about rogue police informants, and because he was less likely to become involved in torturing a person if he knew that Mr Wilson was a police informant, and because it might have been relevant to Mr More’s reaction if Mr Wilson had threatened him in a phone call. 92. In this case, and notwithstanding the late disclosure of agreed fact 145 and the disclosure of the 2023 materials and documents on which it was based, the prosecution resist disclosing the fact whether Mr Wilson was an informant, in order to preserve the principled approach taken by public authorities not to confirm or deny such matters. The ex parte on notice hearings have been held in order to preserve that approach of not confirming nor denying whether Mr Wilson was an informant. We confirm, in the light of all that we have seen and read and having undertaken a careful scrutiny of the matters to which our attention has been directed by the prosecution in ex parte on notice hearings, that we do not direct the disclosure of the information about whether Mr Wilson was, or was not, an informant. We have not directed this disclosure because: the issue was whether Mr More believed him to be an informer on the basis of what Mr Deaffearn had told him and the NCIS papers that he had seen, and not whether he was in fact an informant; and because disclosure of the information about whether Mr Wilson was an informant would not weaken the prosecution case or strengthen the case for the defence in this case. 93. We have considered whether the failure to schedule the Operation Picking materials undermines the disclosure process, but we do not consider it to do so for three reasons. First given that Operation Picking related to the attempts to recover the stolen NCIS material it was reasonable at first to assume that it was unlikely to be a source of relevant materials. That said we agree that when it became clear that the stolen NCIS material formed part of the Operation Picking papers, which it should have done from the time of service of D2016, the Operation Picking papers should have been reviewed for relevance. Secondly, once the prosecution had finally and belatedly appreciated that the Operation Picking material might be relevant, a review was undertaken which led to the making of agreed fact 145, although it is right to record that that review did not lead to the discovery of the 2023 material. Thirdly the absence of a schedule and the absence of the directions given to the reviewing officers was considered by the Court when directing a review of the Operation Picking material to be undertaken by the prosecution reviewing lawyer, which was what led to the disclosure of the 2023 material. We will consider the effect of the late disclosure of agreed fact 145 and the 2023 material under revised issue three. 94. We have also considered whether there was any deliberate misleading of the defence about the scope of the disclosure undertaken by Mr Collison, because if so it might form the basis for an application to stay proceedings as an abuse of process, as any deliberate attempt to mislead a defendant in a criminal trial would affect the fairness of a trial. In his statement Mr Collison did say “following a request from CPS, I reviewed the paperwork from Operation Picking which included the original hard-back lined writing book containing sensitive information and the numerous sheets of A4 paper containing sensitive National Crime Squad information … the purpose of my review was to identify any entries in the aforementioned paperwork where the name `John Wilson’ or `John Godfrey Wilson’ was mentioned.” As Mr Stein pointed out this could be read as suggesting that Mr Collison had reviewed all of the Operation Picking materials. The prosecution say that it meant that Mr Collison reviewed only DI Phoenix’s writing book and numerous sheets of A4 paper which were located in the Operating Picking papers. 95. In this case, it is apparent from the summing up, that the judge had understood Mr Collison to be saying that he had examined DI Phoenix’s book and the looseleaf A4 papers to see if there were any references to Mr Wilson, and not that Mr Collison had examined the whole of the Operation Picking papers to see if there were any references to Mr Wilson. The judge said Mr Collison “examined the notebook to see if there were any references to John Wilson. He found 14 such pages which he copied in a redacted form, blocking out material which does not relate to Wilson or related to material names and tactics which are still sensitive”. We well understand from the way in which Mr Collison’s statement is phrased why it was understood by Mr More’s legal team to mean that Mr Collison had examined the whole of the Operation Picking papers to see if there were references to Mr Wilson. In our judgment fairly read, Mr Collison’s statement and evidence could be understood, in context, both as understood by the defence and as understood by the prosecution. There is no basis for finding, on the material that we have seen, that the prosecution deliberately attempted to mislead Mr More’s legal team about the scope of the exercise undertaken by Mr Collison. It is right that the defence’s understanding may have contributed to the late disclosure of agreed fact 145, because the defence may otherwise have asked for a full review of the Operation Picking papers, but this does not answer the point about the effect of the late disclosure of agreed fact 145 on the fairness of the trial. This is addressed under revised issue three. 96. We have also considered whether Mr Collison went, as suggested in submissions, “too far” in his evidence by suggesting that Mr Wilson was not an informant and, as the judge noted, undermining the approach of neither confirming nor denying Mr Wilson’s status. This issue was dealt with by the trial judge, and we can see no failure in the trial judge’s approach to the matter. In any event we can confirm that, in the circumstances of this case, there was nothing in Mr Collison’s evidence which rendered Mr More’s conviction unsafe. 97. We agree, that on all that we have seen and been told, there is no further information to disclose which will undermine the prosecution case or support the defence case, and that there is no need for further directions on disclosure before this appeal is determined. Late disclosure of agreed fact 145 and the 2023 materials (revised issue three) 98. Mr Stein submitted that the late disclosure of agreed fact 145 could not undo the prejudice caused by evidence called by the Crown on the topic of whether Mr Wilson was an informant. It could not repair the suggestions made in cross-examination that Mr More was lying. The failure to disclose the agreed fact prior to Mr More’s cross-examination resulted in him being cross-examined unfairly. The prosecution cross-examined him on the basis that he was lying about believing that Mr Wilson was an informant when agreed fact 145 was entirely consistent with Mr More’s evidence that he believed Mr Wilson was an informant. 99. Mr Power submitted that the issue in the case was whether Mr More believed Mr Wilson was an informant on the evidence available to him. That evidence was very thin and it was perfectly proper to suggest that he was lying about this belief. In any event, it was made clear to the jury that Mr More did not know about agreed fact 145 when he gave evidence. 100. Some of the submissions on behalf of the prosecution went so far as to suggest that what was being reported by Mr Wilson about what the criminal fraternity believed about him after the circulation of the stolen NCIS papers was irrelevant because Mr More did not say that he had spoken to Mr Wilson about whether he was or was not an informant, and because what others believed in the criminal fraternity about the NCIS papers was irrelevant to Mr More’s belief. We do not accept these submissions. This is because Mr More was entitled to rely on the fact that it appears that members of the criminal fraternity had read the NCIS papers and concluded that Mr More was a police informant, as supporting what Mr More said was his own reading of the NCIS material. 101. We have considered whether the fairness of the trial was undermined by the prosecution cross examining Mr More on the basis that his belief that Mr Wilson was a police informant was false. We consider that the prosecution was entitled to cross examine Mr More on this basis, even in the light of agreed fact 145. This is because Mr More asserted that he believed Mr Wilson to be an informer based on what Mr Deaffearn had told him and Mr More’s recollection of what he had read in the NCIS papers that he had seen. This was a proposition that the prosecution strongly disputed because Mr More said he had relied on the NCIS material to form that belief and the prosecution submitted that the NCIS material did not support that belief and they relied on Mr Collison’s evidence about the NCIS material for that proposition. The fact that it appears from agreed fact 145 that Mr Wilson said that after the circulation of the stolen NCIS material amongst the criminal fraternity some people regarded him as a police informant does not mean that Mr More had himself genuinely formed that belief. Further the prosecution was entitled to rely on some evidence showing that Mr More was still with those accomplices later convicted of carrying out the torture and murder after the killing, meaning that Mr More’s claim that Mr Wilson had discovered Mr More’s plan to make a programme exposing him as a rogue police informant and told him to leave the farm before any killing took place was false, undermining Mr More’s case that he believed Mr Wilson to be a police informant. In any event, when Mr Wilson had been arrested, prosecuted, convicted and sentenced to life for the murder of Mr Waters with a minimum term of 24 years, the prosecution was entitled to say it was safe for Mr More to return to the UK if Mr More had genuinely had nothing to do with the murder, genuinely believed Mr Wilson to be a rogue police informant, and had really been planning to make an undercover film. Instead, even after Mr More had been finally located in Malta, Mr More had lied about his true identity to a Court in an attempt to avoid extradition. In these circumstances the prosecution were entitled to cross examine on the basis that it was not safe to rely on anything that Mr More said. 102. Further we do not consider that the timing of agreed fact 145, which was after the conclusion of Mr More’s cross examination, meant that the conviction was unsafe. Mr More did not say that he had ever discussed with Mr Wilson what members of the criminal fraternity believed about him after the circulation of the stolen NCIS material and Mr More was not in a position to give evidence himself about the unnamed members of the criminal fraternity. There was no application to recall Mr More to give evidence in the light of agreed fact 145, and we cannot see a basis on which such an application would have been made. There was no application to discharge the jury, and the timing of the disclosure of agreed fact 145 enabled leading counsel for Mr More to read the agreed fact to the jury and, as is apparent from the terms of the summing up, to make very considerable and proper use of the material to say that it supported Mr More’s evidence about his belief that Mr Wilson was a police informant having read the stolen NCIS material. It is no doubt right that, if agreed fact 145 had been disclosed before as it should have been, it would have been referred to at other parts of the trial on behalf of Mr More. That said the critical point is that it was adduced in evidence and it was adduced before speeches and the summing up and the jury were able to consider their verdicts in the light of agreed fact 145. 103. We now turn to consider whether the 2023 material, either in the note or in the underlying materials, would have added anything to agreed fact 145. Agreed fact 145 is set out at paragraph 54 above, and the 2023 material is set out at paragraph 65 above. Mr Stein suggested that the 2023 material showed that there were more than one meeting between Mr Wilson and the police after his shooting, which might support the proposition that he was, in fact, a police informer. There was, in fact, material showing that Mr Wilson had met the police on at least two occasions after the shooting before the jury (being agreed fact 145 and the time at which he made his statement to the police) but, as the trial judge had rightly held, the issue was whether Mr More believed Mr Wilson to be an informant and not his status. As we have confirmed on the basis of everything that we have read and been told there is nothing further to disclose which would weaken the prosecution case or strengthen the case for Mr More. 104. Mr Stein submitted that, following the disclosure of the 2023 material, the documents underlying agreed fact 145 and the 2023 material, and the further unredacted lines, there was some further material which it is now known should be added to agreed fact 145. We can confirm that on the basis of all that we have seen and been told, the prosecution would have been right to resist any further addition to agreed fact 145 to suggest that the date of 14 May 2002 was the date on which the police decided to warn Mr Wilson about risks to his life following the theft of the NCIS material. We can also confirm on the basis that we have seen and been told that Mr Wilson did not have a meeting with the police in November 2001. There was evidence at trial that Mr Wilson was the subject of police operations. 105. We do not consider that the disclosure of the 2023 material or the documents underlying the 2023 material, would have made any material difference to the trial. It was common ground before us that the only way such material realistically could have been adduced in evidence was by way of agreed fact. This was because we were told that Mr Wilson was at the time of the trial, and is now still, serving his prison sentence and that neither prosecution nor defence would have been willing to call him as a witness. When one tries to identify what agreed fact might be produced on the basis of the 2023 material it is apparent that it would have added nothing to agreed fact 145, which was before the jury. We are therefore sure that the late disclosure of agreed fact 145 at trial, and the late disclosure of the 2023 material, did not make Mr More’s convictions unsafe. Conclusion 106. For the detailed reasons set out above we: grant Mr More leave to appeal against his convictions for murder and conspiracy to cause grievous bodily harm; we find that the summing up was fair; we do not direct the appointment of special counsel or make any further directions relating to disclosure; and we find that the late disclosure of agreed fact 145 at trial, and the late disclosure of the 2023 material, does not make Mr More’s convictions unsafe; and we dismiss Mr More’s appeal against his convictions.	```yaml citation: '[2023] EWCA Crim 1005' date: '2023-09-01' judges: - LORD JUSTICE DINGEMANS ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	Neutral Citation Number: [2014] EWCA Crim 1228 Case No: 2014000945/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 4th June 2014 B e f o r e : LORD JUSTICE McCOMBE MR JUSTICE NICOL RECORDER OF LIVERPOOL (HIS HONOUR JUDGE GOLDSTONE QC) (Sitting as a Judge of CACD) ---------------------- R E G I N A v PETER BERGIN ---------------------- 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 K Green appeared on behalf of the Appellant ---------------------- J U D G M E N T 1. RECORDER OF LIVERPOOL: The appellant, who is aged 55 years, appeals by leave of the single judge against sentences totalling 3 years' imprisonment, imposed in the Crown Court at Bradford by the Honorary Recorder on 27th January 2014, following his earlier pleas of guilty at the plea and case management hearing to two related offences, one of producing a controlled drug of Class B, that is cannabis, and the other of possession of cannabis with intent to supply. 2. The facts of the offences can be stated shortly. On 22nd June 2013 the appellant's neighbours, one of whom was pregnant, reported a strong smell of cannabis from the appellant's home to the police. The neighbours had previously complained directly to the appellant. That complaint had fallen on deaf ears. When the police attended they found in a bedroom a total of 90 cannabis plants whose potential yield when harvested was 3.78 kilograms, with a street value of in excess of £30,000. This was high quality skunk cannabis. 3. The appellant had installed a thermal tent and lighting to aid his production but there was no proper extraction or ventilation facility. That is the background to count 1. In addition in the kitchen the police found five bags, each containing 1 ounce of cannabis and also scales and two mobile telephones from one of which were retrieved eight messages in relation to the appellant's dealing, hence count 2. When the appellant was interviewed by the police, he said that this was his first growth and it was all for personal use. The incriminating texts related, he said, to the sale of sweets not drugs. In due course the appellant pleaded guilty at the plea and case management hearing not, it should be emphasised, at the preliminary hearing. The written basis of his plea was wholly unrealistic. Although it was initially accepted by the prosecution, the Honorary Recorder quite rightly, in our view, was critical of the stance taken by the Crown Prosecution Service and required an opening to justify that stance. Wiser heads prevailed. Further evidence was obtained by way of photographs and clarification and a Newton hearing would have taken place had not the appellant sensibly abandoned his original basis in advance of the date fixed for sentence. Thus the court was able to proceed to sentence on the basis that the appellant was producing cannabis for largely, though not exclusively, commercial purposes and was willing and able to deal at both street level and, as one of the texts made clear, in quantities of up to 4 ounces at a time. The significance of count 2, in relation to the appellant's overall criminality was that it, together with six stalks which had already been harvested, gave the lie to the appellant's original assertion that count 1 represented his first crop. 4. It was accepted before the Honorary Recorder and before us that the learned Recorder was entitled to treat the appellant as playing a significant role and that the quantities concerned meant that count 1 fell within level 2 and count 2 fell within level 3. For our part we do not think there was a useful purpose to be served by categorising count 2 in this way, having regard to the appellant's overall criminality and the importance of passing a sentence to reflect that. Likewise, the fact that there may have been a proportion of the cannabis cultivated for the appellant's personal use in no way, in our judgment, having regard to the overall size of the anticipated crop, would have warranted the treatment of the appellant in any different a category either as to role or as to level. Thus it was that the range within the Sentencing Guidelines on count 1 was two-and-a-half to 5 years, with a starting point of 4 years and on count 2 the range was 26 weeks to 3 years with a starting point of 12 months. 5. By way of personal mitigation reliance was placed by Mr Green, as he has done before us today, on the following matters. First, the absence of any significant criminal record. Such convictions as the appellant has are from very long ago and in no way aggravate his current plight. Consequently this will be his first sentence of imprisonment. Secondly, the appellant was suffering from ischaemic heart disease and chronic obstruction pulmonary disease. Thirdly, he had difficulty in coming to terms with the death of his parents who had died 3 and 6 years ago. He was, by the time of the hearing, determined to address his addiction to cannabis which had been exacerbated by the depression which he had felt following the death of his parents. 6. As far as the offences were concerned, it was submitted that this was not a wholly commercial enterprise nor was it sophisticated. We have already noted and accept the absence of any proper or effective ventilation system. We accept, as we are sure the sentencing judge did, that some at least of the cannabis was for his own use. But one has to be realistic, when one is looking at an overall crop of the size which was the potential harvest in this case; the likelihood of anything more than a modest quantity of the cannabis being for his own personal use is something which must have been borne in mind by the sentencing judge and is certainly the basis upon which this court has proceeded because cannabis has a life and one cannot, however bad or debilitating one's habit may be, pretend to use anything other than a very modest proportion of a crop of the size with which this case was concerned. 7. Against that background, the timing of the appellant's plea and the initial basis of that plea the Honorary Recorder imposed a total sentence of 3 years' imprisonment, in fact the sentences were 3 years and 1 year imprisonment to run concurrently. 8. Mr Green has advanced before us a number of grounds in relation to the starting point and the failure of the judge to reflect, in fixing it, the mitigation identified above. It was submitted in his grounds that the credit to which the appellant was entitled for his plea was wrongly adjusted because the initial basis of plea which was rejected by the prosecution and ultimately abandoned by the appellant was so fatuous. Before us, it has been accepted by Mr Green that the Honorary Recorder had discretion to treat the basis of plea in the way in which he did but it is a point which nevertheless merits some consideration. 9. Unfortunately, we are not assisted, in the judge's approach to sentencing, as to the starting point which he took or the percentage by which the sentence was reduced to reflect the appellant's guilty plea. So we are left in the slightly unsatisfactory, regrettably not uncommon, position of having to second guess the judge's thought process. We think that in this case, having regard to the guidelines and the appellant's overall criminality, yet balancing the personal mitigation available to the appellant, a starting point of 4 years following conviction would have been appropriate and was in the judge's mind. By what extent did the judge reduce or might the judge have reduced sentence to reflect the appellant's guilty plea, its timing and its circumstances? 10. We observe this was not a plea entered at the earliest opportunity and is one to which no more than 25% would be appropriate. We pause to observe that a discount of 25% from a starting point of 4 years produces a sentence of 3 years. As our task is to interfere with a sentence only if it is manifestly excessive or wrong in principle, that simple arithmetical exercise might be thought sufficient to dispose of this appeal. In deference to Mr Green's submissions, we have considered his argument to the effect that the appellant did not receive due credit. He relied in his skeleton argument on the case of R v Gunning [2013] EWCA Crim 179 , in which the appellant had availed himself of the Early Guilty Plea Scheme in force at the Merthyr Crown Court; he offered to plead guilty on a basis which was rejected but which had been abandoned by the time of his first appearance, whereupon he pleaded guilty and was sentenced on the same day. As Holroyde J pointed in the course of his judgment, the appellant in that case had done all that was required of him under the provisions of the Early Guilty Plea Scheme in operation at that court. The case fell within the principles laid down by the Vice-President in R v Caley & Ors [2012] EWCA Crim 821 and there was no justification for reducing credit below the level of a third. 11. In this case the situation was different but sadly one which is all too prevalent in the Crown Court . The appellant pleaded guilty at the plea and case management hearing on a basis which the prosecution were prepared to accept but which the judge regarded as wholly unrealistic. When the prosecution got its act together and realised the error of its ways and served further evidence the appellant abandoned his previously untruthful, untenable and unrealistic approach and was duly sentenced on a full facts basis. 12. Whilst every case turns on its facts, we think that the appellant was entitled to the credit which a guilty plea at the plea and case management hearing would normally have attracted. It was the prosecution's approach to the plea which was to blame for the situation which had arisen. If, when the judge had complained about the basis of plea, the prosecution had then conceded the point and acknowledged that it was unrealistic, the appellant's plea on that basis, even though it was ultimately abandoned, may well have justified a further modest diminution in the credit to which he was entitled, to reflect the wasted time and costs in obtaining and serving further evidence. But here, as in Gunning , there was little more that the appellant could be expected to do other than to plead guilty on the basis which the Crown Prosecution Service, albeit wrongly, regarded as acceptable. 13. We cannot overemphasise how important it is for the Crown Prosecution Service or other prosecuting authority to consider with care and in accordance with its public duty proposed bases of plea in all cases, whether or not they are realistic and whether or not they can properly form a basis for sentence. It is the experience of this court that this problem arises particularly and most frequently in cannabis production cases where the "personal use" basis often ignores the reality of the situation. Once it is rejected, the basis of plea is frequently abandoned and, if not, a Newton hearing, which will frequently involve evidence only from the producer to give his explanation can and should take place there and then without the need for an adjournment. 14. Returning to the facts of this case, it may be that the learned Recorder gave less than the 25% credit to which the appellant was entitled. If he did, he took a starting point correspondingly lower than the 4 years from which we believe that he should have started. 15. Either way, a total sentence of 3 years' imprisonment for this appellant's level of criminality, even taking into account his personal mitigation, cannot in our judgment be regarded as manifestly excessive or wrong in principle. With respect and deference to the submissions of Mr Green, this appeal is dismissed.	```yaml citation: '[2014] EWCA Crim 1228' date: '2014-06-04' judges: - LORD JUSTICE McCOMBE - MR JUSTICE NICOL ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	Neutral Citation Number: [2008] EWCA Crim 3223 No: 2008/5696/A4 and 2008/5698/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 18th December 2008 B E F O R E: LORD JUSTICE LATHAM MRS JUSTICE RAFFERTY DBE MR JUSTICE ANDREW SMITH - - - - - - - - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NOs 62 and 63 OF 2008 R E G I N A -v- DANIEL ALAN VALENTINE DAMIEN PAUL JACKSON - - - - - - - - - - - - - - - - - - - - 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 A Darbishire appeared on behalf of the Attorney-General Mr G Pons appeared on behalf of the Offender Valentine Mr BR Narain appeared on behalf of the Offender Jackson - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE LATHAM: This is an application by the Attorney-General for leave to refer to this court sentences on these two offenders on the grounds that they were unduly lenient. 2. We give leave. 3. The first offender is Daniel Valentine, who is 28 years of age. The second is Damien Jackson, who is 22 years of age. 4. On 15th August 2008 Valentine pleaded guilty to six offences of robbery, one offence of attempted robbery and an associated offence of taking a motor vehicle without authority. An additional offence of robbery was taken into consideration. On 1st October 2008 he was sentenced to a total term of imprisonment of 3 years and one month. 5. Jackson pleaded guilty on the same date to four counts of robbery, one count of attempted robbery and two counts of taking a motor vehicle without consent. He was subsequently sentenced to a total term of imprisonment of 18 months. He has in fact now been released on licence. 6. The facts have to be stated in a little detail in order to understand the conclusion to which we have come. The first offence in point of time occurred on 16th December 2007, when Valentine entered the Co-op store in High Wycombe, in the first instance simply it would appear to see whether or not it would be easy for him to rob the store, because he left and then came back, having changed part of his clothing and disguised his face with a scarf. He jumped over the counter, telling the female shop assistant to open the till. She was so frightened that she was simply unable to open the till because she was panicking and in shock. It is right to say that Valentine told her that he would not hurt her. He opened the till himself by scanning a packet of cigarettes and took £550 in cash. As he left he said "Merry Christmas". 7. The next robbery in point of time occurred some six days later, on 22nd December 2007. This was the offence which Valentine asked to be taken into consideration. On this occasion Valentine was accompanied by a second man. There were two assistants working in the store at the time, a male assistant and a female assistant. The male assistant was subject to some violence during the course of the robbery, although it is right to say that it was not at the hands of Valentine. Both the male assistant and the female assistant were terrified, and indeed the male assistant protected her by pulling her into his arms. The male assistant was then forced by his fear to open the tills, and £1,170 in cash and some cigarettes were taken. 8. The next offence in point of time was 5th January 2008. On this occasion Valentine was accompanied by three co-offenders. They entered the Co-op in London Road Wokingham, again seeking to disguise themselves with scarves covering their faces. Two of the men jumped over the counter and demanded that the male sales assistant open the tills. One of the group threatened to hit and kill the staff if they did not co-operate. An assistant opened the tills, and one of the robbers filled the notes into a plastic Co-op bag. They then took a large quantity of cigarettes. The total in cash was £840. The cigarettes were valued at £2,800. 9. The next robbery involved the offender Jackson, who on the evening of 7th January 2008, with one other man, entered the One Stop shop in Hedge End, Hampshire. Both had their faces covered. They approached the two cashiers, saying, "Give us all your money", "open the till and give us your fucking money." They climbed over the counter. The assistants opened the tills and £1,100 in cash was taken. The assistants, not surprisingly, described feeling intimidated. This was another occasion when one of the robbers said "Merry Christmas" as they left. It was clearly a frightening incident for those in the store; and one female assistant was terrified that they may come back and felt that when making the call to the police she should hide in order to do so, even though they had left the store by then. 10. The next offences in point of time occurred in Southampton on 11th January 2008. Valentine and Jackson were together. They had possession of a stolen vehicle, which was the subject of the charge of taking a motor vehicle, and used it to go, first, to a Co-op store at Midanbury in Southampton. Two female assistants were in the shop. The two offenders, together with another man, had their faces covered with scarves and shouted at the two assistants to "open the fucking till". Although no verbal threats beyond this were made, she was very frightened by their aggression and the noise that they made. The other assistant in fact refused to open her till. But despite that the offenders were able to open it and escaped with £340. 11. Later on, the same three men went to the Co-op store in Wodehouse Road in Southampton, and there demanded that the female assistant behind the counter open the tills. She was unable to do so, was shocked and frightened and felt threatened and intimidated. They did not seek to open the till on that occasion. They simply seized cigarettes to the value of £760, before running out of the store, pushing a female customer out of the way as she tried to stop them leaving. 12. Then on the evening of 20th January 2008, the first offender, that is Valentine, who at that stage had his arm in a sling following a road accident, went into the Co-op store in Steventon in Oxfordshire. He made a purchase and clearly, having realised that there was nobody apart from the assistant in the store, phoned, it transpired Jackson, who arrived, together with another man, shortly thereafter. All these then demanded that the female store manager open the tills. She refused to do so. She was threatened; and it is thought that the first offender, that is Valentine, realised that they were going to get nowhere and persuaded them all to leave, which they did. 13. Then the same day the same tactic was used when Valentine went into the Co-op store in Wootton, Oxfordshire by himself and made a purchase, before telephoning Jackson. Then Jackson and another man entered, again with their faces largely covered. They demanded money, jumping over the counter saying, "Open the till now ... open the fucking till now, or I'll have you." The store supervisor was not surprisingly terrified. The till was opened and £281 in cash was grabbed. A member of the public tried to intervene; and he was attacked by Jackson and the third man. 14. About ten minutes later it would appear that Valentine appreciated that the police were coming to the scene and phoned up Jackson, who had gone to a public house not far away. Jackson was arrested at the public house and was found to have been driving a Ford Ka, which had been stolen previously. That constituted the second of the offences related to motor vehicles to which Jackson pleaded guilty. 15. It is right to say that, apart from a small possible cut to a member of the public, there is no evidence that anybody was physically hurt. There were no victim impact statements as such before the court, but a number of the witness statements described the shock and fright created by the way in which these robberies took place. 16. Neither offender made any comment in their interviews after arrest. 17. Counsel on behalf of the Attorney-General submits, in relation to both these offenders, that this was a campaign of robberies targeted against small businesses. It would appear in most cases that the store was staffed simply by either a female or two female assistants, who did not have significant security. It can be seen from what we have said that it would appear that on a number of occasions the scene of the robbery was visited by one or other in order to determine whether or not it was a suitable place to rob. They were obviously planned and on each occasion there was at least an attempt at disguise. 18. As far as Valentine is concerned, he has a bad record, including a number of offences of dishonesty. Indeed, he was on licence after release from serving a 3-year prison sentence at the time of committing the offences. 19. As far as Jackson is concerned, he did not have such a significant record of previous convictions. However, there were three previous convictions, the last one when he was 16 years of age. 20. It is submitted on behalf of the Attorney-General that, quite simply, where there have been a significant number of robberies of this nature, a sentence of 3 years' imprisonment -- which is what was imposed on Valentine for the robberies and attempted robbery — does not meet the justice of the case. We have been referred to the Sentencing Guidelines Council Definitive Guideline on Robbery. We note that for a single offence of robbery involving a robbery of a small business, where there is the threat of force or use of minimal force, the sentencing range is up to 3 years in custody. 21. In determining the extent to which these sentences on these two offenders are in the circumstances unduly lenient, we take into account not only the aggravating features and the Definitive Guideline to which we have referred, but also the fact that, as we have indicated, each of these offenders pleaded guilty and were treated as pleading guilty on the earliest possible occasion; they are accordingly entitled to credit for that. 22. As far as Valentine is concerned, despite his bad record, there was clear evidence that he had sought assistance during his period on remand and had been taking an Enhanced Thinking Skills course, and was reported as having obtained substantial benefit from that course which it is said bodes well for the future. As far as he was concerned, the Recorder was accordingly entitled to take the view, which he did, that there was hope for the future which enabled him to reduce the sentence which he would otherwise have imposed. 23. As far as Jackson is concerned, his relative youth was prayed in aid before the Recorder and before us, as was the fact that he has suffered from mental illness. Indeed, it may be that he was suffering from mental illness at the time of the offences, in the sense that he was depressed and failing to take appropriate medication. 24. Jackson has now been released from custody and we have two reports on his progress since then. They do not speak with one voice, but they do indicate that he has attempted to help himself in the period that he was in custody. Accordingly, it is submitted that the Recorder was entitled to take, as the Recorder again acknowledged he was taking, a lenient course in his case. 25. This court has repeatedly said that leniency in itself is not something which this court can or should discourage in appropriate cases. However, we have to stand back and look at what was involved in this case. As counsel on behalf of the Attorney-General has said, this was a campaign of robbery, undoubtedly targeting vulnerable shops, albeit without the use of weapons. But young men like these two young men and those with them can instil sufficient fear without any need for weapons to enable them to achieve their objective in a way which terrifies those who are the subject of the robberies. The courts need to protect vulnerable shops such as these. 26. Even though in the case of Valentine we acknowledge that there was material here which indicated that the offender was taking seriously the courses that he was undertaking in the hope that he may better himself hereafter, the fact is that, for the number of robberies in question, 3 years' imprisonment was quite simply inadequate. Even giving full credit for a plea, the only proper sentence in his case is one of 6 years' imprisonment and that is the sentence that we impose. We do so on each of the robbery counts to be served concurrently. As far as the taking and driving away offence is concerned, that will be served concurrently. So the total sentence will be 6 years' imprisonment. 27. As far as the offender Jackson is concerned, we indicated at the outset that we considered that the appropriate sentence in his case was one of 4 years' imprisonment, giving him credit for his plea of guilty. It seems to us that in all the circumstances, particularly bearing in mind the fact that he has been out of prison now for a short time, therefore having to be returned to prison carries with it an added element of punishment, and taking into account the reports that we have of his progress both in prison and since he was released from prison, the appropriate sentence is in total one of 3 years and 6 months. That sentence will be imposed in respect of each of the offences of robbery and will be served concurrently with each other, and the sentences imposed in relation to the taking and driving away will remain but will also be served concurrently. 28. We in Valentine's case take into consideration, as did the Recorder, the offence of robbery which he asked to have taken into consideration at his trial. 29. Those are the orders that we make. 30. Mr Darbishire? 31. MR DARBISHIRE: My Lord, in relation to the second offender, Mr Jackson, the trial judge made an order that the time spent on remand should be counted against his sentence: 162 days. 32. LORD JUSTICE LATHAM: We make the same order under section 240. 33. MR DARBISHIRE: My Lord, I hope this is a lawful order for the court to make. Mr Jackson is at liberty -- 34. LORD JUSTICE LATHAM: Yes. 35. MR DARBISHIRE: -- so he will have to surrender from a day to be pointed. 36. LORD JUSTICE LATHAM: Yes. 37. MR DARBISHIRE: No doubt my learned friend will address you upon that. Would my Lord indicate that the balance of the sentence should take effect from his surrender? 38. LORD JUSTICE LATHAM: Yes. 39. THE ASSOCIATE: My Lord, the nearest police station to his address Southampton Central police station, 12 o'clock noon tomorrow? 40. LORD JUSTICE LATHAM: That would be the usual order. Subject, Mr Narain, to anything you say, we order that he surrender himself to Southampton Central police station at 12 o'clock tomorrow. 41. MR NARAIN: My Lord, I am not sure there is anything I can say. 42. LORD JUSTICE LATHAM: Thank you very much. We do so and on that basis we direct that the recommencement of service of the sentence will be from the time of his surrender to the police station. 43. Yes, Mr Pons? 44. MR PONS: Can I make one point, that does not ( inaudible ). It is simply this. In reading out the facts, you omitted mention of count 3, the Didcot robbery, which took place on 27th December. It appears in the first and the second draft of the reference, but does not appear in the final one. The only reason I raise it is that plainly in going through the facts the record should reflect everything that he pleaded guilty to. 45. LORD JUSTICE LATHAM: Absolutely. 46. MR PONS: It should be read into the record at some stage. 47. LORD JUSTICE LATHAM: We will deal with that. I will make sure that I keep the papers for the purpose of dealing with the transcript. 48. Yes, thank you very much.	```yaml citation: '[2008] EWCA Crim 3223' date: '2008-12-18' judges: - LORD JUSTICE LATHAM - 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} ======	Neutral Citation Number: [2017] EWCA Crim 1487 Case No: 2016 04319 C4 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT NORWICH HH Judge Dennis QC T2015 7152 and T2016 7017 Royal Courts of Justice Strand, London, WC2A 2LL Date: 9.10.2017 LORD JUSTICE SIMON MR JUSTICE HOLGATE and SIR KENNETH PARKER (sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R Appellant v The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms Juliet Donovan for the Appellant Mr Duncan O’Donnell for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment Approved Lord Justice Simon: 1. We make an order under ss. 45 and 45A of the Youth Justice and Criminal Evidence Act 1999 , that no report may be published which is likely to lead to the child KH being identified. 2. This is an appeal against conviction relating to the Jury’s consideration of transcripts of ABE interviews. The appellant was convicted of a number of sexual offences at Norwich Crown Court on 31 August 2016: count 1, rape of a child under 13; count 2, sexual activity with a child; count 3, a further count of sexual activity with a child; counts 4 and 5, taking indecent images of a child; and count 6, making indecent images of a child. 3. On 7 September 2016, he was sentenced to a substantial term of imprisonment in respect of these offences, with various consequential and ancillary orders. 4. The appellant lived with his partner, at an address in Mileham, Norfolk, and was the step-father of her children, one of whom was the complainant, KH (born in February 2000). 5. On 24 April 2014 police went to the family home on a suspicion that indecent images of children had been viewed on a computer there. A Toshiba laptop computer and a Blackberry mobile phone were seized. 6. A subsequent examination revealed that the laptop had been used on many occasions to search for child pornography, and five indecent images of children were found on the device (count 6). The images had been downloaded on 15 November 2013 at a time when the appellant’s partner was at work and her two children were recorded as being at school. 7. Shortly after the appellant was interviewed, the police conducted an interview with KH. 8. In this first interview (conducted in two stages on 28 April 2014), she said that she was responsible for some of the indecent images and internet searches. She said that she had done this as a reaction to previous sexual abuse by her biological father, GB, at a time when she had been around eight. She said that he would make her masturbate him while lying next to her, and would masturbate himself in her presence. She said that the abuse ended when the appellant moved into the family home; and that she had not told anyone about it until she had told her mother and the appellant a few days previously. She also said that she had taken inappropriate images of herself on her mobile phone which had then been confiscated. She denied that anyone had put her up to this account. 9. The Blackberry device was examined after the appellant and KH had been interviewed for the first time, and images of KH were found, including photographs of her dressed in only a bra, knickers, stockings, and a suspender belt (count 4). 10. On 14 May, KH’s mother handed to the police a written list of internet search terms of a sexual nature, which she said she had found at the family home. 11. Subsequently, KH asked to be re-interviewed. In this second interview (on 6 June 2014), she told the police that on two occasions when she was aged about 8½ her biological father had penetrated her anally with his penis whilst she was in bed at night. She said that she had only told the appellant and her mother just a week before. 12. Although they carried out further investigations in the light of this new information, as a result of further items found at the family home the focus of police attention remained on the appellant. These items found included the stockings and integrated knickers and suspender belt which KH could be seen wearing in the count 4 photograph, as well as a vibrator which was also found in KH’s room. The knickers and suspender belt and the stockings were forensically analysed and found to contain semen with DNA matching that of the appellant. The evidence indicated the likelihood that the semen in the gusset of the knickers and the vaginal material also found on them were deposited at the same time, following sexual intercourse, although the possibility that they were deposited at different times could not be excluded. 13. KH’s mother also had handed to the police notes with a sexualised content purportedly written by KH and addressed to the appellant. These included requests for lessons in kissing and an invitation to lick her vagina. A defence handwriting expert was instructed to determine whether the name of ‘[R's first name]’ had been added to the top of the notes. The expert concluded that there was moderate support for the proposition that the questioned name entries were contemporaneous with the rest of the letter. 14. On 25 June KH’s mother handed to the police six Secure Digital memory cards one of which contained photographs of KH lying naked and semi-naked on a bed at what appeared to be the Chatsworth Hotel, where KH and the appellant had stayed together, as well as images at the family home (count 5). 15. KH was re-interviewed. In this third interview (on 15 July 2014), she retracted substantial parts of her earlier account including the allegations she had made against her natural father. She indicated that she had been attempting to protect the appellant. She said that she had been in a sexual relationship with him since the age of eleven. In January 2013 when she was aged just under thirteen, this had progressed to full sexual intercourse on a regular basis and continued until just before the time of the first police search (counts 1 to 3). 16. A further (fourth) interview was conducted with KH (on 24 July). This was in relation to the investigation into KH’s allegations against her biological father. In the fourth interview, she withdrew the allegations of anal sexual intercourse she had made against GB. She said that the appellant had pushed this thought on her until she believed that it had happened. The appellant had suggested things that she should tell the police regarding her biological father. However, she maintained that the rest of her allegations against GB were true. The recording of this interview was disclosed before KH gave evidence at trial as unused material, since it was not part of the Prosecution case. 17. A fifth interview was conducted with KH (on 31 October 2014) in which she reiterated her allegations against the appellant. 18. In his police interview , the appellant gave an account that was broadly consistent with his evidence at trial, save that he did not mention at this stage that he had masturbated into what he believed to be his partner’s underwear. This being his explanation at trial for the finding of his semen on KH’s underwear. 19. The trial began on 18 August 2016. 20. The Prosecution case on counts 1 to 5 was that the appellant had groomed KH and then had a sexual relationship with her, during which he kissed and performed oral sex on her (count 2) and had vaginal sexual intercourse, both before (count 1) and after (count 3) her thirteenth birthday. The Prosecution alleged that he took indecent photographs of her (counts 4 and 5). It was the Prosecution case that she had initially provided false accounts in interview in order to protect the appellant with whom she had believed she was in love. 21. The Prosecution contended that the truth and accuracy of her later accounts in interview were supported by (1) the DNA evidence of the appellant’s semen on the knickers that KH was wearing in the count 4 photograph; (2) the images of both her and other children found on his electronic devices; (3) the indecent photographs that were taken of KH in the hotel room that they had shared; (4) the contents of notes written to the appellant by KH; (5) a hole found in the door of KH’s bedroom at the family home; and (6) her attendance at the doctors for a pregnancy test in the company of the appellant. Point (5) gave rise to a ground of appeal on which the Single Judge refused leave. The case on count 6 was that the appellant was responsible for downloading the indecent images. 22. The Defence case on counts 1 to 5 was that the appellant had never engaged in any sexual activity with KH, whose account could not be believed. Her allegations were the product of adolescent sexual fantasising. Her mother had the motive (both financial and in order to protect KH’s biological father for financial reasons) to concoct the allegations with KH. There was evidence that the appellant was impotent for at least part of the period covered by the indictment, and the finding of his semen was explained by him masturbating into what he assumed was his partner’s underwear. He did not take the indecent photographs of KH which were most likely taken by her, using a timer facility. His case in relation to count 6 was that he had no knowledge of the indecent images and did not deliberately download them. All three family members had access to the laptop and may have been responsible for the indecent images and searches for indecent material. Medical records showed that he had suffered a heart attack in March 2012 which had resulted in acute anxiety and panic attacks. There were also records showing that in December 2012 he had visited a hypnotherapist with his partner, during which he spoke of his loss of libido. 23. The issue for the Jury in respect of counts 1 to 5 was whether they were sure that KH had given a truthful and accurate account of the appellant engaging in sexual activity with her, including vaginal intercourse, and of having taken indecent photographs of her; and, on count 6, whether they could be sure that the appellant had downloaded the images onto his laptop computer. 24. Before continuing further with the narrative, it is convenient to summarise the way in which the ABE recordings were put before the jury: the two-part first interview (on 28 April) was led by the Defence during the cross-examination of KH; the second interview (on 6 June) was also led by the Defence during the cross-examination of KH; the third interview (on 15 July) was led as part of the Prosecution case, the fourth interview (on 24 July) was led by the Defence during the cross-examination of KH; and the fifth and final interview (on 31 October) was also led as part of the prosecution case. There were transcripts of the 28 April, 6 June, 15 July and 31 October interviews; but these were not made available to the Jury in the course of the evidence. There was no transcript of the 13-minute interview on 24 July. 25. The Judge began his summing-up on 30 August 2016 and no issue arises in relation to this summing-up. Among the issues that he summarised were the contents of the interviews of 28 April, 6 June, 15 July, 24 July and 31 October. The Jury began their deliberations on the afternoon of 30 August, were released at the end of that day and retired again at 10.10 on 31 August. 26. At 11.03, after the Jury had been in retirement for some 3 hours and 15 minutes, they sent a note requesting a copy of the transcripts of KH’s ABE interviews of 24 July and 31 October 2014. It was agreed between the Judge and Counsel that they were not permitted to have these. 27. When the Jury were called back into court to be told this, it emerged that one set of the interview transcripts of 28 April, 6 June and 15 July (although not those of 24 July and 31 October) had been taken from the witness suite to the jury room and left there. 28. As we have already noted, at no point during the evidence had the Jury had access to transcripts and no transcript had ever been made of the 24 July interview. 29. The Jury retired again, and the Judge directed the usher to bring back the transcripts of KH’s interviews. As the Judge observed, ‘someone has been careless.’ 30. Following this discovery, there was a discussion as to what should be done. The Judge indicated that the Jury had ‘not received anything evidentially which they shouldn’t have received’, by which we understand him to mean that the transcripts did not contain unedited material. In these circumstances, he suggested that the ‘tactful way through’ was to allow the jury ‘in the exceptional circumstances’ to have the transcripts of 24 July and 31 October interviews. Ms Donovan said she agreed. However, the Judge said he would only adopt that course with her full agreement and the appellant’s approval. He observed that it was in no one’s interest to have a new trial, which was the alternative. He then rose while Ms Donovan took instructions and Prosecuting Counsel (in the absence of Mr O’Donnell who was trial Counsel) researched the position in Archbold . 31. After half an hour, the Judge returned to Court. Ms Donovan pointed out that, although the transcript of the 31 October interview could be provided to the jury, the interview of 24 July had not been transcribed. The Judge indicated that he would remind the jury of the summary of that interview that he had already given in the course of the summing-up. Mr Donovan then suggested that the interview could be transcribed. The Judge pointed out that this would take time. Counsel for the Prosecution then drew the Judge’s attention to the passage in Archbold at 8-92 , under the heading ‘Transcript for Jury’ . Although we will come to the cases of Popescu [2010] EWCA Crim 1230 and Sardar [2012] EWCA Crim 134 , there is a reference to Coshall (The Times, 17 February 1995), which suggests that, where a Jury asks for a transcript after retirement, their request should only be allowed with the agreement of both parties, and subject to a reminder being given to the Jury as to the other evidence and as to the proper status of the transcript. 32. Ms Donovan’s submissions focussed on the absence of a transcript for the 24 July interview, and she asked for further time to consider the issue. The Judge refused the request and said she had already had 30 minutes to consider the issue. He indicated that the jury would be given the transcript of the 31 October interview, and adjourned for 5 minutes for Counsel to ensure that the jury were getting the correct pages. 33. When he returned to Court, the Judge asked whether there was anything Ms Donovan wished him to add to the summary he had given in his summing-up of the 24 July interview. Ms Donovan said that she did not think it went into enough detail and, when asked what further detail there should be, told the Judge that she would need to watch the 13-minute video again. She also requested that the Jury be permitted to watch the video again. 34. Following what may be fairly described as a testy response to counsel’s request, the Judge said that he would allow the jury to have the 31 October transcript and they would be reminded of the contents of 24 July interview. He allowed Ms Donovan time over the adjournment to look at the 24 July video again, and gave an initial ruling. 35. In this ruling, the Judge summarised how the issue had emerged and indicated that, although it was not the usual practice, no harm had been done by the Jury having the transcripts. Equally no harm would be done if they had the transcript of the 31 October interview so that they had all available transcripts. They would therefore have a complete reminder of all that was said in those interviews rather than just a summary. There could be no unfairness to the defendant if the trial continued with the jury having the transcripts, and, since no transcript had been made of 24 July interview, with them being reminded of his earlier summary of the interview. The Judge noted that the Jury had not asked to consider KH’s demeanour in relation to the 24 July interview, and that Defence Counsel had had a change of heart and now sought to have the 24 July video played again to the Jury. This was a change from her initial position when she had said that she thought that the Judge’s summary of the interview would be adequate. It was not appropriate to treat the video of 24 July differently to the others by re-playing it. To do so might encourage a request to re-play the many hours of all the other videos which was not a course that should be adopted without very good reason. This was a possible effect of Counsel’s submission. The Jury would be appropriately directed as to the transcripts and the video, although there was no need to repeat the summary of the cross-examination that had already been given in the summing-up. The Jury would be provided with the 31 October transcript and Counsel would be given time to review whether there were any matters that needed to be added to the summing-up in relation to the 24 July interview. 36. The Jury returned to court at 12.52 and the Judge gave further directions in relation to the transcripts. He told them that it was important for them to concentrate on the witness as she was speaking, and that this was why they had not had the transcripts while they were watching the interviews. He added that KH’s evidence was no different to any other witness whose evidence was not transcribed. He told them that they had received the transcripts inadvertently and that in the ‘exceptional circumstances’ they should have the transcript of the 31 October interview. There was no transcript of the 24 July interview, but he would remind them of the contents of that interview and if there was anything about KH’s demeanour in that interview that they wished to see then the video could be re-played for them. Finally, he added in relation to the transcripts, ‘You mustn’t give them any greater status than any other evidence. Please, can I underline that.’ He reminded them that it was only part of the evidence and had no special status, and that they should particularly keep in mind the summary of the cross-examination he had given them the day before. 37. The Jury retired shortly before 1.00, and the Judge then added to his ruling. He said that no objection had been taken to, or additions requested of, his summing-up. Exceptional circumstances had arisen in the case. In reality, the only alternative would have been to discharge the Jury. That would have been wholly undesirable in a case involving a 16-year old witness who had given evidence over three days. A re-trial would not come on for hearing for many months, adding to the strain on her and the appellant who was in custody. Nor was it the first trial in this matter, the first had been aborted following a change of representation. To expect a young complainant to prepare herself for a third time was to be avoided at all costs unless unfairness was likely to be occasioned. None had been identified and there had been ‘complete agreement on behalf of the Defence to allowing the trial to continue even when the jury had those (three) transcripts and complete agreement to the Jury having the other two …’ The only difficulty arose belatedly in relation to the 24 July interview. No mention had been made of a transcript in Counsel’s lengthy cross-examination of KH, nor was any mention made of the interview in her closing speech. He concluded that there could be no unfairness in a summary of the missing transcript being given with any additions sensibly required by the Defence. 38. Having viewed the 24 July video interview over the midday adjournment, Ms Donovan asked for one addition to the Judge’s summary of that interview. The Judge expressed his displeasure at the manner in which Counsel had summarised the material. As he had not listened to the interview to see whether or not it was correct, the Judge declined to include it in his summary without Counsel first setting out the passage in writing. 39. The Judge then reminded the jury of the summary he had already given as to the 24 July interview. 40. Before turning to the grounds of appeal it is convenient to consider how it was that Jury received some, but not all of the transcripts when they retired. 41. CPD VI Trial 26L specifically addresses the procedure for dealing with a Jury’s access to exhibits and evidence in retirement ( with emphasis added ): 1. At the end of the summing-up it is also important that the Judge informs the Jury that any exhibits they wish to have will be made available to them. 2. Judges should invite submissions from the advocates as to what material the Jury should retire with and what material before them should be removed, such as the transcript of an ABE interview (which should normally be removed from the jury as soon as the recording has been played) . 3. Judges will also need to inform the jury of the opportunity to view certain audio, DVD or CCTV evidence that has been played ( excluding, for example ABE interviews ). 42. Two points may be noted in relation to the Practice Direction. First, the highlighted passages remind the reader that, even where the Jury are permitted to have a transcript of an ABE interview during the evidence, they should not be permitted to have access to the transcript in retirement. Secondly, as one might expect, it is ultimately for the Judge to ensure what exhibits or other material the Jury should have access to when they retire to consider verdicts. In most cases in the Crown Court this will present no problem; but in some cases it will be necessary for the Judge to take the lead, most conveniently, we suggest in discussion with the advocates on each side. On any view, the ultimate responsibility for dealing with exhibits and material cannot be left to ushers or other court staff who, however capable they may be, cannot be expected to be responsible for what exhibits and materials the jury receives in retirement. 43. The present case presented a problem that was different to other reported cases. There had been no decision to make the transcripts available to the Jury either during the playing of the interviews or in retirement. It is clear that a mistake was made. Someone who did not realise the implications of what they were doing gathered up material which should never have been considered by the Jury and left it in their retiring room. Why the transcript of the 31 October interview was omitted from this material is unclear and does not matter. 44. Those involved in the trial were left in a difficult position. It was rightly recognised that the Jury should not have received the material. The Judge was left with limited choices: (1) to discharge the Jury, (2) to retrieve the transcripts which the Jury had been given, and (3) to give the Jury the additional transcripts they had requested and summarise the video recording of which no transcript had been made. 45. The Judge made clear that the difficulties faced by KH (and to a lesser extent, the appellant) by a retrial militated strongly against (1). His initial view was that the transcripts should be retrieved, see (2), but he eventually decided that the better course was to make available all the transcripts that had been prepared, see (3). 46. On this appeal, Ms Donovan submits: first that the Judge should have discharged the jury when it became known that transcripts of some of KH’s ABE interviews had been inadvertently placed before them; and that the Jury’s access to the interviews in retirement deprived the appellant of a safeguard essential to the fairness of the trial; and that consequently the appeal against conviction should be allowed, see Sardar ( above) at [28]. Thereafter, the Judge further erred in allowing the Jury to have the transcript of the interview of 31 October 2014 whilst refusing the defence request that at least that the Jury be permitted to watch the video of the ABE interview of 24 July 2014. She advances a secondary argument, which was not at the forefront of the grounds of appeal, that there were, in any event, material deficiencies in the Judge’s summary of the 24 July interview in his further direction. 47. In our view, it is unnecessary to review in detail the cases prior to Popescu (see above) . The judgment of the Court of Appeal in that case sets out the reasons for the limitations on the access to transcripts by juries, by reference to 6 principles. 48. Without seeking to summarise the careful analysis of law and practice in that case, certain points which are relevant to this appeal emerge from Popescu . First, the Court emphasised the care that must be taken before a jury is given transcripts of an ABE interview at all. Transcripts should only be made available to the jury after there has been discussion of the issue between Judge and Counsel in the absence of the jury; and it should only be done if there is a very good reason for it, for example, the evidence would be difficult to follow on the screen or the audio quality is very poor. The reason for this approach is the danger that the Jury may give the written word undue weight, see Welstead [1996] 1 Cr App R 59 page 68, Morris [1998] Crim LR 416, referred to in Popescu at [30]. Otherwise the Prosecution may obtain a procedural and evidential advantage, which weighs unfairly against the defendant Popescu at [25]. Secondly, if the transcripts are given to the Jury, the Judge must warn the jury at that point not to give the transcripts undue weight, to take care to examine the video as it is shown, not least because of the importance of the demeanour of the witness in giving evidence. Thirdly (principle 6), the Jury should not, save in exceptional circumstances, be permitted to retire with the transcripts. Those exceptional circumstances will usually only be present if the Defence positively wants the Jury to have the transcript and the Judge is satisfied that there are very good reasons for this. In such circumstances the Jury should be given an appropriate warning about giving them undue weight. 49. In Popescu the Court was satisfied that the Jury had the transcripts largely because the defence wanted to have them and was aware that they would use them as part of their deliberations. In these circumstances, there was no evidential or procedural unfairness, see Popescu [40]-[43]. In contrast, in Sardar (see above), although the Recorder had allowed the Jury to retire with the transcripts and the Defence consented to this, the Court of Appeal held that there was no good reason for this, that there had been no warning about the use to be made of the transcripts and the fact that the Defence consented was no justification for it,[17]-[19]. 50. Neither of these cases deals directly with the position where the approach to the playing of the ABE interviews without transcripts during the evidence was entirely appropriate; but where an error was made by leaving transcripts in the Jury retiring room. The nearest case is Coshall which was addressed by the Court in Popescu . 27. In R v Coshall , the trial judge had ruled that the jury could have a transcript of the video recording during the complainant's evidence and the jury retained the transcript throughout the remainder of the trial, including their retirement. It appears that the evidence in chief on the video constituted virtually the whole of the prosecution case. 28. Unfortunately, we do not have the transcript of the judgment given in the case of Coshall , which was delivered by Pill LJ. A sizeable extract of the judgment in Coshall was quoted in Welstead , and we think we should quote from the case of Welstead (page 67) where the relevant parts of Coshall are set out: The court [in Coshall ] held that the need to maintain a fair balance 'exists equally upon the supply to the jury of the transcript of the video tape' as when a video tape is to be replayed to the jury. Unless the defence consented, ‘it appears to us to follow from the decision in Rawlings and Broadbent that it will not generally be appropriate for the jury to be supplied with a transcript. We do not intend in this judgment to attempt to predict all possible situations and appropriate reactions to them.’ There was a serious risk in that case of disproportionate weight being attached to one part of the evidence, namely, the complainant's evidence in chief, if the jury had the transcript with them when they retired. 29. In its summary of the principles in Welstead , the court said at point 4, on page 68 of the report: If a transcript of the video-recorded interview is available, the jury should not normally be permitted to take it with them when they retire, unless the defence consents: Coshall . This is because there is no effective safeguard in such circumstances against the jury giving that part of the child's evidence disproportionate weight. 30. In the subsequent case of R v Morris [1998] Crim LR 416, the jury was permitted to retire with the transcript of the video evidence with the defence's consent. On appeal, the conviction was quashed because the judge had given no warning as to prevent the disproportionate weight being given to the transcript. It was held in that case that: Even in cases where there had been consent by the defence, or, as in the present case, the transcript had been introduced in the first instance at the suggestion of the defence, it was incumbent on the judge to give warnings to the jury which would prevent their giving disproportionate weight to the transcript; that consideration should always be given to what should happen once the evidence had come to an end and it was rarely that the jury should be permitted to retire with the transcript of the evidence and then only if they had received an appropriate warning; and that, the judge having summed up the evidence of the complainant much more fully than that of the defence without having given the jury the appropriate warnings, the convictions were unsafe. 51. It is clear that if the Defence have consented to the jury having access to a transcript, that is material, although it is not determinative of the ultimate question: whether the conviction is safe. In Sardar , the Defence consented to the Jury retiring with the transcript (see [19]) but this was held not to be a justification. At [28] the Court concluded that: … there will be cases, and this is one, where the breach of the practices designed to ensure a fair trial will be so serious that the trial is rendered unfair. 52. In our view the following questions arise: (1) what was the defence approach to the problem that arose; (2) did that amount to an agreement that the jury should have the transcripts available during retirement; (3) what warnings did the Judge give and were they sufficient; and (4) how does what occurred impact on the safety of the convictions? 53. As to the first question, Ms Donovan’s initial reaction was that she agreed that the Jury should have the additional transcripts that they had requested (see [30] above). Quite rightly, the Judge said he would only do that with her full agreement and the appellant’s approval. Thereafter Ms Donovan’s position on behalf of her client changed. She appears to have recognised the practical sense of giving the Jury the transcript of 31 October, but she was (and remained) concerned on behalf of her client that the Jury would not get a transcript of the 24 July interview which she had introduced in the course of KH’s cross-examination. 54. As to the second question, in the light of our conclusion on the first question, we are unable to accept that the Defence agreed to the Jury having the transcripts in retirement. Like the Prosecution and the Judge, the Defence had been placed in a difficult position at short notice. It did not consent, in advance, to the Jury receiving transcripts in retirement; at most it acquiesced in what amounted to a pragmatic response to the Jury enquiry. While we do not exclude the possibility of an agreement in such circumstances, the cases indicate that where the Court is referring to agreement by the Defence, it is referring to an agreement before or at the time a decision is made to permit the Jury to retire with transcripts and not after they have been made available by mistake. 55. As to the third question, it is clear that in circumstances where the jury is permitted to retire with transcripts, they must be warned clearly and emphatically that they should not give disproportionate weight to the transcripts. In our view the Judge’s warning, which we have summarised in [36] above, was insufficient and, necessarily, was given at the wrong time. The warning was insufficiently emphatic in its terms, but more significantly it was given after the jury had been in retirement with three of the transcripts for many hours, during which they would have given them such weight as they thought fit. In these circumstances, it is unnecessary and undesirable to consider what might have been the effect of adopting (2) (see above), with the transcripts being taken back from the Jury, with a very strong warning against relying on them. We should add that we do not think that the Judge can properly be criticised for refusing to adjourn for the preparation of a transcript of the 24 July interview. 56. As to the fourth question, we bear in mind Mr O’Donnell’s submission that the transcripts contained more pages supportive of the Defence case than pages supporting the Prosecution case: the interview of 28 April, 6 June and 24 July had all been led by the Defence as showing that KH had made the allegations against GB rather than the appellant. That is so, but it does not address the weight that the jury may have given to the transcript of 15 July which was central to the Prosecution case. We accept Mr O’Donnell’s submission that these were ‘exceptional circumstances’, but while we would hope that the circumstances are exceptional, the description throws little light on the correct disposal of this appeal. Nor are we in a position to conclude that the case against the appellant was so overwhelming in the light of the evidence that the breach of the practices designed to ensure a fair trial can be disregarded so that we can conclude that the convictions were safe. 57. We invited submissions at the conclusion of the argument as to whether, if the appeal were allowed, the Prosecution would apply for a retrial and Mr O’Donnell indicated that it would. In our view, there should be a retrial in this case and it should take place as soon as is conveniently possible. Although the prospect of a retrial, in particular for a young witness, is troubling, we are clear that what occurred rendered the trial unfair, and undermined the safety of the convictions. 58. For the reasons set out above, we have concluded that the appeal against the appellant’s convictions must be allowed.	```yaml citation: '[2017] EWCA Crim 1487' date: '2016-08-31' judges: - HH Judge Dennis QC - LORD JUSTICE SIMON - MR JUSTICE HOLGATE - SIR 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: [2013] EWCA Crim 2001 Case No: 201304134/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 22nd October 2013 B e f o r e : LORD JUSTICE PITCHFORD MR JUSTICE HENRIQUES MRS JUSTICE COX DBE R E G I N A v STEVEN OLIVER JOHNSON Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) Miss S Williams appeared on behalf of the Appellant Mr J Murray-Smith appeared on behalf of the Crown J U D G M E N T 1. LORD JUSTICE PITCHFORD: This is an appeal against a conviction for an offence of possession of a controlled drug with intent to supply, leave for which has been granted by the single judge. 2. At 9.05 am on Wednesday 20th April 2011 police officers executed a search warrant issued by Greenwich Magistrates at 19 Bittern Court, London, SE8. At that time the appellant, who was the tenant of the flat, was not present. He had left the United Kingdom for Jamaica via New York on 14th April 2011 in order to attend a funeral and did not return until 16th May 2011. 3. Detective Constable Boucher searched a cupboard in the bedroom of the flat and inside the pocket of a jacket, admittedly belonging to the appellant, hanging in the wardrobe in the bedroom, Detective Constable Boucher recovered a triangular block of crack cocaine. On analysis it weighed 7.35 grams at a purity of 36%. 4. Rocks of crack cocaine sell in weights of 0.2 grams at £10 to £15 each. The drug recovered from the appellant's jacket pocket would have been enough to produce 37 rocks at a total street value of between £370 and £555. This was the evidence given by Detective Constable David Baxter who, by reason of his long experience of investigations into drug trafficking and supply was able to explain to the jury the implications of the find. 5. From a cupboard in the kitchen Detective Constable Boucher recovered a white chopping board on which he could see traces of a white powder. On analysis the chopping board was found to contain traces of cocaine. Police Constable Lewis recovered from the kitchen drawer a set of electronic weighing scales. When examined the scales were found to be contaminated with traces of cocaine. Officers recovered from a cupboard in the hallway a knife that appeared to bear traces of a white substance. No drug was found on the knife. Also recovered was a pair of latex gloves and two packets of clingfilm. 6. On his return to the United Kingdom the appellant was seen by appointment at Lewisham Police Station on Monday 23rd May 2011. He was arrested on suspicion of possession of the Class A drug crack cocaine. When interviewed about the findings made on 20th April the appellant had no comment to make except that he did not deal drugs and had been out of the country at the time of the search. 7. The appellant was represented by solicitors and counsel. They withdrew citing professional embarrassment. A second firm of solicitors and counsel were instructed. They too withdrew saying that they were professionally embarrassed. On 27th April 2012 His Honour Judge Byers, in view of the history of the matter, revoked the appellant's representation order and warned the appellant that nonetheless he must attend his trial in person. On 9th May the appellant appeared before Mr Recorder King for trial unrepresented. He was charged in the indictment with a single count of possession of crack cocaine with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971. 8. Having ascertained the issues that would arise in the trial and having sought from the appellant an explanation as to what, if anything, had changed since the revocation of the representation order, the Recorder declined to re-open the issue of representation. Notable was the appellant's response to the Recorder's question: "What is it that has changed that should lead me to a review?" The appellant replied "My barrister. I will tell him exactly what I want and what he must do." This may or may not give some indication of the reasons for the professional embarrassment of previous representatives but the Recorder warned the appellant that he should not reveal his instructions to him, which were legally privileged. 9. There was before the court a defence statement. It must have been prepared at a time when the appellant was legally represented. In it the appellant said that he knew nothing of the drug or its other traces in the flat. A party had been held on 13th April 2011, attended by his then girlfriend, who he named and two male friends. He had provided them with a spare set of keys when he had left for Jamaica early on the following morning. 10. In evidence the appellant said that he had been badly let down by his friends with whom he had been unable to make contact since his return. The jury retired on 11th May 2012 and returned a verdict of guilty. On 8th June 2012 the appellant was sentenced to 3 years' imprisonment, with a direction that 28 days should count for the purposes of section 240 of the Criminal Justice Act 2003. 11. The single judge considered two grounds of appeal. He rejected the first ground that the Recorder should have acceded to the application for a further representation order. Realistically, this ground has not been renewed by Mr Williams. It would have no prospect of success. 12. The single judge granted leave on the second ground, namely that the judge misdirected the jury, first, by failing to leave to them the alternative verdict of simple possession of crack cocaine, and second, by failing to give to the jury any assistance upon the evidence that was capable of supporting the prosecution case that the appellant had an intention to supply the drug and of any limitations in that evidence. 13. The evidence in the trial had taken two days. Much of it was read. The first issue for the jury was whether the drug found in the flat was in the appellant's possession. The judge explained the prosecution's task as follows: "As I have said, it is for the prosecution to prove the defendant's guilt, and each element of the indictment has to be proven. There are some about which you may have little need to dwell. For example, you have heard evidence in relation to the forensic analysis of the things that were found at Mr Johnson's flat, and certainly, the drugs were found, 7.35 grams of crack cocaine is a matter upon which you have heard the evidence from the expert. About which there was, you might think, very little in the way of challenge. And you may not necessarily be detained long in consideration of that. But it is for the prosecution to prove that Mr Johnson had those drugs in his possession, and it is for the prosecution to prove that he had them with the intention of supplying them to others. What does this mean? Well let me explain. Let me tell you what possession is." The judge then explained to the jury, in terms about which there is no criticism, what was meant by possession. In connection with the issue of intent the Recorder said this: "Of course, there are two other elements of the charge that I should deal with, and that is supply. Well what does supply mean? Supply means... passing on a thing to another person so that other person can do with it what they want. And what the prosecution's case here is, is that Mr Johnson was in possession of this triangular piece of crack cocaine with the intention of passing it on to others. And there is the third element that I wish to direct you on, intention. The prosecution must make you sure that Mr Johnson intended to supply this crack cocaine to somebody." The Recorder said nothing about the evidence, if any, that was capable of supporting the prosecution case of an intention to supply. He did, in connection with the issues of knowledge, as it applied to the legal concept of possession, draw the jury's attention to the other articles found in the flat, which may, depending upon their view, assist them as to whether or not the appellant had knowledge and therefore possession of the crack cocaine in his jacket pocket. 14. Miss Williams has put forward the grounds with economy and focus. However, she was not present at trial and could not assist upon factual details that we considered to be of some importance. Mr Murray-Smith was counsel for the prosecution at trial but his notebook has been archived in storage and for some reason it has not been recovered. 15. Amongst our concerns are the following. First, there is no reference in the summing-up to any mention of the fact that the appellant had been representing himself. Mr Murray-Smith has no recollection whether at any stage the jury was addressed upon the need not to draw any adverse conclusion from the fact that he was unrepresented and to bear in mind that the presentation of one's own defence may present some difficulties for a defendant who was unqualified and inexperienced. 16. In R v De Oliveira 1997 Crim LR 600, Rose LJ, Latham J and Hooper J considered the position of a defendant who, unlike this appellant, insisted on representing himself. The court concluded that it was in general desirable for the judge to inform the jury that they should bear in mind the difficulty of presenting a defence properly. We would add that the task is not unfamiliar to this court of assisting an unrepresented defendant to focus upon issues and questions which are relevant to his defence. 17. Secondly, Mr Murray-Smith cannot help as to whether there was any discussion with the Recorder as to the desirability of adding a count of simple possession to the indictment as an alternative, or at least as to whether the alternative should be left to the jury in summing-up. 18. These matters were considered by the House of Lords in R v Coutts [2007] 1 Cr App R 6 and further by this court in R v Foster [2008] 1 Cr App R 38 . In R v Hodson [2009] EWCA Crim 1590 , this court (Keene LJ, Holman J and the Recorder of Nottingham) considered the question whether wounding, contrary to section 20 of the Offences Against the Person Act 1861, should have been left to the jury as an alternative to section 18 wounding with intent. At paragraphs 10 and 11 of his judgment on behalf of the court Keene LJ said: "10.... There is no automatic requirement on a judge to leave an alternative verdict if such a verdict would not properly reflect the facts of the case, when judged realistically, or would not do justice to the gravity of the case. This court stressed [in Foster] that whether it is necessary to leave such a verdict, even when legally available as an alternative, will depend on the facts of the individual case. But if it is a realistically available verdict on the evidence, as an interpretation properly open to the jury, without trivialising the offending conduct, then it should be left. 11. It is, in our view, particularly important that this is done where the offence charged requires proof of a specific intent and the alternative offence does not. Even then there may be circumstances where the issue of specific intent does not truly arise... However, there will be cases, as Coutts recognised, where it is necessary to leave the lesser offence as an alternative to avoid the dangerous situation where the jury is faced with the stark choice of convicting for the serious offence or acquitting altogether. That may give rise to a miscarriage of justice." 19. We do not suggest any more than did the court in Hodson that every time a jury is considering a count of possession with intent to supply drugs it will be necessary to leave an alternative of simple possession. It depends on the circumstances and the assessment of the trial judge as to what is fair. 20. Here, we take the view that the alternative should have been left or, at the very least, the jury should have received assistance as to the evidence that was capable of establishing the intent. We are unaware what assistance was or was not provided to the appellant during the course of the prosecution case. This becomes relevant to the factual issues which arose or should have arisen on the expert evidence. Thirdly, we are not certain, as to whether the evidence of Detective Constable Baxter was given orally or was read. Mr Murray-Smith cannot recall. There appears to have been no evidence before the Crown Court as to what if anything was the significance of the fact that 37 rocks of crack cocaine could have been produced from the lump found in the appellant's pocket. Detective Constable Baxter gave evidence as an expert. One question left unanswered is the amount of crack cocaine that a drug user will habitually possess for his own use. We are unable to tell whether any exploration was made of these assertions by the expert during the course of Detective Constable Baxter's evidence. Fourthly it seems likely, although Mr Murray-Smith cannot recall, that the evidence of the analyst was read as agreed. The traces of substance found on the chopping board and the scales was not crack cocaine but cocaine. It is now common ground that they are different substances. Mr Murray-Smith cannot tell us whether the significance of this difference was explored at trial. It was certainly not a subject broached by the Recorder in his summing-up. 21. One conclusion available to the jury was that they could not safely depend upon the finding of those traces as any support for the assertion that the appellant possessed or intended to supply the crack cocaine in his pocket. Furthermore, the presence of a similar but different substance on the chopping board and scales may have provided some support for the appellant's account in evidence that others must have been responsible for drugs activity in his flat. 22. None of this seems to have been explored in the summing-up. Even if it had been explored in the course of evidence, which we doubt, there was no attempt at all to identify what may and what may not be evidence capable of supporting the prosecution case as to intent and no warning was given as to the possible limitations arising from Detective Constable Baxter's expert evidence. 23. We have had to consider the impact of these factors the safety of the verdict which the jury returned. In the result, we cannot be satisfied that the jury properly understood the limitations of the evidence advanced in support of the prosecution case as to possession and intent and in the absence of further assistance, both from the prosecution and the Recorder, it seems to us that this conviction cannot stand. For that reason the appeal is allowed and the conviction is squashed. 24. LORD JUSTICE PITCHFORD: We understand Mr Murray-Smith that the appellant has just about served his sentence? 25. MR MURRAY-SMITH: I gather it comes to its end in early November. 26. LORD JUSTICE PITCHFORD: Do you have any application to make? 27. MR MURRAY-SMITH: No. 28. LORD JUSTICE PITCHFORD: Thank you both.	```yaml citation: '[2013] EWCA Crim 2001' date: '2013-10-22' judges: - LORD JUSTICE PITCHFORD - MR JUSTICE HENRIQUES - 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 1722 Case No: 2014/0893/A5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 30 July 2014 B e f o r e : LORD JUSTICE TREACY MRS JUSTICE SIMLER DBE HIS HONOUR JUDGE BEVAN QC (Sitting as a Judge of the CACD) Between: - - - - - - - - - - - - - - - - R E G I N A v MICHAEL DEWDNEY - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr J Farmer appeared on behalf of the Applicant J U D G M E N T 1. LORD JUSTICE TREACY: 2. This is a renewed application for leave to appeal against sentence after refusal by the single judge. 3. The applicant pleaded guilty on 14th January 2014 at Norwich Crown Court to an offence of causing serious injury by dangerous driving. That is an offence contrary to section 1 A of the Road Traffic Act 1988 . This provision came into force in November 2012. The reference to serious injury is to physical harm which amounts to grievous bodily harm for the purposes of the Offences Against the Person Act. 4. In addition, the applicant admitted driving with excess alcohol which had been committed to the Crown Court under the provisions of section 41. 5. On 7th February 2014 he was sentenced to 32 months' imprisonment for the dangerous driving offence, with four months concurrent for the excess alcohol. He was disqualified from driving for three years and until an extended test is passed. 6. The offence took place at about 8 am on Saturday 20th April 2013. The road concerned is a B road in a rural or semi-rural area. The applicant had been out all night at pubs or clubs or otherwise socialising. He had been drinking and was subsequently found to be one-and-a-half times the legal limit. In addition, blood analysis showed the presence of ecstasy, amphetamine and cannabis. 7. At the time of the accident the applicant was driving his car with three passengers. The site of the accident was at a humpback bridge which had a straight approach to it. The applicant was driving fast as he approached the bridge. At least one passenger told him to slow down. The applicant in fact increased speed as he approached the bridge and made comments showing that he intended to take the bridge at speed. He ignored further warnings to slow down. 8. The vehicle took off on the humpback bridge and when it regained contact with the road the applicant lost control and the vehicle somersaulted off the road before coming to rest in a field. 9. There had been three bystanders who had witnessed the accident. It was obvious to them what was going to happen. Two of them estimated the applicant's speed as being in the region of 80 mph. Another put it at well in excess of 50 mph. 10. The consequences for those in the vehicle were very severe but luckily not fatal. Amber Read, a female rear seat passenger who had to be freed from the vehicle by emergency services, sustained a brain haemorrhage, bilateral contusions of the lungs, several fractures of the thoracic spine with bleeding around the spine and heart. There was a large wound to her scalp which required stitching. Following surgery to her back, she has been left with rods permanently inserted. These are visible and have resulted in scarring. In addition, there were fractures of her clavicle and chest bones. 11. Joseph Cork had one fractured and three crushed vertebrae and a fractured spine. He also had cuts to his head and both hands. Jason Chapman had an injury to his right shoulder blade and lost an area from his scalp which required stitching. He suffered back spasms for several weeks. 12. All three of the passengers suffered continuing consequences from their injuries by the time of sentence, which was some nine months after the accident. Their victim statements show continuing pain, together with employment and psychological problems. 13. The applicant himself was seriously injured. He suffered a fractured skull and a brain haemorrhage, a fractured jaw requiring plating and a fractured arm. 14. There are matters about the applicant's previous history and/or background which are relevant. In 2006 when he was 14 he was convicted of dangerous driving. In the same year when he was 15 he was convicted of aggravated vehicle taking. By the time of this accident he had nine points on his licence. In 2010 he had used a mobile phone whilst driving and in 2012 he had used a vehicle without insurance. 15. There was evidence that he had been using his mobile phone on the journey which led to this accident, albeit not in the immediate run up to it. 16. His record also shows convictions for battery in 2009 and being drunk and disorderly in 2012. Both of those offences are drink related. There is also a 2012 conviction for possession of a class A drug. 17. On the other side of the coin, the applicant had a satisfactory work record and some favourable character references. Given the location of the accident the road in question was not likely to be heavily used, although the applicant had no means of knowing what lay on the other side of a steep humpback bridge. 18. For the applicant it is submitted that this was not a sustained piece of dangerous driving. Whilst the level of alcohol was unlawful it was not excessive and whilst the injuries caused to two of the passengers could be described as involving serious physical injury, it was possible to imagine cases where non-fatal catastrophic injury might be caused. 19. Accordingly, it was submitted by Mr Farmer that this was not the most serious case of its kind and that a starting point of four years and six months, which is close to the maximum of five years, was wrong in principle. 20. This relatively new offence reflected a decision by Parliament to meet a gap identified by both in judgments of this court and in public concern between the maximum sentence of two years for dangerous driving and the maximum sentence of 14 years for causing death by dangerous driving. It had been felt for many years that legislation failed to provide for circumstances in which not only had the driving been of a character likely to cause injury to life and limb, but had actually caused serious and significant injury to others. The result has been this new offence carrying a maximum of five years. 21. There is of course no sentencing guideline in place for this offence. However, there is a guideline of the Sentencing Guidelines Council relating to causing death by dangerous driving. We think it helpful to have regard to that guideline in relation to the levels of offending identified there. 22. The least serious, Level 3, is driving creating a significant risk of danger. Examples given are of driving above the speed limit, driving when deprived of adequate sleep or rest, a brief but obvious danger arising from a seriously dangerous manoeuvre and driving whilst avoidably distracted. 23. Level 2 is described as driving that created a substantial risk of danger. Examples given are greatly excessive speed, gross avoidable distraction such as reading or texting over a period of time, and driving whilst impaired as a result of alcohol or drugs. 24. Level 1 is described as covering the most serious offences, encompassing driving that involves a deliberate decision to ignore (or a flagrant disregard for) the rules of the road and an apparent disregard for the great danger being caused to others. Examples given are a prolonged, persistent and deliberate course of very bad driving, the consumption of substantial amounts of alcohol or drugs leading to gross impairment, or a group of factors which in smaller number would place the offence in Level 2. 25. The guideline recognises that the presence of aggravating factors or examples of seriousness will increase the starting point within a sentence range and may justify moving to the next level of seriousness. 26. Given the level of the statutory maximum for the section 1 A offence compared to that for the simple offence of dangerous driving, there will of necessity be a degree of compression in the sentences available to the court to reflect different types of dangerous driving and its consequences in the section 1 A offence. 27. It seems to us therefore that it is not a helpful exercise to indulge in considering the very worst imaginable type of case which would attract a sentence at the maximum. A more realistic approach is to identify a broader band of conduct which will represent the most serious offending within the ambit of the offence. 28. It seems to us that whilst it might be arguable that the applicant's dangerous driving falls into the upper ranges of Level 2 rather than within Level 1, given the absence of prolonged very bad driving and gross impairment through the consumption of alcohol and/or drugs, the fact remains that this applicant did take a deliberate decision to ignore the rules of road safety in circumstances which inevitably caused very considerable danger to others. There may be a respectable argument that the driving did indeed fall within Level 1. 29. However, even if the driving falls within the upper ranges of Level 2, there are a number of important aggravating factors. First, previous convictions for motoring offences, especially those involving bad driving. Secondly, and importantly in the context of an offence predicated upon the causing of serious injury to another, two of the passengers were seriously injured with continuing consequences for them and a third was significantly injured. 30. Moreover, the offence was committed whilst the ability to drive was impaired not only by drink, but also by the consumption of drugs in circumstances where the offender had been up all night. 31. In addition, the applicant had ignored warnings that he should moderate his speed and had responded to them by doing the very opposite. He accelerated harder as he approached the humpback bridge. This was deliberate risk-taking at high speed in very dangerous circumstances. We regard the culpability of the applicant in those circumstances as being extremely high, and within the context of this offence the harm done by his actions is again very high. 32. In those circumstances, we consider that the judge was entitled to regard this offence as falling within the range of the most serious offences of this kind. Although the starting point of four years and six months was undoubtedly severe, we consider that it was deservedly severe. The judge then made some allowance for the applicant's personal mitigation and full allowance for early guilty pleas. 33. In the circumstances the resultant sentence and disqualification were not manifestly excessive and this renewed application is refused.	```yaml citation: '[2014] EWCA Crim 1722' date: '2014-07-30' judges: - LORD JUSTICE TREACY - MRS JUSTICE SIMLER DBE - HIS HONOUR JUDGE BEVAN 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: [2015] EWCA Crim 55 Case No: 201404204 A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 16 January 2015 B e f o r e : MRS JUSTICE THIRLWALL DBE HIS HONOUR JUDGE MILFORD QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - R E G I N A v JEYAN CHANDRARAJAH - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr C Whitcombe appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. JUDGE MILFORD: On 12 March 2014 in the Crown Court at Basildon, the appellant pleaded guilty to conspiracy to defraud. On 7 August 2014 at the same court, the appellant was sentenced by His Honour Judge John to 2 years' imprisonment. There were a number of co-defendants. Krishnakumar Bangaru and Muthu Arunachalam were categorised as the principals, and each pleaded guilty. They were sentenced to 3 years and 4 months' imprisonment. Dhanasekar Subbarayalu was categorised as a lieutenant. He pleaded guilty and was sentenced to 2 years' imprisonment. Ronaldas Zilinskas was categorised as a driver, but was convicted after a trial. He was sentenced to 2 years and 6 months' imprisonment. Senthivel Karunakaran was categorised as a driver. He pleaded guilty on the first day of the trial and he was sentenced to 2 years' imprisonment. An application for leave to appeal was refused in his case by the single judge and he did not renew his application. Thayanithy Selvathurai was categorised as a driver. He pleaded guilty and he was sentenced to 16 months' imprisonment. 2. The appellant appeals against sentence by leave of the single judge, Swift J, who also granted a representation order for solicitor advocate only, Mr Whitcombe, who has advanced the appellant's case before us today. 3. The facts of the case are these. The appellant together with others was involved in a nationwide conspiracy to defraud bank account holders of funds. Skimming devices and miniature cameras were used to tamper with ATM machines. Customers' bank cards would be retained, and shortly afterwards the cards would be used to make unauthorised withdrawals from the unfortunate customers' bank accounts. 4. The appellant was one of seven defendants who appeared for sentencing on 7 August 2014. A sentencing note, prepared by the prosecution, was served on the court. It set out amongst other things the rank or status of each of the defendants within the conspiracy. The appellant was adjudged to be a middle-ranking lieutenant, which he did not accept. He was, he said, merely a driver who was involved on one occasion, 10/11 January 2013, when he drove other conspirators from his home address to Hockley in Essex and watched as his co-defendants made repeated purchases at a self-service till within Asda. There was no direct evidence to suggest that he attended any ATM machines himself, affixed to them any equipment used in obtaining bank cards or pin numbers or had any knowledge of the existence of such equipment in the vehicle that he used to transport his co-defendants, although that, it seems to us, could be inferred. In his sentencing remarks, the judge placed the appellant's role as being somewhere between the principals and the drivers. 5. The judge is to be applauded for his careful and reasoned approach to sentence. He prepared his sentencing remarks in writing and provided them to all parties. He said this was a well-organised conspiracy with a number of aggravating features, including the number of defendants, its duration and the wide geographical area covered. There had been much planning. This involved the obtaining and adapting of skimming devices, the installation of miniature cameras to capture innocent customers' pin numbers, and the downloading of all the results to allow for later withdrawals. There was no figure as to the exact loss involved. There were no sentencing guidelines for the offence, but assistance was drawn from the fraud guidelines, namely the section dealing with the possession or adaption of instruments used for fraud. There, the starting point was 4 years' imprisonment with a range of between 2 and 7 years. 6. The judge found that the appellant's role was not limited to driving: he was somewhere between the principals and the drivers. His account in the pre-sentence report, namely innocent involvement up until one of the principals admitted to having stolen a bank card and planned to take as many illegal withdrawals as possible, was inconsistent with his guilty plea. The judge rejected this and said he should be sentenced as a lieutenant. He would receive thus a full one-third credit for his guilty plea and the sentence would be 2 years' imprisonment. 7. The appellant is 32 years of age. He had one previous conviction, namely for driving with excess alcohol in 2011. The grounds of appeal are that the appellant was sentenced incorrectly: he should have been sentenced not as a lieutenant but as a driver. 8. In the appellant's case there was a factual dispute between the prosecution and the defence as to the status of the appellant. The prosecution asserted that he was a lieutenant rather than a driver, as was contended by the defence. In those circumstances, it fell to the judge to decide. It was not suggested that the dispute merited a Newton hearing, so the judge had to decide it on the papers. 9. The only evidence against the appellant related to an early stage in the conspiracy when he was with co-defendants on the 10th, and then into the early hours of 11 January 2013, in Asda in Hockley when fraudulent withdrawals were being made on a bank card obtained that day at an ATM in Hockley by the ringleaders of the conspiracy. The appellant's vehicle was also seen being filled with fuel that day which was paid for with the stolen card. The two ringleaders were arrested shortly thereafter and bailed and continued to offend but what we have outlined above was the extent of the evidence against the appellant. He was not arrested and he does not feature in the evidence again. 10. Given that it was his car, he must have been driving the ringleaders that day. There is no direct evidence from CCTV footage that he was personally involved in tampering with the ATM and obtaining the card. Prosecuting counsel did not advance any argument to support his assertion that he was a lieutenant. 11. The appellant undoubtedly prejudiced his position by advancing an account to the probation officer which was inconsistent with his plea of guilty. He asserted that once he learned that his passengers had a stolen bank card and were intending to use it to make cash withdrawals, he disassociated himself with what was going on and dropped them off. A lying account such as this against the background of having, by his plea, accepted that he was guilty of conspiracy to defraud inevitably causes any observer to view a defendant with greater suspicion. Indeed, it is clear from the sentencing remarks already referred to, set out at 18B of the transcript, that the judge rejected the account the appellant gave to the probation officer that what he had said to him had been mistranslated in the report and that all he got out of it was a bottle of whiskey. It would seem that, having rejected the appellant's account, the judge considered that he was entitled to find that he was a lieutenant; in other words, he inferred from his lies that his role was more than the evidence actually demonstrated it to be. In our view, that was impermissible. Notwithstanding the appellant's lies, he should have been sentenced on the basis of the evidence, which demonstrated involvement on one day only and at the very outset and as a driver. In those circumstances, we are satisfied that the appellant should have been sentenced as were the other drivers who pleaded guilty at the same stage as he to 16 months' imprisonment. 12. Mr Whitcombe has added to his written grounds some oral submissions today that relate to the appellant's personal circumstances and the fact that his wife, who is present in court today, is not unnaturally suffering anxiety at the situation that she and her children find themselves to be in. But it is not possible for this court to draw distinctions between the drivers in a far-ranging conspiracy - and a grave one such as this - and we are not minded to go below the figure that was imposed upon others in the case who performed the same role as he. 13. Accordingly, the sentence of 2 years is quashed and is substituted with a sentence of 16 months. To that extent, this appeal is allowed.	```yaml citation: '[2015] EWCA Crim 55' date: '2015-01-16' judges: - MRS JUSTICE THIRLWALL DBE - HIS HONOUR JUDGE MILFORD QC ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. Neutral Citation No. [2023] EWCA Crim 1086 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202302117/A5 Royal Courts of Justice Strand London WC2A 2LL Friday 4 August 2023 Before: LORD JUSTICE DINGEMANS MR JUSTICE GOOSE MRS JUSTICE FARBEY REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 REX V GEORGIA NICHOLSON Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _______ MS S GATES appeared on behalf of the Attorney General. MR P BEARDWELL appeared on behalf of the Offender. ______ J U D G M E N T LORD JUSTICE DINGEMANS: Introduction 1. This is the hearing of an application by His Majesty's Solicitor General, for leave to refer a sentence to this Court which the Solicitor General considers to be unduly lenient. We grant leave. 2. The respondent, Georgia Nicholson, who was born on 7 December 2000, and is now aged 22, was of previous good character. On 13 February 2023, in the Crown Court at Birmingham, after a Goodyear indication had been given, Ms Nicholson pleaded guilty to an offence of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. The offence had occurred on 15 December 2018, at a time when Ms Nicholson was aged 18 years and 8 days. On 30 May 2023, in the Crown Court at Warwick, Ms Nicholson was sentenced to 24 months' custody suspended for 2 years, with 10 days rehabilitation activity requirement. She was also ordered to pay compensation to the victim of the offending of £4,000. 3. It is submitted on behalf of the Solicitor General that the judge passed a sentence so far outside the Sentencing Guidelines as to be unjustifiable. This was part evidenced by the fact that the judge had indicated that she wanted to pass a 6-year suspended sentence, when it is well known that a sentence of only 2 years can be suspended, and that the judge had failed to give proper weight to the effect that the attack had on the victim, Mr Afaq Iftikhar, which had left him blinded in one eye. The judge awarded credit of 25 per cent for a guilty plea when the plea was only given on the day of trial, after the witnesses had attended. 4. It is submitted on Ms Nicholson’s behalf that the sentence was lenient, but it was not unduly lenient. Substantial reductions needed to be made for Ms Nicholson's age, immaturity and previous good character. The judge had proper regard to Ms Nicholson's pregnancy and the sentence was passed after a Goodyear indication that any sentence would be suspended. We are very grateful to Ms Gates and Mr Beardwell for their helpful written and oral submissions. The Factual Background 5. At about 4.00 am on Saturday 15 December 2018 Mr Iftikhar, a taxi-driver, had received a job to pick up in the Birmingham city centre area. He was driving a black Volkswagen Touran people carrier. He arrived at the location for the pickup and picked up a number of passengers, including Ms Nicholson and one male passenger, Luke Burley-Fenton. Ms Nicholson sat in the front passenger seat with the remaining passengers in the middle and rear seats. During the journey Mr Iftikhar noticed that one of the passengers had begun to vomit, so he stopped the car and got out of the car. Mr Iftikhar then asked the group to leave the vehicle. At this point he noticed what he thought was someone trying to steal money from the cupholder area of his car. Mr Iftikhar asked Ms Nicholson what she was doing and told her he had CCTV in his vehicle. It is right to record that there was no conviction for theft or attempted theft of money. 6. At this point, another of the group, Mr Burley-Fenton, came from behind the vehicle and said: “What are you doing, you Paki bastard?”. Mr Iftikhar then went to retrieve his mobile phone in order to contact the police. By now he was standing by the driver's side bonnet. Erin Cook approached Mr Iftikhar and an altercation occurred. Mr Burley-Fenton and Ms Nicholson also came over and joined in, causing Mr Iftikhar to punch Mr Burley-Fenton. Ms Nicholson then attempted to hit Mr Iftikhar with a pair of heels she was holding in her hand but missed. The suspects then ran at Mr Iftikhar and Ms Nicholson and Mr Burley-Fenton began to assault him. Mr Burley-Fenton punched him several times to the head. Ms Nicholson then attempted to hit Mr Iftikhar around the head with her high heels, which were at that stage being brandished as a weapon. The heels are what are known as “block” heels. The overall assault lasted for about 2 minutes. A witness arrived and saw Mr Iftikhar bleeding from his head saying: “Please help me, they're going to kill me”. At that point Mr Burley-Fenton and Ms Nicholson appeared again, Ms Nicholson then again went to hit Mr Iftikhar to the back of the head with the pair of heels, the heel facing the driver's head. As Mr Iftikhar turned round, he describes the long-heel part of the shoe hitting Mr Iftikhar directly in the eye. An independent witness, Mr Josko, also described the heel part of what he wrongly called “the stiletto” hitting the driver in the right eye. 7. Mr Iftikhar was shouting: “Please let me go, please don't hurt me”. He shouted for assistance from other members of the public and made his way to the opposite side of the road outside the Spar. All the passengers from the vehicle continued to follow him. At this point members of the public intervened. Shortly afterwards the police arrived and detained all five passengers. CCTV footage does cover the incident but from a distance and it does not really assist in working out exactly what occurred. In relation to the injury, the heel of the shoe resulted in a severe blunt force trauma to Mr Iftikhar's right eyeball, causing extensive and irreparable damage. Mr Iftikhar underwent a number of procedures to attempt to save his vision but without success. No improvement to his vision is anticipated. 8. In interview, Mr Burley-Fenton stated that the driver punched him first. He admitted he punched the driver a number of times. Ms Nicholson in interview denied causing the injuries to Mr Iftikhar, claiming that Mr Iftikhar was the aggressor, claimed he had taken her phone and she had only defended herself at the time. Mr Iftikhar provided a further statement, confirming that he had not taken Ms Nicholson's phone. Criminal Proceedings 9. Ms Nicholson was arrested on the day after the incident, on 15 December 2018. Material was submitted to the Crown Prosecution Service by the police in January 2019, with further discs of CCTV footage being submitted in March 2019. First pre-charge advice was provided in May 2019 but there is no explanation for the delay between March and May 2019. There then followed a series of pre-charge advices, and Ms Nicholson was finally charged on 5 October 2019, which was nearly 10 months after the incident on 15 December 2018. 10. Ms Nicholson first appeared before the Birmingham and Solihull Magistrates' Court on 4 November 2019, when no indication as to plea was recorded. The case was sent to Birmingham Crown Court and there was a pre-trial preparation hearing on 2 December 2019. At that hearing Ms Nicholson entered a not guilty plea to the section 18 charge on the indictment, but a Defence Statement was submitted which first indicated that she was prepared to offer a plea to the section 20 offence and a trial date was set for 1 June 2020 and Ms Nicholson was granted unconditional bail. The trial date was vacated and inferentially that was probably because of the Covid-19 pandemic which, of course, started in March 2020. The next hearing did not take place in these proceedings until 23 August 2021. A pre-trial review was listed on that date, and the court said it was hoped to try the case in September 2021, but that then did not prove possible. The next earliest date was February 2022, and a further hearing took place on 31 January 2022, when Ms Nicholson entered a plea to the section 20 wounding offence and the Crown were ordered to confirm by 7 February whether this was acceptable. This was not acceptable to the Crown because the Crown identified that this was a repeated attack with a weapon to the head of Mr Iftikhar. The Goodyear indication on 13 February 2023 11. A further year passed, and the trial was listed on 13 February 2023, although it seems even on that date, it was unlikely to go ahead. There was a suggestion that it might go ahead later that week due to listing difficulties. The witnesses had attended for trial. Prosecution counsel, who had only been instructed shortly before, was attempting to access the case papers. There was a joint application to adjourn the trial, although the prosecution agreed that the trial could take place the following day. It was at that stage that the defence raised the subject of a potential Goodyear application and stated that “if” that Goodyear indication ended with an indication of a non-immediate custodial sentence, there would be no trial required for Ms Nicholson. It was, to be fair to Mr Beardwell who had made the application, noted immediately that the court would need to depart from Sentencing Guidelines and that the decision would be a bold decision. 12. Following further discussion, the defence agreed to upload the application for a Goodyear later that day. The two-page application for a Goodyear was then uploaded. The basis of plea admitted that Ms Nicholson had swung her shoes towards the back of Mr Iftikhar's head, and he turned and a shoe hit him in the eye, as corroborated by the independent account of Mr Josko. It was suggested that all previous attempts to hit Mr Iftikhar with the shoes had missed and it was further submitted that the blow was not premeditated and not deliberately aimed at Mr Iftikhar's face. It stated that the shoes had not been deliberately carried as a weapon. The application also dealt with Ms Nicholson's age at the time of the offence, and the application also addressed the issue of significant delay (4 years and 2 months by February 2023). It referred to Ms Nicholson being dyslexic and having been diagnosed with epilepsy. It also referred to the fact that Ms Nicholson was in steady employment and pregnant, and the birth was due in July 2023. It was suggested that 10 per cent credit on account of any guilty plea should be applied. 13. There were some authorities referred to in the application. These included Attorney-General's Reference No 26 of 2015 [2015] EWCA Crim 1119; [2015] 2 Cr App R(S) 53, that related to a female intoxicated defendant, glassing a victim in the face in a pub, after a minor altercation, who had received a 2-year suspended sentence. It might be noted that the injuries in that case were only minor cuts, the defendant had a pre-existing mental health condition, and that mental health condition and the medication taken for it had reacted with the alcohol. R v Beattie-Milligan [2019] EWCA Crim 2357; [2020] Cr App R(S) 10, dealt with an unjustified 11-month delay between arrest and notification of prosecution as a proper reason to mitigate the sentence, justifying a reduction of 6 months. There was also reference to R v Wright [2021] EWCA Crim 1445; [2022] 1 Cr App R(S) 42, where there was a 25-year-old defendant who was 4 months’ pregnant at the time of sentencing. The case had taken 3 years to conclude and delay in pregnancy were taken into consideration when a suspended sentence was imposed. The sentence however was only one of 8 months which had been also reduced to 6 months. 14. When the judge asked at the Goodyear hearing the factual basis for the plea, namely whether it was the same facts as for the section 20 offence previously offered and rejected, the Crown clarified that the prosecution case remained intentional wounding and therefore section 18 and not section 20. The assault had taken place with a weapon, namely the heels, and that the assault was directed at Mr Iftikhar's head. It was accepted that Mr Iftikhar had turned around at the last minute, such that particular harm to the eye could not be foreseen, but that did not detract from an intentional attack with a weapon to the head. 15. The judge when ruling on the Goodyear application indicated that she found that the violence was not premeditated and was instantaneous, albeit intent must be accepted by virtue of the plea. The judge also found that the court could take into account unjustified delay and that the court can depart from Guidelines in exceptional circumstances before the judge went on to indicate that any plea to the section 18 offence would result in a suspended sentence. 16. It might be noted that it seems from what was said by the judge during the sentencing remarks which followed on a later date, that at the time the judge was labouring under the misapprehension that a sentence of 6 years could be suspended and that the period for which that sentence could be suspended could be for 3 years. Following that indication Ms Nicholson then pleaded guilty to count 1. The prosecution requested that the separate offence with which Ms Nicholson had been charged, namely affray, lie on the file and a pre-sentence report was ordered for Ms Nicholson. The sentencing hearing 17. A pre-sentence report was obtained. Ms Nicholson was sentenced by the judge (then sitting at the Warwick Crown Court) on 30 May 2023 to a total of 24 months' custody suspended for 2 years, with the additional requirements already indicated. The pre-sentence report reported that Ms Nicholson stated that Mr Iftikhar had snatched her phone from her hands and her sole intention was to calm the situation down. The report noted that Ms Nicholson was somewhat dismissive of the gravity of Mr Iftikhar's injuries and Ms Nicholson also focused on the ramifications of the incident for her rather than Mr Iftikhar. Ms Nicholson accepted she had drunk copious amounts of alcohol on the night of the incident. She had completed her formal education and had been in employment for 5 to 6 years. 18. The pre-sentence report confirmed that Ms Nicholson was 23 weeks' pregnant, due to give birth in July 2023 and had recently been diagnosed with epilepsy. Her risk of re-offending was assessed and she was assessed as being unsuitable for unpaid work. Five character references were provided and those showed that Ms Nicholson worked hard, was a useful member of society and was very sorry and regretful about the incident. 19. The victim personal statement for Mr Iftikhar explained the extensive difficulty that he had faced as a result of the incident. He can no longer drive, and he has therefore lost his job with significant financial implications. He struggles to go out in daylight as his other eye is irritated too and he has reduced vision due to pressure on it. He has repeatedly had to use a range of ointments to manage his eyes and he has to have the help of a carer for some tasks. He bumps into objects and sometimes falls as a result of his reduced vision. His depth perception has also changed so it is harder to pick up everyday objects. He is now suffering depression and anxiety and fears being attacked again, and he is taking antidepressant medication. He said the consequences of his injuries had destroyed his family life and his deteriorating mental health had resulted in his marriage breaking down in 2021. He had become homeless as he was not entitled to financial support as he was not a British National and he was in debt and owed thousands of pounds. He referred to some of the earliest words of his son being: “I can't see anything”, as he mimicked his father, something Mr Iftikhar found extremely distressing. Mr Iftikhar had also spoken about losing faith in the court and justice system after the incident. There are medical statements about Mr Iftikhar's injuries. The Sentence 20. The prosecution Sentencing Note for the hearing on 30 May 2023 was uploaded. Counsel, who appeared on the day, was covering for trial counsel who had fallen ill. The note did not deal with the Sentencing Guidelines for a section 18 offence due to the earlier Goodyear indication having been given. At the hearing on 30 May 2023, prosecution counsel opened the facts and Mr Iftikhar's impact statement was read. In mitigation, the defence relied on the substance of the Goodyear application and set out Ms Nicholson had been out celebrating her birthday at the time of the offence and she had been suffering from stress as a result of the proceedings. She was due to give birth 7 weeks after the sentencing hearing and was by then on Universal Credit, awaiting a move onto maternity pay whilst living with her parents. She was also living with her partner at the same location. Ms Nicholson had saved £4,000 to make as a compensation payment to Mr Iftikhar. 21. During sentencing the judge queried whether it was agreed that the shoe was not raised as a weapon. Defence counsel stated that the shoes were carried for a lawful purpose (a change from one pair of footwear to another) and carried in Ms Nicholson's hands, so used as a weapon, although not originally intended to be used as a weapon. The judge went on to find that the offence fell within medium culpability B and category 1 harm due to the significant effect of the injury on Mr Iftikhar. That gave a starting point for sentence of 7 years' imprisonment, with a range of 6 to 10 years' imprisonment. There were aggravating features that the offence was committed under the influence of alcohol and mitigating features were Ms Nicholson's previous good character and her age at the time of the offence. The judge went on to indicate that the sentence she would have passed following trial would have been one of 6 years' custody. She then afforded Ms Nicholson a 25 per cent credit for plea, reducing the sentence to 54 months (4 years 6 months). The judge then went on the refer to the Goodyear indication previously given and repeated her findings that the violence was not planned or premeditated, and the shoe was not originally carried as a weapon and there was an unacceptable delay in bringing the matter to trial and because of personal circumstances, namely that Ms Nicholson was pregnant. The judge indicated that she was going to suspend the sentence for 3 years. The judge asked: “I can suspend, can I, or is 2 the maximum?” 22. The judge was told 2 years was the maximum. The judge then said that she would suspend for 2 years with a number of conditions including 10 days’ rehabilitation activity requirements and payment of compensation. Mr Beardwell, for Ms Nicholson, then said: “... your Honour has suspended for two years; of course, your Honour will have to determine the length of the sentence to be suspended. [THE RECORDER]: I thought I said it. [COUNSEL]: Your Honour didn't, but I imagine your Honour intended twenty -- [before the judge interrupted and said] Sorry I thought I said six years.” 23. We interpose to say that the judge had said 6 years but had then given credit for plea, giving a sentence of 4 years 6 months. Counsel replied: “Your Honour can't suspend six years.” 24. The judge stated that was the issue at the Goodyear operating outside the Guideline. Counsel accurately confirmed that a sentence of imprisonment of 2 years could be suspended but no longer. The judge then sentenced Ms Nicholson to a total of 2 years' custody suspended for 2 years, with a 10-day rehabilitation activity requirement and payment of compensation. Events after sentence 25. We have an updated pre-sentence report from Probation dated 10 July 2023. This shows that Ms Nicholson has attended her supervision sessions, is open and honest and is very emotional when the offence is addressed. It was said that going into custody would have a detrimental effect on her and her baby and the baby would then be cared for by her partner and parents. In fact, we were told this morning that the child was born on 12 July 2023 and is now 23 days’ old. We are also told that the child is being breast fed about every other hour. We had an updated report from the offender manager, dated 28 July 2023, in which it was reported that Ms Nicholson had formed a strong bond with her baby. Relevant provisions of law 26. The offence specific guideline is Sentencing Guidelines for Causing Grievous Bodily Harm with Intent. “Medium culpability” is defined to include cases involving the use of a weapon or weapon equivalent that does not fall in the higher culpability bracket and lesser role in group activity and other cases falling below high and low culpability. It is common ground that the heel in this case was a weapon equivalent. “Harm” is classified on the basis of severity and permanence of the injury suffered, with category 1 harm reserved for the most serious of injuries that are particularly grave or life threatening and result in permanent, irreversible injury, which has a substantial impact on the victim's day-to-day activities. Category 2 harm includes grave injury and permanent irreversible injury not falling within category 1. 27. In relation to the approach to be adopted when sentencing defendants that are over 18 but under 25, guidance was given in R v Clarke [2018] EWCA Crim 185; [2018] 1 Cr App R(S) 52. The Court made it clear that turning 18 years is not a cliff edge, and that the youth and immaturity of someone in Ms Nicholson's position is still an important and relevant consideration for the purpose of sentencing. The Guideline on Sentencing Children and Young People can have weight when considering sentencing involving young adults. Section 6.46 of that Guideline sets out the deductions that the court might find it appropriate to apply as being broadly within the range of a-half to two-thirds of the adult sentence for those aged 15 to 17. The emotional and development age of an offender is of at least equal importance to their chronological age. 28. In R v Petherick [2012] EWCA Crim 2214; [2013] 1 WLR 1102, the Court of Appeal set out at paragraphs 17 - 20 that the sentencing of a defendant inevitably engages not only the defendant's right to family life but also potentially that of dependent children and it set out the approach to be taken in that case. 29. In R v Cheeseman [2020] EWCA Crim 794, the Court recognised the weight to be given to the interests of an unborn child in reducing a custodial sentence of 6 years to 4 years, in order to make that offender eligible for release at the same time as the child would leave the Mother & Baby Unit. We were informed today that a Mother & Baby Unit can accommodate a child up to the age of 18 months. 30. So far as this case is concerned, guilty pleas were entered following a Goodyear indication. In that case the Court of Appeal had provided guidance on the steps to be followed when an indication was sought ahead of any plea being entered. The court might ask for assistance from counsel as to facts and, if necessary, a written basis of plea and submissions and the decision in that case is now reflected in the practice set out in the Criminal Practice Direction at CPD VII Sentencing (see Indications of Sentence). 31. In terms of the Solicitor-General referring a case in which a sentence was passed further to a Goodyear indication, paragraph 71 of Goodyear made it clear that, if counsel for the prosecution had addressed his responsibilities in accordance with the previous paragraph, the discretion of the Attorney General to refer a sentence would be wholly unaffected by the advanced sentence indication process. Of course, if a sentence indication has been given in accordance with these Guidelines before referring the eventual sentencing to this Court, the Attorney General's decision would no doubt reflect that the defendant had pleaded guilty in response to the sentence indication, properly sought and given by the judge. Different considerations may arise where Goodyear indications are initiated by the judge. 32. Finally, when considering whether to suspend a custodial sentence, the first step is the consideration of the Sentencing Council Guidelines for Imposition of Community and Custodial Sentences. The Guidelines emphasise that a suspended sentence is a custodial sentence, and that the impact of a custodial sentence is both punishment and deterrent. The Guideline set out factors to be weighed when considering whether to suspend the sentence. This Court has indicated that it will not readily interfere with the assessment of a sentencing judge engaged in the exercise of whether a sentence should be suspended or not. The Court will only interfere when the decision as to whether to suspend a sentence is plainly wrong in principle, see R v Forest Jameson [2017] EWCA Crim 93; [2018] 1 Cr App R(S) 1. The Appropriate Sentence 33. In our judgment, the sentencing exercise went wrong because the judge was persuaded to give a Goodyear indication and was not given any assistance with the relevant sentencing offence specific guidelines, and because the judge appeared to believe a sentence of 6 years' imprisonment could be suspended and could be suspended for a period of 3 years. As it is, this Court is left in the unfortunate situation of having to revisit a sentence on a young woman, aged 22, who was 18 at the relevant time of the offence, of previous good character, who has just given birth and who has paid £4,000 in compensation, but who caused grievous bodily harm with intent where the harm was in the form of a permanent injury to Mr Iftikhar, being the loss of his eye and, as it turns out, the loss of his job as a taxi-driver. 34. In these circumstances, we can only do our best, having regard to the relevant legal principles. First, we can discern no basis on which it can be said that it is in the interests of justice to sentence outside the Guidelines. Secondly, the index offence was classified as category 1 harm, culpability B. The starting point for a category 1B offence is, as already indicated, 7 years, with a range of 6 to 10 years' imprisonment. Statutory aggravating factors in this offence include that the offence was committed against a person providing services to the public as a taxi-driver. The other aggravating factor was that the offence was committed under the influence of alcohol and, it might also be noted, that it was part of a group attack. The fact that Mr Iftikhar was a taxi-driver was important, a sentence of 8 years, before mitigation might be expected having started with a starting point of 7 years, before turning to mitigating factors. 35. We then consider the mitigating factors. A very important mitigating factor was age and lack of maturity. Having read all that we have, we consider that a discount of 25 per cent for age is reasonable. This gives a sentence of 6 years' imprisonment. We then turn to the other mitigation. There are no previous convictions and there is positive good character, as appears from the character references and indeed the information that we have from the offender manager. There was also a delay in the proceedings which has caused understandable difficulties both to Mr Iftikhar and Ms Nicholson, although it is right to report that Ms Nicholson did not admit the section 18 offence until the day of trial. There is also the feature that Ms Nicholson has paid £4,000 by way of compensation, and it is apparent that this represents all that she had managed to save from her work. Finally, we note that Ms Nicholson has given birth, although there are arrangements that can be made according to the offender manager, for care to be provided by her parents and partner in her absence. 36. Doing the best that we can, we would reduce the sentence of 6 years to reflect those mitigating factors, to one of 4 years 6 months but there is also a discount for plea. It is right to note that Ms Nicholson did admit the section 20 offence and at the time a discount for plea of about 20 per cent would have been justified. However, Ms Nicholson only admitted the section 18 offence on the day of the trial, and it is apparent that a discount of 10 per cent is justified but no more. This would give an overall sentence of 48 months, or 4 years. We note that this is lower than the judge's proposed sentence of 54 months (or 4 years 6 months) which the judge intended to suspend but had no lawful power to do so. 37. We turn then to address the final issue which has been raised this morning, which is the amount of time that a child can spend in a Mother & Baby Unit. As an act of mercy, we will reduce the 4-year sentence to one of 3 years, to take account of that fact. Whether the child is admitted with Ms Nicholson and whether the child and Ms Nicholson are placed in a Mother & Baby Unit are matters which are not within our control, but the effect of reducing the sentence that should have been imposed of 4 years to one of 3 years, means that becomes a possibility. 38. In all those circumstances, we hope we have reflected, as fairly as we can, the immense damage caused to Mr Iftikhar and all those points of mitigation properly available to Ms Nicholson. We therefore allow the Reference and impose a sentence of 3 years' imprisonment on Ms Nicholson. 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 1086' date: '2023-08-04' judges: - LORD JUSTICE DINGEMANS - MR JUSTICE GOOSE - 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} ======	WARNING: reporting restrictions apply to the contents transcribed in this document, as stated in paragraph 1 of the judgment, because the case concerns sexual offences. 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 202102270/A3 NCN [2022] EWCA Crim 264 Royal Courts of Justice Strand London WC2A 2LL Tuesday 15 February 2022 LORD JUSTICE HOLROYDE MR JUSTICE HOLGATE RECORDER OF BRISTOL (HIS HONOUR JUDGE BLAIR QC) (Sitting as a Judge of the CACD) REGINA v JOEY SAUNDERS Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) MS O LYCOURGOU appeared on behalf of the Appellant. J U D G M E N T 1. LORD JUSTICE HOLROYDE: This is an appeal by leave of the single judge against a sentence of 7 years' imprisonment for an offence of rape. The victim of the offence (to whom we shall refer as "C") is entitled to the protection of the provisions of the Sexual Offences (Amendment) Act 1992. Accordingly, during her lifetime, no matter may be included in any publication if it is likely to lead members of the public to identify her as the victim of this offence. 2. The appellant and C were both students at the same university. At the time of the offence C, unlike the appellant, was a virgin. Her virginity was important to her because of her religious beliefs. In her evidence at trial she explained that she had moderated her parents' strict principles to an extent which enabled her to join in student life and to drink alcohol with her friends. Her faith nonetheless remained important to her, and retaining her virginity was part of that faith. 3. On the night of the offence C went to the Student Union with some friends. There she met the appellant, whom she recognised because she had seen him about a week earlier. He appeared to be intoxicated. They danced and kissed. Later, C agreed to accompany the appellant to his room. She made clear however that she did not want to have sex with him. As a result of his intoxication the appellant vomited twice as they walked. 4. Once in the appellant's room, some initial sexual activity took place to which C consented. She did not however consent to the vaginal sexual intercourse which the appellant then forced upon her. C described herself as "freezing" when that happened. The appellant then tried to insert his penis into her mouth, but she pushed him away and told him to stop. The appellant apologised. C went to the bathroom, where she found she was bleeding heavily from her vagina. She sent text messages to her friends reporting what had happened. By the time she returned to the appellant's room to collect her purse, he had fallen asleep. 5. Very regrettably there was a delay of around 3 years before the trial could be heard. The appellant denied rape, and indeed denied that he had penetrated C's vagina with his penis, but was convicted. 6. The appellant was approaching his 21 st birthday at the time of the offence. He had no previous convictions. No pre-sentence report was thought to be necessary, and we are satisfied that none is necessary now. 7. C had initially feared that she might be pregnant, but that proved not to be the case. In a victim personal statement she described her distress and anxiety. She said that she had never imagined that her first experience of sexual intercourse would be rape. She did not feel able to tell her parents what had happened because of their religious views, and had only confided in one friend. She lost confidence in social situations and her studies were adversely affected. The judge in his sentencing remarks accepted that the offence had had a substantial effect upon her. 8. The judge was addressed about the appropriate categorisation of the offence under the Sentencing Council's definitive guideline for Rape offences. He concluded that it fell into category 2B, with a starting point of 8 years' custody and a range from 7 to 9 years. He was satisfied that the Autistic Spectrum Disorder which affects the appellant had not reduced his culpability. In relation to harm he explained his decision as follows: "... I do regard your victim as being somebody who was particularly vulnerable because of her faith, the way she was trying to live that faith in the modern context and her virginity, which she had retained and which she lost through you that night." 9. The judge identified a number of mitigating factors: the appellant's comparatively young age; the absence of previous convictions and the "many admirable qualities of kindness and support" which the judge accepted he had shown. He took into account the particular difficulties faced by those in prison during the Covid-19 pandemic, but regarded that as a less powerful factor in view of the inevitably lengthy sentence which would have to be imposed. Taking those factors into account he moved downwards from the starting point to the bottom of the category range and so imposed the sentence of 7 years' imprisonment. Appropriate ancillary orders were made, about which we need say no more. 10. In her written and oral submissions Ms Lycourgou, who represents the appellant in this court as she did at trial, submits that the judge was wrong to find that C was "particularly vulnerable due to personal circumstances" for the purposes of the sentencing guideline. The appropriate category, she submits, was 3B, with a starting point of 5 years' custody and a range from 4 to 7 years. She argues that the evidence showed that C was capable of making choices as to what she would and would not do, had chosen during her time at university to socialise and drink in ways which showed her not to be particularly vulnerable, and had chosen to engage in some sexual activity with the appellant. Ms Lycourgou contrasts the circumstances of this case with those of R v McPartland and Grant [2020] 1 Cr App R(S) 51, in which a finding of particular vulnerability was made in circumstances where the victim had been very drunk, alone with two older men in the home of one of them and had been raped when visibly unwell. 11. Ms Lycourgou has amplified her submissions orally this morning and we are grateful to her. 12. The factor "victim is particularly vulnerable due to personal circumstances", which appears in the guidelines relating to several sexual offences, has been considered in a number of previous decisions of this court. It is clear that the relevant personal circumstances need not be enduring characteristics such as a young age or a physical disability (see R v Rak [2016] EWCA Crim 882 ). Thus, for example, adult victims of sexual offences who were asleep or insensible through intoxication when the offending began may be found to have been particularly vulnerable (see, for example, R v Bunyan [2017] EWCA Crim 872 and R v Behdarvani-Aidi [2021] EWCA Crim 582 ). 13. The present case raises a rather different issue as to the ambit of this factor. It is important to remember that the particular vulnerability of the victim is identified as a harm factor in the sexual offences guidelines, not a culpability factor. Specific targeting of a vulnerable victim, which plainly is relevant to culpability, would be taken into account as an aggravating factor at step 2 of the sentencing process. The inclusion of the harm factor allows the sentencer to take account of a range of features which may increase the harm which the offence caused, was intended to cause or might foreseeably have caused to the victim. Often the relevant circumstances will be those which substantially limit or exclude the victim's ability to avoid, protest against or report the offence. This may be the case where, for example, a victim is very young or is insensible through drink. But personal circumstances may also render a victim particularly vulnerable to even greater harm than is likely to be suffered by other victims of a similar offence. A victim may, for example, have mental health problems which are greatly exacerbated by the effects of the offence. Similarly, a victim's religious and/or societal circumstances may be such that being the victim of a sexual offence strikes at her faith and/or results in condemnation by her peers. 14. It will be for the sentencer in each case to assess the relevant personal circumstances and consider carefully whether the factor applies. Due weight must, of course, be given to the words " particularly vulnerable", bearing in mind that a finding to that effect will place the case into a more serious category with a higher starting point for sentence. As always, care must be taken to avoid double counting. For example, circumstances which render the victim particularly vulnerable to injury may also bring the case within the factor of "severe psychological or physical harm". It must also be remembered that vulnerability which falls short of "particular vulnerability" may be treated as an aggravating factor at step 2 of the sentencing process. 15. Applying those principles to the particular circumstances of the present case, the judge was entitled to find that C's desire to preserve her virginity, and the religious importance to her of doing so, were personal circumstances which rendered her particularly vulnerable to suffer increased harm as a result of the offence, going well beyond the harm inevitably suffered by anyone losing their virginity in the greatly distressing circumstances of rape by a drunken man. The evidence and information available to the judge showed that C's religious and social background made the loss of her virginity a particularly heavy blow to her religious principles, and left her unable to seek support and comfort from her parents and friends. 16. We are therefore unable to accept the submission that the judge fell into error of principle in placing the offence into category 2B. Having done so, he correctly reflected the mitigation available to the appellant by moving downwards from the guideline starting point. The judge, having presided over the trial, was in the best position to assess culpability and harm. We recognise, of course, that the sentence is a heavy one for a young man with many good qualities. But he had committed a very serious offence and, although stiff, the sentence was neither wrong in principle nor manifestly excessive. For those reasons this appeal fails and 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: '[2022] EWCA Crim 264' date: '2022-02-15' judges: - LORD JUSTICE HOLROYDE - 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} ======	Neutral Citation Number: [2011] EWCA Crim 254 Case No: 2009/01162/B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SHEFFIELD CROWN COURT HIS HONOUR JUDGE KEEN QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/02/2011 Before : LORD JUSTICE THOMAS MR JUSTICE WILKIE and MR JUSTICE NICOL - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Sadakat Ali Malook Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr S Kamlish QC and Mr G N Hussain for the Appellant Mr T Capstick for the Respondent Hearing dates: 2 & 3 February 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Thomas: Introduction 1. This application for leave to appeal against sentence arises out of the evidence adduced before His Honour Judge Keen at a Newton hearing at Sheffield Crown Court over 4 days between 3 and 6 February 2009. The Newton hearing took place after the appellant had pleaded guilty on 15 September 2008 to conspiracy to supply a Class A drug and to possession of criminal property and the Crown had rejected his basis of plea. After hearing the evidence, the judge held, accepting the Crown’s case, that the appellant was at the head of an enterprise to store, prepare and distribute heroin throughout the UK between 1 April 2007 and 18 April 2008; he rejected the account put forward by the appellant and accepted that of the Crown. He sentenced the appellant to 21 years imprisonment, less time on remand. Subsequently, on 22 January 2010, a confiscation order was made; the benefit was assessed at £4.038m; the available assets were assessed at £196,039.34 and an order made in that amount. (i) The issues on the appeal 2. The grounds of appeal underwent many changes but in the grounds as finally advanced during the application there were two primary bases on which it was said that the findings made by the judge at the Newton hearing could not stand: i) There had been a deliberate withholding of documents by the police and a deliberate failure to disclose. This was a serious allegation amounting in effect to a conspiracy to pervert the course of justice. ii) The judge misapplied the evidence in relation to the appellant’s income and further evidence should be received by this court. (ii) An outline of the issues in the Crown Court 3. On 14 April 2008 the appellant was arrested at 62 Sturton Road, Sheffield along with Naveed Yaqoob. The police recovered heroin with a potential street value of £99,500 from the premises. It was plain from their search of the premises that it had been used as a drugs factory. When in custody the appellant gave his address as 64 Osgathorpe Road, Sheffield. This was a semi-detached house, the other part of the pair being 66. Both properties were searched by the police and the police found at 64 paperwork addressed to the appellant and at 66, a house in a dilapidated state, £70,725 in cash; two bullet proof vests were found at 64. The bank notes were found to have had diamorphine contamination greater than typically detected on bank notes. Naveed Yaqoob was sentenced to 13 years imprisonment. 4. In his interview after arrest and in his subsequent basis of plea, the appellant’s account was: i) Between 1 April 2007 and 19 April 2007 he had been a heroin user and participated by cutting drugs for onward distribution. ii) On 19 April 2007 he was sent abroad by his family to try and get clean; he spent the greater part of his time in Dubai. Whilst abroad he introduced potential property purchasers from Pakistan, Europe and the UK to Dubai-based property developers. He returned to the UK on 9 March 2008. iii) After his return he agreed with Naveed Yaqoob to mix and sell on a quantity of drugs belonging to Shoukat Yakoub which had been left over following the arrest of Shoukat Yakoub. iv) He was in a labouring role mixing the heroin and the cash he held represented payments received on behalf of himself and fellow conspirators. 5. In his interview he denied he was known as “D” or “Dax” and said his nickname was “Dakoo”; in his basis of plea, he accepted his friends sometimes referred to him as “D” and “Dax”. 6. The issues at the Newton hearing were: i) What was the role of the appellant in the conspiracy? The Crown contended he was at the head; the appellant that he was an employee. ii) How long had the appellant been involved in the conspiracy? The appellant contended it was limited to his time in the UK. The Crown had not disputed he was overseas between 19 April 2007 and 9 March 2008, but had contended he was involved throughout; as evidence of that the Crown pointed to the fact he had no visible source of income and must therefore be dependent on drug dealing. The judge considered the evidence put before him by the Crown on those issues; the appellant did not give evidence. The judge accepted the case advanced by the Crown. 7. The application to appeal was referred to the Full Court. A representation order was made for the appellant to be represented by Mr Kamlish QC in addition to counsel who had represented him at trial. For reasons we shall explain we grant leave to appeal. 8. We will first consider whether documents were withheld and whether there had been a deliberate failure to disclose; we will then consider the evidence in relation to the appellant’s income. In the light of our conclusions on those matters, we will consider the judge’s decision in the Newton hearing. 1. DISCLOSURE AND THE PROVISION OF DOCUMENTS 9. The case of the Crown for putting the appellant at the head of the drugs enterprise at the hearing relied on recordings of conversations with Shoukat Yakoub and others which had been made while Shoukat Yakoub was using his telephone at work in Sheffield as a customer sales representative of the Norwich Union. As we shall explain, Shoukat Yakoub was arrested by the Gloucestershire Constabulary in relation to a related conspiracy which was dealt with at Gloucester Crown Court. 10. The principal evidence relied on by the Crown to prove that the appellant was at the head of the conspiracy and was involved in it whilst he was abroad were references in the telephone conversations to “D” or “Dax”, a name by which the appellant, as we have stated, was known. It was the Crown’s case that the calls were illustrative of the appellant’s continuous involvement in the conspiracy in this way, though there was no reference to him by name and no telephone call between him and the other conspirators. It was the appellant’s case that “D” or “Dax” was not an uncommon abbreviation, there was at least one other “D” involved in the conspiracy; the “D” referred to in the telephone calls was not the appellant, that the “D” referred to in at least some of the calls was by inference in the UK (at a time when the Applicant was agreed to be abroad) and that on a close examination of one of the telephone calls, the participants referred, not to “D”, as the Crown alleged, but to “T” and there was another person in the conspiracy who was known as “T”. (i) The allegations made in the appeal 11. It was contended by Mr Kamlish QC on behalf of the appellant that the South Yorkshire Police had deliberately withheld documents and deliberately failed to disclose other documents which would have undermined the Crown’s case in relation to the telephone calls between Shoukat Yakoub and others between 4 May and 10 July 2007 on which the Crown relied. Tapes of these telephone calls had been obtained from the Norwich Union, and in circumstances which we shall describe, transcripts of some of the calls had been made both by the Gloucestershire Constabulary in connection with an investigation known as Operation Mendip, where the principal defendant was Shoukat Yakoub, and by the South Yorkshire Constabulary in connection with the investigation known as Operation Minx, where the principal defendant was the appellant. In some cases the same calls had been transcribed by both police forces. 12. The Gloucestershire Constabulary’s investigation had resulted in arrests in 2007 and a trial and other proceedings before HH Judge Tabor QC at Gloucester Crown Court. The appellant sought to adduce before the court documentation which had come to light after the Newton hearing to show that there had been a deliberate withholding of evidence and a deliberate failure to disclose what had been made available by the Gloucestershire Police. In the autumn of 2009 the appellant’s solicitors had obtained some of the documentation from those who had defended Shoukat Yakoub and had then obtained further documentation from the CPS in Sheffield. It was contended that if that documentation had been made available and disclosed at the Newton hearing before Sheffield Crown Court, the judge could not have found that the appellant was at the head of the conspiracy. The principal matters relied on were two: i) The deliberate suppression of a transcript of the telephone call at 11:40 on 23 May 2007 used at Gloucester. That transcript had been transcribed with a “T” whereas the same conversation in the Sheffield proceedings was transcribed with a “D”. The South Yorkshire police had the transcript and had deliberately suppressed it. ii) The deliberate failure to disclose the interviews of Dewey, one of the defendants in the Gloucester proceedings, even though the South Yorkshire police had it. This provided powerful evidence about “T” and the real “D” or “Dax”. 13. Although some of these matters were explicable by a lack of competence by those responsible for disclosure in the South Yorkshire Constabulary, the allegation in relation to the suppression of the transcript of the telephone conversation used in the proceedings in Gloucester and the non-disclosure of the transcript of Dewey’s interview was advanced on the basis that this was deliberate and dishonest behaviour which necessarily involved perverting the course of justice to secure a finding by the judge that the appellant was at the head of the conspiracy. (ii) The origins of the Gloucester proceedings and their course 14. It is therefore necessary to explain the Gloucester proceedings in a little more detail as these occurred first in point of time and the documents about which the allegations were made originated in those proceedings. 15. On 23 May 2007, those of the Gloucestershire Constabulary involved in Operation Mendip were keeping observations on a house in Gloucester connected with Harrison, one of those convicted in the Gloucester case. He was with Bobat, another person convicted in the Gloucester case; both were alleged to be distributors. Whilst they were under observation a third of the defendants in the Gloucester case, Dewey, arrived in a van which was found to contain heroin; he was the courier. When Dewey was interviewed he described the person who had given him the package containing heroin as “Shax” who was connected to another Asian called “Dax”. The interview contained: i) A reference to “T” as the man dealing with Harrison and that “T” was the Leicester end of the organisation covering Sheffield, Huddersfield and Wakefield. He had a phone number ending in 155. This was later shown to be associated with a man called Dutt who was in due course tried in separate proceedings in Gloucester Crown Court. ii) More details about “Dax”. (iii) The arrest of Shoukat Yakoub and the Norwich Union conversations 16. As a result of information Dewey gave about “Shax” officers were able to identify him as Shoukat Yakoub. His employers, the Norwich Union, were able to identify the telephone number he used in May 2007 and provide a list of all the calls he had made between 21 and 30 May 2007 which had been recorded on that number. Tape recordings of the calls he made on 22 and 23 May 2007 were obtained as was a call tracker analysis to cover the period 1 April to 18 May 2007. Shoukat Yakoub was arrested on 17 July 2007 after some of the tapes had been obtained. 17. Shoukat Yakoub pleaded guilty at Gloucester Crown Court to two conspiracies to supply drugs, the first in Gloucester and the second in Sheffield; he also pleaded guilty in respect of money found at his address. He was sentenced to 11 years imprisonment. Dewey also pleaded guilty and Bobat and Harrison were convicted at the end of November 2007. 18. Dutt was arrested subsequently; he had connections in Leicester where Bobat had lived for some years. It was the Crown’s case that he made arrangements with Shoukat Yakoub in Sheffield and Harrison in Gloucester, acting as the go-between with Dewey as the courier of the heroin. There was extensive evidence as to his involvement through a detailed analysis of telephone calls of the 155 number. (iv) The applications under s.23 of the Criminal Appeal Act 1968 19. Those representing the appellant sought to rely for their appeal on the documentation relating to the Gloucester proceedings; they wished the court to consider it under s.23 of the Criminal Appeal Act 1968 . In the light of that documentation and the allegations made, statements were served by a number of police officers to explain what had happened. The Crown sought leave to adduce evidence from these witnesses as fresh evidence under s.23 to explain what had happened in the course of disclosure. 20. The statements made by the officers gave rise to justified further concerns. We have no doubt therefore that Mr Kamlish QC was amply justified in advancing a case of dishonesty and serious misconduct amounting to a conspiracy to pervert the course of justice (whether that case was made out is, of course, a different question and one to which we will return). In those circumstances, we considered that we should grant leave to appeal. 21. We heard de bene esse the evidence on this issue of three police officers, one from the Gloucestershire Constabulary and two from the South Yorkshire Constabulary; we also heard evidence by video-link of a civilian employee of the South Yorkshire Constabulary who was on holiday at the time of the hearing of the appeal. We consider that it was in the interests of justice under s.23 of the Criminal Appeal Act 1968 , having regards to the submissions placed by the appellant before the court to consider the documents upon which he relies and to receive the evidence of these witnesses. (v) The telephone recordings obtained from the Norwich Union in early July 2007 and their transcription 22. The telephone recordings of the land line used by Shoukat Yakoub to which we referred at paragraph 16 above were obtained from the Norwich Union by DS Daniels of the Gloucestershire Constabulary in early July 2007; he gave evidence to us. Initially he obtained only tapes of the calls for 22/23 May 2007; these were then transcribed. His evidence in his statement made on 19 May 2010 was that the transcripts of these tapes were reviewed by him on 2 and 5 July 2007 and were placed on the file; 23. His statement was clear in stating that a “full copy” of the file was given to the South Yorkshire constabulary, but the transcripts of the phone calls on 22 and 23 May 2007 were not included, as they dealt specifically with the offences in Gloucester. The tapes were, however, provided. 24. His oral evidence was that he had not placed the transcripts of the telephone conversations on the file, but put them on the exhibits file, though the transcripts of the interviews were put on the file. The person to whom he had provided all the documents in relation to the matter was Mr Harpham, a civilian crime investigator employed within the Serious and Organised Crime Unit of the South Yorkshire Constabulary. DS Daniels had not given Mr Harpham the file, but only the transcripts of the interviews of Shoukat Yakoub and Dewey and an undated summary of the evidence produced by the police. He did not give Mr Harpham the witness statements of the interviews in the Gloucester proceedings. There was no date or record of when the documents which he had provided to South Yorkshire had been handed over, but it must have been after the arrest of Shoukat Yakoub on 17 July 2007 and before the preparation of the case summary by counsel on 27 September 2007. 25. The statement of DS Daniels to which we have referred was taken by Mr Harpham on 23 May 2010; Mr Harpham made a statement shortly afterwards on 3 June 2010; in that statement he said that he was given a “full working copy” of the Mendip file; he went on to say that this included transcripts of the telephone calls on 22 and 23 May 2007 giving the correct Gloucestershire reference number for those transcripts. Mr Harpham, however, made a second statement on 28 October 2010 explaining that this was “a mistake”, as he had confused the transcripts of the telephone calls with the transcripts of the interviews obtained at that time. 26. Mr Kamlish QC quite properly in the light of all the evidence put to both these witnesses that they had put their heads together to lie and that by mistake the truth was what was in the first statement of Mr Harpham. (vi) The obtaining of further telephone recordings 27. The obtaining of further tapes was dealt with largely in the evidence obtained and served prior to the Newton hearing. It was as follows: i) In August 2007, an employee of Norwich Union, prepared recordings of calls made from the number used by Shoukat Yakoub for the period 21 April to 18 May 2007; on 31 August 2007 the further tapes were passed to DS Daniels. On 6 September 2007 DS Daniels reviewed the calls on the tapes and produced six further tapes which contained only the relevant conversations, together with a schedule. On 12 September 2007 the tapes and the schedule were handed to Mr Harpham and by him to Detective Sergeant Anne Evans of the South Yorkshire police; she was then a constable and had the responsibility for overseeing the preparation of transcripts from tape recordings obtained from the Norwich Union. These were reviewed by her; she then arranged in November for transcripts of these tapes to be produced by a police constable who spoke Urdu; he did this by 11 January 2008. ii) In September 2007 Norwich Union prepared another batch of calls made between 23 May and 16 July 2007; these were sent by another employee of the Norwich Union directly to Mr Harpham on 22 October 2007. He handed them to DS Evans who reviewed them and gave them to the police officer for transcription when he had finished with the first batch of tapes. He returned the completed transcripts to her on 22 January 2008. 28. We heard evidence from DS Evans and a fellow officer, DS Tate, who at the time had also been a constable; they had joint responsibility as officers in the case, with DS Tate telling us he had the more senior role. Whether his evidence is a proper reflection of their joint position is immaterial; what is important is that DS Evans appears to have been primarily responsible for the preparation of the transcripts. She was plainly a careful and conscientious police officer, as was shown by the detailed schedule she worked on and by her clear and thoughtful answers to the questions she was asked in the course of her evidence. She was an impressive witness whom Mr Kamlish QC rightly accepted was telling the truth. We attach considerable weight to her evidence; she made clear that she would have asked Mr Harpham if transcripts of the tapes had been provided by the Gloucester Constabulary, as transcribing the tapes was time consuming and had involved taking an officer off front line duties. She could not recall the answer she got but she was under the impression that there was none. 29. DS Tate also made clear in his evidence that he was unaware that transcripts had been completed by the Gloucestershire Constabulary; he could not recall if he had made any enquiry. (vii) The provision of the transcript of Dewey’s interview 30. Although the transcripts of the interviews of Dewey had been provided to the South Yorkshire Constabulary, these were not made available to the appellant’s lawyers prior to or at the Newton hearing. In his second statement made for this court on 28 October 2010 to correct what was said to be the mistake in relation to the provision of the transcripts of the telephone conversations, Mr Harpham explained this as follows: “I am strongly of the opinion that at that time and of present there was nothing in those papers which assisted the defence or undermined the prosecution.” 31. In his evidence, Mr Harpham said, before he was asked, that this was yet another mistake which he would take on the chin. It had already been conceded by the Crown that the transcripts of Dewey’s interviews should have been disclosed. Mr Harpham was unable to explain why he had made a mistake. (viii) The supply of information to the Humberside Constabulary 32. There is one further matter to which we must refer before we set out our conclusions on the evidence. We were provided with details of an investigation into another nationwide drug dealing conspiracy in Humberside in the period October 2008 to June 2009, where it was alleged that the main offender was Mohamed Zaker Miah. The evidence to us was that the integrity of the disclosure regime in that case had led to the proceedings being stayed on the second trial of Miah; that is not material to us. What Mr Kamlish QC very properly raised was that one of the purchasers of drugs in that conspiracy was “Dak” or “Dax”. Those names appeared in the dealer’s book found in police searches. The case summary prepared by the Humberside police after referring to this said: “Dax has been identified as [the appellant] (01.05.80) and in February 2009 he appeared at Sheffield Crown Court charged with serious drug trafficking offences. He was sentenced to 21 years imprisonment.” 33. In a statement prepared for the court by Detective Constable Harding, the officer in the case in the Humberside investigation and subsequent trials, he stated that this was based on information received from the South Yorkshire Constabulary and had been included to try and place a status on Miah and the size of the organisation. It was accepted that the paragraph indicating that the appellant had been identified as “Dax” should not have been included. In the light of the allegations justifiably made in relation to the disclosure and documentation provided by the Gloucestershire Constabulary, Mr Kamlish QC sought to enquire how the information had been provided to the Humberside Constabulary. The evidence of DC Harding, in his statement and oral evidence was that, despite enquires, no record that had been found within the Humberside police as to how the information had been provided to them. His oral evidence to us was confirmed in a statement by Detective Inspector Killeen of the Humberside Constabulary. DS Evans and DS Tate gave evidence that there was no record in the South Yorkshire Constabulary as to who had provided this information. 34. In the circumstances, nothing emerged which assisted in the evaluation of the evidence given to us about the serious allegations made in this appeal. It, however, reinforced the concern of the court as to the standards adopted by the constabularies to proper record keeping in major investigations. (ix) Conclusion on disclosure 35. In arriving at our conclusions, it is necessary first to set out our findings in relation to the way in which disclosure was handled in these investigations. i) The issues relating to disclosure in this case related to documentation produced by the police in the course of investigations in contradistinction to pre-existing material seized by a police force. Proper record keeping in an investigation is essential to the integrity of an investigation, to public confidence in police investigations and the proper administration of justice. ii) These were large scale investigations into major drugs conspiracies, two of them alleged to be on a nationwide scale. It is therefore a matter of concern to the court that the records of three different police forces in relation to these investigations have the deficiencies we have set out. We appreciate that investigations of this kind involve intelligence and undercover work; we fully understand the need to protect such intelligence and undercover work and the systems in place to protect such work. However this cannot be at the expense of the keeping of proper records of an investigation so that the police can comply with the fundamental obligation of ensuring a fair trial of those apprehended by being able to account for the documentation created during the course of the investigation and by being in a position to produce material that undermines the prosecution case or assists the defence. iii) As we have said at paragraph 20, the appellant’s legal team led by Mr Kamlish QC had good grounds for raising the issues that they did in this case; the very considerable costs incurred in looking into the matters very properly raised has been caused in significant part by the inadequate record keeping of the three constabularies. iv) But the deficiencies in the conduct of this matter by the South Yorkshire Constabulary did not stop at deficient record keeping. We regret to have to conclude that Mr Harpham, though apparently trained in the duties of disclosure, had no understanding of the duties of disclosure. As we have set out at paragraph 30, as late as 28 October 2010, he maintained that the transcripts of interviews of Dewey did not have to be disclosed. v) This therefore appears to be another case where there have been serious problems in the handling of disclosure by a police force where what was in issue was investigative material as distinct from pre-existing documentation taken by the police into their possession or material covered by PII or third party or overseas disclosure where difficult issues can arise. As this court observed in Olu, Wilson & Brooks [2010] EWCA Crim 2975 : “Despite the volume of such material that a modern investigation generates and records, difficulties should not have arisen if the relevant issues had been identified and disclosure carried out in accordance with the CPIA and the Guidelines in a “thinking manner” …” The court pointed in that case, at paragraph 44, to the need for the disclosure officer to be directed by the Crown prosecutor as to what is likely to be most relevant and important so that the disclosure officer approached the matter through the exercise of judgement and not simply as a schedule completing exercise. vi) In this case, as we have observed, the position was that the records were deficient and the disclosure officer plainly had no proper understanding of the obligations of disclosure. He did not have the training and competence to exercise the necessary judgement required of a disclosure officer. This was the fault of those much more senior to him who were responsible for the system. vii) There is a yet further matter. When the allegations of a failure to disclose were raised after the Newton hearing, it is a matter of regret that the South Yorkshire Constabulary failed to entrust the conduct of this matter to a senior officer who had not originally been involved. It was, in our view, wrong to have left this matter in the hands of Mr Harpham and the other officers. Much of the material relied upon quite properly by Mr Kamlish QC was generated by the way the matter was investigated and statements taken. 36. We have set these matters out as they are important to our conclusion on the central issue as to whether we find the conduct of DS Daniels, Mr Harpham and other more senior unidentified officers in the South Yorkshire Constabulary dishonest and having engaged in a conspiracy to pervert the course of justice by misleading a judge at a Newton hearing. i) Allowing for the fact that Mr Harpham gave evidence by video link whilst he was on holiday, we found his evidence and that of DS Daniels deeply unimpressive. Mr Harpham’s statements had been written without any proper care or without any proper understanding of his duties; he had no proper concept of record keeping or his duties as disclosure officer. DS Daniels’ descriptions of the way in which he filed documents were contradictory and did not make sense. ii) But should we conclude they were dishonest and had in effect conspired together to pervert the course of justice and deceive the judge and this court? iii) Their conduct has to be seen against the serious deficiencies we have outlined in sub-paragraphs i) to vii). We have concluded that, although the conduct of both was evident of a lack of competence or training for the tasks which more senior officers had entrusted them and that the systems within their forces had the deficiencies to which we have referred, neither was in our view dishonest. The exhibit references for the transcripts of the tapes in Mr Harpham’s first statement had been copied from the statement of DS Daniels. His explanation that he had muddled the transcripts of the interviews of Shoukat Yakoub and Dewey with the transcripts of the phone calls is in our view only credible because of his obvious lack of competence for the task given to him. DS Daniel’s explanation of his filing system was explicable by the failure to train him in proper record keeping in a serious drugs conspiracy. iv) They were both doing work for which they were not properly trained and for which they were not competent; that they had been placed in this position was the responsibility of those more senior to them. They were, however, not dishonest. v) Moreover, it is clear that Mr Harpham would never have acted on his own initiative. We are satisfied that he acted under the direction of the officers in the case or more senior officers; he would not have suppressed the transcript without a direction from DS Tate or DS Evans or others more senior than them. As we have said, DS Evans was an impressive witness of complete integrity and we have no doubt that she would not have acted in this way. Although the evidence of DS Tate was much less impressive (as demonstrated by his answers in cross-examination about the instructions he gave in relation to the Gloucester proceedings and his claim to have identified the language on the tapes as Mirpuri); his own record keeping was poor. However, he did not in our judgment act in any way dishonestly and would not have given instructions to Mr Harpham to suppress evidence. vi) We are assisted in that conclusion by the fact that the significance of the appellant being known as “D” or “Dax” cannot have been material until after his arrest on 14 April 2008. By that time the transcripts prepared under the supervision of DS Evans in Sheffield had been completed. It was of course possible, as Mr Kamlish QC rightly submitted, that it was only at that stage were steps taken to suppress the Gloucester transcripts, but this would have entailed those involved in giving a dishonest answer to DS Evans when she asked if the Gloucestershire Constabulary had transcribe the tapes (as set out at paragraph 28 above). At that time no one could have had a reason to provide an untruthful answer in the autumn of 2007. vii) Nor was the withholding of the transcript of Dewey’s interviews deliberate. There would have been no sense in doing this as the existence of that interview and its importance was clear, as we shall describe, from counsel’s summary of the Gloucester case which was provided to the appellant’s lawyers. viii) As Mr Kamlish QC reminded us, Mr Harpham could have been both dishonest and incompetent; we have no doubt that he lacked the competence to act as the disclosure officer, but we see no basis for finding that he was dishonest in relation to the failure to provide the transcripts of Dewey’s interviews. 37. We conclude therefore in respect of disclosure and the withholding of documents: i) The Gloucester transcripts were not supplied to the South Yorkshire Constabulary for use in the proceedings in Sheffield case against the appellant and others. ii) The transcripts used in the Gloucester case and the Sheffield case were prepared independently of each other by different officers. iii) There was a failure to disclose the transcript of Dewey’s evidence. It was not deliberate or malicious. It was the result of a deficient system and a lack of competence on the part of the South Yorkshire Constabulary. (x) Other issues relating to disclosure 38. A number of other matters were raised in the appellant’s skeleton in relation to documents which were used in the Gloucestershire proceedings and which were not disclosed at the Newton hearing of the appellant. We have examined the issues and are satisfied that the matters complained of have no substance. The omission of material in the Sheffield proceedings is explained by the fact it was not provided to the police at Sheffield. 2. THE EVIDENCE IN RELATION TO THE APPELLANT’S INCOME 39. The Crown contended that the appellant had been involved as head of the conspiracy throughout its duration, including the period when he was overseas, principally in Dubai. (i) The evidence before the judge 40. Before the judge the only evidence in relation to the appellant’s income and finances was the finding of £70,725 in cash at 66 Osgathorpe Road (to which we have referred at paragraph 3) and documentation from Grosvenor Real Estate Brokers (Grosvenor) in Dubai, UAE. These documents had been obtained by the Crown following e-mail correspondence between the financial investigator and persons in Dubai who had then posted the documentation to Mr Bradshaw. By the time of the hearing before us this documentation had also been obtained by the Crown under the mutual assistance arrangements with Dubai, but were put before the judge by the appellant to show that he was working in Dubai and could support himself; the Crown contended that they showed he had received no income apart from a very small sum. 41. The documents from Grosvenor were contracts relating to the purchase of 6 apartments in a new building, Dubai Sports City, which at the time was yet to be built in Dubai; the payments under the contracts were largely staged payments over a two year period commencing at the end of 2007, and a booking fee. Two contracts related to the same purchaser, the other four were different purchasers; the vendor was the same in each. Three referred to the appellant as being a representative. 42. The judge was also supplied with what he described as ledgers all headed “1 Jan – 31 Jan 07”; within these there was a record of only one payment to Sadakat Ali (the appellant’s first two names) of Dhirams 457.50 – which converted at the then exchange rate of approximately Dh 7 = £1, is under £70. The appellant produced no other document which showed any payment to him during the whole of the time he was in Dubai. A two page schedule of what appeared to be commissions due on the apartment sales was provided by Grosvenor; it did not show what was paid. There was uncertainty as to its provenance, accuracy and status. The judge declined to admit it. 43. The judge concluded that the documents demonstrated at their highest work on one day; they did not show the commission paid except for the sum of Dh 457.50. The judge therefore concluded that, giving the appellant the benefit of the doubt, it did not show continuing employment, a significant income or anything like that to live in Dubai for the period in question. The income must have come from another source. (ii) The position before us 44. In the grounds of appeal originally served, several issues were raised in relation to the way in which the judge had dealt with the evidence in relation to Dubai; these were all abandoned, save for one. It was contended that the judge had approached the issue wrongly and should have found that the appellant had legitimate earnings in Dubai. 45. After the Newton hearing, a statement was obtained by the Crown through the mutual assistance treaty from the police in the UAE for use in POCA proceedings. The statement was that of Mr Qamar Ali who was operating Grosvenor in Dubai; it was in Arabic. Although taken on 8 February 2010, it was not forwarded by the British Embassy for two months and then not translated until October 2010. The statement recorded that, about two years previously, the appellant had come to the office of Grosvenor and said that he wanted to buy some flats in Dubai; that he had bought a whole floor in the Dubai Sports City on the seventh floor; that he then sold through his office six flats. He added that the appellant had received the price from customers directly; the role of Grosvenor Real Estate Brokers was merely a brokerage. 46. The Crown served the statement in December 2010 and sought to adduce it as evidence under s.23 of the Criminal Appeal Act 1968 . Initially a hearsay notice was served, but Mr Ali had by the time of the hearing of the appeal returned to the United Kingdom and attended court. The Crown therefore sought to call him to show that the appellant must have had significant sums of money independent of any employment in Dubai, as he had purchased property. No objection was made by the appellant. 47. We therefore heard the evidence of Mr Ali de bene esse . He told us that the statement was wrong; the police officer in Dubai did not understand English and he had done his best to assist in his, Mr Ali’s, very poor Arabic. It was wrong to say that the appellant had bought flats. The position was therefore that the statement adduced by the Crown was in effect abandoned by Mr Ali. It was suggested that the Crown had somehow behaved wrongly in putting forward the statement; we cannot see how that can be. If there was to be any criticism, it would be criticism of the Dubai police for their conduct of the matter based entirely on Mr Ali’s evidence. That must be a matter for the Police in Dubai. 48. He then went on to explain that his contact with the appellant had been limited. The appellant had come to his office, as many did in the time of the property boom in Dubai, with an interest in getting involved in the property business. Mr Ali did not think the appellant was the kind of person with whom he wished to deal, as he did not have the resources to engage in large scale property development. He passed him on to another person in his office, Mr Mohamed Shabaz Khan. Mr Ali told us that he believed that the appellant did act in a brokerage capacity in all the transactions to which we have referred at paragraph 41 though he had no personal knowledge. He had no direct knowledge of the transactions and the brokerage that would be earned on such transactions was always the subject of negotiation. The time at which the brokerage earned would actually be paid varied significantly; sometimes it might be paid up front, before the payments under the transactions for properties to be built were paid by the principals to the transactions, or sometimes the brokerage might be paid only when each instalment was paid. A person might be a broker even if the purchaser did not know or there was no record on the documents. He accepted, when it was put to him in cross examination by Mr Kamlish QC, that the appellant might have received something between £30-40,000 during the period he was in Dubai. However it is clear from his evidence, that Mr Ali had no direct knowledge of any payment and the only document that showed a payment was of the very small sum of money to which we have referred at paragraph 42. 49. The appellant then sought to adduce before us evidence from Mr Mohamed Shabaz Khan. None of the procedural steps necessary to seek to adduce his evidence had been taken before the commencement of the hearing; indeed no notice whatsoever of the possibility that he might give evidence was raised before the hearing. We were first told during the first day of the appeal that a statement was being prepared from him and he might be called; that statement was then served during the course of that evening. At the beginning of the second day, we were told that there was a further statement in which Mr Khan spoke about persons acting as freelancers for other companies and whether the appellant might have been working in that capacity. In neither statement did Mr Shabaz Khan say what the appellant had been paid; he did not know. 50. We were then asked by Mr Kamlish QC if we could postpone a decision on whether we would admit the evidence of Mr Shabaz Khan until we had given our decision on that part of the case relating to disclosure; we were informed that Mr Shabaz Khan was trying to obtain documents from Dubai which would show that payments had been made to the appellant. We made clear to Mr Kamlish QC that he had to decide at this hearing whether he wanted to apply to call Mr Shabaz Khan. He then applied. The Crown opposed the application. Its principal ground for opposing the application was that this was evidence that should have been adduced at the hearing before the judge at the Newton hearing. If, contrary to that submission, evidence was to be heard from Mr Shabaz Khan, the Crown wished to put before the court evidence from the purchaser of two of the apartments who was referred to in the Grosvenor documentation; that person was in New Zealand and it had not been possible within the time constraints of the hearing of the appeal to arrange a video link. We asked Mr Kamlish QC if he would consent, as s.114(1)(c) of the Criminal Justice Act 2003 provides, to the evidence of the purchaser being admitted as hearsay. He declined on the basis he wished to ask that person questions. 51. After considering the matter, we stated that we would not give leave for Mr Shabaz Khan to be called, giving our reasons later. The matters we took into account were: i) It had been abundantly clear for a considerable period of time prior to the Newton hearing that the Crown were contending that the appellant had no visible income. He had therefore had months prior to the Newton hearing and a very substantial period of time after the Newton hearing in which to produce documentation to show his visible means of support. ii) It was not, it appears, until a few days before the hearing that steps were taken to obtain documents from Dubai. We were told that the appellant had difficulties in getting the documentation. We do not accept that as credible. iii) We regret to have to observe that it was only during the course of the hearing that the court was actually told what was happening. It is essential for the proper conduct of business before this court that if fresh evidence is to be received, it has to be filed before the court well in advance. We accept that difficulties can arise in the provision of fresh evidence; however, it is essential that such difficulties are brought to the immediate attention of the court and that there is complete candour. That does not appear to have happened. iv) If documents purporting to show payments to the appellant had been provided, it would have been necessary to give the Crown an opportunity to check that they were genuine through the Dubai authorities. That would necessarily have taken a considerable period of time. v) It would not have been fair to the Crown to permit such evidence to be added in circumstances where Mr Kamlish QC would not consent to us receiving the evidence of the New Zealand purchaser as hearsay evidence. That evidence was important evidence in rebuttal and there can have been little doubt about its credibility. 52. We therefore concluded that it was not in the interests of justice to admit such evidence; there was no reasonable explanation for the failure to provide it at the hearing before the judge at the Newton hearing; no proper steps had been taken in advance of the hearing before us; the provision of the evidence would have necessitated an adjournment; finally it would have been unfair to the Crown to have admitted the evidence whilst maintaining the exclusion of evidence of rebuttal. 53. It must be recalled that at all times the appellant knew and had means of access to records which would have demonstrated how he had financed himself during the period in which it was alleged that his sole means of support was drug dealing; if he had a legitimate source of income, there must have been documentation which he had had over two years to provide. (iii) Our conclusion on the appellant’s income 54. The evidence of Mr Ali did not in any way change the position in relation to the appellant’s income. We have considered the schedule to which we referred at paragraph 42, but it does not show what was paid; nor does it give any indication as to what might have been paid in the period during which the appellant was in Dubai, given the staged payments; nor did Mr Ali’s evidence assist, for it was no more than speculation as to what the position might have been in respect of what was payable under the schedule. In our judgment therefore there was no fresh evidence to admit under s.23, on the assumption that we made for these purposes, that Mr Ali was a witness of truth. It is not necessary for us, in the circumstances, to decide whether he was. 55. We reject the criticism of the judge’s approach to the appellant’s income as misconceived. In the absence of documents which would plainly exist when a person was working here or in Dubai which would evidence a legitimate source of income, it is difficult to see how it could be inferred he had a legitimate source of income. There is nothing therefore which calls into question the judge’s finding that the appellant had no significant income or anything like that which would be required to live in Dubai for the period in question. The judge was therefore right to conclude that it followed that income must have come from elsewhere during the period in which he was abroad. 3. THE APPROACH TO BE ADOPTED BY US 56. We therefore proceed to consider the issue before us on the basis that there should have been disclosed, in addition to the documents provided to the appellant’s legal team, the transcripts of the interviews of Dewey, but that there was no other new evidence or material before us which was not before the judge or capable of being put before him by the appellant. 57. In appeals against conviction, the principles that the court applies to fresh evidence received under s.23 are well settled; the test in Pendleton [2001] UKHL 66 ; [2002] 1 Cr App R 34 is considered and, if it is satisfied, the conviction is quashed and a re-trial ordered. 58. In sentence appeals, the court often considers fresh evidence without formality: see the observations of Sir Igor Judge P in R v Caines [2006] EWCA Crim 2915 at paragraph 44. There is no doubt, however, that a court has power under s.23 to hear fresh evidence formally in a sentence appeal. 59. No one has, however, been able to find a case where fresh evidence is put before the court under s.23 in relation to a case where a Newton hearing has taken place in the Crown Court. The court plainly has power to hold a Newton hearing: see R v Guppy & Marsh (1995) 16 Cr. App. R.(S) 25. Although we have rejected the allegations made in respect of the transcripts of the telephone calls and of dishonesty, it is clear that the police failed to provide to the CPS and the appellant’s legal team the transcripts of Dewey’s interviews which it is accepted should have been disclosed. 60. The question for us therefore is whether in the light of that, we should uphold the findings that the judge made in the Newton hearing. The test in Pendleton is inapplicable; we can assess the reasoning of the judge and the difference it would have made. If we were to conclude that the judge would not have made the findings he made, if the transcripts of the interviews of Dewey before us had been before the judge, we would ourselves have to hear the Newton hearing afresh, as there is no power for this court to remit the matter to the Crown Court. The position is the same as it was in relation to confiscation hearings before the amendments to the Criminal Appeal Act by s.140(2) of the Coroners and Justice Act 2009 which inserted sub-sections 3(A) to 3(D) into s.11 of the Criminal Appeal Act 1968 4. THE EFFECT ON THE JUDGE’S FINDINGS (i) The evidence before the judge about the telephone calls 61. It is first necessary to consider the evidence before the judge in relation to the telephone calls. 62. After it had been pointed out that the language used in the telephone calls which was not in English had been misidentified as Urdu but was in fact Mirpuri, the police therefore instructed a Mirpuri speaker, Mr Ahmed, after the Newton hearing had been ordered. He listened to the calls on which the Crown relied and prepared his own transcripts; it was those transcripts that were used at the hearing. He gave evidence and was cross-examined at the hearing. He confirmed he was provided with the tapes and earlier transcript. He said he listened to the recording, comparing it with the transcript and corrected any errors he found. He confirmed he had the equipment to enhance the quality of the recording but he said it was not a poor quality recording and he did not have to use the equipment. 63. The transcripts were admitted as hearsay; no challenge is made in this court to the judge’s decision so to admit them. DS Tate was called to read them; in cross-examination his evidence was that he had not drawn Mr Ahmed’s attention specifically to check the transcriptions of “D”. His explanation was that this was so he should not influence Mr Ahmed in any way. He had, however, directed Mr Ahmed’s attention to the translation differences between Urdu and Mirpuri. He said he had not asked Mr Ahmed to consider the second area of concern raised by the appellant for the reason he had given. 64. It was contended on behalf of the appellant in this court that DC Tate’s evidence that he had not directed Mr Ahmed’s attention to the issue relating to “D” was disingenuous; it was submitted on behalf of the Crown that his approach was correct as Mr Ahmed was not qualified in the sense of being expert to check the transcriptions of “D”. It seems to us it would have been much better if his attention had been directed to this point. Nonetheless it was Mr Ahmed’s evidence that whilst he paid particular attention to the recording when he came across Punjabi, Urdu or Mirpuri words he did in fact listen to the whole conversation and he was satisfied it was accurate. 65. It was also submitted on behalf of the Crown that it was open to the appellant’s counsel at the Newton hearing to have cross-examined Mr Ahmed about the disputed areas of the transcripts; he could have suggested he had wrongly transcribed the letter “D” and it should have been “T”. He did not do so. Indeed it seems to have been accepted by counsel for the appellant that he did not put to Mr Ahmed any areas of importance or areas that were doubtful or invite the judge to listen to the tapes. 66. The appellant called Dr Todd, an expert who specialised in the analysis of media and tape recording. His evidence about the call made at 11:40 on 24 May 2007 was that the reference to “D” was equally consistent with the person referred to as being “T”. (ii) The evidence before the judge in relation to “T” and “D” 67. It was submitted on behalf of the appellant that there were different tiers to the conspiracy; if the court could not be sure that the name referred to was clearly “D”, was or may have been “T”, then the court could not be sure that the appellant who the Crown asserted was “D” was the head in the conspiracy. 68. Before Dr Todd gave evidence, the judge commented that none of the transcripts mentioned “T”. The Crown’s position was as follows: “In no other transcript or passage of the transcript that had been placed before [the judge] is a reference made to “T”. I accept within the context of the case as a whole, although there is no evidence before [the court] there is another individual from Leicester identified as “T”, but that is …. I simply raise that as background of the evidence before [the court]. There is no other individual identified as “T” for the purposes of this hearing and my submission is that that initial does not appear in any other transcript or passage of transcript. So for those reasons we invite you to say that it is “D”, you can be sure about that and to prefer the evidence from the prosecution witness.” 69. The appellant contended that the Crown had made a false representation to the judge. In the 16 page summary of the calls between 2 April 2007 and 16 July 2007 diligently prepared by DS Evans, the summary of the call at 09:21 on 23 May 2007 identified the call as being made to “CA/T”; it was noted that Shoukat Yakoub appeared to have been subservient. The full transcript of the call was in the prosecution papers. The call was to the number ending in 155 linked to Dutt whose role we have described. The initial “T” does not appear in the transcript at any point. The court was not misled. (iii) The documents which had been disclosed 70. After the entry of the plea, the Crown provided the case summary in the Gloucester proceedings and four of the six interviews of Shoukat Yakoub on 20 and 23 October 2008. 71. On 25, 29 October and 10 November 2008 the defence made three requests for disclosure. A response was made by the Crown on 18 November 2008 and the remaining two interviews of Shoukat Yakoub were disclosed. 72. On 1 December 2008 and 10 January 2009 the defence made further requests to disclosure to which replies were made. 73. It is of considerable significance to this appeal that the case summary of the Gloucester proceedings included, in the main narrative, over a page which summarised what Dewey had said in his interview; that summary included much of what Dewey had said about the conspiracy and some of the matters which were relied on before us for the contention that the “Dax” identified by Dewey was someone different to the appellant. No request was made for disclosure of the interview. (iv) Do the new matters before us affect the findings of the judge? 74. The judge made two findings from his analysis of the phone calls: first that the person referred to as “D” was the appellant and second that he was at the head of the conspiracy. The transcripts of Dewey’s evidence were primarily relevant to the identification of “D” as the appellant. (v) The finding that “D” was the appellant 75. We begin by considering the evidence other than the telephone transcripts. The appellant accepted that he was involved in the conspiracy in April 2007 and again from March 2008; he had no visible means of support during the whole of the conspiracy but yet lived a lifestyle which necessitated a significant income. He claimed he was a worker only in the period in which he admitted participation. The judge was in our judgment in these circumstances entitled to conclude on the evidence that he was involved in the conspiracy throughout and that his lifestyle was financed by drug dealing. There is no basis to question that finding. That finding was in any event supported by the discovery of £70,725 at 75 Osgathorpe Road; although he gave an explanation in interview, he did not give evidence. It was therefore open to the judge to infer that this was the proceeds of a substantial scale of drug dealing which were his. 76. It is in that context that the judge turned to his analysis of the phone calls from which he concluded that the “D” referred to in the telephone conversations was the appellant. In considering the judge’s findings, we must take into account: i) The appellant’s representatives could have invited the judge to listen to the tapes of the material conversation to hear for himself whether the reference was to “D” or “T”; this was not done. The judge heard ample evidence that entitled him to conclude that the reference was to “D”. He was not misled by the Crown in relation to the point in relation to “T” as set out at paragraphs 68-69 above; in any event if there was anything in this point, it was a point that should have been emphasised in the 4 day hearing before the judge. We can therefore see no basis for considering that conclusion was wrong. ii) It was clear from the case summary of the Gloucester case that Dewey had been interviewed and in that interview he had provided information identifying characteristics of “D”. No request was made for that interview. Although the Crown should have disclosed it, that error must be weighed against the fact that the appellant did not seek it or deploy what was in the summary. 77. We have carefully considered the conversations in the light of what the case summary and the interview discloses about “D”. It is important to bear in mind that the statements made by Dewey as to the identity of “D” in the interview must be approached with a very substantial degree of caution. The fact that the police were unable to trace phone calls between the appellant and his co-conspirators is a factor, but does not amount to much given the obvious ability and skill of some of those involved in this conspiracy. In those circumstances, we see no reason to disagree with the judge’s analysis of the telephone conversations in reaching the conclusion that he could be sure that the person referred to was the appellant. 78. We therefore conclude that the transcript of the interviews of Dewey’s evidence would have made no difference to the findings of the judge that “D” referred to in the phone conversations was the appellant. (v) The finding that the appellant was head of the conspiracy 79. The judge also inferred from the phone calls that they also showed that the appellant was at the head of the conspiracy. Mr Kamlish QC contended that an analysis of the phone calls, which we were in as good a position as the judge to undertake, showed that the judge had gone further than he should have done in finding that the appellant was at the actual head of the conspiracy. He also asked us to have regard to the fact that that it would be unlikely that a person at the very head would be mixing the drugs in a conspiracy of this scale; that the appellant had tested positive for heroin on his arrest and was kept on the detoxification wing when in custody for 4 days. 80. It is clear from the decision of this court in Ahmed (1984) 6 Cr.App.R.(S) 391, that a court will not interfere save in exceptional circumstances with findings of a judge on a Newton hearing where the judge has properly directed himself. We are sure that the tapes showed that “D” was at a very high level in the conspiracy and plainly at a point much higher in the conspiracy than Shoukat Yakoub. However the transcripts point to another person also being involved in directing the conspiracy; in the circumstances, we consider that the judge’s finding that he was at the head should be read as meaning that he was at the centre of the conspiracy and one of those in charge. CONCLUSION 81. Although therefore we consider that the appellant’s grounds of appeal fail in almost all the respects advanced before us, we consider the finding that he was the head must be read in the sense of him being at the centre of the conspiracy at a much higher level than Shoukat Yakoub. 82. We will therefore hear submissions from counsel as to the sentence imposed on the appellant for the role we have set out in this substantial conspiracy for the nationwide distribution of very large quantities of class A drugs.	```yaml citation: '[2011] EWCA Crim 254' date: '2011-02-16' judges: - LORD JUSTICE THOMAS - MR JUSTICE NICOL ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	No: 05/4099/A6 Neutral Citation Number: [2005] EWCA Crim 2692 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 13 October 2005 B E F O R E: LORD JUSTICE LATHAM MR JUSTICE NEWMAN MR JUSTICE BEAN - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 82 OF 2005 (JOHN TOULSON) - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS B CHEEMA appeared on behalf of the ATTORNEY GENERAL MR G FISHWICK appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. LORD JUSTICE LATHAM: This is an application by the Attorney-General for leave to refer to this court under section 36 of the Criminal Justice Act 1988 a sentence imposed on 5th July 2005 on the offender at the Chelmsford Crown Court. He was then sentenced to a drug treatment and testing order for a period of two years by Mr Recorder Baker for three offences of robbery. We give leave to the Attorney to refer those sentences. 2. The facts were that on two evenings in January 2005 this offender committed three robberies at petrol stations where lone cashiers were working. The first occasion was at 2.30 am on 1st January 2005, when he went to the Shell petrol station, High Road, Epping Forest, carrying a spray deodorant. The cashier was working alone in the shop. He was a student from Pakistan who had only recently come to this country. The offender collected a bottle of soft drink from the chill cabinet, walked to the till and passed the bottle through the gap in the glass barriers between the till and the customer area. As the cashier opened the till in order to collect the coins which the offender had handed over, he was sprayed in the eye from the deodorant spray. Fortunately, the cashier was wearing glasses; and the spray merely hit the glasses. But nonetheless it had the desired effect, because the cashier moved backwards, and, when he did, the offender leant through the gap and sought to obtain money from the till. He in fact took about £106. The cashier managed to press the panic button and was clearly terrified by the offender, believing at one point that the offender was going to try to get through into the till area. In the course of the incident the offender must have cut his hand, because he left some blood on the till. 3. The offender then went back to his car and an hour later arrived at the Shell petrol station at Apex Corner, Mill Hill, where, once again, he went into the shop. There was nobody else in the shop. He placed some items on the counter, and the cashier scanned them into the till. When the offender handed over a £5 note the cashier opened the till. The offender then sprayed him in the eyes with the deodorant spray from about a metre away. That shocked the cashier, who, like the previous occasion, stepped back from the till, whereupon the offender bent over and removed cash from it. He left with £150 or thereabouts. 4. Twenty-four hours later at a third all night petrol station at Godstone Road, Whyteleaf in Surrey, the offender went once again into the shop. He made a pretence of telephoning someone to obtain an order for what he should buy. He then went to the cash desk, where the cashier took his money. When he opened the till to hand change over to the offender, the offender lunged at him, pushing him with both hands, causing him to fall backwards. When he did so, the offender then leant over and grabbed about £340 from the till. When he did that, his watch became dislodged and fell to the ground, and when he left the shop he failed to pick it up. 5. As far as the two shops which were the subject of the robberies on the previous evening were concerned, they were fitted with CCTV cameras. Those showed that the robber had been wearing a distinctive jacket, with a company logo on it. That turned out to be the logo of a company "Brighthouse" for whom the offender had at one time worked. 6. DNA samples were taken from both the tills robbed that night, where the appellant had left blood on them. The watch was also examined, and from it were taken samples from which DNA could be extracted. Those resulted in a match with the offender, and the consequence was that the offender was arrested. 7. When he was arrested he was interviewed in the presence of his solicitor. In the first interview, which was in fact before the police in question had known about the third robbery, he denied the two robberies on 3rd January. But subsequently and when the results of the DNA testing became known in relation to both those robberies and the one on 4th January he pleaded guilty at the first available opportunity. 8. The Recorder when sentencing him had before him the list of antecedents, which makes it plain that the offender was a habitual criminal. He had 54 previous convictions for theft and kindred offences, and most significantly for present purposes had been sentenced to six years' imprisonment at the Wood Green Crown Court on 9th April 1999 for five offences of robbery, with a further offence being taken into consideration. He was released from the six-year sentence of imprisonment, we understand it, some time in 2003. 9. After his release from prison there is no doubt that he reverted to the drug-taking habits which had been part of his lifestyle during most of his adult life up until then. He is now 30 years of age, and, although an intelligent man, had a troubled childhood and undoubtedly commenced both drug-taking and offending as a youth. 10. The Recorder also had in front of him reports which recorded the background and the fact that drug-taking had been, without doubt, a significant reason for his continual offending. The report from Katie Castle, the probation officer, raised the possibility of a drug treatment and testing order on the basis that she believed that the offender's position since his release from the previous prison sentence was such as to justify the conclusion that there was now hope that he might be minded to abstain from drugs, and, if he did so, there was a real prospect that he would not slip back into his offending ways. One particular reason for that was his relationship with a girl, with whom he had had a child, and that was thought to provide some real prospect of stability in his life and justified giving him the opportunity to prove that his intentions could in fact be put into effect. 11. That material persuaded the Recorder to take what the Recorder himself recognised and acknowledged was the highly unusual step recommended by the probation officer. 12. We have before us the reports which informed the Recorder, and a subsequent report, which suggests that, thus far at least, the offender has been as good as his word and has been responding positively to the order that the Recorder made. 13. Miss Cheema on behalf of the Attorney General has, however, said that there was no sufficient justification in this case for departing from the general principle, which is clearly set out in Attorney-General's Reference No 28 of 2001 (Daniel McCollins) [2002] 1 Cr App R (S) 250 and Attorney-General's Reference No 66 of 2003 (Moussin Boujettif) [2003] EWCA Crim 3514 , that in cases of serious offending, particularly where significant violence or threats of violence are involved, a drug treatment and testing order is inappropriate. In such offences, the public needs to be protected from the commission of such offences by the imposition of deterrent sentences, and a drug treatment and testing order might appear to the public to be a wholly disproportionate response to serious criminal wrongdoing. 14. We acknowledge that that is and must remain the general principle; but it is important to note that neither Judge LJ in the first of those cases nor Rose LJ in the second sought to impose a straitjacket on sentencers in cases where they considered that in the public interest some other course than a deterrent sentence should be at least tried. 15. We have no doubt that in this case the usual and proper order would have been a substantial sentence of imprisonment, and that is what the offender will undoubtedly face if he fails to complete satisfactorily the drug treatment and testing order. But in all the circumstances of the case, we do not feel that we should interfere with the chance that the Recorder here gave to this particular offender, bearing in mind the fact that, in the scheme of things, these robberies, though of vulnerable premises, did not have the hallmarks of serious violence which is often associated with such offences. That is not to gainsay their seriousness, but to put them into context, bearing in mind that the way in which Rose LJ set out circumstances which would not, except in rare occasions, justify the making of a DTTO, namely "offences involving serious violence or threats of violence with a lethal weapon". 16. Bearing all those matters in mind we have come to the conclusion that it was undoubtedly proper for this case to be referred to this court, but that we are persuaded at the end of the day that we can properly conclude that it would not be necessary in the public interest to interfere with the sentence that has been imposed. The sentence is accordingly affirmed.	```yaml citation: '[2005] EWCA Crim 2692' date: '2005-10-13' judges: - LORD JUSTICE LATHAM - MR JUSTICE NEWMAN - MR JUSTICE BEAN ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	Neutral Citation Number: [2010] EWCA Crim 2580 Case No: 200803579 C3 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CENTRAL CRIMINAL COURT HH Judge Hyam QC, Recorder of London Royal Courts of Justice Strand, London, WC2A 2LL Date: 11/11/2010 Before : LORD JUSTICE PITCHFORD MR JUSTICE SWEENEY and MRS JUSTICE SLADE DBE - - - - - - - - - - - - - - - - - - - - - Between : RECO AUBREY JOSEPH Applicant - and - THE CROWN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Paul Mendelle QC and Mr John Lyons (instructed by Registrar of Criminal Appeals) for the Applicant Mr Mark Heywood QC (instructed by CPS - Homicide Team ) for the Respondent Hearing date: 27th October 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford : 1. The appellant is now aged 30 years. On 2 March 2004 at the Central Criminal Court following a trial over which HH Judge Michael Hyam QC, the late Recorder of London, presided, the applicant was convicted of the following offences: Count 1: Murder of Shaun Perch, Counts 2 and 3: Possessing a firearm with intent to endanger life, Count 4: Possessing ammunition without a certificate, and Count 5: Possessing a Class A drug, cocaine, with intent to supply. Upon count 1 the applicant was sentenced to a term of life imprisonment with a minimum term of 17 years and 4 months to be served. He received concurrent terms of imprisonment upon the remaining counts. The single judge has referred the application for permission to appeal the applicant’s convictions upon counts 1 – 4 to the full court. At trial the applicant was represented by Mr Borrelli QC and Mr Korda; the respondent was represented by Mr Horwell and Mr Mark Heywood. Before us the application has been presented by Mr Paul Mendelle QC and Mr John Lyons and the respondent was represented by Mr Mark Heywood QC. 2. The principal ground of appeal concerns the evidence of an expert forensic scientist, employed by the Forensic Science Service, Ms Caroline Stapleton, who gave evidence on behalf of the prosecution at trial. Ms Stapleton recovered from objects which the prosecution sought to link with the applicant firearms discharge residue (now called gunshot residue or “GSR”) and expressed her opinion as to the interpretation of her findings. The applicant’s argument is that there have since trial been changes in the Forensic Science Service’s guidelines for presenting and interpreting evidence of the recovery of GSR which render the evidence given at trial by Ms Stapleton inaccurate or misleading, causing the convictions to be unsafe. 3. The applicant further takes issue with the Recorder’s directions to the jury upon aspects of the law and the evidence. 4. The case against the applicant was circumstantial. It comprised the following main features. The Killing 5. At about 7.00 pm on Good Friday, 18 April 2003, in St Mary’s Road, Harlesden, the half-brother of Nigel Abdullah (aka ‘Andre’ Jermaine Brown, aka Omar Lator Pargo aka ‘Peter’), was shot. He survived the shooting. At the time of the shooting a Volkswagen Golf owned by the applicant’s father, to which the applicant had access, was in St Mary’s Road. A bullet was later recovered from the Golf. At about 8.30 pm, two and a half miles away in Clifford Gardens, Harlesden, Shaun Perch was shot dead by the pillion passenger on a motorcycle which, it seemed, had lain in wait for Mr Perch as he made purchases at an off-licence. Both the driver and the passenger were wearing full visor helmets and black or dark motorcycle clothing. Shaun Perch died at the scene from a gunshot wound to the head. Belvedere Car Pound, 13 May 2003 6. On 13 May 2003 the applicant, Nigel Abdullah and Bernard Lynton travelled to the Belvedere car pound to recover a P registered Ford Escort car. They arrived in a red Mitsubishi Colt, registered number S842 AFB, driven by Abdullah. The car was owned by Abdullah; his thumb mark was later found on the internal rear view mirror. An argument developed about the size of the recovery charge and PC Ochinni attended. Following the officer’s arrival the applicant and Lynton left in the Ford Escort followed by Abdullah driving the Mitsubishi. It was the link between Abdullah, the applicant and the Mitsubishi which was to prove critical to the prosecution’s case. Mitsubishi Colt, 21 May 2003 7. Shortly after 1.00 am on 21 May 2003 the red Mitsubishi Colt was spotted by two police officers who followed it to the applicant’s home address at 12 Oldborough Road, Wembley. A man and a woman were seen to get out of the car and enter the address. The occupants of the car were black. The man wore a three-quarter length coat. The woman was about 5ft 2ins in height, wearing her hair in a ponytail. At about 11.00 am the same morning, officers were keeping watch on the house. The Mitsubishi was in the driveway. Also parked in the driveway was a Suzuki motorcycle, yellow and black in colour, registration number W531 ULP. DS Smith kept watch until about 12.30 pm. During that time no-one entered and no-one left the address. DS Smith was relieved by DC Mabey and DC Johnston. No-one entered or left the address until about 1.00 pm when the Mitsubishi Colt was backed out of the drive and driven quickly away. The officers gave chase but failed to catch the vehicle before it was abandoned in Norval Lane. The occupant or occupants of the vehicle had fled. Since no three-quarter length black coat was discovered in the subsequent search of 12 Oldborough Road, no person was seen to arrive at or leave the address before the departure of the Mitsubishi, and since the applicant’s father, Roy Joseph, was himself arrested shortly afterwards in a white van, the prosecution invited the inference that the driver of the vehicle was the applicant. Search of the Mitsubishi Colt 8. Armed response officers were called to Norval Road. One of the officers, PC Whitfield, broke the front offside window of the Mitsubishi and released the locking device to open the boot. The Mitsubishi was then handed over to local unarmed officers, PC Davis and PC Ayres, and the armed officers made their way to 12 Oldborough Road. Under the front passenger seat of the car PC Davis found a blue sports bag. Inside was a black cloth drawstring bag with a Devel logo. The Devel bag was a carrier which belonged to the applicant’s Devel motorcycle helmet subsequently found in his bedroom at 12 Oldborough Road. Within the Devel bag PC Davis found two firearms. He placed the bag on the driver’s seat to await expert examination. RJ/1 was a shortened 0.38 calibre Smith and Wesson revolver. RJ/2 was a shortened Webley Mark VI revolver. Both weapons were loaded and were made safe by a firearms officer, Mr Butler. Several unspent rounds of ammunition were found in socks within the blue bag, together with a pair of electric scales. Some of the ammunition had been “crimped” to fit the RJ/1 Smith and Wesson. By comparing a bullet associated with the wound to Shaun Perch’s head with test firings of the Smith and Wesson revolver, Mark Mastaglio, a firearms expert, was able to identify RJ/1 as the murder weapon. By examining the bullet recovered from the black Volkswagen Golf, Mr Mastaglio was able to establish, on test firing the RJ/2 Webley Mark VI revolver, that the bullet recovered from the Volkswagen was fired from the Webley revolver. 9. Inside the glove compartment of the Mitsubishi was found a car registration form and a document emanating from the immigration file of Gavin Dean Abdullah. The search of the car also revealed a doctor’s registration form dated May 2003 in the name of Jermaine Brown, one of Abdullah’s aliases. The contact mobile telephone number for ‘Brown’ ended in 6169. Search of 12 Oldborough Road 10. On the same day the applicant’s home was searched. In the applicant’s bedroom was hanging his silver coloured Avirex motorcycle jacket. From a pocket was recovered a repairs invoice for the Suzuki motor cycle together with copies of receipts for the sale of the Suzuki to Corey Joseph, a name the applicant admitted using. Also in the applicant’s bedroom were two motorcycle helmets, one of them his Devel. The second, a Shoei helmet, was contained within a soft cloth bag designed to carry the helmet. From the surface of the helmet was recovered Nigel Abdullah’s thumb print. Inside the Shoei crash helmet was found a pair of motorcycle gloves, SEC/60. A letter whose author purported to be ‘Reco Joseph’ offering to sponsor Gavin Dean Abdullah for his extension of leave to remain in the UK was also recovered from the applicant’s bedroom. On the day of the killing 59 telephone calls had been made or received by 6169. Cell site evidence established that at, or about the time of the killing, the phone was in the general vicinity of Clifford Gardens. The next call in the sequence was at 8.52 pm. That and subsequent calls were made and received while the phone was in the Cricklewood area where the applicant’s girlfriend was living. The officers found a second motorcycle jacket in the applicant’s bedroom, and a money transfer receipt in the name of “Pargo”, another of Abdullah’s aliases. A passport in the name of Jermaine Brown together with travel documents was also recovered. Evidence of Caroline Stapleton 11. Ms Stapleton was and is a forensic scientist employed by the Forensic Science Service at its London laboratory. Since trial Ms Stapleton has married and is now Mrs Caroline Henderson. However, to avoid confusion we shall continue to use Mrs Henderson’s maiden name. Ms Stapleton specialised in the recovery and identification of firearms discharge residues. A number of articles were delivered to her for examination. Gun shot residues are particles of primer discharged on firing. Over 90% of primer particles recovered from case work comprises types 1, 2 or 3 which can be distinguished by experts. On the firing of a weapon a large number of particles are produced. Many remain within the gun and cartridge case. Examination of articles associated with the suspect for identification of GSR is a standard exercise within the Forensic Science Service. The levels of particle recovery are described according to the numbers of particles recovered from any one article or group of articles located in the same place as follows: Low (1-3 particles), Moderate (4-12 particles), High (13-50 particles), and Very High (50+ particles). 12. From inside the barrel of RJ/1, the murder weapon, Ms Stapleton recovered numerous Type 1 particles. Inside the barrel of RJ/2, the Webley Mark VI revolver, Ms Stapleton recovered numerous Type 2 particles. On the outside of the barrel she recovered one particle of Type 1. From samples taken from the interior driver’s controls and seat belt of the Mitsubishi Colt car she recovered 3 Type 2 particles. 13. From the applicant’s motorcycle jacket recovered in the bedroom of 12 Oldborough Road (SEC/22) Ms Stapleton recovered one Type 3 particle from inside the right front pocket. From the second motorcycle jacket (SEC/48) she recovered a single Type 2 particle from the left front pocket. From the left glove of the pair (SEC/60) recovered from inside the Shoei motorcycle helmet, Ms Stapleton recovered a single Type 1 particle from its outer surface. It was the evidence of an eye-witness, Ms Dunya Kalantery, that the pillion passenger on the motorcycle shot the victim using his left hand. The applicant was left-handed although he and his mother gave evidence to the effect that although he wrote with his left hand, the applicant for all other tasks, including throwing, used his right hand. Although it was the case for prosecution that the applicant was the gunman the Recorder, in his directions of law, gave to the jury a joint enterprise direction. If the applicant was proved to have been one of the men using the motorcycle in Clifford Gardens at the time of the killing then, in the circumstances, he was inevitably guilty of murder. Arrest, Interviews and Lies 14. The applicant’s father was arrested on 21 May 2003. The applicant remained away from his home between 21 May and 30 June. On 30 June he attended the police station voluntarily and was interviewed. During the course of interview he told a number of lies. When asked about his connection with the Mitsubishi Colt car, he said that two men, Bruce and Ashley, were associated with it. He made up the names. He admitted in evidence that the car in fact belonged to Andre Jermaine Brown. He claimed in interview that he had not seen Andre since January 2003. The applicant also claimed that the Mitsubishi car had not been at the car pound. He denied that his father, or family, owned the black Golf in which the bullet and a bullet hole were discovered. He said that he had been living at 12 Oldborough Road since the date of the murder. The applicant’s alibi was that on 18 April he had been at the family home during the day. He did not leave the house until 9.30 pm when he took a cab to his girlfriend Latoya’s house in Cricklewood. Defendant’s Evidence 15. At his trial the applicant gave evidence in support of his alibi. So also did his mother and aunt. In the face of compelling evidence to the contrary he said the man he knew as Andre was not Abdullah of whom he had never heard before his arrest. He agreed that Andre had driven the Mitsubishi to the car pound on 13 May. He had been a passenger in the Mitsubishi Colt driven by Andre on the night of 20 May and in the early hours of 21 May. He claimed that he had met Andre in about November 2002. Andre had stayed with the family for about a week and a half but had been told to leave when it was believed that he had stolen a ring. The applicant admitted that he had stolen the ring himself. Andre was one of the applicant’s sources of cocaine of which the applicant was a habitual user. The applicant said that his father had given him the motorbike for his birthday. He had tried to sell it towards the end of 2002 and was making further arrangements to advertise it in April 2003. The applicant gave evidence that he had no knowledge of the bullet hole found in the windscreen of the black Golf. This was inconsistent with the evidence of a prosecution witness, Mr Austin Lewis, to whom the applicant had handed a cheque in payment for repairing the bullet hole in the windscreen. According to Mr Lewis the applicant acknowledged that he was lucky because the bullet hole was “right in front of the driver”. The applicant claimed to have no knowledge of the 6169 number, and denied that he had prepared any application for an extension of leave for Gavin Dean Abdullah. As to the concealment of the firearms in the Mitsubishi Colt the applicant acknowledged that he was aware of them. He claimed that while he was in Andre’s company during the night of 20/21 May, he was sitting in the back of the vehicle when he noticed the bag under the front passenger seat. He retrieved and opened it. He placed his hand inside and pulled out an object which appeared to be a gun. He was unaware of the second revolver. He decided to say nothing about it to Andre in case he became aggressive. Although Andre was banned from the house the applicant said that he smuggled him in. When Andre left later that night, he left the Mitsubishi parked in the drive. The applicant stayed overnight at 12 Oldborough Road with his girlfriend who left at about 8-9.00 am. The applicant said that he had nothing to do with the movement of the Mitsubishi and was unaware that his Devel crash helmet bag had been used to conceal the guns. The applicant said that it was only after his father had returned for lunch that he left the house with his sister to go to his aunt’s. The surveillance evidence was to the effect that the applicant had not left the house as he claimed and he must have been the driver of the Mitsubishi. The applicant said that he had never lent his motorcycle jacket to anyone. Ground 1 – Evidence of Caroline Stapleton 16. Defence counsel at trial were in possession of a witness statement from a defence forensic science expert, Jennefer Kathryn Gray, employed by Keith Borer Consultants. Ms Gray had reviewed the findings of Caroline Stapleton and agreed with them. As to the interpretation of those findings, Ms Gray concluded, among other things: “the guns RJ/1 and RJ/2 along with live ammunition were found in a bag on the driver’s seat of the Mitsubishi car. Given the presence of large amounts of Type 1 and Type 2 residues in the barrel of RJ/1 and 2, respectively, any person coming into contact with this bag or its contents is likely to be contaminated with residue. This residue may then be transferred to further items such as clothing or the interior of the car. The presence of three particles of Type 2 residue on the driver’s controls of the car is indicative of a recent deposition. This is because of mechanical disturbance causing rapid loss of residues from drivers’ controls during driving.” 17. Ms Stapleton gave evidence that particles may remain on the hands for about 4 hours, on the face for about 6 hours, on the hair for about 12 hours, and on clothing for up to 24 hours while they are being worn. If, however, clothes are not worn particles may remain there indefinitely. She noted that from the murder weapon particles of Type 1 had been recovered. A Type 1 particle had been recovered from the external surface of the left glove found on the floor of the applicant’s bedroom. However, she conceded in cross-examination that she could not exclude the possibility that the residue on the glove was of Type 2. She further conceded that particles are easily transferable. It followed that a hand could transfer the particle from one article to another. In view of these concessions defence counsel elected not to adduce the evidence of Ms Gray in the course of the defence case. 18. Mr Lyons, when instructed to advise on appeal, was alerted by the decision of this court in Barry George [2007] EWCA Crim. 2722. Mr George had been convicted of the murder of Ms Jill Dando. A significant finding was the presence of a single particle of firearms discharge residue in the internal right pocket of a coat found hanging on Mr George’s kitchen door. It was a particle which contained the same constituent elements as discharge residue in a cartridge case found at the scene of the shooting and on the victim’s hair. The Court of Appeal received fresh evidence which described a change in approach by the Forensic Science Service to its guidelines on “the assessment, interpretation, and reporting of firearms chemistry cases”. The guidance, issued on 19 January 2006 contained the following advice: “ 9.5 Reporting single particles and low levels. Any positive finding must be declared in the statement and a comparison of the composition or type can be carried out mostly for the purposes of elimination. Other than this, very little in the way of interpretation can be applied to finding LOW levels of residue because of the lack of relevant background data on residue in the external environment. Whilst the presence of residue in the environment is considered to be extremely rare, persons who associated with firearm users might unknowingly and unwittingly pick up the odd particle of residue. This is the so called “lifestyle” issue ... Case work experience of searching through whole wardrobes of clothes shows that single particles are occasionally detected. Single particles present a particular problem being the smallest detectable amount of residue it is possible to find. A single particle is defined as one particle found on an item or group of items from a single source, e.g. samples and clothing from a suspect all taken at the same time. Unfortunately, it is not possible to say when or how single particles were deposited. It cannot be determined if they are the last remains of some prior association with firearms, or whether they have been deposited quite recently from some likely contaminated source. ... There is no sufficient data on the environmental occurrence of FDR to give a safe interpretation of finding a single particle of residue. Consequently the FSS has adopted a cautious approach to reporting LOW levels of residue and no evidential value can be offered. From an investigative point of view LOW levels of residue may nonetheless have some value; for example, finding a low levels on a discarded item such as a glove may give a significant lead to a police investigation. When an officer is given information on low levels in an investigative submission he must be made aware that in most cases it is unlikely any evidential weight can be attached to the findings.” 19. Having considered this change in approach and further expert evidence, the court (Lord Phillips CJ, Leveson J, and Simon J) held that the jury had been left with the mistaken impression that the murder weapon was the likely source of the particle discovered in Mr George’s coat pocket. The court said: “51. It is clear from these extracts [from] the summing up that the jury were directed that the evidence of Mr Keeley and Dr Renshaw provided significant support for the prosecution’s case that the appellant had fired the gun that killed Miss Dando. The judge did not consider that their evidence on this topic was “neutral”. In this he was correct and his summary is a model reflection of the evidence that had been called. In reality, when considered objectively, that evidence conveyed the impression that the Crown’s scientists considered that innocent contamination was unlikely and that, effectively in consequence, it was likely that the source of the single particle was the gun which killed Miss Dando. In that respect their evidence at the trial was in marked conflict with the evidence that they have given to this court with the result that the jury did not have the benefit of a direction that the possibility that the FDR had come from the gun that had killed Miss Dando was equally as remote as all other possibilities and thus, on its own, entirely inconclusive. In the light of the way in which Mr Keeley now puts the matter, we have no doubt that the jury were misled upon this issue.” 20. We have received in evidence Ms Gray’s further analysis and interpretation of Ms Stapleton’s findings. She concludes that single particles of primer found on articles of clothing recovered from the applicant’s bedroom are not significant but, she said, it depends upon the precise circumstances and other evidence. Even when considering both jackets and the left glove together, the presence of all three primer particles still comprises a low level of residue. Those three particles, being of different types, may indicate that the environment surrounding the wearer of the clothing was contaminated with residue but no confident linkage can be made between the recovered residue and either the Mitsubishi or of the murder weapon at the time of the shooting. It is accordingly Ms Gray’s opinion that the GSR evidence should be regarded as inconclusive. Furthermore, it is Miss Gray’s view that the delay of some four weeks between the shooting and the recovery of the clothing in itself raises a number of questions, for example whether the murder weapon had been re-fired in the interval and, if so, whether the primer residue discharged was a different type. In Ms Gray’s opinion, the period of delay may have rendered the gun shot residue evidence irrelevant. 21. Asked questions by Mr Heywood, Ms Gray said that her opinion was in its material respects the same today as it was when she prepared her report in 2004. She continued to take the view that the particle found in each of the jackets was not of the same type as that (Type 1) which was generated by the shot which killed Mr Perch. Her view continued to be that the presence of a single Type 1 particle on the left glove “does not necessarily indicate that the wearer of the glove fired a gun”, nor does it necessarily indicate that the particle came from either revolver, RJ/1 or RJ/2. Given the 4 week period between the killing and the recovery of the exhibits, and the lack of knowledge about wear, it was not possible to know for what period the particle had been present. It remained Ms Gray’s opinion that the single particle could have been picked up from RJ/1 or RJ/2 or from the environment. 22. Very late in the day, through no fault of hers, Ms Gray was asked to express an opinion whether there was a possibility that the armed police officers who entered 12 Oldborough Road had contaminated the scene with particles transferred from the Mitsubishi. Understanding that the evidence was that the armed officers had searched the Mitsubishi, she expressed the view that contamination was a possibility. However, the evidence was to the contrary; the armed officers had not searched the Mitsubishi. The car was searched by local officers who did not take part in the search of 12 Oldborough Road. The armed officer who broke the window of the Mitsubishi, PC Whitfield, had the task with PC Bodger on arrival at 12 Oldborough Road of “clearing” the loft, which is to say that they searched it to see whether anyone was hiding there. There was no-one present and they left. The GSR particle found in each of the two motorcycle jackets in the applicant’s bedroom was located in a pocket. One of the jackets was hanging behind the bedroom door and the other was hanging outside a wardrobe. The glove was located inside a helmet which was itself enclosed in a bag. PC Murray, who recovered the jacket SEC/22, the Shoei helmet SEC/59 and the left glove SEC/60, was wearing a police search uniform; similarly PC Heward who found the jacket SEC/48. When asked questions by Mr Heywood, Ms Gray conceded that in these circumstances it was “highly unlikely” that contamination had taken place. 23. Notwithstanding this turn in the evidence, in which Ms Gray had confirmed that she had nothing “fresh” to say about the GSR evidence, and that it was highly unlikely that contamination from the armed or unarmed officers had occurred, Mr Mendelle relied upon a further witness statement provided by the prosecution. In a witness statement of 23 February 2010 Ms Stapleton has expressed her opinion formed against the background of FSS guidelines, the latest edition of which is dated 29 January 2009. In their material respects the guidelines are in similar terms to those issued in 2006. At page 7 of her statement Ms Stapleton said: “There is insufficient residue on the clothing to indicate whether or not it had been exposed to the discharge of a gun at the time of the shooting as I cannot say when any of the particles were deposited or rule out the possibility that particles may have been transferred from elsewhere without any direct exposure to a firearm. However, I would expect that most of any gunshot residue deposited at the time of the incident could have been lost if the clothing had been worn since. The presence of single particles of gunshot residue on three separate garments recovered from 12 Oldborough Road, is insufficient to suggest that the wearer or wearers had some direct contact with firearms, firearms related items or persons involved with firearms.” Ms Stapleton noted that at page 37F of the transcript of her evidence at trial she said that she could not tell the jury in respect of any of the particles on the clothing how they got there. It was Mrs Henderson’s view that she had expressed the appropriate caution at trial and that Ms Gray agreed with her opinion. 24. Although we received no application from Mr Heywood to call Ms Stapleton to give evidence he was content to permit Mr Mendelle to make submissions from Ms Stapleton’s statement. Mr Mendelle asked us to consider whether Ms Stapleton in her evidence at trial, and the Recorder in summarising the evidence, so expressed themselves as to go beyond the strict limits of her opinion of February 2010. It was submitted that the evidence and the summary were to the effect that the presence of the particle on the left glove was “indicative” of guilt. Mr Mendelle suggested that Ms Stapleton implied in evidence that the particle came from one of the guns and at no stage told the jury that her findings were equally consistent with innocence as with guilt. 25. Ms Stapleton gave evidence (T/26C-27E) that the “trace” of residue recovered from the pockets of the jackets could have been deposited by a gun, a spent cartridge, or a surface such as a hand with residue on it, or any other object with a particle on it. It was not possible to determine when the deposit took place or what object deposited the particle. She said (T/28G) that the particle on the left glove suggested that the glove had, at some stage, been exposed to or in contact with a source of residue. It was not possible to say when the particle was deposited (T/28H). It could (T/29B-G) have come from RJ/1 or RJ/2 because Ms Stapleton could not be certain that the particle was Type 1 rather than Type 2. It was more likely to have come from RJ/1 but (T/42C-F) she could not preclude or exclude Type 2 as the source. In cross examination Ms Stapleton agreed (T/37B) that it was possible for particles to be transferred completely innocently. The Recorder asked (T/39F) whether a particle could be transferred from one hand to another by means of a handshake. Mrs Henderson said that it could. Particles were (T/39H-40B) easily transferred. It was possible that (T/40G-41F) either or both of the two jackets had been worn by someone other than the defendant. If so, the transfer could have occurred without any involvement by the defendant. The transference which took place must have been from a source of the residue but it could have been indirect as the Recorder had earlier suggested. Ms Stapleton agreed (T/44B-48A) that a person who handled the bag which contained the guns or the guns themselves may have transferred particles to surfaces within the car. If an individual in 12 Oldborough Road was carrying particles he could have deposited them both within the house and in the car. The amount would, however, decrease with time. In re-examination (T/50E-51C) Ms Stapleton was asked to envisage one individual depositing all three Types of residue in or on different articles. She said the individual must have been in contact with a source or sources of all three Types. It seemed unlikely that one individual would “innocently” and sequentially contaminate three separate articles of clothing unless there was a “freak contact with a source of residue” and you “transferred it to your clothing”. 26. Ms Stapleton was never asked by Mr Borelli whether the applicant could have been the agent for transfer of the particles from the bag under the passenger seat to the clothing in his room and we are unaware whether there was any indication before the applicant gave evidence that this explanation might be advanced. However, if the jury accepted that the applicant had or may have handled the bag on the night of 20/21 May 2003 Ms Stapleton’s answers to Mr Borelli in cross examination provided a possible, if unlikely (in view of the events of 21 May), explanation for a transfer to the applicant’s clothing and gloves. 27. In his summing up the Recorder (Vol II(a)/69C-F) repeated Ms Stapleton’s evidence that the trace of Types 2 and 3 found in the jackets could have come from “guns, spent cartridge cases, or surfaces with residue on them...in contact with the pockets at some time”. The trace found on the left glove “shows that it had been exposed to or in contact with a source of residue”. The judge reminded the jury (T/70B-E) of the prosecution argument that the particle was “capable of having come as discharge residue from the murder weapon” but reminded them of the defence case that “particles can easily be transferred from one surface to another. All it needs is a hand, a glove, a coat sleeve. Anything could transfer the particle.” He reminded the jury that Ms Stapleton could not exclude that the particle was Type 2. 28. We do not accept that Ms Stapleton expressed herself more forcefully in her evidence during the trial than she did in her statement of February 2010. On the contrary, she made all appropriate concessions at trial. As Mr Heywood frankly acknowledged, although the prosecution set out with the intention of establishing a scientific link between the applicant and the firing of the murder weapon, that attempt failed. The prosecution was then reduced to submitting that the presence of the particle on the left glove was not inconsistent with its case that the applicant was the gunman. The effect of the Recorder’s directions was that the particle could have emanated from the murder weapon but the particle may not have been Type 1 at all and, even if it was, it could easily have been transferred from any object which had the particle on its surface. We entertain no doubt that the jury was perfectly well aware that the GSR evidence was not capable of proving that the applicant had fired the murder weapon. However, any evidence which was capable of linking the applicant with the gun bag was an important part of the circumstantial case associating the applicant with Abdullah. The fact the bag itself belonged to the applicant was plainly relevant. As we have observed, the applicant eventually gave evidence of that association, an explanation which it was for the jury to evaluate. We recognise that the Recorder pointed out (Vol II(a)/36F) the prosecution case that the left glove found in the applicant’s bedroom was part of the circumstantial evidence against him. As with all other parts of the circumstantial case, however, the Recorder proceeded to examine each of its aspects with care and to remind the jury of the evidence upon which the prosecution and the defence respectively relied. In our view the Recorder did no more than fairly to present the case to the jury for their decision. This is not a case such as George in which the jury was misled. Ground 2 - Direction on Good Character 29. On 25 February 2004 a discussion took place between the Recorder of London and counsel as to the appropriate terms of a good character direction in favour of the applicant. The applicant had no previous convictions. Ordinarily he would have been entitled to receive from the trial judge a direction to the effect that the jury should take the applicant’s good character into account in his favour in two respects: first, a defendant of good character may be less likely to commit offences, certainly offences of the gravity alleged, and second, a man of good character may be more likely to tell the truth about important matters. The dilemma facing the trial judge was that in the course of his evidence to the jury the applicant had admitted that he had a long standing cocaine habit, and had indulged in offences of theft, including shop lifting, in order to fund his habit. He admitted that his friend Andre had been excluded from the applicant’s family home for stealing his mother’s ring when in fact the applicant had stolen it. Furthermore, he accepted that during his interview with the police he had repeatedly told lies. Prosecuting counsel, Mr Horwell, reminded the judge that it was open to him to modify his good character direction. Mr Borelli asked the judge to give the jury the full direction. The judge pointed out that in the course of his directions he would have to deal with the evidence which tended to undermine the applicant’s credibility as a witness, not least in giving the “lies” direction. The judge proposed to Mr Borelli that in the circumstances, and in fairness to the applicant himself, he might give to the jury the propensity limb of the direction and say nothing about credibility save in its appropriate context while dealing with the Lucas direction. Mr Borelli asked for clarification as to the manner in which the Lucas direction would be given and the Recorder replied: “So what I propose to do subject to any further argument ... is simply to give a propensity direction, and then at another part of the summing up refer to lies so that the two are not connected in the jury’s mind.” Mr Borelli responded: “No, that would then put our concern away I think.” 30. When giving his directions of law the Recorder said to the jury at Transcript Volume II(a) page 16A: “The next matter of law in which I need to direct you concerns the defendant’s good character. He has no convictions recorded against him. You are entitled to bear that in mind particularly with regard to the murder, but in respect to the other offences too, in deciding whether it was likely that the defendant would have committed such crimes. Of course, the fact that a person is of good character does not mean that he is incapable of committing crimes, however serious. If that were so, no-one would ever be convicted because we all start with a good character. But the point is that you are entitled to bear it in mind when you are considering whether the prosecution have proved the case against him and you may put it into the scale in his favour and give to it what weight you think is fair.” 31. Mr Mendelle has two criticisms to make of the Recorder’s direction. First, he submits that notwithstanding evidence in the trial that the applicant had lied and committed criminal offences the applicant was entitled to the full direction. Mr Mendelle relies upon the examination made by Court in Gray , [2004] EWCA Crim 1074 , [2004] 2 Cr App R 496 of a number of previous authorities upon the subject. At paragraph 57 Rix LJ said this: “ (4) Where a defendant of previous good character, whether absolute or, we would suggest, effective, has been shown at trial whether by admission or otherwise, to be guilt of criminal conduct, the prima facie rule of practice is to deal with this by qualifying a Vye direction rather than by withholding it ( Vye , Durbin , Aziz ); but (5) In such a case there remains a narrowly circumscribed residual discretion to withhold a good character direction in whole, or presumably in part, where it would make no sense, or would be meaningless or absurd or an insult to commonsense to do otherwise ( Zoppolo-Barrazza and dicta in Durbin and Aziz ). (6) Approved examples of the exercise of such a residual discretion are not common. Zoppolo-Barraza is one. Shaw is another. Lord Steyn in Aziz appears to have considered that a person of previous good character who has shown beyond doubt to have been guilt of serious criminal behaviour similar to the offence charged would forfeit his right to any direction (at 53B). On the other hand, Lord Taylor’s manslaughter/murder example in Vye (which was cited again in Durbin ) shows that even in the context of serious crime it may be crucial that a critical intent separates the admitted criminality from that charged...” 32. In Aziz [1995] 2 CrAppR 483, at page 488-489 (HL), Lord Steyn said: “Prima facie the directions must be given and the judge will often be able to place a fair and balanced picture before the jury by giving directions in accordance with Vye and then adding words of qualification concerning other proved or possible criminal conduct to the defendant which emerged during the trial. On the other hand, if it would make no sense to give character directions in accordance with Vye , the judge may in his discretion dispense with them. Subject to these views, I do not believe that it is desirable to generalise about this essentially practical subject which must be left to the good sense of trial judges. It is worth adding, however, that whenever a trial judge proposes to give a direction, which is not likely to be anticipated by counsel, the judge should follow the commendable practice of inviting submissions on his proposed directions.” 33. We note that in Shaw v R [2002] 1 Cr App R 77 the Privy Council declined to criticise the omission to provide a good character direction which would, of necessity, have contained so many qualifications as to harm the accused’s defence. The facts of Shaw were very different to the present but the decision serves to demonstrate how fact sensitive the exercise of judgement will be. Mr Borelli had two problems. The first was that the applicant admitted criminal offending of a type, which it has to be accepted, differed from any of the allegations against him. The offending demonstrated, however, a thorough dishonesty. Further, it was common ground that the applicant had repeatedly lied in interview. When Mr Mendelle was invited by Sweeney J, during argument, to propose a form of qualified direction which would have met his concerns Mr Mendelle produced a draft which omitted any qualification based upon the applicant’s abundant admitted lies. To Mr Borelli it was surely obvious there was a danger that the judge’s good character direction would be so hemmed in by qualifications based upon material which the judge would have to draw specifically to the jury’s attention that the good character direction given would do his client more harm than good. It does not come as a surprise to us that defence counsel indicated his satisfaction with the Recorder’s proposal to omit the credibility direction altogether, but to provide an unqualified propensity direction. We do not consider that any unfairness arose. We reiterate that the terms of the good character direction will depend upon the particular problems thrown up by the evidence at the trial. We have no criticism to make of the Recorder’s approach, nor of defence counsel’s decision to accede to it. It may well be that on similar but slightly different facts it would have been appropriate to give a qualified Vye direction upon both limbs. As it is, we see no grounds for interfering with the judgement of those who were considering this difficult subject at the time. 34. Mr Mendelle’s second complaint is that the terms in which the judge expressed the propensity limb of the good character direction were not sufficiently emphatic. Instead of expressing his direction as a requirement of the jury, the Recorder told them that they were “entitled to bear in mind” the defendant’s good character. We accept that it is necessary for the trial judge to convey to the jury that they should take good character into account in the defendant’s favour. However, having considered the passage which we have extracted above, we have concluded that the Recorder was not leaving it to the jury to decide whether they should take into account good character at all, but he was advising them that they should consider the applicant’s good character as he was directing them but they should decide how much weight to afford good character in the circumstances. In Moustakim [2008] EWCA Crim 3096 the court was examining a good character direction found to be defective in a number of respects, chief of which was that the trial judge merely endorsed the defendant’s right to argue that her good character was relevant. In particular, as to the propensity limb of the direction, the judge said that “she was entitled to have it argued that she was perhaps less likely to have committed the crime”. In our opinion the Recorder’s direction was sufficiently emphatic to convey to the jury the need to consider good character in his favour to the extent which was “fair” in the circumstances. We do not consider that this complaint has substance either. Ground 3 – Mobile Phone 6169 35. The significance of the mobile phone number 6169 was its location in the general vicinity of the murder at the time and its association with Nigel Abdullah and, through him, to the applicant himself. It was not the prosecution case that the mobile phone belonged to the applicant but Mr Mendelle submits that the judge may inadvertently have given the jury the impression that the evidence supported such a conclusion. At volume II(a) page 26G of the Transcript of summing up the Recorder said: “As we know, a number apparently associated with him [the applicant] 6169 was used on 18 April and very significantly used. I will remind you about it later but the real point is that at about 8.30 that telephone number received a call and it evidently was received in the vicinity of Clifford Gardens. I think at 8.52 there was a call connected with Cricklewood where of course the defendant’s girlfriend lives. I say apparently associated with him, because he denies that it was. Again, we will come to the detail there, but you will remember the information comes particularly from the doctor’s registration at Tab 9 page 42 and also the letter which was purportedly written by the defendant in support of Gavin Dean Abdullah, where that number is given but I will come to that later. So, the prosecution say again that is a significant lie about the phone he was using during that period.” 36. During a short adjournment in the afternoon of 26 February 2004 Mr Borelli drew to the Recorder’s attention a statement contained in the unused material which made it clear that the telephone 6169 was Abdullah’s. The Recorder observed, “What the prosecution are therefore saying is that the association with Andre is that telephone”. Mr Borelli assured the Recorder that he had not thus far misled the jury and was only drawing the unused material to his attention because he wanted to avoid later interruption. Subsequently, while reminding the jury in summary of the evidence, the Recorder referred to the formal admissions in which the telephone number 6169 appeared as a contact both for Jermaine Brown (in the doctor’s registration form) and for Reco Joseph (in the letter, denied by the applicant, sponsoring Gavin Dean Abdullah). The judge concluded: “So that the evidence goes as far as this; that that is a number which is associated with someone using the name Abdullah and it is associated by the two documents.” 37. Mr Mendelle submits that the judge neglected to inform the jury that if he had given the impression that the prosecution case was that the phone belonged to the applicant, then he was wrong to do so. We have read both passages of the summing up with this submission in mind. Whether the applicant was the owner of the telephone was not to the point. The issue for the jury was whether the applicant was so closely associated with it that it provided a link between himself, Abdullah and the killing. It seems to us that the Recorder’s summary of the evidence went no further. It is clear that Mr Borelli did not think so either. We conclude that the jury was never invited to draw an inference to the effect that the 6169 telephone belonged to the applicant and no unfairness resulted. Ground 4 – Hostile Witness Direction 38. The trial took place in 2004 before the hearsay provisions of the Criminal Justice Act 2003 came into force. An eye witness to the shooting gave evidence under the pseudonym “John Allen”. The witness had made an unsigned statement to the police to the effect that the Suzuki motorcycle, ridden by the killers was yellow and black. When he gave evidence the witness insisted that the killers were riding a red Suzuki motorcycle. The prosecution was permitted to treat the witness as hostile. No complaint is made about that judgement. An issue arose between the witness and the prosecution as to whether the record of the witness’s pre-trial statement had been tampered with. When the judge gave the jury a direction about the hostile witness (at volume II(a)/19E) he said: “You will recall the arguments which Mr Borelli advanced and you will give what weight you think is due to them if you think that the issue is an important one. The point is, so far as you are concerned, is that you should first consider whether Mr Allen was credit worthy at all, and in that you will have to consider whether a person who contradicts himself in such a way is a dangerous witness to rely on. If you decide he is a dangerous witness to rely on, you will not do so. If, on the other hand, you come to the conclusion that the witness was not wholly uncreditworthy you may go on to consider which parts, if any, of his evidence you could accept. In that consideration you may only look at the evidence which he gave in court. That excludes what he has alleged to have said in the unsigned statement. In other words, you must ignore what he has alleged to have said about the Suzuki being yellow and black. What he said in the unsigned statement is not evidence and you cannot rely on it because he said in the witness box that it was not true. There is no evidence that the motorcycle which the two men were riding at the time of the incident was black and yellow and you should dismiss that from your consideration.” 39. Mr Mendelle submits that the Recorder should have given the jury an explicit direction to the effect that if they concluded Mr Allen’s oral evidence that the motorcycle was red was true or may have been true then it should be treated as a significant weakening of the prosecution case. Another eye witness, Ms Kalantery, had said that when the motorcycle passed her she saw a flash of red. She could not be sure whether she had seen a red motorcycle (as she had described at the time she made her statement and drew a plan) or had seen a red light or something similar. Mr Mendelle argued that the judge should have made these explicit points to the jury because the jury may have regarded Allen’s evidence as supportive of Ms Kalantery’s first impression. We do not accept this submission. It is clear that the learned judge, when referring in the extract at paragraph 38 above to Mr Borelli’s submissions, had very much in mind the significance of the evidence going to the question of tampering with the statement. The jury required an explicit direction that they could not use Mr Allen’s pre-trial statement as evidence of the colour of the motorcycle. Mr Borelli, of course, wished the jury to accept that Mr Allen may have been telling the truth about a red Suzuki motorcycle. That is why he deployed the arguments he did as to the pre-trial statement. The jury cannot have been in any doubt, in our view, that if they considered that the evidence of John Allen as to the colour of the motorcycle was true, or may have been true, that was a matter which assisted the applicant. Furthermore, the Recorder correctly pointed out that there was no evidence that the motorcycle used by the killers was black and yellow and they could not use the statement made by Allen as evidence that it was. In the circumstances, we do not consider that a further specific direction was required. It was perfectly obvious from the context in which the hostile witness direction was given and the case being conducted on the applicant’s behalf that (1) only the witness’ oral evidence was admissible, including the assertion that the motorcycle was red and (2) that if in this respect the jury accepted that Allen may have been telling the truth that was a matter of importance to the defence. 40. In our judgment, upon examination, none of the matters raised renders these verdicts arguably unsafe and we refuse leave.	```yaml citation: '[2010] EWCA Crim 2580' date: '2010-11-11' judges: - LORD JUSTICE PITCHFORD - MRS JUSTICE SLADE DBE ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	Neutral Citation Number: [2014] EWCA Crim 2908 Case No: 201403192/A5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 18th December 2014 B e f o r e : LORD JUSTICE ELIAS MR JUSTICE SIMON MR JUSTICE COX DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v VAIDAS ASKYS - - - - - - - - - - - - - - - - - - - - - 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 D Kitson (Solicitor-Advocate) appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE ELIAS: On 30th April 2014 in the Crown Court at Woolwich before His Honour Shorrock, the applicant pleaded guilty to a count of possessing a controlled drug of Class A with intent and he received a sentence of thirteen-and-a-half years' imprisonment on 24th June in relation to that offence. On 14th May a separate count was added to the indictment, possession of a false identity document, and he also pleaded guilty to that offence and was given 6 months' imprisonment consecutive. So the total sentence in his case was 14 years. A co-accused, Henry Duksavius, pleaded guilty to possessing a controlled drug of Class A and he was sentenced to 9 years' imprisonment. The appellant now seeks an extension of time in which to renew his application for leave to appeal against sentence following a refusal by the single judge and of course he seeks leave to appeal. 2. Given the nature of the grounds, the facts can be stated very summarily. They involve, as we have said, a significant drug operation, involving drugs of street value of around £4.5 million. 3. There is nothing wrong with the sentence as such, as counsel concedes. He has really a single point in this appeal and it concerns the different way in which the judge dealt with the credit he was going to give for the pleas. In the case of Duksavius the judge gave credit of 33% and in the case of the applicant it was 25%. Counsel submits that in the circumstances there was no material difference between the two defendants. Each had not pleaded at the preliminary hearing and had pleaded later. It is true, as he concedes, that the plea and case management hearing of the co-defendant was earlier in time but that was because of difficulties facing counsel, it was for no good reason and essentially the judge was not entitled to draw the distinction that he did. 4. The first point to note is that there can be no complaint at all it seems to us about a reduction limited to 25% for this applicant in all the circumstances of the case. He did not plead at the earliest opportunity and in the usual way cannot expect to have full credit for his plea. 5. The judge specifically addressed the question whether the credit given to the two co-defendants should be the same and he concluded that they should not. He said in terms: "...I am not impressed by the fact that apparently reasons are connected with your representation rather than anything else. Had you shown that you were truly remorseful of this for the word go, you in your possession could have indicated that at a much earlier stage." 6. It is always difficult to argue disparity before the courts, particularly when a judge has dealt with a matter and addressed it directly. He was of course was in a much better place than we are to assess what credit should be given and he came to the view that he did. In addition, it has to be said that the circumstances of the co-defendant were quite different for other reasons which also have to be taken into account when looking at the sentences overall. He was given credit for other considerations which do not weigh in this case. 7. Although the matter has been put very attractively by counsel, who has made the points succinctly, nonetheless we are not persuaded that we should grant leave in this case. There was nothing wrong with the credit given to this applicant and therefore we refuse leave.	```yaml citation: '[2014] EWCA Crim 2908' date: '2014-12-18' judges: - LORD JUSTICE ELIAS - MR JUSTICE SIMON - MR 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: [2016] EWCA Crim 1633 Case No: 201600066 B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 19th October 2016 B e f o r e : PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE JEREMY BAKER MRS JUSTICE PATTERSON DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v GERMAINE GUTHRIE - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr D Wood appeared on behalf of the Appellant Mr W Eaglestone appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. PRESIDENT OF THE QUEEN'S BENCH DIVISION: On 11th December 2015 in the Crown Court at Croydon before His Honour Judge Gold QC and a jury this appellant, who is now aged 38 years of age, was convicted of rape. He was sentenced to 9 years' imprisonment with appropriate ancillary orders. He now appeals against conviction by leave of the single judge. 2. A short summary of the facts suffices for this appeal. In August 2013 the complainant, K, was in a relationship with the brother of the appellant. On the evening of 30th August K attended a party in Croydon in company with the appellant and the brother. In the early hours of the following morning the brother took the appellant's car keys and drove his A3 Audi car towards Brixton. K was a passenger. 3. At 5.05 am, the brother was arrested in Brixton on suspicion of driving whilst under the influence of alcohol. As a consequence K had to take a bus back to her home in Croydon. She arrived home at around 6.00 am. Present at the address was a friend who had been babysitting the appellant's children. 4. The prosecution case was that the appellant arrived at the K's address at around 6.30 am, angry upon learning that his car had been impounded. He went inside, pulled out a knife and told K: "That Audi cost me five grand and you're gonna pay for it." The friend then left, leaving the appellant and K alone. The appellant was alleged to have picked a rolling pin from the kitchen and struck K to the arm before telling her: "You're my girl not my brother's". He then was alleged to have vaginally raped her over the kitchen table before leaving. The following day K reported the attack to her father who contacted the police. 5. To prove the case the prosecution relied upon the evidence of K, to the effect that the appellant had threatened and raped her, the evidence of K's father who spoke of recent complaint, the fact that on medical examination K had suffered minor bruising, which it was submitted was consistent with her account, the presence of a rolling pin and knife recovered from the K's address and in particular the fact that the appellant had initially lied in interview and denied having sexual intercourse with K. He was re-interviewed after his semen was found on a high vaginal swab from the complainant whereupon he admitted that sexual intercourse had taken place, asserting it had been consensual. He disputed the timing. 6. In addition the jury heard evidence of the appellant's previous convictions, it being submitted that his previous offences of violence demonstrated a propensity to behave violently and to use weapons. This was on the basis that his propensity to act violently with weapons was an important matter in issue between the parties. Furthermore his antecedent record was deemed admissible due to the nature of his defence which amounted to an attack on K's character. 7. The defence case was that the appellant and K had consensual sexual intercourse earlier that morning having briefly left the party at around 3.00 am and returned to K's house. He gave evidence that it was untrue that he had attended at 6.30 am and he denied the events described by K. He suggested that her injuries were caused by his brother during an argument between her and him, returning to the party at 3.00 am. He also relied upon the fact that there was no evidence from the friend to corroborate K's account that the appellant had attended her home at 6.30am. He contended that the injuries sustained by her as apparent on medical examination were not consistent with her account. That there was no reportable DNA recovered from the tip of the knife or fingerprints on either the knife or the rolling pin. Furthermore, it was suggested that such injuries as K had sustained had been caused by the brother when he and K had argued at the party the night before. It was underlined that he had no sexual offences recorded against him. Furthermore that the jury had heard hearsay evidence concerning the brother’s interview under caution in which he stated that he had borrowed the appellant's car to take K to hospital. This was relied upon by the appellant as potentially undermining the credibility of K's account and to support his contention that the injuries were caused by his brother. That hearsay account was admitted with the consent of the Crown who did not of course admit its truth. 8. The issue for the jury was which of these accounts was accurate or, more particularly, whether they were satisfied so that they were sure that K had not consented to vaginal sexual intercourse with the appellant. 9. It is unnecessary to rehearse the evidence in the case because the grounds of appeal turn upon two rulings as to admissibility and as to the directions given to the jury. The first challenge made by Mr Wood as to the way in which the trial was conducted concerned the application which he made to cross-examine K in relation to what he asserted was an ongoing sexual relationship between him and her. Mr Wood argued that, if accepted as true, the appellant's evidence demonstrated a consistent history of consensual sexual behaviour between K and the appellant following the consumption of drugs or alcohol in her house at her invitation and after being with the appellant at a party in someone else's house. The trial judge decided that this submission went nowhere near conduct of sufficient similarity to provide for admissibility within the meaning of section 41 of the Youth Justice and Criminal Evidence Act 1999 and that in any event the safety of his conviction would not be imperilled by the refusal of leave. 10. The principles engaged by section 41 can be summarised briefly. It is accurate that striking similarity is not required: see R v A (No 2) [2001] UKHL 25 , at paragraph 133. There must be relevant similarity between the previous and current alleged conduct which necessitates an exploration of the circumstances so as to avoid unfairness to the appellant: see R v MM [2011] EWCA Crim 1291 at 48. Third, if it would be tantamount to saying that the complainant was a person who was engaged in casual sex in the past and therefore would have been likely to do so on the occasion that the complainant was with the appellant, that cross-examination will not be allowed ( R v Harris [2009] EWCA Crim 434 at 17), that the principal purpose of cross-examination must not be to impugn credibility ( Harris , at paragraph 20), but must be truly probative to the issue of continuity (R v Hamadi [2007] EWCA Crim 3048 ). Furthermore, there must be a sufficient chronological nexus between the events to render the previous behaviour probative (see MM at paragraph 48). Finally, there is the exercise of judgment in connection with the application. 11. It is an exercise of judgment whether or not to permit leave and its exercise demonstrates the height of threshold in section 41(3)(c) of the Act: Hamadi (paragraph 23). In that case, this court found that the following similarities could reasonably be described as mere coincidence falling short of a threshold in subsection (c). These were that the complainant herself instigated sexual activity, that the activities took place outside in relatively public places in winter and while the complainant was involved in a relationship with her boyfriend. 12. In the instant case we do not accept that the appellant has put forward any sufficient factors or combination of factors that satisfy this high threshold. Any similarity between previous sexual encounters between the appellant and the complainant can be described as part of the background or mere coincidence. Furthermore, in MM the complainant engaged in sexual behaviour with the defendant on two earlier occasions 4 months and 3 months before the time of the allegation. This court held that the trial judge was correct to reject the defendant's submission that these facts met the high threshold in section 41(3)(c). In the instant case the first time the appellant alleges consensual intercourse took place was about a year before the act complained of and the second time several weeks afterwards. In both MM and the instant case therefore there was no sufficient chronological nexus between the events to the alleged events to render the behaviour probative. It follows that cross-examination on this issue was not and would not have been truly probative. For these reasons, in our judgment, the judge was entitled to reach the conclusion that he did and this ground of appeal fails. 13. The second ground of appeal concerns the application to adduce the appellant's previous convictions pursuant to section 101(1)(d) and (g) of the Criminal Justice Act 2003. In relation to subsection (d) the prosecution argued that the appellant's antecedent record was capable of demonstrating propensity to commit offences of violence, that being an important matter in issue. In relation to subsection (d) the appellant had attacked the character of the complainant. 14. The judged ruled that the question of violence leading up to the alleged rape was an important matter in issue between the parties. The three previous convictions for violence that the prosecution sought to adduce were relevant to that issue and therefore admissible under subsection (d). It is not suggested that this ruling was wrong. The trial judge also ruled the defendant's entire character was capable of being adduced under (g). Again, that could not be challenged because the defendant had alleged the complainant had invented the incident and its surrounding circumstances thereby mounting to an attack on her character. In order to avoid undue prejudice however the learned judge fairly ruled that offences relating to driving and dishonesty would not be admitted. The appellant was correct not to take issue with the ruling that his convictions would go before the jury under subsection (g). The appellant was also correct not to take issue with the trial judge's ruling that subsection (d) was not limited to propensity to commit offences of the type charged. The use of violence to enter the complainant's house was an important matter in issue. The appellant's convictions for affray, assault occasioning actual bodily harm, possession of an offensive weapon, battery and using violence to enter premises and criminal damage were relevant and admissible in respect of the matter in issue. 15. It is on the basis of subsection (d) that the appellant raises a complaint. In particular, the challenge concerned the issue whether the appellant's previous convictions demonstrated a propensity to use weapons. The trial judge directed the jury that the convictions which could establish a propensity to use weapons were affray and assault occasioning actual bodily harm in 1996, affray and possession of offensive weapon in 2006 and battery using violence to enter premises and criminal damage in 2010. 16. The appellant argues that the learned trial judge was wrong to direct the jury that the 2006 conviction for affray and possession of an offensive weapon could demonstrate a propensity to possess a bladed weapon. 17. The law has been set out in R v M [2006] EWCA Crim 3408 , at 16 per Keene LJ in these terms: "There may be cases where the factual circumstances of just one conviction, even as long ago as 20 years earlier, might be relevant to showing propensity, but we would expect such cases to be rare and to be ones where the earlier conviction showed some very special and distinctive feature, such as a predilection on the part of the defendant for a highly unusual form of sexual activity, or some arcane or highly specialised knowledge relevant to the present offence. In cases with less distinctive features in common, one would require some evidence of the propensity manifesting itself during the intervening period in order to render the earlier evidence admissible as evidence of a continuing propensity." 18. In this case the appellant rightly accepted that it is arguable a propensity to violence was established. The direction does not, however, direct the jury to conclude a knife was likely to be handled because of propensity to use weapons but rather was a direction which, taken as a whole, was concerned with a propensity to violence in general. This is demonstrated by the language which he used to introduce the appellant's propensity in these terms: 19. "Let me turn to deal with the question of the defendant's bad character, because you have heard evidence that he has convictions for offences of violence and other matters. The reason that you have heard about those convictions is because they may be relevant to whether he has what we call a propensity or a tendency to behave in a violent or intimidating manner, similar possibly to how he is alleged he behaved towards [K] in the moments leading up to the incident with which you are concerned." There is no reference in the learned judge's summing-up to bladed weapons. His reference to "weapons" is in two sentences: "The prosecution's counter argument is that his propensity for violence and the fact that he has been in possession of weapons in the past is relevant to whether this was consensual sex, as he asserts, or rape." The second reference to weapons in the learned judge's summing-up was in these terms: "Please listen carefully to the arguments that are made on both sides - I am sure you will - and decide whether the prosecution have made you sure that he has a propensity to be violent and possess weapons at the relevant time." 20. The concern placed before the court is that there was no independent evidence of the appellant's presence in the complainant's house at 6.30 am or later on 31st August and that there was therefore an absence of supporting evidence for the complainant's contention that the appellant used a knife. This was addressed by the learned judge in these terms: "Please bear in mind that this evidence of the defendant's previous behaviour is but a small part of the whole evidence in this case. You will appreciate that it is not direct evidence he committed the offence, but evidence of circumstances concerning him himself which you are entitled to take into account when deciding whether he was behaving violently before penetrating her vagina." 21. In our judgment, the learned judge was perfectly entitled to approach the issue in this way. There is nothing in his summing-up which can be criticised and certainly nothing which demonstrates that his conviction is unsafe. 22. The third ground of appeal concerns the way in which the learned judge approached the evidence of the appellant's brother as hearsay and directed the jury effectively that very little weight should be attached to it. Mr Wood argues that that direction was seriously unfair, although he accepts that a hearsay warning was unobjectionable in principle. 23. In this regard, it is important to bear in mind how the learned judge approached the issue of the brother in his summing-up. This was a split summing-up where the learned judge gave the jury his directions as to law before final speeches. At that stage what he said about the brother was as follows: "Well, now, the brother ... has not given evidence here. So what he had to say in his interview has not been given on oath. It has not been tested in evidence. We do not even know whether [he] would have said that it was a true account or an untrue account. So it is of frankly very little probative value at all. I am not quite sure what use is going been made of it in the course of closing addresses by counsel. But when you are considering whether or not you attach any weight to the evidence that there is of that conversation that he had with the police following his arrest, bear in mind that it has not been tested in evidence and he has not given evidence to support it on oath before you in this courtroom." The learned judge could have added that at the time the brother was being interviewed under caution and had interests of his own to serve. 24. There then followed closing speeches, during the course of which the course of which Mr Wood has explained that he addressed the jury at length and placed considerable weight on what the brother had said, not least because it was his contention that it undermined aspects of the complainant's evidence. 25. As a result the learned judge returned to the topic when he reminded the jury of what the brother had said in his interview with the police after his arrest. He went on: "It has very little value, ladies and gentlemen, for the reasons I explained when I was giving my directions to the law. It is hearsay evidence. The brother has not given evidence here... He could have done, but he has not. You should not speculate as to why it has not been called in evidence before you. There is no property in a witness, ladies and gentlemen. Both sides are entitled to investigate a case. Both sides are entitled to call such witnesses as they think fit. With the greatest respect to Mr Wood, having emphasised the importance of your not speculating following my direction to you, as a matter of law, that you should not speculate, a certain amount of time was spent dealing with the evidence of witnesses from who you might have heard but have not heard. It does not matter, ladies and gentlemen. You try this case on the evidence that you have heard." The learned judge had made it abundantly clear that the weight that they attached to evidence was a matter for them and that was a direction which he repeated. 26. In our judgment, it is beyond argument that the issue was left to the jury and the judge was entitled to underline that this was hearsay evidence and untested; he was entitled to express the view that little weight should be attached to it. There is nothing in this complaint either. 27. In the circumstances this appeal is dismissed.	```yaml citation: '[2016] EWCA Crim 1633' date: '2016-10-19' judges: - MR JUSTICE JEREMY BAKER - 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} ======	WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. Neutral Citation No. [2023] EWCA Crim 676 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO: 2023 00602 A2 Royal Courts of Justice Strand London WC2A 2LL Wednesday 7 June 2023 Before: LORD JUSTICE DINGEMANS MR JUSTICE SWEETING HER HONOUR JUDGE ROSA DEAN REX v BEN BUTLER __________ 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 LORD JUSTICE DINGEMANS: Introduction 1. This is the renewed hearing of an application for permission to appeal against sentence. It appears that the applicant is on home detention curfew, but he has not appeared or applied to appear and there is no representation before us. 2. On 30 July 2020 in the Crown Court at Wood Green the applicant (who was then aged 30) pleaded guilty to a charge of simple possession of cannabis and not guilty to possession of cannabis with intent to supply and a count of money laundering. The applicant had six convictions for six offences which had been committed between 2010 and 2018. This included a conviction for possession of a Class B controlled drug. He had served one custodial sentence of 3 months' imprisonment in 2010. 3. After a trial on 19 December 2022 he was convicted of possession with intent to supply cannabis and money laundering, and on 27 January 2023 (when he was then aged 33) he was sentenced to 2-and-a-half years for possession with intent to supply the cannabis and 12 months concurrent for the money laundering. The proposed ground of appeal is that the sentence was manifestly excessive. 4. The brief circumstances are that on 27 March 2020 the applicant was seen in his motorcar by police officers. He was making contact with the driver of another vehicle in order to sell cannabis to the driver of that vehicle. The significance of 27 March 2020 is that this was shortly after the National Lockdown for the Covid 19 pandemic. 5. The applicant's car was searched and he was arrested. His home address was later searched. In the car was found 26.8 gms of skunk cannabis, a clear sealed bag and a knotted bag containing 3.8 gms of cannabis, and five clear bags containing a total of 7.22 gms of cannabis, and four packages containing 11 gms of skunk cannabis and a hand-rolled cigarette. The total value of the drugs was estimated to be somewhere between £2,500 and £5,800. At his house there was 37.5 gms of skunk cannabis, and elsewhere there was found to be 82.3 gms of skunk cannabis, another 9 gms of skunk cannabis and in other locations another 182 gms of skunk cannabis. The total weight of the drugs found was therefore just under half a kilo of cannabis. A number of high value goods, including a Rolex watch and ten pairs of trainers thought to be worth thousands of pounds, were found together with £24,500 in cash. The sum of £24,500 formed the basis of the money laundering charge because that represented the proceeds of earlier criminal drug dealing. The applicant's defence was that the drugs were for personal use and that the monies had been obtained from other sources, namely gambling, personal savings and the sale of another Rolex watch. 6. A short form pre-sentence report was obtained. That showed that the applicant continued to claim that he was not guilty, but he had showed remorse and he had turned his life around and was now working in a shop and restaurant. References showed that the applicant had suffered back and knee injuries playing sport which had affected him, but he had before that time volunteered and assisted youngsters. 7. The judge when sentencing considered that this was a high-level category 3/significant role offence. That gave a starting point of 1 year but a range of 6 months to 3 years. The judge found that this offending was at the top of the range. The money laundering was a category 5B offence for the offence specific guideline, with an 18-month starting point and another range of 6 months to 3 years. The judge took into account the aggravating factors of the previous convictions, but also the mitigation of delay, injuries and their effect, and current work. The judge sentenced all of the criminality on the possession with intent to supply cannabis count, saying that the least he could give, balancing aggravating and mitigating features effectively, was 2-and-a-half years. As noted above, the money laundering sentence was 12 months concurrent. 8. We do not consider that it is arguable that this sentence was manifestly excessive. This is because the judge rightly used the drugs offence as the lead offence and was entitled to decide that the applicant's sentence, even taking into account mitigation, was towards the top of the guideline range for category 3/significant role offending. The judge was also entitled to make that finding in the light of all the criminality shown by the dealing on the day and what was found in the applicant's home. The Other Penalty 9. We should record that the Registrar has in a helpful note drawn the court's attention to Archbold 2023 at 5A-169c , which provides: "Where a defendant is charged with alternative offences, and in circumstances where they plead guilty to the lesser offence but are subsequently convicted of the more serious offence, the proper approach appears to be for the court to order the lesser offence to lie on the file, rather than to impose no separate penalty on the offence." This is because in R v Cole [1965] 2 QB 388 , it was held that a guilty plea does not amount to a conviction unless and until a sentence is passed, and when a defendant pleads guilty to the lesser offence and the more serious alternative proceeds to trial, the correct practice is to record the guilty plea. If the defendant is acquitted of the more serious offence, he can then be sentenced on the count to which he had pleaded guilty, which ranks as a conviction from then on; but if convicted of the more serious offence, he will be sentenced on that matter and the court should consider that the alternative offence should lie on the file. That practice avoids a defendant being convicted of two alternative offences for the same criminal conduct. 10. In these circumstances, we do consider that the judge was wrong to order no separate penalty on the count for possession, which the applicant had, as already indicated, pleaded guilty to on 30 July 2020. The judge had ordered no separate penalty when it was drawn to his attention that he had omitted to sentence or deal with that offence, and that was dealt with on the papers; although, again, that should have been announced in open court. 11. In these circumstances, we grant permission to appeal against sentence, quash the sentence of no separate penalty on the original count 2 (namely simple possession) and direct that the original count 2 shall be ordered to lie on the file. This has the effect of meaning that, notwithstanding the guilty plea, the applicant has not been convicted of simple possession. This is because he has been convicted of the more serious offence of possession with intent to supply and been sentenced for that. In all other respects the appeal is dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]	```yaml citation: '[2023] EWCA Crim 676' date: '2023-06-07' judges: - LORD JUSTICE DINGEMANS - MR JUSTICE SWEETING ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	Neutral Citation Number: [2005] EWCA Crim 2169 Case No: T20037019 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT ST ALBANS HIS HONOUR JUDGE MICHAEL BAKER QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 26 August 2005 Before: LORD JUSTICE THOMAS MR JUSTICE CALVERT-SMITH and THE RECORDER OF CARDIFF (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between: The Queen Respondent - and - Mohammed Yaqoob Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Andrew Campbell-Tiech QC for the Appellant Stewart Trimmer for the Respondent Hearing dates: 14 June 2005 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Thomas: 1. In the early hours of 21 July 2002 two minicabs owned by Falcon Taxis, a firm based in Aylesbury, were returning from Watford on the A41. At a point near Tring where the road is a wide dual carriageway, the nearside rear tyre of the first vehicle being driven by Aqbal burst. Aqbal lost control. The vehicle overturned. Several passengers were injured and one, Mr Scotten, was killed. 2. The appellant was a partner in Falcon Taxis, a family firm. He was responsible for arrangements for the inspection and maintenance of the minibus and had arranged for the tyre which burst to be replaced in circumstances which will be necessary to describe. The appellant and Aqbal were charged with causing death by dangerous driving. They were tried at St Albans Crown Court in September 2003. The jury disagreed and a new trial was ordered. 3. Prior to the retrial the prosecution applied to add counts of manslaughter by gross negligence against the appellant and Aqbal. On 23 December 2003 HH Judge Michael Baker QC in a very clear and cogent ruling allowed the application in respect of the appellant and refused it in respect of Aqbal. 4. The trial then took place before HH Judge Michael Findlay Baker QC and jury between 19 and 29 April 2004. The appellant was convicted of manslaughter and sentenced to 4 years imprisonment and disqualified from driving for 4 years. Aqbal was convicted of causing death by dangerous driving and sentenced to 21 months imprisonment and also disqualified from driving for 3 years. 5. The appellant appeals against conviction by leave of the single judge. The single judge gave leave to appeal on one ground only. The application on the other grounds of appeal against conviction and the application for leave to appeal against sentence were referred to the full court. 6. At the conclusion of the hearing, we dismissed the appeal against conviction, but allowed the appeal against sentence quashing the sentence of 4 year imprisonment and substituting a sentence of 2½ years imprisonment and reducing the period of disqualification to 3 years. These are the reasons for our decision. (1) The application to adduce fresh evidence 7. It is convenient first to consider the application made on behalf of the appellant to adduce fresh evidence – an expert on the cause of the tyre failure and what was visible prior to the accident. For this purpose, it is necessary to set out the facts in a little more detail 8. The minibus had been inspected by the local Council on 5 June 2002; at that time it was noted that the rear nearside tyre was at the limit of 1.6mm. Shortly thereafter, the appellant arranged for it to be replaced by a part worn tyre of the correct size. The vehicle was subject to spot checks by the local council; there was evidence that there had been spot checks by the council’s inspector on 24 June and 8 July 2002. 9. At the trial the expert relied on by the prosecution was Mr John Manderson. He was a graduate in chemistry and a chartered chemist; he had considerable experience as a member of the Metropolitan Police Forensic Science Service from 1971 to 1994; thereafter he had been in private practice, being the director of Traffic Accident Investigation of the very well known firm of Dr J.H. Burgoyne & Partners from 1999. The essential nature of his evidence was set out in a statement dated 28 August 2002 which was served prior to the committal of the case to the Crown Court. It can be summarised as follows: a) The tyre was a tubeless reinforced radial ply tyre. It had been in use for 10,000 miles and had suffered premature wear through tread shuffle b) This occurred through poor chemical bonding of the tread to the carcass of the tyre, probably as a result of a manufacturing defect. His experience (and that of others) in testing tyres to destruction was that the tyre would inevitably fail through the sidewall. c) The poor bonding would have resulted in a swelling or bulge in the tread so that the loose areas would have stood proud of the circumference of the tyre. d) The presence of the two prematurely worn bulges on the tread would have been obvious in any visual examination of the tyre; protruding steel filaments would also have been readily apparent to anyone running their hands round the tyre in the course of an inspection of the tyre. A further statement by Mr Manderson was served in November 2003 which provided more detail. His evidence at trial in April 2004 was to the same effect as that set out in the statement of August 2002; he explained that the part with the bulge would have worn more quickly than the rest of the tyre; as the tyre became weaker the bulge became larger at an ever increasing pace until failure occurred. The wear would have been obvious to a cursory glance in the days before the failure. 10. The appellant called no expert evidence. The circumstances in which this decision was made were as follows: i) Counsel originally instructed for the appellant advised that expert advice should be obtained on behalf of the defence about the tyre failure. The solicitors instructed on behalf of the defence found an expert who quoted an estimated fee of £3000. The Legal Service Commission declined to approve that expert on the basis he was too expensive. ii) The defence found another expert, Mr Graham Oakley, who provided an estimated fee of less than £2000. He was a member of he Society of Expert witnesses and on the UK Register of Expert Witnesses. His expertise was considered suitable. The Legal Services Commission approved his retention. iii) In his report of 19 August 2003 (a copy of which was provided to us), Mr Oakley, after inspecting the tyre, agreed with Mr Manderson’s opinion that the tyre had been in use for 10,000 miles and that the separation of the tread from the carcass was probably the result of a manufacturing fault which had manifested itself whilst the tyre was in use. His conclusion was: “The tyre in question suffered a catastrophic failure whilst in use, probably as a result of inadequate bonding between carcass and tread during manufacture. Regular inspection of the tyres for correct pressure and damage may well have detected the fault long before the inevitable failure occurred”. iv) Prior to the second trial, it does not appear that it was fully appreciated by the solicitors or junior counsel instructed that the essential issue was the cause of the tyre degradation and the question as to whether any indication of that degradation would have been visible prior to the accident; they apparently looked at the issue more broadly in terms of the roadworthiness of the vehicle. Mr Oakley was not called at the first trial as junior counsel did not consider his evidence was of assistance to the appellant. v) Leading counsel was instructed after the count of manslaughter was added to the indictment in December 2003. On 15 April 2004, shortly before the re-trial, a further opinion was obtained from Mr Oakley on the issue of whether the tyre tread would wear away at the same rate all along the tyre assuming that the part where the burst occurred had already had significant wear. His brief answer was that, when the tread started to break away, there would be excessive wear on that part of the tyre, but he could not give a mileage travelled before the fault became a failure as there were too many variables. vi) We were told by counsel that he was informed that no further funding would be made available for a further expert and that no expert could be found in the time available who could match the expertise of Mr Manderson. vii) During the course of the trial, leading counsel saw Mr Oakley during a luncheon adjournment. He concluded at that time that he should not be called as he did not have the scientific expertise to match Mr Manderson and his evidence did not support the defence case. It was thought that Mr Oakley’s expertise principally related to accident investigation and the roadworthiness of vehicles; he was not a chemist and not specifically expert in the degradation of tyres. 11. After the appellant’s conviction, leading counsel advised that there were arguable grounds for appeal and that there were reasons for doubting the accuracy of the evidence of Mr Manderson. Enquiries were made by the appellant’s solicitors as to further experts; they consulted the Forensic Science Laboratory, tyre manufacturers and an agency that found experts. They found an expert but he had earlier assisted one of the other parties. They then found an expert, Mr Rex Grogan, who agreed to act at a fee significantly less than that of Mr Oakley; this fee was funded by the appellant’s family. Mr Grogan had been in the tyre industry all his life; he had started in 1947 with the Tyre Compounding Laboratory of Dunlop Ltd and remained with Dunlop Ltd until 1980, when he established himself as an independent consultant; he had trained in the course of his career a number of Home Office forensic scientists He carried out an examination of the tyre; in his report dated 9 March 2005 which we considered de bene esse, he stated he did not agree with Mr Manderson’s opinion that the bulges would have been visible; he considered that the bulges could have developed during the final journey of the minibus; the steel cord filaments had probably penetrated the inner lines and air had escaped into the unbonded areas; this had formed very large air bubbles which caused very rapid local wear. His report was disputed by Mr Manderson in a further report which we also considered de bene esse. . 12. The basic principles upon which this court admits fresh evidence are set out in s.23 of the Criminal Appeal Act 1968 and in the speech of Lord Bingham in R v Pendleton [2001] UKHL 66 . In R v Jones (Steven) [1997] 1 Cr App R 86, Lord Bingham CJ explained the operation of these principles in relation to expert evidence. “[ S.23 ] does however acknowledge, in s.23 (2)(d), the crucial obligation on a defendant in a criminal case to advance his whole defence and any evidence on which he relies before the trial jury. He is not entitled to hold evidence in reserve and then seek to introduce it on appeal following conviction. While failure to give a reasonable explanation for failure to adduce the evidence before the jury is not a bar to reception of the evidence on appeal, it is a matter which the court is obliged to consider in deciding whether to receive the evidence or not. The Court has in the past accepted that s.23 may apply to expert evidence, and we would not wish to circumscribe the operation of a statutory rule enacted to protect defendants against the risk of wrongful conviction. But it seems unlikely that the section was framed with expert evidence prominently in mind. The requirement in s.23 (2)(a) that the evidence should appear to be capable of belief applies more aptly to factual evidence than to expert opinion, which may or may not be acceptable or persuasive but which is unlikely to be thought to be incapable of belief in any ordinary sense. The giving of a reasonable explanation for failure to adduce the evidence before the jury again applies more aptly to factual evidence of which a party was unaware, or could not adduce, than to expert evidence, since if one expert is unavailable to testify at a trial a party would ordinarily be expected to call another unless circumstances prevented this. Expert witnesses, although inevitably varying in standing and experience, are interchangeable in a way in which factual witnesses are not. It would clearly subvert the trial process if a defendant, convicted at trial, were to be generally free to mount on appeal an expert case which, if sound, could and should have been advanced before the jury. If it is said that the only expert witness in an established field whose opinion supports a certain defence was unavailable to testify at the trial, that may be thought (save in unusual circumstances) to reflect on the acceptability of that opinion.” 13. The prosecution disputed Mr Grogan’s expertise; they also contended that what was being done after the trial was to “shop around” for expert evidence that would support the appeal in circumstances where the defence had had expert evidence at trial which had not been called as it did not support their case. 14. It was not necessary for us to decide these two issues; we proceeded on the basis, purely for the purposes of the application, that Mr Grogan was competent to give evidence on the issue of the cause of the failure of the tyre, that his evidence was being advanced in good faith and that his evidence would have been admissible at the trial. We also proceeded on the basis, purely for the purposes of the application, that Mr Grogan’s evidence would have supported the defence case at trial that the tyre was visually inspected and no defect found. 15. However, this was in our view a case where there was no proper explanation, let alone a reasonable explanation, for the failure to adduce the evidence at the trial. To permit the appellant to adduce the evidence of Mr Grogan on appeal in the circumstances would be to subvert the trial process. i) The expert evidence served by the prosecution was clear and the area of expertise of Mr Manderson was clear. There was a very long period in which to consider that evidence before the first trial and the re-trial. ii) The views of Mr Oakley were clear. He agreed with Mr Manderson’s views on causation and on the visibility of the defect. That was set out in his report provided before the first trial. iii) The fact that Mr Oakley was not a chemist and had no specific expertise in tyres or tyre degradation was obvious. iv) It was incumbent on the defence to consider the expert evidence well before the trial and the re-trial. There was ample opportunity to seek to instruct a new expert, if the view has been reached that his expertise did not match that of Mr Manderson. Cost cannot have been an impediment as the fee charged by Mr Grogan was significantly less than that charged by Mr Oakley. Nor was time a problem. Mr Grogan was found with little difficulty after the trial. v) It appears that the final view on the lack of relevant expertise on the part of Mr Oakley was not reached until a point during the course of the trial. The course that then should have been taken was to apply to the trial judge for an adjournment. No application was made. To permit the issue which was then apparent to be re-opened on an appeal would be subvert the trial process. vi) This is not a case where there is new learning or advances in science; the evidence which the appellant sought to adduce on appeal was evidence that was available at the time of the trial. It was simply to a different effect to that which was available to the defence long before the trial and re-trial. vii) For those reasons, we refused the application to adduce fresh evidence. 16. We were told the issue relating to expert evidence was not examined at the Plea and Directions Hearing; although we were given no further explanation, we assume this was because there was on the reports that had been obtained no real issue. It is also possible that sufficient thought had not then been given by those acting for the appellant to the extent of the expertise of Mr Oakley. 17. However, in our view, what we were told then happened in this case after the Plea and Directions Hearing underlines the importance of proper preparation before the Plea and Directions Hearing or, as it now is, the Plea and Case Management Hearing. In a case such as this, the nature of the expert evidence in issue should have been clear to any lawyer applying his mind properly to the issues; similarly the difference in the range of expertise between Mr Manderson and Mr Oakley was clear. By the time of the Plea and Directions Hearing, these matters should have been the subject of careful advice by the advocate instructed on behalf of the appellant; if there were issues that the defence wished to raise on expert evidence, then that was the time to raise them and discuss them at that hearing before the judge. The criminal trial process depends on early and thorough preparation of the case. 18. By the time of the trial of this case, it should have been properly prepared on both sides; indeed the trial judge would have been entitled within the exercise of his discretion to refuse to adjourn the case if an application had in fact been made to adjourn the trial to enable a new expert to be instructed; whether he in fact would have done so was a matter of his discretion. Parties to a criminal case are generally not entitled to an adjournment at the beginning of a trial or during the trial on the grounds that at that time a different view is taken about evidence than had been taken at the stage at which the evidence was or should have been reviewed, if nothing materially has changed; a change of mind by the advocate about the evidence required or the views of a new advocate about the evidence required are not generally for these purposes material changes. The time for forming views on the evidence required is at the time of the Plea and Case Management hearing or, if something new has emerged, as soon as that is known or appreciated. 19. The judge in this case would therefore have been well within the exercise of his discretion to have refused an adjournment and to have proceeded with the trial, as what appears to have happened is that there had been a change of view in relation to evidence which should properly have been considered at the Plea and Directions Hearing or in any event well in advance of the commencement of the re-trial. However no such application was made to him; that factor, in addition to the other matters we have set out, underlines our judgment that to admit fresh evidence now would in the circumstances of this case be to subvert the trial process. (2) Was the direction on gross negligence correct? 20. We therefore turn to consider the appeal on the basis of the evidence adduced at the trial and to the sole ground on which leave to appeal was granted – the direction given by the judge on gross negligence for the offence of manslaughter. 21. It was submitted on behalf of the appellant in this case that the direction given to the jury had to be approached on the basis that the sudden catastrophic type of failure to the tyre was rare and that the subsequent and inevitable loss of control consequent upon such tyre failure was also rare. In the circumstances therefore it was incumbent on the judge to have directed the jury more fully on the risk of death. 22. The judge’s direction on manslaughter covered the four ingredients: i) duty ii) breach of duty iii) causation iv) whether the breach amounted to gross negligence. 23. The criticism was directed solely in respect of the direction on the fourth ingredient: “The final question that you have to ask in relation to Mr Yaqoob is this: did his breach of duty – this is if you find one – amount to gross negligence? Now in order to discharge a duty of care the law requires that there should be exercised a reasonable degree of care and competence, and any breach of duty of that kind may excite civil liability if it has been the cause of the loss. It may, for example, be a simple act of inadvertence which is a breach of duty, perhaps by a person who is already bearing a very heavy load of work, but where the breach of duty is charged as a criminal offence, the criminal offence of manslaughter, there must be a graver breach than one which simply involved inadvertence. To be guilty of manslaughter the defendant must be grossly in breach of his duty, grossly negligent.” His conduct has to show such disregard for the life and safety of others that you, the jury, conclude that it amounts to a crime , the crime of criminal inattention. Those then are the elements of the offence of manslaughter put into question form for your consideration. You have to be sure in relation to each of those matters before you can convict Mr Yaqoob, but if you are sure then your duty is to convict him.” (emphasis added) 24. It was submitted on behalf of the appellant that the judge should have directed the jury in terms that in deciding whether the conduct amounted to gross negligence, they had to be sure that the conduct was not merely one that had disregard for the life and safety, but that it showed indifference to the risk of death. The judge had not made this clear, as he had referred (in the passage to which we have added emphasis) to the risk to life and safety and not solely to the risk of death. 25. In R v Adomako [1995] 1 AC 171 , Lord Mackay of Clashfern referred in his speech to the material risk being the risk of death in the following passage (to which we have added emphasis): “The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal. It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter, which is supremely a jury question, is whether, having regard to the risk of death involved , the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.” 26. However Lord MacKay in Adomako also referred with approval to the passages in the judgment of Lord Hewart CJ in R v Bateman (1925) 19 Cr App R 8 (to which we have also added emphasis): “If A has caused a death of B by alleged negligence, then, in order to establish civil liability, the plaintiff must prove (in addition to pecuniary loss caused by the death) that A owed a duty to B to take care, that that duty was not discharged, and that the default caused the death of B. To convict A of manslaughter, the prosecution must prove the three things above mentioned and must satisfy the jury, in addition, that A’s negligence amounted to a crime. In the civil action, if it proved that A fell short of the standard of reasonable care required by law, it matters not how far he fell short of that standard. The extent of his liability depends not on the degree of negligence, but on the amount of damage done. In a criminal Court, on the contrary, the amount and degree of negligence are the determining question. There must be mens rea …In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as ”culpable,” “criminal”, “gross”, “wicked”, “clear”, “complete.” But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment. …. The foregoing observations deal with civil liability. To support an indictment for manslaughter the prosecution must prove the matters necessary to establish civil liability (except pecuniary loss), and, in addition, must satisfy the jury that the negligence or incompetence of the accused went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.” 27. As can be seen from the passages to which we have added emphasis, the direction given by the judge was based on the passages in the judgment of Lord Hewart CJ. 28. After the decision in Adomako, there was discussion in the literature and cases on the issue as to what was the nature of the relevant risk – was it serious risk to life or did it extend to serious risk to safety as well as to life? This issue was directly addressed in R v Misra [2004] EWCA Crim 2375 ; in giving the judgement of this court, Judge LJ, said at paragraph 52: “There will, of course, be numerous occasions when these distinctions are entirely theoretical. From time to time, however, they will be of great significance, not only to the decision whether to prosecute, but also to the risk of conviction of manslaughter. In our judgment, where the issue of risk is engaged, Adomako demonstrates, and it is now clearly established, that it relates to the risk of death, and is not satisfied by the risk of bodily injury or injury to health. In short, the offence requires gross negligence in circumstances where what is at risk is the life of an individual to whom the defendant owes a duty of care. As such it serves to protect his or her right to life.” 29. This decision has settled the issue. But it is necessary to consider each direction given to the jury in its context to examine if it accords with the law as settled by Misra . In the instant case, the direction given by the judge was given in a case where it was obvious to the reasonable person in the position of the appellant that the minibus would be travelling on very fast dual carriageway roads in the vicinity of Aylesbury at speeds where tyre failure could well result in a fatality; there could be no doubt therefore that the only risk engaged was the risk of death and the reference to the risk to safety was superfluous. In context therefore the use of the phrase from the judgment of Lord Hewart CJ could only have been referable to the risk of death and not anything short of that. We would add, however, that in general a direction should expressly refer to the fact that it is the risk of death, not merely of serious injury, that is relevant. As was said in Misra, this court approved in R v Singh (Gurpal) [1999] CLR 582 the direction that “The circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury, even serious injury, but of death.” 30. We are therefore satisfied that there was no misdirection and the sole ground on which leave to appeal was given failed. We turn to set out our reasons for refusing leave on the grounds on which the application for leave to appeal was referred to the full court. (3) There was no evidential or legal basis for the contention that a PSV operator owed a duty to inspect greater than that of an annual MOT. 31. The first ground of the application for leave to appeal referred to the full court was the submission that there was no evidential or legal basis for the prosecution case that the owner of a public service vehicle owed a higher duty than that than set out in the regulations applicable to public service vehicles. 32. The prosecution case was that it was for the jury to assess the level of duty owed; it was for them to assess whether in all the circumstances it was sufficient for a driver of a mini bus such as that operated by the appellant only to abide by the regulations or whether more was required. 33. On behalf of the appellant, this approach was criticised. It was said that there was no evidence before the jury as to how mini cab firms should have operated the routine maintenance and checking of their vehicles. The prosecution could, of course, have established this by expert evidence but they did not do so. In the circumstances it was not fair for the prosecution to have been allowed to advance any case that went beyond abiding by the regulations. 34. We do not agree. It was, in our view, entirely open to the jury to find that there was a duty to inspect and maintain beyond that required for a MOT test, council inspections and other duties imposed by regulation. It was well within the competence of a jury to assess that duty without any expert evidence; these were not technical issues beyond their competence and they did not need expert help. The judge properly left the matter to the jury. (4) The failure to keep records 35. The evidence given at the trial by the appellant was that no maintenance or service records were kept. He said the vehicle was serviced in school breaks but there was no paper work to show that this was so. The judge commented: “There was, you may have felt, nothing that could be described as any routine system for maintenance. He mainly relied for discharge of his duty on the checks or inspections that he conducted himself.” 36. It was submitted on behalf of the appellant that the prosecution should not have been permitted to advance a case to the jury on the basis that the absence of records of vehicle inspection beyond those required by regulation was evidence of a breach of duty. 37. It appears that the Crown did not advance such a case; it was their case that it was for the jury to assess the extent of the record keeping. The weight attached to this as evidence of a breach of duty was for the jury; there was no reason why the ambit of what they were entitled to consider was circumscribed by the requirements of regulation. In our view, there was no arguable basis on which that approach could be criticised; the jury were entitled to look at the whole of the circumstances as they found them to be. (5) Use of part worn tyres 38. The prosecution case was that if part worn tyres were used on a vehicle, then there should have been more frequent inspections. 39. It was submitted on behalf of the appellant that the prosecution should not have been permitted to advance this case because it was perfectly lawful to use part worn tyres. There was no evidence to show that the appellant either knew or should have known of any risks associated with part worn tyres. 40. We find this ground to be wholly without merit. It is obvious that the use of part used tyres necessitates more frequent inspection than a new tyre. (6 ) Mr Manderson’s evidence 41. The final ground sought to be advanced was that the judge had failed to remind the jury of what the appellant contended was an inconsistency in Mr Manderson’s evidence. As we have set out, it was the defence case that the visual inspections carried out, including that by the council, had not disclosed any defect visible to the eye or to touch. 42. The vehicle had travelled 6531 miles between the date of the Council Inspection on 5 June 2002 and the fatal accident. It had been suggested to Mr Manderson in cross examination that if, as he thought, it was inconceivable that the tyre tread could have worn two discrete areas from over 4mm to less than 1mm by travelling that distance and the two areas of tread must have had tread of about 2mm, it was impossible to understand how the two discrete areas have worn from the standard 8mm to 2mm in the 4000 miles the tyre must have completed at the time it was fitted. 43. Mr Manderson did not accept this proposition when put to him; the defence contended that the fact he would not showed an inconsistency in his evidence which the judge should expressly have pointed out. We do not consider that there is an arguable complaint. First, the judge did draw attention to the cross examination and told the jury that if they if they considered that the appellant’s advocate had exposed a flaw in the reasoning of Mr Manderson, then they were entitled to reject his evidence. Secondly, Mr Manderson did not accept the proposition put; his evidence was that the measurements were all approximations, the causative case he had advanced was by its nature one that could not be tied to precise measurements, but he considered that the bulges were visible in the weeks before the accident. (7) Conclusion 44. Apart from considering the specific grounds put forward, we considered the overall safety of the conviction. We saw no reason to question its safety. (8) Sentence 45. The judge, in sentencing the appellant on the basis that he should have spotted the defect in the tyre, observed “Your failure to do so was not just a terrible oversight. It illustrated the virtual absence of any planned maintenance and I do not believe you when you said you looked. The message needs to be driven home to minicab and taxi firms that they have onerous responsibilities to ensure that their vehicles are properly maintained at all times and frequently and effectively inspected. Your neglect of your responsibilities was criminal and is reflected in the verdict of manslaughter.” 46. We agree that it is incumbent on all operators of minibuses and minicabs to exercise due care to see that their vehicles are frequently inspected and well maintained. There was, however, nothing before the court or suggested to us on the appeal that required a deterrent sentence in this type of case. 47. Where a deterrent sentence is not required, a sentence of four years is more than within the general range of sentences for manslaughter of this type (which is not a motor manslaughter case); see, for example R v Kite [1996] 2 Cr App R (S) 295. In our judgment, taking into account the appellant’s previous good character, the way in which he had run his company for 12 years without incident and his personal circumstances, we considered that the appropriate sentence should have been one of 2½ years. As to the period of disqualification, we considered that the period should not have been higher than that of the driver and we accordingly reduced the period to one of 3 years. To that extent only and for those reasons, we allowed the appeal against sentence.	```yaml citation: '[2005] EWCA Crim 2169' date: '2005-08-26' judges: - LORD JUSTICE THOMAS ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical 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 2293 Case No: 200603756 B3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BOURNEMOUTH His Honour Judge Beashel (T20050079) Royal Courts of Justice Strand, London, WC2A 2LL Date: 12 October 2007 Before : LORD JUSTICE TOULSON MR JUSTICE DAVIS and MR JUSTICE UNDERHILL - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Ian Charles Macfarlane Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr James Leonard (instructed by Turners Solicitors ) for the Appellant Mr Brendon Moorhouse (instructed by The Crown Prosecution Service ) for the Respondent Hearing date : 7 September 2007 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Davis : 1. This is an appeal, brought by leave previously granted by the full court, against a confiscation order. The order was made on 30 June 2006 by His Honour Judge Beashel in the Bournemouth Crown Court and was in the sum of £426,414 with a term of three years imprisonment in default of payment. In addition, a recovery of defence costs order in the amount of £50,000 was made. That too is challenged on this appeal. The Judge allowed a period of two years for payment in respect of both orders. 2. The background, very shortly put, was this. The appellant, Ian Macfarlane, had been a partner in a firm of solicitors, Traill & Co, with offices in Dorset. He specialised in conveyancing. On 22 October 1996, shortly after joining the firm, he opened an account at the Blandford Branch of the Portman Building Society, in the name of “Ian Revue”. Over the next seven years or so he paid numerous cheques into that account, to a total value of £805,064. The cheques were drawn on the account of Traill & Co and were generally made out to “I. Revue”. The cheques had purported to be in favour of the Inland Revenue, in respect of stamp duty or other tax – the applicant had secured payment from his clients whereas in fact (and of course unbeknown to the clients) he had managed to procure exemption from such taxes on the relevant transactions. No one within Traill & Co had suspicions at the time, just because it was assumed that the cheques were being properly drawn for payment to the Inland Revenue. The fraud ultimately was exposed in 2004. The appellant was in due course charged with theft and was sentenced on 24 June 2005 by Judge Beashel to 3 years 9 months imprisonment, the Judge rightly emphasising that a gross breach of trust had been involved. 3. In 1993 the appellant and his wife had set up a property development and management company called Kingston Property Management Limited (KPM). It was subsequently shown that some of the stolen money had been applied towards the purchase or development of some of the properties purchased in the name of KPM. At the confiscation hearing it had been accepted by the appellant that a significant amount of the money in the building society account had been applied by the appellant towards payment of his ordinary living expenses, credit card bills and school fees, and so on: the consequence being that he was thereby enabled to use his income from his practice as a solicitor in part to make payments to KPM for property purchases or development. 4. By the time of the hearing, the prosecutor had identified four particular properties in Bournemouth in respect of the purchase and development of which some of the stolen funds had been applied by means of payments out of the building society account. These properties were 2 Pembroke Road; 95 Alumhurst Road; 3 Warren Road; and 11 Westerham Road. A major dispute at the confiscation hearing was whether or not their purchase had been the subject of an equal joint venture agreement with a third party (in particular a company called RCF Homes Limited). The appellant contended that there had been a joint venture: if correct, that clearly would impact on the amount of any confiscation order to be made. The prosecution did not accept that there had been a joint venture. The Judge, having received written and oral evidence, ruled that there had been such a joint venture. 5. So far as Traill & Co were concerned, we were told that they had commenced civil proceedings, issued in the Chancery Division of the High Court, against the appellant. A freezing order was obtained (and, we gather, still is in place). In the event various properties owned by the appellant or KPM were sold, with the co-operation of the appellant; and by 15 February 2006, as the Judge found, a total of £916,099 had been paid over to Traill & Co. By letter dated 3 May 2006 sent to the Judge at the Crown Court, Traill & Co indicated that, subject to final quantification, there was a projected shortfall of nearly £115,000 for which recovery would be sought. The letter is not altogether clear as to some of its calculations. At all events, reference was (among other things) briefly made to a “credit balance on [the appellant’s] loan account with the firm” in the a sum of £94,128. A claim for damages, including a claim for “exemplary damages”, was mentioned. Other points were made. As to those outstanding claims of Traill & Co, the Judge said this:- “… By February this year, the sum of £766, nearly £767 ( sic ) had been paid to Traill’s. On 15 February this year, a further £149,000 was received following the sale of 2 Pembroke Road, Bournemouth, a total then of £916,099. Traill’s estimated in their letter that, on the basis of all the figures set out in the letter, the shortfall would be in the order of £115,000. This court cannot now make a compensation order in their favour, but the defendant, hopefully, will have sufficient assets to satisfy any High Court judgment in or about that sum obtained against him, provided of course, that any confiscation order I make in these proceedings is not so high as to deprive the defendant of all his assets, and this is complicated further by the fact that I have to consider a recovery or defence costs order at the end of the case. The purpose of the 1988 Act as amended has been said to be to strip criminals of their present assets to the extent of their past criminal profits. The Act is designed essentially to impoverish defendants, not to enrich the Crown. It is designed to deprive a person of profits received from criminal conduct and to remove the value of the proceeds received from criminal conduct from possible future use in criminal conduct. …” 6. We were taken to the relevant sections of the Criminal Justice Act 1988 (as amended). They are very familiar: it is not necessary to set them out in full in this judgment. Likewise, the principles and approach ordinarily adopted – albeit making allowance for those cases where the jurisdiction is discretionary - are by now reasonably well known. Again we do not need to restate them here. Clearly the Court is concerned to assess first the amount of the benefit and then the amount of the realisable assets. 7. By section 71(6) an order is, subject to subsection (1C), to be equal to the benefit or the amount appearing to the Court to be the amount that might be realised at the time the order was made, whichever is the less. In the present case it was common ground that, because of the civil proceedings instituted by Traill & Co, subsection (1C) did apply: the Judge therefore had a discretion as to whether or not to make an order and in what amount. 8. Section 71(4) provides that a person benefits from an offence if he obtains property as a result of or in connection with its commission and his benefit is the value of the property so obtained. That is wide language and (as previous decisions of constitutions of this Court show) capable of wide application. We add that we do not accept, in the context of this particular case, the submission on behalf of the appellant that that subsection is in some way displaced or superceded by the provisions of section 71(5) relating to the deriving of a pecuniary advantage as a result of and in connection with the committing of an offence; and we can see no error in the Judge’s approach on this. 9. It has to be said that the proceedings, both in the Court below and in this Court, became rather encrusted with obscurity and complexity. Indeed, notwithstanding directions previously given in this court at earlier stages in this appeal, the true issues on this appeal had not been altogether precisely identified: although matters did acquire a much sharper focus during the appeal hearing itself. We would wish to pay particular tribute to Mr Leonard, who had taken over at relatively short notice from counsel who had previously been instructed in the appeal and in the court below (and who had unfortunately become ill) for his clear and forceful submissions on behalf of the appellant. 10. Mr Leonard dealt first, with some encouragement from the Court, with the question of realisable assets. The Judge, by agreement, had excluded the matrimonial home from the assets figure (that property belonging beneficially solely to the appellant’s wife). Further, it had been agreed that the other assets of the appellant amounted to £867,193. 11. The Judge’s short observation on the issue of realisable assets was this:- “… The equity in the matrimonial home is in the order of £400,000, and, by agreement now, that figure is deducted from the assets figure. The prosecution submit, therefore, on the basis of their being a joint venture, the defendant’s benefit from the four properties was £475,350. The other assets figure of £867,193 is agreed, a total then of £1,342,543. It is accepted that the monies paid to Traill’s already in the sum of £916,099 be deducted from that figure, and the prosecution say, therefore, that the proper figure for confiscation is in the sum of £426,414.” The Judge accepted that, going on to say: “I do not consider it disproportionate or unfair to make the orders sought …” 12. The figure of £475,350 was essentially based on the prosecutor’s Third Supplemental Statement dated 13 February 2006 (which appended the relevant calculations) and a written note from prosecuting counsel dated 14 June 2006. 13. Mr Leonard criticised this part of the ruling. He said that the Judge gave no reasons for his conclusion and did not explain why the lengthy written submissions and evidence on behalf of the appellant had been rejected. Further, he said that adding the benefit arising from the four properties to the other agreed assets figure of £867,193 was completely wrong. The realisable property of the defendant was that held by him at the time of the hearing: and the alleged benefit arising from the four properties was not relevant for this purpose. In the present case, the four properties had by the time of the hearing been sold by way of long leases granted for a premium. The only asset in respect of these properties remaining available thus was the value of the freehold reversion, which in each case could not on the evidence exceed £10,000: if not, indeed already taken into account in the agreed assets figures of £867,193 (as Mr Moorhouse for the respondent told us it in fact was). 14. It seems to us that Mr Leonard was right on this, and the issue of benefit had at this stage become wrongly confused with the issue of realisable assets. Indeed, Mr Moorhouse for the respondent conceded as much. He frankly accepted that the root cause of the Judge’s mistake here probably was Mr Moorhouse’s own written note dated 14 June 2006 which had wrongly added the asserted benefit figure arising from the four properties to the other agreed assets figure of £867,193. 15. The next stage of Mr Leonard’s argument was consequently this. As recorded by the Judge in his ruling “it is accepted that the monies paid to Traill’s already in the sum of £916,099 be deducted from that figure …”. Since “that figure” was properly (as conceded by the respondent) to be taken to be £867,193 there existed no balance. Consequently, so the argument went, no confiscation order should have been made. 16. We are unable to accept this. In particular, we cannot accept that there was a binding agreement that, in assessing what confiscation order should be made, the sum of £916,099 should be deducted from the realisable assets figure. It is true that counsel then appearing for the appellant had in the Court below argued for that: although he had (realistically) acknowledged that the opposing approach of the prosecution - which he styled a “rigorist approach” – was another possible approach. The Judge himself had, in a previous written note to counsel dated 1 June 2006, referred in neutral and unexceptional terms to deducting the £916,099 received by Traill & Co from “the total”. In his written note of 14 June 2006 Mr Moorhouse had simply said at the end “It is agreed that the sum of £916,099 paid to Traills should be deducted …”. He did not say that it should be deducted from the agreed realisable assets figure; and it would have been entirely contrary to the Crown’s whole case for him to have done so. As he told us, it was his intention that it be deducted from the assessed benefit. If the Judge had understood Mr Moorhouse to be agreeing that the sum paid to Traill & Co should be deducted from the assets figure then they were at cross-purposes. 17. There can be no obvious justification, in logic or in sense, in deducting the £916,099 from the agreed assets figure. The Crown had been prepared to accept that the sum of £916,099 was a proper deduction in this particular case, under the discretionary regime, and in the light of the approach adopted in Glatt [2006] EWCA 605. That deduction properly fell to be made, having regard to the benefit from the offences, in deciding overall the amount for which any confiscation order should be made. 18. It therefore is necessary to turn to the question of benefit. 19. As to that the Judge said this:- “The benefit, of course, under the Act is defined in this way: a person benefits from an offence it he obtains property as the result of, or in connection with, its commission and his benefit is the value of the property so obtained. I find here the benefit figure to be £1.5 million.” As Mr Leonard observed, here too the Judge gave no reasons for his shortly stated conclusion as to the benefit figure or as to why he had rejected the detailed evidence on behalf of the appellant on the issue of benefit. 20. It is, however, clear enough that the Judge had preferred the prosecution’s approach and figures (as set out in its reports) to those of the appellant. The figure of £1.5 million may perhaps partially be explained as representing the sum of £791,946.80 (being the money stolen from Traill & Co and put into the building society account but less that element of the stolen money applied towards the purchase of the four properties, then increased by an amount corresponding to an increase in the Retail Price Index in the relevant period) and the purchase price of the four properties (divided by one half to reflect the joint venture); and, with some (unspecified) rounding off. 21. Mr Moorhouse in this Court and in the Court below, was, however, prepared in this particular case to accept (in line, as he said, with the approach taken in Glatt ) that - whether or not strictly half of the purchase value of the four properties could have been taken to calculate the benefit - in calculating the benefit the Judge could have regard to the “profit” (as Mr Moorhouse styled it) from the four properties. The prosecution calculated that by reference to the gross proceeds of sale less development and mortgage costs. That, as set out in the detailed calculations in the Third Supplemental Report, gave a figure (allowing for the joint venture agreement) of £110,450 for 2 Pembroke Road; nil for 95 Alumhurst Road; £149,350 for 3 Warren Road; and £215,550 for 11 Westerham Road: giving a total of £475,350. This, of course, was the figure for the “benefit from the four properties” to which the Judge had himself referred later on his ruling. 22. Mr Leonard did not challenge the calculation of the element of £791,946.80 forming part of the total benefit figure. Further, although the written submissions on behalf of the appellant made some complaint that insufficient allowance had been made for other costs and expenses (including work undertaken and payments said to have been made by Mrs Macfarlane) incurred in respect of the four properties, Mr Leonard did not independently pursue that. In any case that matter was one for the Judge. Mr Leonard’s criticism was more fundamental. He said that the Judge should have accepted the approach of the appellant’s accountant and taken the benefit arising from the four properties as being the sum of the stolen monies actually applied towards their purchase together with the resultant profit after deduction of all expenses and prospective tax and after deduction of the purchase price. Thus taking (for illustrative purposes) the case of 2 Pembroke Road, the resulting “profit” on that property, after deducting expenses and purchase price would amount, on the calculation put forward by Mr Meakin (one of the appellant’s witnesses) to £20,700. That general approach was advanced by the appellant’s accountant in the Court below; he calculated a total (pre-tax) profit on the redevelopment of the four properties as £147,809 for KPM’s half in the joint venture. By this route, it is submitted, there is no double recovery. 23. The difficulty in that approach is that it virtually equates the notion of profit of the kind one might deploy, for example, for the purposes of a capital gains tax calculation with the notion of benefit under the terms of the 1988 Act as amended. We do not think that justified or required either by the terms of section 71 or by the reported cases. Further, the Judge was not required to take such an approach in deciding what order ultimately to make. Further, it should not be overlooked in considering the fairness of the overall outcome of these particular confiscation proceedings that the appellant, quite apart from directly applying stolen money towards the purchase of the properties, was indirectly enabled to purchase or develop them with other income by his use of stolen money to pay his ordinary living expenses. The Judge was entitled, in our judgment, to take the approach that he did and (in essentials) to accept the prosecution’s submissions in this regard in deciding on the amount of the confiscation order to be made in this particular case. 24. Accordingly, while we accept, in line with Mr Moorhouse’s concession, that the relevant benefit figure should have been assessed by the Judge as £1,267,296.80 (that is, £791,946.80 plus £475,530) we cannot see that the Judge otherwise adopted an unjustifiable approach. Deducting from that figure – in accordance with what was clearly the Judge’s overall intention – the sum of £916,099 paid by the appellant to Traill & Co, the resulting figure, representing the confiscation order to be made, is £351,197.80. 25. Mr Leonard submitted that there should at any rate be a further deduction of £115,000 to reflect the further recoveries by Traill & Co; or at all events an amount of some £55,000, which he says can be deduced from their letter of 3 May 2006 as a minimum sum to be treated as so recovered. But the letter is not clear; there were uncertainties for future recoveries; and we can see no error in the exercise of discretion by the Judge when he left the matter of such further recoveries to the outcome of the civil proceedings being pursued by Traill & Co. 26. Finally, there is the challenge to the recovery of defence costs order in the sum of £50,000. That was considerably less than the total amount involved (put at about £150,000). Reference was made to the history of the confiscation proceedings. We can, however, see no basis for challenging that exercise of discretion on the part of the Judge. 27. Accordingly, the appeal succeeds to the limited extent (not challenged by the Crown) that a figure of £351,197.80 is to be substituted for the figure of £426,414 as representing the confiscation order to be made. In all other respects the appeal is dismissed.	```yaml citation: '[2007] EWCA Crim 2293' date: '2007-10-12' judges: - LORD JUSTICE TOULSON - MR JUSTICE UNDERHILL ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	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 202101062/B5 [2023] EWCA Crim 643 Royal Courts of Justice Strand London WC2A 2LL Wednesday 24 May 2023 Before: LORD JUSTICE COULSON MRS JUSTICE FARBEY DBE MR JUSTICE CONSTABLE REX V IAN MICHAEL KERRY __________ 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 LORD JUSTICE COULSON : 1. The applicant is now 50. On 15 March 2021 in the Crown Court at Leeds (HHJ Belcher) and a jury, he was convicted of three counts arising out of breaches of a Sexual Harm Prevention Order (“SHPO”) that had previously been imposed upon him. He was given a suspended sentence of 2 years' imprisonment. He renews his application for permission to appeal against conviction following refusal by the single judge. 2. On 15 November 2016 the applicant had been convicted of various sex offences. On 20 December 2016 he was made the subject of the SHPO. 3. The SHPO required him to notify the police of any address at which he resided within three days of commencing such residence. The subsequent breaches occurred in December 2019. They were identified as follows: (a) From 12 September 2019, he had resided at 16 Kingsley Drive in Castleford but had failed to notify that address to the police (count 1). (b) Instead he told the police that he resided at 14 Kingsley Drive, but when that address was checked the resident had never heard of him (count 2). (c) The police arranged to meet the applicant on 11 December 2019. When they did, they found him in possession of a mobile phone, capable of connecting with the Internet, and he refused to hand the phone to the police in breach of the SHPO (count 3). 4. The applicant contested the charges. He was represented at his trial by an experienced solicitor advocate. Every possible point was taken. There was evidence from a number of prosecution witnesses, and the applicant not only gave evidence himself but called evidence from his mother as to where he had lived at the relevant time. The judge summed up the case to the jury in some detail, and they returned guilty verdicts on all three counts. 5. Although the papers are voluminous, it appears that the applicant's own grounds of appeal can be categorised under three broad headings: i) A complaint that the police accessed legally privileged material on the mobile phone; ii) the wrongful admission of bad character evidence at the trial; and iii) the poor quality of his representation at the trial. Each of these points was addressed and rejected by the single judge. 6. However, the position has been complicated by the provision of a separate advice from new counsel, which took an entirely different point, regarding the jury's sight of the terms of the SHPO. It does not appear that that advice, and therefore that point, was considered by the single judge. Equally, it does not appear that new counsel thought there was anything in the applicant's own three complaints. He certainly makes no mention of them in his advice. We propose therefore to give the applicant the benefit of any possible doubt, and deal with the three issues on which the single judge refused permission to appeal and then to move on consider the fourth point about the terms of the SHPO. 7. There is nothing in the point about the legally privileged material. The applicant was obliged to hand over the phone to the police and he refused to do so. Although he did not say so at the time, he subsequently said that he had refused because the phone contained privileged material. So at the trial, the only issue for the jury was whether the alleged presence of privileged material on the phone was a reasonable excuse for his refusal to hand it over to the police. By their verdict, the jury plainly considered that it was not. Beyond that, the material itself was irrelevant to the issues at trial. There is no suggestion that any legally privileged material was accessed by the police. There is therefore no arguable ground of appeal. 8. As to the bad character, the point arose in this way. On 23 April 2020 before the Magistrates, the applicant had previously been convicted of failing to comply with the notification requirements of the SHPO. That breach and that conviction were earlier in time so different from the breaches that were the subject of the trial. The Crown applied to the judge at the trial for that previous conviction to be admitted. That was contested but the judge gave a ruling in which she admitted that bad character evidence into the trial. 9. We consider that the argument that the judge should not have admitted the bad character evidence to be wrong in principle. This was a prior breach of the very same SHPO that the jury were considering. It was therefore entirely relevant bad character evidence. The real point for the judge was whether the admission of that evidence made the trial unfair. She gave a careful ruling in which she concluded that it would not make the trial unfair. That was a view to which the judge was plainly entitled to come. Her subsequent directions to the jury as to the limited use they could make of the bad character evidence were in standard terms and quite clear. Thus, the bad character does not give rise to any justification now for any complaint. For completeness, we should say finally on this point that the recent suggestion that the bad character was somehow admitted "by stealth" is untenable. The bad character evidence was only admitted into the evidence after a full-blown debate before the judge about whether or not it should be. 10. The majority of the papers in this case are concerned with the third area of the applicant's complaints, namely the quality of representation. In our view, that submission, although commonly made in applications for permission to appeal, needs to be properly analysed. This Court has made it plain in a number of cases, most recently in R v Sutherland & Khan [2022] EWCA Crim 72 , that unless complaints concerning the competence of previously instructed lawyers can be demonstrated to have had a potential effect on the fairness of the trial, this Court will not countenance appeals based on this type of complaint. 11. As we have said, it is clear from the judge's written directions and her summing-up that the applicant had every opportunity to present his case fully, and there was a good deal of evidence adduced, notwithstanding the fact that this was a case of a relatively narrow factual compass. As we have said, the applicant was represented by an experienced solicitor advocate. We do not consider that there is any justification for the complaints now and no sustainable suggestion that the trial was unfair as a result. 12. For those reasons therefore, we consider that the applicant's own three grounds of complaint have no prospect of success. As we have said, that appears to be new counsel's view too, because none of those matters appear in his advice and grounds of appeal against conviction, dated 28 May 2021. 13. The only point that is made in that advice is that, when the jury were considering the breaches, they were provided with copies of the SHPO of which it was said the applicant was in breach. On the face of it, that appears unsurprising. However, the complaint is that the SHPO revealed that the applicant's earlier offending involved children, and that it was therefore adversely prejudicial to him for the jury to be provided with a copy of the SHPO in its full terms. 14. We reject that final ground of appeal. The jury were considering breaches of the SHPO and the notification requirements set out there. They were entitled to see a full copy of the SHPO; indeed they could not have discharged their function properly without it. It would have been an affront to the principle of transparency if they had been provided with some sort of redacted document. It would only have encouraged speculation as to what the redactions covered up. 15. Furthermore, at no time before or during the trial was it ever suggested that the SHPO should be redacted; nor was there any sort of issue with the document being provided to the jury in the form that it was; nor was there a suggestion that any directions about it should be given by the judge. In our view, that is the best possible evidence that this was not a substantive issue at the time and cannot be now. It is, we fear, the product of hindsight. 16. Finally, we should say that, in any event, we cannot see that there was any prejudice in the provision of the SHPO to the jury. The jury were aware that the applicant was a sex offender; that is why he was the subject of the SHPO in the first place. Beyond that, the precise nature of his sex offences would not have been of any relevance to the jury, nor would it have had any significant prejudicial effect. 17. For those reasons therefore, this renewed application is refused. In our view, it has proved a complete waste of both time and resources. Accordingly, pursuant to section 18(6) of the Prosecution of Offences Act 1985 , we make an order requiring the applicant to pay the reasonable costs of the transcripts in this case, in the total sum of £282.58p. 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 643' date: '2023-05-24' judges: - LORD JUSTICE COULSON - MRS JUSTICE FARBEY DBE ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	Neutral Citation Number: [2009] EWCA Crim 838 Case No: 200804808 D2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT Mr Recorder Gold Q.C Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/04/2009 Before: LORD JUSTICE SCOTT BAKER MR JUSTICE MACKAY and MR JUSTICE BEATSON - - - - - - - - - - - - - - - - - - - - - Between: JASMIN SCHMIDT Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Diana Ellis Q.C (instructed by Needleman Treon ) for the appellant Sally Howes Q.C and Benedict Kelleher (instructed by The Crown Prosecution Service ) for the Respondent Hearing date: 20 March 2009 - - - - - - - - - - - - - - - - - - - - REASONS FOR DECISION Lord Justice Scott Baker : Reasons 1. On 20 March 2009 we allowed the appeal against conviction of Jasmin Schmidt on two counts of inflicting grievous bodily harm contrary to Section 20 of the Offences against the Person Act 1861 . We now give our reasons. 2. The conviction was on 5 August 2008 at the Central Criminal Court before Mr Recorder Gold Q.C and a jury. Having been convicted, the appellant was on 8 September 2008 sentenced two concurrent terms of three years imprisonment on each count and disqualified from working with children. She was given leave to appeal against conviction by the Full Court, following refusal by Jack J. He, however, granted leave to appeal against sentence. 3. The case has a long history and concerns events in September 2002. The appellant is a German national and qualified as a paediatric nurse in September 1997. She moved to London in April 1998 and began working with families looking after children. The facts. 4. M was born in July 2002. His parents, to whom we shall refer as “the mother” and “the father” lived in North Yorkshire and owned a designer clothes shop in Harrogate. On 10 September 2002 they made a family visit with M to London for the London Fashion Week. It was a business trip and the purpose was to buy clothes for the shop. As it was a business trip, arrangements were made with friends and family to help with M’s care. A family friend, to whom we shall refer as “the friend” and who was a retired mid-wife looked after M from 10 – 12 September. The maternal grandmother (to whom we shall refer as “the grandmother”) travelled to London on 13 September to be with the mother and the father and also helped. 5. The appellant was hired as a night nanny to look after M. She covered the nights of 12, 13 and 14 September. On the morning of 15 September, after the appellant had left, M appeared pale and was cold to the touch. He was taken to St. Mary’s Hospital Paddington where a CT scan showed bilateral subdural haematomas, an injury that can be caused by shaking. A skeletal survey taken on 16 September showed a fractured right ulna near the elbow and an eye examination showed haemorrhages in both retinas. The Crown’s case was that the injuries were caused non-accidentally by the appellant while M was in her care during the night of 14/15 September. The defence case was denial. It was common ground that the injuries were caused non-accidentally. There were limited candidates for who the perpetrator might be. The judge directed the jury there were just four, the appellant, the grandmother, the mother and the father. 6. Following discovery of the injuries to M, the local authority took care proceedings. An eight day ‘threshold’ hearing took place before Charles J. in the Family Division under s.31 of the Children Act 1989 . He held that M had been injured non-accidentally on 14/15 September 2002 when he sustained head injuries and a broken arm but that at least seven or ten days before that he had sustained an earlier head injury. He did not exclude the parents, the grandmother or the appellant from being the possible perpetrator of the injuries caused on 14/15 September but was unable to identify any individual as responsible. 7. Charles J’s finding of two incidents of non-accidental injury was based on neurological evidence that imaging taken when M was being treated in hospital showed separate collections of fluid in the subdural region of different appearances which suggested bleeds of different ages. The possible earlier injury would have occurred between mid-July and 8 September 2002. The case went to the Court of Appeal for reasons that have no relevance to the present appeal. The Court of Appeal concluded that, on the evidence, there was no real possibility that the appellant had caused the injuries to M on the second occasion. The appellant had, of course, had no contact with the family at the time when the first injury, if there was one, must have occurred. 8. A decision was taken in July 2003 not to prosecute the appellant, or indeed anyone else. However, in August 2006 following quite separate allegations against the appellant, of which she has since been acquitted, it was decided to revisit the neuro-radiological evidence. Fresh evidence was obtained from Dr Neil Stoodley, a consultant neuro-radiologist and Mr Peter Richards, a consultant neurosurgeon. 9. The outcome of the Family Division proceedings was, of course, irrelevant to the issue that the jury had to decide. The judge mentioned in summing up the fact that the jury was aware of them and that they had resulted ultimately in M being returned to his parents and that there were no findings of fact attributing any blame to any particular person in relation to the non-accidental injury that M had sustained. 10. What has changed since 2003 is that the preponderance of medical evidence at the trial in 2008 suggested that there had only been one bleed rather than two and that M had suffered non-accidental injury on just the one occasion and at a time when the appellant was looking after him. 11. Before turning in detail to the medical evidence it is necessary to refer in a little more detail some of the background evidence. The mother and the father had been trying to have a child for some years before M was born. The mother miscarried M’s twin early in the pregnancy. After M’s birth, perhaps understandably, she was a particularly anxious parent, seeking reassurance when anything seemed to be wrong. Shortly after his birth M was seen by a cranial-osteopath in an attempt to make him less fractious. On 11 August 2002 he was taken to hospital following projectile vomiting and vomiting which had started the previous day. On 8 September the mother contacted NHS Direct following difficulties in feeding him. She was advised over the telephone to take M to a general practitioner. However, an hour or so later she phoned to say that he had improved and she would not be taking him. 12. It was the Crown’s case that M had been seen by a number of professionals at time when there would have been signs of an earlier injury if he had suffered one, but that no one had seen anything or expressed any concern about him having possibly sustained a significant head injury. 13. On 21 August 2008 the family went on holiday to Switzerland, returning with M on 4 September. He received his vaccinations on the 5 September. During the time in Switzerland M had been unsettled at times and the mother had to take him away from the rest of the party so that they could get a proper sleep. 14. On 6 September there were staffing difficulties in the business and the mother had to work in the shop. M went with her but the following day she left him with a friend, although there had been the feeding difficulties to which we have referred that caused her to contact NHS Direct. 15. The family first met the appellant in the London flat at about 6pm on 12 September. She came with excellent references and the mother and the father were impressed with her. She cared for M overnight and left at 7.30am on the 13 September. Thereafter the arrangement was for the appellant to look after M from 10pm until 7am. 16. The grandmother arrived in London from Yorkshire on 13 September and looked after M while she accompanied the mother and the father to various business meetings during the day. She was already in bed when the appellant arrived to start work, as arranged, at 10pm. The mother and the father did not go out that night. The appellant slept on a sofa-bed in the living room. M was carried down the spiral staircase by the father in a Moses basket and M slept with the appellant in the living room. The mother saw the appellant at 7am and she left at 7.30am. Nothing happened that caused anyone any concern. 17. On 14 September M was again taken by his parents and the grandmother to various business meetings in Central London. They returned to the flat at about 6pm and the mother and the father went out at 8.15pm to celebrate a friend’s birthday. The mother was very tired and did not want to go out. The grandmother seemed worried and looked tired. 18. M was alone with the grandmother between 8.15pm and just before 10pm when the appellant arrived. The appellant had sole care of M until the morning, sleeping with him in the living room overnight. 19. When the mother went downstairs in the morning she found the appellant fully dressed, in the kitchen, reading. This was the only occasion on which she had been dressed and ready to go. This evidence was disputed by the appellant. None of the occupants of the house had heard any unusual crying or noise during the night. 20. The mother’s evidence was that she asked the appellant how M had been and that she replied he had woken up at 1.30am and taken three ounces of milk. He had woken up again at 6am. The appellant had not fed him at this stage and had made some reference to M being angry or cross and that she had swaddled him. The mother also stated the appellant referred to having had to “hit” or “pat” M quite hard on the back to get him to sleep. She also stated that “ridiculously I said that I have to hit him quite hard to wind him”. The mother agreed that she had not mentioned this conversation to the hospital staff when M was being treated and denied that she was trying to cast blame onto the appellant. She stated that the comment had not led her to believe that the appellant was admitting inappropriate behaviour and that she wished she had never mentioned the conversation as it was entirely irrelevant. 21. The mother also said that the appellant had told her that M was asleep and that she should let him sleep until 7.30am. Unlike the previous occasion she did not appear as if she wanted to stay and chat. However, the mother accepted in cross-examination that the appellant was probably in the kitchen for about 20 to 25 minutes before leaving at 7.25am. 22. The mother stated that she had her breakfast and went into the room where she looked at M “for quite a while”. The room was dark and the curtains were shut but he appeared very peaceful. When she opened the curtains he stirred and the mother stated that she saw he had dried milk around his mouth. When she picked him up to start feeding he made a “high pitched whimpering sound” and looked pale and felt cold. His nappy was dry but he had “done a poo”. She changed his nappy. In evidence the mother said that he did not feed properly. However, in cross-examination she accepted that in an earlier statement she had said he “fed really well”. 23. The evidence of the family was that at this stage M was taken to the grandmother who suggested that he be taken to hospital. M was described as “becoming more lifeless”. A phone call was made to the appellant to see if she could help but she could not. The grandmother described M as grey and limp. The journey time to the hospital was said to be five minutes. 24. The appellant’s evidence was that following her first night with M she went out with a friend from Germany before returning on the evening of Friday 13 September. M woke her once during the night. She changed his nappy and fed him. She spent the Saturday with friends and arrived at 10pm when the grandmother was there. The appellant carried M down the spiral staircase in his Moses basket. M woke between 1 and 1.30am. He sneezed, his nose seemed blocked and he was a little unsettled. He was also very windy. He took only three ounces of milk at 1.30am. She burped and swaddled him and returned him to his basket where he went back to sleep. 25. At 6am M awoke. The appellant picked him up re-swaddled him and returned him to the Moses basket. She did not feed him because the mother was trying to get him into a routine. This was the last occasion on which she held M. She noticed nothing wrong or out of the ordinary. 26. The fractured ulna was not discovered until it was seen on an x-ray taken on 16 September 2002 i.e. the day after M was taken to hospital. It is puzzling that no one saw or heard anything to suggest there was anything wrong with it at any time before that. 27. The jury heard the following expert medical evidence at the trial. Professor Hall is a retired consultant paediatric radiologist specialising in bone disorders. She identified on a whole body x-ray taken on 16 September a fracture horizontally across the ulna. There was no evidence of a healing response. She said you would not expect to see a healing response until 7 days after the injury was sustained. A further x-ray on 17 September showed some evidence of swelling around the fracture site indicating the fracture had occurred within the 24 hours before admission to hospital. A further x-ray on 21 September confirmed her opinion. As there was no evidence of any bruising the injury was more likely to have been caused by levering force than direct impact. She discounted the possibility of the injury having happened at the hospital but said she could not completely discount it having occurred as early as the night of 13 September. 28. The Crown’s case was that the arm break happened at the same time as the head injury and the judge in concluding his reference to Professor Hall said to the jury it might be: “Of very considerable importance and help to you in assessing both the kind of force used and when it was used.” 29. Professor Fielder is a retired consultant ophthalmologist. In 2002 he was in charge of eye services for children at St. Mary’s Paddington. His evidence was that pupil responses were slightly sluggish in M’s left eye. There were extensive haemorrhages, more marked on the left than on the right, some had white centres and were extending to the edge of the eye. He said distribution to the edge was unknown save for those with traumatic origin. White centres indicate a recent origin i.e. within the previous two weeks. Most would disappear within a day or so but they could last up to two weeks. There were white centres seen in both eyes. Professor Fielder saw M on 23 September and says everything that he observed indicated the injury occurred within the two weeks prior to the 23 of September. The impact had to be to the head and had to be very severe to have caused these sorts of haemorrhage. 30. As to neurology and radiology, the Crown called Dr Stoodley and Mr Richards. The defence called Dr Anslow and Mr Jayamohan. It was accepted by everyone that the scans taken of M’s brain in the days following his admission in September 2002 showed blood of two differing appearances. This could be explained either by two separate bleeds or by one bleed with differing appearances explained by dilution of blood by cerebrospinal fluid passing through a tear (which could not be seen on the scans) in the arachnoid membrane. All the witnesses accepted that a lumbar puncture carried out on M in hospital raised the possibility of an arachnoid tear and that either interpretation was a possibility on the scans alone. All agreed that non-accidental injury must have caused the scan findings; the finding of a fractured ulna was of weight in reaching this conclusion. 31. Dr Stoodley is, and was described by the judge as, a highly qualified neuro-radiologist. His evidence was that “there were differential diagnoses potentially in this case”. The majority medical view was that what he saw on the screens was consistent with a shaking injury. Some people say that shaking alone cannot cause such an injury but of course that is something that could not be tested by experiment. “The majority view is that it is the backward and forward movement of the infant’s head and there is likely to be some element of rotation and twisting of the brain within the skull and that causes injury because the veins tear and you get a typical pattern of subdural blood at different sites”. Clinical information is important. The appearance can vary for different reasons. It is not uncommon to see dark fluid with an acute injury and the reason is because the arachnoid membrane can tear and the cerebrospinal fluid leaks into the space diluting the bright blood and making it have the appearance on the scan of being older blood. He favoured the probability that there was a single injury because of changes between the CT and MRI scans and there being no evidence of any significant change in M’s behaviour that would have been consistent with a previous subdural bleed. He could not exclude the two incident theory, but in his opinion the one injury model was more likely. The minimum force required was such that anyone seeing it would realise it was dangerous and say “stop” because it was obviously inappropriate. A subdural haematoma can be clinically silent but this is extremely unlikely. 32. Dr Anslow, also described by the judge as an eminent consultant neuro-radiologist, was called by the defence. He agreed that what appeared to be old blood could sometimes prove to be otherwise. Unlike Dr Stoodley he saw no evidence of bruising or hypoxic-ischaemic injury because it would have been visible on the MRI scan. He preferred the single injury theory but not as strongly as Dr Stoodley who thought it “much more likely”. He said: “In my view it is not as strong as that. The two injury theory is also consistent with the radiology and there is simply no certainty in the interpretation of these matters.” 33. Mr Peter Richards is a paediatric neurosurgeon at the John Radcliffe Hospital, Oxford. He said: “We do not know exactly what the fluid was. The interpretation is a matter of opinion.” His opinion was that there was probably not a previous subdural haemorrhage and what was seen was likely to have been a mixture of cerebrospinal fluid and acute blood. There was nothing in M’s history to suggest an earlier bleed, but it could be asymptomatic. If it was chronic blood on the scan he would say it was at least 10 days old. 34. The judge did not refer to Mr Richards’ review of earlier statements in the medical records. All he said was “he explained how he had gone through the medical records and so on.” Those earlier statements can be summarised as follows: “Dawn Saunders, a consultant neuro-radiologist at St. Mary’s said on 8 October 2002 she was involved in reporting the MRI scan of 17 September 2002 which revealed bilateral subdural haematomas which were at last a week to ten days old. A CT scan of 15 September 2002 demonstrated bilateral subdural haematomas with evidence of acute blood on the right side. This was in keeping with an injury which had occurred within 7 – 10 days. The lower density material on both sides in the subdural space was suggestive of injuries which had occurred more than ten days previously. What she had seen raised the possibility of more than one injury. Mr Jonathan Punt a consultant paediatric neurosurgeon had reported for the Metropolitan Police on 9 December 2002 and reviewed the case in its entirety. Whilst his conclusion was that M had suffered a single episode of a shaking/impact injury in the early hours of 15 September 2002 he deferred to the opinion of a neuro-radiologist as to whether there were two different ages of subdural blood and if there were it was highly probable there had been a previous episode of inflicted injury. Professor Carty, a professor of paediatric radiology concluded on 8 November 2002 that there was evidence of two injuries, a fresh one and an older one. Dr Jaspen, a consultant neuro-radiologist at Nottingham reported on 2 December 2002 and favoured the two injury model. The older haemorrhage was likely to be due to an injury of lesser magnitude 7 – 10 days before 15 September 2002. Professor Stevenson, a consultant paediatrician reported on 10 January 2003. He had reviewed the whole case from a clinical perspective. His view was that there was overwhelming medical evidence pointing to an injury between the evening of 14 September 2002 and the morning of 15 September but he felt doubt whether there was a chronic subdural haemorrhage and was of opinion that the likelihood of injuries at different times needed to be tested more strongly as this was at odds with the other evidence that he had read.” 35. The final expert was Mr Jayamohan described by the judge as an equally eminent consultant neurosurgeon to Mr Richards and a colleague of his at the John Radcliffe hospital. Mr Jayamohan likewise emphasised the two possible explanations adding that as far as the tearing of the arachnoid membrane is concerned you see that after major traumas and the fluid then mingles, “but I do not favour that interpretation of the scans”. Nevertheless, he could not discount the one bleed theory. He said: “There are a lot of grey areas here. I am not at all surprised that there are differing views. If a baby has a subdural bleed there are usually, but not always, symptoms.” He agreed that on the scans there were two examples of an old bleed and potentially four of a new bleed. He could not conclude from that which of the two theories was more likely to be correct. 36. The first ground of appeal is that the judge should have stopped the case at ‘half time’ because there was no case to answer. The judge rightly identified that there were two conflicting theories arising from the scans taken following M’s admission to St Mary’s, two bleeds or one and that if there were two the appellant could not be responsible for the earlier one and that accordingly there was strong evidence that she was not responsible for the later one. 37. He also accepted that the court should not leave to the jury a case that depended entirely on the jury accepting one view and rejecting the other of conflicting expert opinion. But, he pointed out, this case did not depend simply on resolution of the one bleed/two bleed conflict between the experts. Professor Hall’s evidence was important, as was the evidence of the mother, the father and the grandmother who had all given evidence for the prosecution. He said the jury was entitled to consider the whole of the evidence including that of M’s condition before and after he was in the care of the appellant. 38. In our view the judge was both entitled and correct to leave this case to the jury. He was right to point out that the Family Division proceedings, although interesting and informative as background, were not relevant. What mattered was the evidence before the jury. We would also point out that by the time the submission was made all the expert evidence had been heard, so the judge was well aware of the ambit of the dispute between them. Nevertheless the evidence under consideration to see if there was a prima facie case was that which had been called by the Crown. 39. The second ground of appeal relates to the judge’s summing up. The judge was in one sense correct when he described this case as a “who done it” rather than what was done, because it was clear that whoever had caused the injuries to M must have been one of the limited number of people who had had access to him. He should however in our judgment have gone on to make clear to the jury that by finding the appellant not guilty they were not finding implicitly that someone else e.g. the mother was guilty. This is a distinction that it is not easy for someone other than a lawyer always to appreciate. 40. The main point in the appeal, however, is that the judge downgraded the importance of the difference between the medical experts, inviting the jury to treat the medical evidence that they accepted as evidence that could support findings of fact made separately from it. The passage of which particular complaint is made comes after the judge had mentioned that three experts favoured the one incident theory and one the two incident theory but that none would discount the theory that he did not favour. The passage runs as follows: “So that is the background against which you need to look at this evidence and, of course, you are going to be saying to yourselves, “Bearing in mind that we have to be sure, what do we make of this evidence?” Let me make it absolutely clear to you, ladies and gentlemen, that if this evidence stood alone it obviously would not be possible, would it, for you to conclude that this was a one incident case and that, therefore, this defendant must be guilty. But it does not stand alone. It is only part of the evidence for you to consider and although it is obviously important, it is capable of supporting your findings of fact made in isolation from this evidence, irrespective of which side of the line your ultimate decision comes. If ultimately you were to decide on the evidence that you were driven to conclude that Jasmin Schmidt had caused these injuries to (M), then it would be possible to interpret this evidence in a way that supported that conclusion. If ultimately you decided that you were not sure that she had caused these injuries or – indeed, at the other end of the extreme – if you concluded that you were able to specifically say that, for example, the mother had caused the injuries, you would be able to interpret this evidence to support that conclusion.” 41. The suggestion that if they were driven to the conclusion that the appellant had caused M’s injuries then it would be possible to interpret the neurological evidence to support that conclusion seems to us to put the cart before the horse. What in our view the jury should have been clearly directed, but were not, was that if they thought the two bleed theory was or might be true, having considered the whole of the evidence i.e. not just the neurological evidence, they could not be sure that the appellant was guilty because she could not have been responsible for the event that caused the first bleed and that was the end of the case. Of course, extraneous evidence could help the jury to decide whether the one or two bleed theory was correct but in the end the jury’s view about one or two bleeds was critical to the outcome of the case. The sentence that suggests that the neurological evidence is capable of supporting the jury’s findings of fact made in isolation from this evidence is not happily phrased and suggests that the jury should look first at the lay evidence. 42. This was a difficult case for the jury where they needed the help of the judge as to how to approach the crucial issues. It was not a case for going through the witnesses one by one and summarising their evidence having given the standard Judicial Studies Board directions. 43. Earlier in his summing up the judge had explained that if there were or may have been two bleeds one would have been on an earlier occasion when the appellant had no access to M. He went on to say: “The argument that is put forward and it is an entirely valid one that I am sure you would accept, ladies and gentlemen, is that had there been two bleeds you certainly could not be sure that this defendant had been the person who caused the more recent bleed immediately before admission to hospital when it was obviously someone else who caused the earlier one. I do not doubt for one moment that if that was ultimately your conclusion as a question of fact then you will acquit this defendant but I will deal with that in more detail when I come to deal with neurosurgeons’ and neuro-radiologists’ evidence.” 44. Complaint is made with some force that this passage is really directing the jury’s attention to a firm finding or conclusion that there had been two bleeds whereas the real question was whether the jury could rule out the possibility of there having been two bleeds. Nor did the judge at any stage refer to the weight of opinion identified in the medical records in support of this possibility that had been referred to by Mr Richards in his evidence. 45. The real thrust of the appellant’s complaint is that the judge gave the jury no assistance how they might assess the evidence if they thought that there might have been, rather than definitely were, two bleeds and consequently two incidents. The judge relegated the evidence of the possible earlier bleed to a supporting role which could be used to support any assessment of the evidence, whereas if the jury were not sure the one bleed theory was correct then that inevitably affected fundamentally the way in which they viewed the evidence of the possible perpetrator of an earlier assault. 46. Although this point is of direct relevance only to the head injury, it is obvious that if there were two injuries the jury would be likely to conclude that whoever inflicted the first also inflicted the second, which included the broken arm. 47. In our view, in the light of the way this case was summed up the conviction is not safe and therefore cannot stand. The appeal against conviction must be allowed. 48. Before leaving the appeal against conviction we should express our sympathy with the learned Recorder in having a complicated case of this nature listed before him rather than a circuit judge. Fortunately the injuries in this case did not turn out to be of lasting seriousness, but that did not make the issues any less complicated. It is obvious that he tried this case conscientiously and carefully, and with full regard to the JSB directions. His error was to fail to stand back and assist the jury about the relevance of the disputed medical evidence to the fundamental issue that they had to decide. Sentence 49. Having allowed the appeal against conviction the appeal against sentence is no longer directly relevant. It did, however, have potential relevance to the issue of re-trial. The appellant was sentenced to three years imprisonment. The maximum penalty for an offence under s.20 of the Offence against the Person Act 1861 is five years imprisonment. Miss Ellis for the appellant submits that three years was too long for an isolated unplanned incident and failed to take adequate account of the mitigation. She argues that the judge wrongly penalised the appellant for pleading not guilty. The judge said at 2G: “In the minutes, hours, days, months and indeed years after the incident, you have denied responsibility for causing (M’s) injuries. As a result the doctors had no help in treating (M) at the hospital and, as time went by, suspicion fell not only on you but also on his devoted parents and grandmother.” And a little later: “The pressure applied to (M’s) family must have been enormous and that was the direct result of what you had done to (M), made worse by your persistent denial of responsibility which had the effect of pointing the finger of blame at them. That is in my view a significant aggravating feature of this case.” 50. In our view there is force in this submission. Whilst the appellant was entitled to no mitigation for a plea of guilty, the offence was not aggravated by a persistent denial of responsibility. Although the appellant was in a position of trust as a qualified paediatric nurse, she was also of good character and put glowing references before the court. In our view an appropriate sentence would have been two years rather than three. As we have allowed the appeal against conviction and declined to order a re-trial the sentence becomes academic.	```yaml citation: '[2009] EWCA Crim 838' date: '2009-04-29' judges: - LORD JUSTICE SCOTT BAKER - MR JUSTICE MACKAY - 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} ======	Case No: 200401867A3 Neutral Citation Number: [2004] EWCA Crim 2923 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL APPEALS DIVISION) ON APPEAL FROM THE CROWN COURT AT KINGSTON UPON HULL (Mr Recorder Kirtley) Royal Courts of Justice Strand, London, WC2A 2LL Tuesday, 30 th November 2004 Before : LORD JUSTICE MANCE MR JUSTICE NEWMAN and MR JUSTICE FULFORD - - - - - - - - - - - - - - - - - - - - - Between : GLYN EDWARDS Appellant - and - THE CROWN 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) - - - - - - - - - - - - - - - - - - - - - ANDREW BODNAR appeared on behalf of the Appellant MUSHTAQ KHOKHAR and PATRIZIA DOHERTY appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - Judgment MR JUSTICE NEWMAN : 1. On 6 th May 2003 the appellant pleaded guilty to a charge of being knowingly concerned in the fraudulent evasion of the duty chargeable on a quantity of tobacco contrary to section 170(2) of the Customs and Excise Act Management 1979 (“CEMA”). He was sentenced to two years’ imprisonment. No complaint is made about that sentence. In addition, confiscation proceedings were ordered. They were concluded on 27 th February 2004 when an order was made under section 75 of the Criminal Justice Act 1988 (“CJA”) that he pay £30,257.52 and, in default, serve 18 months’ imprisonment consecutively to the sentence already imposed. He appeals against the confiscation order. 2. The total amount of duty payable in respect of the quantity of tobacco was £311,627.48. The sum of £30,257.52 represented the totality of his assessed realisable assets. 3. The substantive issue at the confiscation hearing was whether the appellant had derived any “benefit” within the meaning of section 71 of the CJA , given that the tobacco had been seized by officers of Customs and Excise on 18 th June 2002, being the date on which the tobacco had been imported by the appellant, and before he had driven out of the port enclosure at Hull. The effect of the submission made in this court and below is that, had he driven out through the gates of the port, he would have evaded the duty payable on the tobacco and it would then have been open to the court to conclude he had obtained a benefit. Put the other way, the submission is that, since he had not left the port enclosure, he had not evaded duty and, as a result, had obtained no benefit. 4. The facts require a little elaboration. On 18 th June 2002 the appellant arrived at Hull docks on a ferry from Zeebrugge driving his own tractor unit and towing a refrigerated trailer. After the vessel had docked he disembarked, driving his tractor unit and trailer through the area of the port. He was stopped by customs officers and his load was inspected. The appellant, when asked about his load, stated that he was carrying frozen chips and sweetcorn. He produced a false CMR document in respect of his load. He did not disclose he was carrying tobacco. He was asked whether he knew what he could bring into the country by way of tobacco. In response, he produced a holdall containing goods consistent with personal use. Inspection of his vehicle revealed many packages of loose hand rolling tobacco, estimated to weigh 3158.6 kilogrammes, concealed behind frozen chips and sweetcorn. THE LAW Time of Importation 5. Section 5 of the CEMA, in its material part, provides: “(1) The provisions of this section shall have effect for the purposes of the Customs and Excise Acts. (2) Subject to subsections (3) and (6) below, the time of importation of any goods shall be deemed to be – (a) where the goods are brought by sea, the time when the ship carrying them comes within the limits of a port; (b) … (c) … (3) In the case of goods brought by sea of which entry is not required under [ regulation 5 of the Customs Controls on Importation of Goods Regulations 1991] , the time of importation shall be deemed to be the time when the ship carrying them came within the limits of the port at which the goods are discharged. (4) … (5) … (6) … (7) … (8) A ship shall be deemed to have arrived at or departed from a port at the time when the ship comes within or, as the case may be, leaves the limits of that port”. Section 43(1) of CEMA provides, in its material part: “Save as permitted by or under the Customs and Excise Acts or section 2(2) of the European Communities Act 1972 or any Community regulation or other instrument having force of law, no imported goods shall be delivered or removed on importation until the importer has paid to the proper officer any duty chargeable thereon, and that duty shall, in the case of goods of which entry is made, be paid on making the entry”. 6. Importations of goods, including tobacco, from other Member States of the European Union have been provided for by Community regulation, namely Council Directive 92/12/EEC. In the United Kingdom special provision, giving effect to the Community regime, has been made for tobacco by the Tobacco Products Regulations 2001 ( SI 2001 1712 ) (“ the 2001 Regulations ”) and generally by the Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992 ( SI 1992 3135 ) (“the 1992 Regulations”). Liability for Duty 7. The relevant provisions in the above Regulations governing the payment of duty on tobacco are as follows. Regulation 6(1) of the 1992 Regulations states that “… duty shall be paid on or before an excise duty point”. Regulation 4(1) states: “Except in the cases specified in paragraphs (2) to (6) below, the excise duty point in relation to any Community excise goods shall be the time when the goods are charged with duty at importation”. 8. Importations of tobacco which are outside the regime laid down in the 1992 Regulations for warehousing, holding and Registered Excise Dealer and Shipper (REDS) also fall within the 2001 Regulations , which also state when duty must be paid. Regulation 14(1) states: “Except where regulations 17 to 19 below (deferred payment) apply, the duty must be paid at or before the excise duty point”: Regulation 12(1) states: “Subject to the provisions of this regulation, the excise duty point for tobacco products is the time when the tobacco products are charged with duty”. Regulation 17(1) that: “Any person liable to pay the duty due on tobacco products to which this regulation is applicable may, subject to regulation 18 and 19 below [deferred payment, application for approval to the Commissioners for the approval of an arrangement], elect to defer payment of that duty until payment day; (2) This regulation is applicable to – (a) imported tobacco for which the excise duty point is the time of their importation; …..” 9. In our judgment it is clear that the appellant, not having paid duty on the tobacco in advance of importation, became liable to make payment at “the excise duty point”, namely “at importation”. Importation occurred when the ship carrying his tractor unit and trailer came “within the limits” of the Port of Hull. The time of importation is finite and not continuous. Once a ship comes within the limits of a port it is then and there at the “excise duty point”, although the limits of the port are extensive and, having entered, the ship remains within them. 10. Mr Bodnar, counsel for the appellant, accepted that the duty on the tobacco imported by the appellant became payable at the “excise duty point”, but submitted, by reference to section 43(1) and section 49(1) of CEMA, that until the goods had been removed from the port area the “excise duty point” had not been passed. If this submission is correct, duty had not, as a result, become payable and could not have been evaded. The submission is plainly wrong. It conflicts with the clear and unambiguous language of CEMA and the 1992 and 2001 Regulations, which state that “the excise duty point” for tobacco is at importation. His resort to section 43(1) CEMA cannot assist the argument. These and other sections of CEMA show how the Act distinguishes between an act of “importation” and the resultant status of the goods as “imported”. The definition of “importer” in section 1 demonstrates that there is no continuum in an act of importation. “Importer” is defined to include, for example, an owner of the goods “… at any time between their importation and the time when they are delivered out of charge”. 11. Sections 43-48 CEMA are concerned to regulate for goods which have been “imported”, not for the time at which duty becomes payable. That said, section 43(1), as well as prohibiting delivery or removal of goods until duty has been paid, states that “… duty shall, in the case of goods of which entry is made, be paid on making the entry”. 12. Section 49(1) enumerates circumstances in which goods improperly imported can be forfeited. They include where: “(b) any goods are imported, landed or unloaded contrary to any prohibition or restriction …and (d) any goods are imported concealed in a container holding goods of a different description”. The power of forfeiture is conferred to enable goods which have been improperly imported but are still within customs areas, to be forfeited. In the case of R v Smith (Donald) 1973 1 QB 924, cannabis, en route from Kenya to Bermuda via London Heathrow, which never left the customs area but was taken off one flight to be placed on another was held to have been imported and to found a conviction for fraudulent evasion of the prohibition on its importation. In our judgment, far from assisting Mr Bodnar’s submission, the sections upon which he relies are against it. They have no bearing on the point at which duty becomes payable. 13. Next Mr Bodnar submitted that the appellant was at or in the “place of importation”. The phrase “place of importation” comes from section 49(1)(a)(iv) of CEMA: “(1) Where – (a) … , any imported goods, being goods chargeable on their importation with customs or excise duty are, without payment of that duty – (iv) removed from their place of importation or from any approved wharf …” He submitted that, there being a place of importation, “the excise duty point” was at any point within the “place of importation”. For the reasons we have already given, the submission cannot be right. We are satisfied that the legislation clearly states when goods are imported and when they become liable to duty. The need to provide for enforcement thereafter, for example, when the goods are within the place of importation does not affect the position. Evasion 14. The appellant’s argument on evasion was, to a large extent, a variant of his submissions on whether duty had become payable. It was put in a number of ways but, in effect, amounted to a contention that, even if duty had become payable at importation, importation was a continuing process which was not complete until the appellant had left the whole area of the Port of Hull, which was to be regarded as the place of importation. The submission that there had been no evasion ran into a difficulty, to which the Recorder referred, namely that the appellant had pleaded guilty to the offence of evasion and not to an offence of attempted evasion. A doubt as to whether he had pleaded to evasion was laid to rest by the terms of the transcript. There was no basis of plea submitted to the court and we share the Recorder’s reservations about the legitimacy of admitting evasion for the purpose of the trial, but denying it in the confiscation proceedings. Nevertheless we heard the argument. 15. Section 170(2) CEMA states: “(2) Without prejudice to any other provision of the Customs and Excise Acts 1979, if any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion – …… of any duty chargeable on the goods; … he shall be guilty of an offence under this section…” 16. Mr Bodnar’s argument involved the contention that, whilst the appellant was in the Port of Hull, he could not be said to have had acted fraudulently because, until he left the port, the option which he had to declare the goods was still available to him. His approach fails to distinguish between the substance of the offence and the evidence which may support it. A person fraudulently evades the duty chargeable on goods if, at the point of importation, he dishonestly intends not to pay the duty on the goods. His conduct subsequent to importation will be relevant to establish his intention at importation. Equally, conduct prior to the importation, for example the preparation of a false CMR document, will be relevant to the intention held at the time of importation. 17. The possession of the false CMR document by the appellant on goods upon which the duty was unpaid at importation amounted to evidence sufficient for him to be charged with evasion at any time after the importation. Further, his lies and subsequent conduct in response to questions from the customs officers provided further evidence going to establish his fraudulent intention at the time of importation. We agree that had the appellant, notwithstanding his possession of the false document at importation, declared the goods to the customs officers, it is unlikely he would have been prosecuted. But that is not to say that evidence that fraudulent evasion had occurred would not have been available. We accept that, had he been prosecuted, a jury may well not have been sure of his intention at the time of importation, having regard to his subsequent conduct in declaring the goods. However these are evidential considerations; just as the availability of the opportunity to declare the goods, whilst he was within the port, which is now relied upon by Mr Bodnar as negating the commission of the offence of evasion, is an evidential and not a substantive consideration. Benefit and Confiscation 18. The issue as to when a benefit has been obtained within the meaning of the CJA, in connection with customs and excise provisions, has recently been considered by the House of Lords in R v Smith (David ) [2002] 1 Cr App R 466 . 19. Section 71(5) of the CJA provides: “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”. A “pecuniary advantage” was defined by section 16(2) Theft Act 1968 as: “(a) any … charge … for which he makes himself liable [which] is evaded or deferred”. 20. In the case of Smith , cigarettes had been imported in a motor vessel at Hull and Immingham. Mr Smith sailed through the limits of the port of Hull and voyaged up the River Ouse to Goole, where the cargo was seized by customs officers. Duty had not been paid at importation, but the question for the House of Lords was whether Mr Smith had derived any benefit prior to their seizure and before their value could be realised by him. Lord Rodger (with whom all their Lordships agreed) stated (paragraph 26): “In this case the respondent derived a pecuniary advantage by evading the duty at the moment when he imported the cigarettes. The sum equalling that pecuniary advantage is treated as property obtained by the respondent at that moment. In terms of section 74(5), its value must therefore be determined at that moment, disregarding the fact that, soon after, the customs officers seized the cigarettes at Goole.” 21. Mr Bodnar sought to avoid the effect of the judgment in Smith by distinguishing the appellant’s case on its facts. In particular, he urged upon us that Mr Smith had left the limits of the Port of Hull and had sailed to Goole, whereas the appellant was within the port area. By way of analogy he suggested, relying on Smith’s case, it was as though the appellant had driven from the port area and been stopped on the road. 22. In our judgment the difference on the facts to which he refers is immaterial. Once a person has evaded the payment of duty he has thereby deferred the liability to pay and has obtained a pecuniary advantage which amounts to a benefit within the meaning of the CJA. The legal consequences of an act of evasion are not affected by the exact time and place when the evasion is discovered and the goods are confiscated. Both Mr Smith and the appellant fraudulently evaded payment for tobacco at importation. Mr Smith’s voyage from the Port of Hull to Goole added nothing to the essential facts constituting the offence. Likewise, had the appellant left the port area and been stopped on the highway, the essential facts constituting the offence of evasion would have been the same. We should point out that the legal basis for a confiscation order is a conviction for an offence (see section 71(1) and (1A)). Further, section 71(5) provides for “… a pecuniary advantage as a result of or in connection with the commission of an offence …”. 23. Lord Rodger dismissed consideration “of the fate of the cigarettes”, to which the Court of Appeal had paid regard, as irrelevant to the determination of benefit. The fact that the cigarettes were seized was irrelevant. He supplied an illustration to demonstrate the fallacy in the Court of Appeal’s approach (see para 18). Had Mr Smith paid the duty as required and the boat had subsequently sunk with the loss of the cigarettes he would have suffered a loss of £130,000 (the duty paid) and the cigarettes. Had he not paid then, if the boat sank with the loss of the cigarettes, he would only have lost the cigarettes. It seems to us that it can be said with equal force in this appeal that had the appellant paid duty and parked his vehicle in the port area for a short time, before driving out on to a public road outside the port, and whilst in the port area the vehicle had caught fire destroying the tobacco, he would have lost both the duty and the load. Had his evasion been undetected and he had nevertheless parked in the port area for a short time and the vehicle had caught fire, he would have lost only the load. 24. Lord Rodger made general observations about the scheme of the CJA and the operation of the confiscation provisions (see paragraph 23). He observed: “If in some circumstances it [the scheme] can operate in a penal or even a draconian manner, then that may not be out of place in a scheme for stripping criminals of the benefits of their crimes. ” On this appeal it was not argued that the provisions of the CJA arguably gave rise to the unlawful confiscation of property and a breach of Protocol 1, Article 1 of the ECHR because they could give rise to double recovery of the duty. In response to enquiry from the court, counsel for the respondent stated that where a confiscation order has been made, based upon a benefit calculated by reference to the unpaid duty, the Customs and Excise authorities do not, as a matter of practice, seek recovery of the unpaid duty by way of civil proceedings. That both civil and criminal remedies are available is not in doubt. Should the Customs and Excise Authorities pursue a civil remedy where a confiscation order had been met, it is clear there would, in effect, be double recovery of the duty. 25. The firm practice of the Customs and Excise Authorities is, in our judgment, well placed. Mr Bodnar drew the court’s attention to section 71 (1C) of the CJA which provides: “If, in a case falling within subsection (1B) above, 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) below 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”. Mr Khokhar representing Customs and Excise confirmed in answer to the court’s question that Customs and Excise do not intend to, and will not, institute any civil proceedings against the appellant in respect of the duty. In the light of this undertaking, we decided that no further argument was necessary concerning the possibility that there might otherwise have been a potential for double recovery. 26. It follows that this appeal is dismissed.	```yaml citation: '[2004] EWCA Crim 2923' date: '2004-11-30' judges: - LORD JUSTICE MANCE - MR JUSTICE FULFORD ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	Case No: 2013/04149/C5 Neutral Citation Number: [2015] EWCA Crim 1277 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT HARROW HH Judge Arran Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/07/2015 Before: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE SWEENEY and MR JUSTICE WARBY - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Mohammed Abdullah Yasain Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Michael Turner QC and Miss J Vallejo for the Appellant J McGuinness QC for the Respondent Hearing date: 14 May 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Thomas of Cwmgiedd, CJ : 1. The issue in this appeal relates to the powers of the Court of Appeal Criminal Division to re-open an appeal to correct an error which is said to have caused real injustice in that the error led to the quashing of a sentence lawfully imposed in the Crown Court. The circumstances were as follows. The facts 2. Between 1 and 9 July 2013 the appellant was tried in the Crown Court at Harrow before HHJ Arran and a jury on an indictment containing five counts against him: theft (count 1), kidnap (count 2), rape of a male aged 16 years or over (count 3), robbery (count 4) and assault occasioning actual bodily harm (count 6). A co-defendant, Mustafa Hassan, was jointly charged on the same indictment with the same theft, kidnap, robbery and assault, and a separate offence of rape (count 5). 3. The underlying facts of the offences are set out at paragraphs 5 to 9 of the judgment of this court dated 12 June 2014, [2014] EWCA Crim 1416 . 4. The appellant and Hassan were both acquitted of theft on the judge’s direction, following a submission of no case to answer. On 9 July 2013 the jury returned verdicts of guilty against the appellant and his co-defendant on all the remaining charges. 5. On 12 August 2013 the appellant was sentenced by HH Judge Arran to 6 years detention for rape, 4 years concurrent for the robbery, 18 months concurrent for the assault, and 18 months consecutive for the kidnap – a total of 7½ years. Hassan was sentenced to 8 years imprisonment for rape and, for the other offences, terms of imprisonment of the same duration, similarly structured, to the terms of detention imposed on the appellant – a total sentence of 9½ years. 6. The trial record sheet printed from CREST, the computer programme in which the records of the Crown Court are kept, duly recorded all these convictions and sentences. 7. The appellant sought permission to appeal against conviction and sentence. The single judge, Walker J, concluded that none of the grounds advanced was arguable and refused permission on those grounds. In reviewing the papers, however, he noted that according to the transcript of proceedings no verdict in respect of the appellant had been taken from the jury on count 2, the charge of kidnap, although one had been taken in respect of his co-defendant Hassan. 8. The transcript indicated that the taking of verdicts had been attended by an apparent degree of confusion. It appears that the court clerk had mislaid a document and that the jury foreman did not have with him a note of the jury’s decisions. The transcript recorded the judge as asking the foreman to go through the counts one by one. When the clerk asked for the verdict on count 2 (the count of kidnapping), a verdict of guilty was recorded as being given in respect of the co-defendant, but there was no record of any verdict being asked for or given in respect of the appellant on that count. Thus, it appeared conceivable that there might possibly have been an error. Walker J gave permission to appeal on that ground, and only that ground. 9. The appellant did not seek to renew his application for permission to appeal on any of the grounds that had been refused by Walker J. Thus, the hearing that took place on 12 June 2014 in this court was concerned solely with the ground of appeal identified by the single judge. Neither the prosecution nor anyone else had taken steps to see if there had in fact been an error; everyone relied on the transcript as accurate. 10. In the judgment referred to above this court accepted that there had been an error in the taking of verdicts such that there had been no conviction of the appellant on count 2. In the light of the argument before us, it is necessary to quote in full the paragraphs setting out the decision of the court. “21. In our judgment, therefore, as is accepted by [counsel] for the Crown, the simple position is that [the appellant] has not been convicted of that offence, and technically there is no appeal to be dealt with in respect of it at all. All that requires to be done in that respect is for the Crown Court record to be amended accordingly, to delete the conviction of the appellant on that count, and we will so direct. Obviously the court record should not indicate either that the appellant has been acquitted on that count. 22. We turn to the appeal against sentence. Again, the learned judge refused leave to appeal on the grounds advanced on the appellant's behalf by counsel. The application for permission to appeal on those grounds has not been renewed. The single judge indicated that he gave leave to appeal against sentence simply because of the doubt that arose as to the fact of the conviction on count 2. 23. On that ground it is clear from what we have already said that there has been no conviction of the appellant on count 2 on which he could be sentenced. The sentence on that count must therefore be quashed.” 11. The court declined to adopt the course proposed by the prosecution, of revisiting the sentence for rape and increasing it by 18 months, ruling that it was undesirable to take that course on short notice and it would in any event be grossly unfair in what the court had found were the circumstances of the case. 12. The order made by the court was, so far as material, as follows: “[THE COURT OF APPEAL CRIMINAL DIVISION on 12 June 2014” CONSIDERED the appeal against conviction and sentence AND HAS Directed that the conviction on count 2 be deleted from the court record, but the court record should not show that the appellant was acquitted of count 2; Directed that the appellant not having been convicted on count 2, the sentence thereon be quashed; Quashed the Victim Surcharge Order imposed in the court below; Substituted therefore a Victim Surcharge Order in the sum of £20.” 13. As a consequence the record of the Crown Court at Harrow was amended, but not in the manner directed by the order of this court. The record of the conviction held on CREST on count 2 was not amended. The record simply recorded on the last page: “Appeal against conviction and sentence allowed in part 12/6/14. Total sentence now 6 years in a Youth Offenders Institution. Victim surcharge £20, Comply with Sexual Offences Act 2003 indefinitely” 14. When the transcript of the judgment of the court was sent to the judge, he made inquiries of the transcribers as to their record, as he thought that the verdict had been taken. Those inquiries revealed that Margaret Wort & Co, the transcribers of the proceedings on 9 July 2013, had made a very serious error. They had omitted to record the guilty verdict which had been taken on count 2 against the appellant. We have a corrected transcript which shows that the process was carried out impeccably under the direction of the experienced judge. This is not in dispute. 15. It follows that the grant of permission to appeal and the judgment of this court on 12 June 2014 were both founded on a mistake as to what had happened in the Crown Court. The question arises of what, if anything, this court has jurisdiction or power to do and, if it has jurisdiction or power, whether it should be exercised. The legal framework: the Criminal Appeal Act 1968 and the authorities of the Court of Appeal Criminal Division (a) The general powers of the Court of Appeal 16. The jurisdiction and powers of this court, like those of the Civil Division, are entirely statutory. S. 1 of the Criminal Appeal Act 1968 provides that, subject to certain immaterial exceptions, and the requirement of leave, "a person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction." S.2 provides: “(1) Subject to the provisions of this Act, the Court of Appeal— (a) shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss such an appeal in any other case. (2) In the case of an appeal against conviction the Court shall, if they allow the appeal, quash the conviction.” 17. S.9 of the 1968 Act is headed “Appeal against sentence following conviction on indictment” and provides that: “A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings”. 18. Section 11(3) of the Act provides:- “(3) On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may— (a) quash any sentence or order which is the subject of the appeal; and (b) in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence; but the Court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below.” (b) The power to revise an order until it is recorded 19. It is well established that this court has, like any other court, an implicit power to revise any order pronounced before it is recorded as an order of the court in the record of the relevant court. If it has recorded the order, then the power to revise the order is strictly limited; in the Civil Division, the extent of the court’s jurisdiction and powers were reviewed in Taylor v Lawrence [2003] QB 528 , as we set out at paragraphs 28 and following below. The first question to determine therefore is whether the order made by this court has been properly recorded in the relevant record. 20. The question as to what constituted the relevant record of this court was first examined in R v Cross (Patrick) [1973] QB 937, 940-941. After a hearing in which this court allowed an appeal against sentence, the decision was recorded in a note of the Registrar. Later in the day the court realised that the appellant had not been frank; it set aside its judgment and ordered a hearing before a differently constituted court. That court first had to determine whether the order that had been pronounced orally and recorded in the note of the Registrar had been recorded in the “record of the court”. The court noted that at the Assizes and at Quarter Sessions (the then courts of first instance for serious crime) the court had always had the power to amend a sentence until the record was signed by the judge at the end of the Assizes or Quarter Sessions. Once signed, the court lost its power. As the Court of Appeal (Criminal Division) was not required to keep a formal record, the court had to determine when the order of the Court of Appeal became final for this purpose. The rules of procedure for this court were contained then in the Criminal Appeal Rules. Under Rule 17, the Registrar had to serve on the officer of the Crown Court a record of the order of the Court of Appeal. The Crown Court Manual (which the court stated was published under the order of the Lord Chancellor) contained a provision as to what was to be done on receipt of the order of the Court of Appeal in the following terms: “on return of the case papers to the Crown Court, with the notification of the result of the appeal … the decision of the Court of Appeal should be entered on the court record and the notice of the result of the appeal attached.” It followed, in this court’s opinion, therefore that the time at which the record was formally made was when the Crown Court officer carried out the duty of amending the record of the Crown Court in accordance with the order of the Court of Appeal. As the Crown Court had not amended its record, the Court of Appeal had jurisdiction to amend its decision allowing the appeal against sentence. 21. In R v Blackwood (Romaine) [2012] EWCA Crim 390 , [2012] 2 Cr App R 1 , the decision in Cross was followed in relation to the failure to ask for a retrial before the order of the Court of Appeal had been sent to the Crown Court and CREST updated. This court at [16]-[17] held that, as the Registrar had sent the order allowing the appeal to the Crown Court with a request that the records held on CREST be updated to reflect the allowing of the appeal and the quashing of the conviction and the record on CREST had been updated, it was too late to order a retrial. The formal record had recorded an acquittal with no provision for a retrial. 22. Thus the general rule is that where an appeal has been heard and the resulting decision or order has not only been pronounced but also recorded in the relevant records (presently the records of the Crown Court on CREST), there is no such jurisdiction. The order is final: Cross, at page 940C, followed in Blackwood at paragraphs 14 and 17. The general position is that the court is at this point functus officio and will not re-hear an appeal, as it has no general jurisdiction to do so: Cross at page 940; R v Pedley [2009] EWCA Crim 840 , [2009] 1 WLR 2517 at paragraphs 24-28, and Blackwood at paragraph 16. (c) The power to revise an order when it has been recorded 23. There are two exceptions to this general rule to the effect that the court does have power to re-hear an appeal if (i) on a proper analysis, the previous order is a nullity; or (ii) a defect in the procedure may have led to some real injustice. There can be no doubt about the first exception, but the basis of and scope for the second exception needs more detailed consideration. (d) The power to revise where the order is a nullity 24. If a hearing has taken place which in effect is a nullity, the court cannot be functus officio . There can therefore be no logical difficulty in there being a further hearing. The court has not performed its function, as the appellate proceedings have not in law taken place. The fact that the court has pronounced an order and that a record of the court’s order has been made by the proper officer in records of the Crown Court, cannot alter the position. 25. An example of an order which is a nullity is provided by R v Majewski (1976) 62 Cr App R 5. In Majewski the appellant sought to challenge his conviction on the grounds that self-induced intoxication could be a defence to a charge of assault, and that the judge had misdirected the jury on the issue. The appeal was referred to the court by a Deputy Registrar for summary dismissal pursuant to s.20 of the Criminal Appeal Act 1968 on the basis that it showed no substantial ground of appeal. The court proceeded to dismiss the appeal on that basis. The court later concluded that the referral had been procedurally invalid and that the appeal did raise a point of substance, so that on a proper analysis the appeal had not in law been heard: see the judgment of the court given by Lawton LJ at pages 8-9. The court proceeded to re-hear the appeal. This approach was not criticised when Majewski reached the House of Lords: see [1977] AC 443 . (e) The power to revise an order where there has been real injustice 26. The question as to whether there is a further exception by way of a power to revise where there has been a defect in procedure which may have led to a real injustice has been considered in three cases to which it is necessary to refer: i) R v Daniel (1977) 64 Cr App R 50, [1977] QB 364. The applicant renewed his application for leave to appeal, which had been refused by the single judge. He instructed solicitors who wrote to the court to advise that they intended to instruct Counsel on the renewed application. Due to an administrative error the renewed application was listed, heard and dismissed on 14 June 1976 without notice to the applicant’s lawyers. The order was recorded by the Crown Court. When an application was made to re-hear the matter, the court decided on 14 September 1976 that it was bound by Cross to dismiss the application on the ground that it was functus officio . At the court’s instigation the case was then referred back on 17 September 1976 to the court by the Secretary of State, and the appeal was heard. Although the appeal was dismissed on the merits, the court considered in detail the question of jurisdiction. After referring to Majewski, Lawton LJ concluded at pages 369G-H, that: “It follows, in our judgment, that [ Cross ] did not apply when what has happened is a nullity.” It was conceded, however, that what had occurred in Daniel could not be regarded as a nullity. Lawton LJ then asked whether the court had jurisdiction in the circumstances of a case where the applicant had been deprived of his right to be represented by counsel. He answered the question at 369H-370A:- “This court clearly has jurisdiction within the ambit of the Criminal Appeal Act 1968 and the Rules of 1968 to see that no injustice is done to any defendant in the course of any application or appeal. If in any particular case, because of a failure of the court to follow the rules or the well established practice, there is a likelihood that injustice may have been done, then it seems to us right, despite the generality of what was said in R v. Cross that a case should be relisted for hearing. It is pertinent to point out that in R v. Cross the court had heard arguments by counsel on the merits before any question arose about rehearing the appeal, for such it was. The kind of problem which has arisen in this case was never considered. It follows that this court acted per incuriam in adjudging, on September 14, 1976, that it had no jurisdiction to consider the defendant's application. The court had such jurisdiction. Before leaving this subject the court would stress that save in cases in which what has happened is a nullity, the jurisdiction to relist depends on the likelihood of an injustice having been done. That is for the court itself to decide. There may not be a likelihood of injustice if, from the written grounds of appeal and any supporting documents, it is clear beyond argument that the application cannot succeed.” ii) R v Pinfold (1988) 87 Cr.App.R 15, [1988] QB 462 . The applicant had been convicted in November 1980 of murder of a man called Eve on the basis of evidence from a prosecution witness, Childs, that the applicant had procured the murder. Leave to appeal was granted but the appeal was dismissed in November 1981. The applicant then made a second application for leave to appeal, relying on fresh evidence from Childs to the effect that his evidence at the trial had been untrue. Lord Lane CJ identified the question posed as whether the court had power to hear an appeal by the applicant when his first appeal had been dismissed. He concluded at p17 that: “So there is nothing there on the face of it which says in terms that one appeal is all that an appellant is allowed. But, in the view of this court, one must read those provisions against the background of the fact that it is in the interests of the public in general that there should be a limit or a finality to legal proceedings, sometimes put in a Latin maxim, but that is what it means in English. We have been unable to discover, nor have counsel been able to discover any situation in which a right of appeal couched in similar terms to that, has been construed as a right to pursue more than one appeal in one case. So far as the Criminal Appeal Act 1968 is concerned, there are perhaps two possible exceptions or apparent exceptions, because that is what they are, to that rule: first of all, where the decision on the original appeal, if I may call it that, can be regarded as a nullity. This is more commonly applied where there has been an application to treat a notice of abandonment as a nullity. The second occasion, which may be simply an example of the first, is where, owing to some defect in the procedure the appellant has on the first appeal being dismissed suffered an injustice, where, for example, he has not been notified of the hearing of the appeal or counsel has been unable to attend, circumstances such as that.” iii) R v Pedley [2009] 1 WLR 2517 . The appellant appealed in 2007 against a sentence of imprisonment for public protection, challenging both the finding of dangerousness and the length of the notional determinate term. He failed on the first point but succeeded on the second. Two years later he sought to have his appeal re-listed to re-open the first point. The application was dismissed. Hughes LJ summarised the position in this way at [27]: “There exists a very limited power in this court to rehear an apparently concluded appeal. It is a power to relist where by administrative error or otherwise the appellant has been deprived of a proper hearing, so that the apparently concluded appeal can properly be described as a nullity, including cases where the court failed to follow the rules or well established procedure: see R v Pinfold ; R v Grantham ; R v Berry and R v Rowan . An example of the second situation is R v Daniel where the court dealt with a renewed application without being aware that counsel was instructed to appear and thus without hearing him.” 27. In our view none of these cases fully explains the basis of the second exception or its scope. It is therefore desirable to consider the question as a matter of general principle. The legal framework applicable to the Court of Appeal Civil Division 28. In Taylor v Lawrence [2002] EWCA Civ 90 , [2003] QB 528 , the Court of Appeal Civil Division considered the scope of its power to re-open a concluded appeal. As we shall explain, this jurisprudence of the Civil Division is relevant to the powers of the Court of Appeal Criminal Division. 29. The defendants in Taylor v Lawrence appealed on the grounds of apparent bias on the part of the judge below. The appeal was dismissed. The defendants later discovered fresh facts relating to the apparent bias that had previously been alleged and sought to re-open the appeal. The court concluded that it has an implicit power to re-open a concluded appeal in exceptional circumstances, where it was necessary to achieve its two principal objectives of correcting wrong decisions and ensuring public confidence in the administration of justice. 30. The Civil Division has, like the Criminal Division, only the powers conferred on it by ss.15 and following of the Superior Courts Act 1981 and other statutes. Neither these provisions nor any other provision spell out any power of the civil division to re-hear an appeal. As Lord Woolf MR said at [16]: “Accordingly, it is accepted that the Court of Appeal does not have any inherent jurisdiction in respect of appeals from the county court but only that which is given by statute. However, the use of the word "inherent" in this context means no more than that the Court of Appeal's jurisdiction depends on statute and it has no originating jurisdiction. The position is very much the same in relation to other appeals to the Court of Appeal. Its jurisdiction is to be determined solely by reference to the relevant statutory provisions.” 31. The court, however, held it had a power to re-open appeals as that power was implicit in the powers that were expressly conferred on the court. Lord Woolf CJ explained the court’s conclusions as follows: “26 …. this court was established with two principal objectives. The first is a private objective of correcting wrong decisions so as to ensure justice between the litigants involved. The second is a public objective, to ensure public confidence in the administration of justice not only by remedying wrong decisions but also by clarifying and developing the law and setting precedents: see Civil Procedure vol 1, Autumn 2001 , para 52.0.3. ” … “50 If, as we believe it is necessary to do, we go back to first principles, we start with the fact which is uncontroversial, that the Court of Appeal was established with a broad jurisdiction to hear appeals. Equally it was not established to exercise an originating as opposed to an appellate jurisdiction. It is therefore appropriate to state that in that sense it has no inherent jurisdiction. It is, however, wrong to say that it has no implicit or implied jurisdiction arising out of the fact that it is an appellate court. As an appellate court it has the implicit powers to do that which is necessary to achieve the dual objectives of an appellate court to which we have referred already (see paragraph 26 above). ” 32. Lord Woolf went on to cite a passage from Lord Diplock’s speech in a leading case on the former power of the court to dismiss actions for want of prosecution, Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corpn Ltd [1981] AC 909 , at page 977: "The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an 'inherent power' the exercise of which is within the 'inherent jurisdiction' of the High Court. It would I think be conducive to legal clarity if the use of these two expressions were confined to the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice." 33. Lord Woolf concluded at [53] that the final words of Lord Diplock “express the situation here under consideration exactly”, adding a reference to the speech of Lord Morris of Borth-y-Gest in a leading case on double jeopardy, Connelly v Director of Public Prosecutions [1964] AC 1254 , 1301: "There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process." 34. At [54] Lord Woolf characterised the jurisdiction, describing it as “The residual jurisdiction which we are satisfied is vested in a court of appeal to avoid real injustice in exceptional circumstances”. 35. The procedure for making a Taylor v Lawrence application is now embodied in the Civil Procedure Rules: CPR 52.17 which provide, in part,: “(1) the Court of Appeal or the High Court will not re-open a final determination of any appeal unless – (a) It is necessary to do so in order to avoid real injustice; (b) The circumstances are exceptional and make it appropriate to re-open the appeal; (c) There is no alternative effective remedy.” Do the principles established in Taylor v Lawrence apply to the powers of the Criminal Division? 36. From a review of the cases which has been conducted, it appears that this court has never expressly considered the question of whether it has a similar general implicit power as the Court of Appeal Civil Division determined in Taylor v Lawrence that it had. The nearest this court has come to considering the question was when this court had to decide an issue as to the enforceability of the Video Recordings Act 1984. The issue arose both in a criminal appeal and in an appeal by way of case stated. A court presided over by Lord Judge CJ sat as the Court of Appeal Criminal Division to determine the criminal appeal in R v Budimir and Rainbird and as a Divisional Court to determine the appeal by way of case stated in Interfact v Liverpool City Council. As appears from the single judgment of the court ( [2011] QB 744 , [2010] 2 Cr App R 29 ), it was necessary to consider in both cases whether the appeal should be heard. That was because a Divisional Court had dismissed the appeal of Interfact in 2005 and Interfact were seeking in 2010 to re-open it; and because Budimir and Rainbird had pleaded guilty in 2008 and were seeking over 20 months out of time to appeal against conviction. Each had been motivated to appeal as a result of an announcement made by Government as to the compatibility of the Act with EU law. The application made by Interfact was made under CPR 52.17 and the principles in Taylor v Lawrence ; the application by Budimir and Rainbird was based on the principle established by numerous cases that a change in the law may provide a basis for an appeal out of time, if substantial injustice has been caused. The court decided that: “For the purposes of the present applications we shall not seek to discern nor create a difference of approach to the applications in the Divisional Court (CPR Rule 52.17, and Taylor v Lawrence and Seray-Wurie Hackney London Borough Council [2003] 1 WLR 257 ) and the Court of Appeal Criminal Division.” The court was wholly unpersuaded that either case involved any real or substantial injustice. 37. We must therefore address the issue as a matter of principle. In Taylor v Lawrence, as we have set out, the court based its decision on the implied or implicit power to do that which is necessary to achieve the objectives of an appellate court, in circumstances where no express power was conferred on the court and its powers were exclusively based on statute. 38. The way in which the Civil Division approached its power to re-open an appeal is grounded in clear principle. We can see no basis for any distinction between the Civil Division and the Criminal Division as to the principles applicable to the jurisdiction under the implicit powers of an appellate court. The appellate jurisdiction of each is statutory. There is no reason why both do not have the same implicit jurisdiction and the same general basis for that jurisdiction. 39. However it is necessary, as Lord Woolf explained at paragraph 54 of the judgment in Taylor v Lawrence , to distinguish between the implied or implicit jurisdiction of the court and the way in which that jurisdiction is exercised. “It is very easy to confuse questions as to what is the jurisdiction of a court and how that jurisdiction should be exercised. The residual jurisdiction which we are satisfied is vested in a court of appeal to avoid real injustice in exceptional circumstances is linked to a discretion which enables the court to confine the use of that jurisdiction to the cases in which it is appropriate for it to be exercised. There is a tension between a court having a residual jurisdiction of the type to which we are here referring and the need to have finality in litigation. The ability to reopen proceedings after the ordinary appeal process has been concluded can also create injustice. There therefore needs to be a procedure which will ensure that proceedings will only be reopened when there is a real requirement for this to happen.” 40. The fact that both have the same implicit jurisdiction does not mean that the jurisdiction has necessarily to be exercised in the same way by the Criminal Division as it would be by the Civil Division. For example, in a criminal case there will often be three interests that have to be considered – that of the State, that of the defendant and that of the victim or alleged victim of the crime, even though the victim is not a party to the proceedings under the common law approach: see R v B [2003] 2 Cr App R 197 at paragraph 27; R v Killick [2012] 1 Cr App R 10 , [2011] EWCA Crim 1608 at paragraph 48. There is the strongest public interest in finality. The jurisdiction is probably confined to procedural errors, particularly as there are alternative remedies for fresh evidence cases through the Criminal Cases Review Commission. 41. Although, as we will explain at paragraph 46 below, the present appeal could have been determined by applying the underlying principles set out in the case law of the Criminal Division to which we have referred, as it could be said there had been a defect in the procedure of the court, it is far better to determine the matter on the basis that this court’s jurisdiction is based on the same implicit power as the Civil Division determined it had in Taylor v Lawrence. 42. However, although we can decide this appeal in this way and make it clear that this court has an implicit jurisdiction on the same basis as the Civil Division, we consider that it would be appropriate if the Criminal Procedure Rules Committee can formulate a rule similar to that set out in CPR 52.17 but which delineates the factors and circumstances applicable to the Criminal Division. It is in a position to consult widely and to consider a greater range of views than we heard on this appeal. Furthermore it is necessary to formulate principles that would apply either to all types of criminal appeal whether by way of appeal to this court, or by way of case stated or in an extradition appeal or with suitable modifications: see for example the decision of the Divisional Court to re-open an extradition appeal (subject to the specific provisions of the Extradition Act 2003): Republic of South Africa v Dewani [2014] WLR 3220 , [2014] 3 All ER 266 , [2014] EWHC 153 (Admin) at paragraph 17; McIntyre v United States [2015] 2 All ER 415 , [2014] EWHC 1886 (Admin) , [2015] WLR 507 at paragraphs 8-12. 43. It would also be desirable for rules to be made which make it clear when an order, whether it be that of a trial court or an appellate court, is entered onto the record. As regards the recording of the orders of this court, we have little doubt that at the time of the decision in R v Cross in 1973, the Lord Chancellor had the power to make directions set out in the Crown Court Manual. However, we doubt that this power has survived the Constitutional Reform Act 2005, despite the reference to it in R v Blackwood. In any event the way in which the order of this court was recorded in the present case as set out in paragraph 13 above was highly unsatisfactory. 44. As significant change is being made to the way in which information is recorded and transmitted between those involved or interested in criminal cases and the courts, it would be desirable that clear rules be made consistent with the need to ensure that the criminal records in respect of convictions are accurately stated in records of the court which are transmitted to and used by other parts of the Executive such as the police and prison service. The determination of the present appeal 45. In the present case, although the recording of the order of this court in CREST was highly unsatisfactory, it was so recorded. 46. If the established case law is applied, it would first be necessary to consider whether the hearing of the appeal on 12 June 2014 was a nullity. The appellant and the prosecution were represented and the court arrived at a decision that was open to it on the material before it. An order was made by this court. The fact that there was a serious error in the material before it and the court acted on that error does not make the order a nullity. Next it would be necessary to consider the jurisdiction under the line of cases beginning with R v Daniel. We have little doubt that a real injustice would result if the order could not be re-opened and corrected. 47. However, in our judgment the better basis on which to make our decision to re-open the decision made on 12 June 2014 and the order giving effect to it is the jurisdiction based on the principles in Taylor v Lawrence as applied to this court. We therefore make our decision on that basis. 48. The appellant did not dispute the position that the order should be corrected to the extent that it stated that there had been no conviction on the kidnapping count. It was accepted that it should be made clear in a new order that there was in fact a conviction for kidnapping. However, it was submitted on behalf of the appellant that the court should not exercise its jurisdiction to restore the sentence on that count, as that would not be just. 49. We do not agree. The appellant was properly convicted on that count and sentenced to a consecutive sentence of 18 months. The verdict was properly given and properly recorded by the Crown Court. The only reason why this court quashed the sentence was as a result of an error in the transcript which no one checked, until the judge diligently did so after the decision of this court. In our judgment there would be a real injustice if the appellant did not serve the sentence that had been rightly imposed on him. There is a very substantial public interest in those properly convicted serving the sentence imposed, not least in the circumstances of this case where the offence had an impact on the victim. Not to do so would undermine public confidence in the ability of the courts to deliver justice fairly. This is an exceptional case, as there was no basis in fact on which this court should have quashed the sentence; what had happened was a rare coincidence of circumstances – carelessness on the part of the transcriber, a failure by the prosecution to check the position, and a failure to check with the Crown Court at Harrow and the judge before accepting (1) that an experienced trial judge had passed a significant consecutive sentence on a defendant when the jury had not convicted that defendant and (2) that the record of the Crown Court which properly recorded the verdict and sentence were in error. 50. We therefore direct that the order of this court of 12 June 2014 be set aside, the appellant’s appeal against conviction and sentence be dismissed and the appellant’s conviction on count 2 and the consecutive sentence of 18 months detention be affirmed.	```yaml citation: '[2015] EWCA Crim 1277' date: '2015-07-16' judges: - MR JUSTICE SWEENEY - MR JUSTICE WARBY ```
You are extracting information from the court judgments. Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value. Please return the response in the identical YAML format: ```yaml citation: <string containing the neutral citation number> date: <date in format YYYY-MM-DD> judges: <list of judge full names> ``` ===== {context} ======	Neutral Citation Number: [2011] EWCA Crim 1231 Case No. 2011/01954/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Wednesday 20 April 2011 B e f o r e: LORD JUSTICE TOULSON MR JUSTICE DAVIS and MR JUSTICE EDER __________________ R E G I N A - v - CHARLIE SPENCER __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) __________________ Mr J Winship appeared on behalf of the Applicant ____________________ J U D G M E N T LORD JUSTICE TOULSON: I shall ask Mr Justice Davis to give the judgment of the court. MR JUSTICE DAVIS: 1. The applicant is now aged 19. On 8 February 2011 at the Crown Court at Woolwich he pleaded guilty on re-arraignment to affray. On 11 March 2011 he was sentenced to a term of six months' detention in a young offender institution. His application for leave to appeal against sentence has been referred by the Registrar to the full court. 2. There were a number of co-accused. Two, O'Brien and Cowling, pleaded guilty to counts of inflicting grievous bodily harm and affray and were sentenced to twelve months' detention in a young offender institution. Three others, Robinson, Strugnell and Murphy, pleaded guilty on re-arraignment to affray and received the same sentence as the applicant, that is six months' detention in a young offender institution. 3. The background facts can be very shortly stated for present purposes. The applicant had been to a night club in the O2 area of East London with his co-accused. He left the club with a number of them at around 4am on 7 March 2010. They joined up with two others who had been with them earlier that evening and went to buy some food. They then made their way to a bus stop. There were two students at the bus stop. One of them objected when one of the members of the applicant's group started to urinate on the pavement. The group went over and started to remonstrate with the student. He was kicked and punched by members of the group. His friend sought to intervene. The applicant joined in the ensuing fight after, he said, he was punched by one of the complainants. He struck at one and kicked out at another. During the course of the fight the first student was also head-butted. He was subsequently taken to hospital, where he was treated for fractures to the medial wall and floor of the left orbit. His friend sustained a cut to the chin. 4. After the attack had finished, the group walked off. A bus driver refused to let them board his bus. The police were summoned. The members of the group were found in the area and were arrested. 5. When he was interviewed, the applicant admitted becoming involved in the melee and said that he was very drunk at the time. 6. The applicant has no previous convictions of any kind. Indeed, there was documentation indicating positive good character. 7. The sentencing judge had before him a very detailed and thorough pre-sentence report which indicates that the applicant appeared genuinely shocked and empathised with the position of the victims. In dealing with his personal circumstances the pre-sentence report states: "With reference to [the applicant's] education and employment achievements, the [applicant] tells me that he left secondary education with nine GCSEs and an A level in food technology. [The applicant] states that he began an electrical engineering course at Bexley college but left in his first year due to being in fear for his safety having been the victim of a robbery in that area. In terms of employment the [applicant] stated that he has a limited work history due to his age but has previously worked as a pipe fitter at Harrods. At present [the applicant] is a registered full-time carer for his mother who suffers from epilepsy and has provided further evidence to support this in the form of Department of Work and Pensions payments. Furthermore, the [applicant] also stated that his father recently suffered a broken back and as such he also provides care for his father when needed. In light of his current family responsibilities, [the applicant] is unable to secure full-time employment. However, he plans to explore the possibility of attending university in the foreseeable future to improve his employability." There is also a reference to the applicant's partner being pregnant. We are told that she lives with the applicant and his mother. The pre-sentence report goes on to stress that what happened was totally out of character and that the risk of re-offending was low, providing that the applicant did not mix with the wrong company. The author proposed a suspended sentence with conditions and stated that any custodial sentence, if immediate, would have "detrimental implications for his family as he is the registered carer for his mother and also assists his incapacitated father". 8. On behalf of the applicant Mr Winship, realistically and rightly, accepts that at first sight there can be no complaint at a custodial sentence of this order. Indeed, it might be said that at second sight that would also seem to be so. He accepts that this application for leave to appeal may seem unusual. He rightly acknowledges that the public is fed up with this kind of prevalent and frightening public disorder. This was a group attack on people acting in a public spirited way in protesting at loutish behaviour, one of whom suffered serious injuries in consequence of being attacked, all this at night in a public place. It is ironic that the applicant should have associated himself with this group attack after his own previous experience of violence inflicted upon him which caused him to leave the Bexley area. 9. Mr Winship nevertheless submits that this sentence was too long. He was reluctant, however, to attribute the words "manifestly excessive" to the sentence: although this court can ordinarily only interfere if the sentence is manifestly excessive or wrong in principle. At the heart of Mr Winship's argument today is a plea for mercy. He submits that if mercy is shown to the applicant, as he says is justified, then the sentence either should have been, and should be, suspended, or at all events it should be reduced from the six month term imposed by the judge. Mr Winship founds himself on the applicant's guilty plea, his positive good character and his age, all of which were acknowledged by the judge. But Mr Winship's main focus of emphasis was to concentrate on the applicant's mother's position and also the position of his father and of his pregnant girlfriend. The applicant is the registered full-time carer of his mother and there is a degree of dependence on the part of the mother and it would not be right that she should be separated from him as her carer for any time longer than is necessary. 10. It appears to us that the mother is not fully dependent on the applicant in the sense of 24 hours a day. Indeed it is to be noted that for a period of time the applicant was able to attend an electrical engineering course in Bexley, he had employment with Harrods for a period of time, and he has ambitions of attending university in the foreseeable future. All that indicates that there will be a means by which his mother's needs can be catered for. Although it may be that for the applicant to serve a custodial sentence will have a detrimental impact upon her, there is nothing to indicate that the consequences of his having to serve a custodial sentence will be devastating so far as she is concerned. Indeed we are told today that the applicant's pregnant girlfriend is apparently still living with the mother. So far as the father is concerned, no doubt he has much appreciated and benefited from the applicant's support, but that is little basis for departing from what otherwise is a wholly justified sentence. 11. Mr Winship concentrates wholly and solely on the applicant's personal circumstances and the mitigation available to him, including the impact on his family. However, the court must have regard not only to the situation of the applicant, but also to the offence offence. This was a very nasty offence. It cannot possibly be said that the sentence imposed by the judge was in any way excessive or failed to have due regard to all the mitigation available. 12. Accordingly, in those circumstances this application is refused. _______________________	```yaml citation: '[2011] EWCA Crim 1231' date: '2011-04-20' judges: - LORD JUSTICE TOULSON - 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} ======	Case No: 2017 02817 B5 Neutral Citation Number: [2018] EWCA Crim 944 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM HH Judge Rafferty QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/05/2018 Before: LORD JUSTICE SIMON MR JUSTICE GOOSE and HER HONOUR JUDGE TAYTON QC (siting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between: Regina Appellant and Graham Alan Mills Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Richard Sutton QC for the prosecution Mr Christopher Tehrani QC for the respondent - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Simon: Introduction 1. This appeal raises the question whether, if the prosecution are discontented with the terms of a default order in confiscation proceedings, the Court of Appeal (Criminal Division) has jurisdiction to determine a challenge to that order. 2. On 26 September 2013, at Nottingham Crown Court (before HHJ Hamilton), the respondent pleaded guilty to offences of conspiracy to defraud (count 1), conspiracy to convert criminal property (count 2) and concealing criminal property (count 3). He was sentenced to a term of 7 years imprisonment on each count, to be served concurrently. 3. On 23 May 2017, in confiscation proceedings under the Proceeds of Crime Act 2002 (‘POCA 2002’), before HHJ Rafferty QC (‘the Judge’), a confiscation order was made against the respondent. The Court decided that he had a criminal lifestyle as a result of his general criminal conduct and assessed the benefit figure at £8,922,378. The recoverable amount was assessed as £657,197.33. This included £500,000.00 of hidden assets. The confiscation order was to be paid by 22 August 2017 and, in default of payment, the respondent was ordered to serve a term of 18 months imprisonment. 4. On 6 July 2017, at a hearing pursuant to Section 155 of the Powers of Criminal Courts (Sentencing) Act, the Judge amended the recoverable amount to a sum of £661,027, but declined to reconsider the length of the default term. 5. The prosecution applied for leave to appeal against the terms of the default order. Its case was that the default period should have been for a considerably longer period: of the order of 5 to 7 years. 6. The application has been referred to the full court by the Registrar of Criminal Appeals. 7. Since the issues are confined, the background facts can be set out in outline. 8. The crimes constituted sophisticated ‘boiler room’ frauds between 27 November 2007 and 26 September 2013. They were organised in and conducted from Thailand where the respondent was resident at the time. The fraud involved cold callers contacting investors in a variety of countries to persuade them to invest in shares and commodities. Investors were directed to websites which appeared genuine. They could log-in to view their apparent trading accounts which showed false figures which were used to persuade them to increase their investment. In fact, none of their money was either invested or reinvested. 9. On 23 October 2012, prior to his plea, a restraining order was made against the respondent prohibiting him from dealing with his assets, and requiring the repatriation of any assets held outside the jurisdiction within 21 days. On or around 25 January 2013 he served a witness statement detailing bank accounts held abroad which he claimed he was unable to access. In fact, he had both online access to bank accounts and the capacity to repatriate assets. As such, he was held to be in contempt of court on 15 July 2013 for failing to comply with the restraining order. As the respondent claimed he was making attempts to comply with the restraining order, the contempt application was adjourned. 10. On 10 September 2013, the prosecution became aware that the respondent had withdrawn approximately £14,350 from an account held at HSBC in Hong Kong in breach of the restraint order. The hearing of a second contempt application was postponed until after the conclusion of the confiscation proceedings. 11. A further discovery was made shortly before the confiscation hearing on 8 May 2017. A company in which the respondent held 587 shares, Dragon Oil, had been taken over by Emirates Oil Company. The shareholders, including the respondent, had been offered £8 per share. He had accepted that offer and been sent a cheque for £4,696. He failed to notify the police at the time, although the money was paid into a restrained account after the issue was raised by the prosecution. 12. At the confiscation hearing in May 2017, the respondent resiled from an earlier basis of plea. First, he said that he had not played a leading role in the fraud but simply acted in an administrative role for which he was paid around £200,000. Secondly, he said that he had only been involved from late 2005 or early 2006 until 2010 or 2011. Thirdly, he denied using the names Robin Jacob and Gary Miller. 13. Following submissions from counsel on each side, as well as evidence from DC Christopher Parker and the respondent, the Judge made a number of findings adverse to the respondent. First, he found him to be a demonstrably untruthful and unreliable witness who gave evidence that was inconsistent, incomplete, intentionally misleading and replete with bare assertions. Secondly, the prosecution had proved that the respondent, jointly with the other conspirators, had obtained all the monies that had been paid into accounts set up in furtherance of the fraud. Thirdly, the respondent was a major participant, and his involvement in the conspiracy was far greater and more wide-ranging than his basis of plea acknowledged. His role was central and significant to the operation of the conspiracy and he had used the names of both Robin Jacob and Gary Miller as aliases. Without his technical expertise, the highly sophisticated and persistent fraud would have been far less successful. 14. The Judge concluded that it was a reasonable inference that he had a fund of hidden assets of not less than £500,000. 15. Turning to the breaches of the restraining orders, the Judge ruled that the respondent should have been dealt with in 2013 when he was sentenced. Any sentence that he would have received for obtaining £14,000 by deception would have been a concurrent term, and accordingly no further order would be made in respect of that breach. The funds obtained from dealing with the Dragon Oil shares was available for confiscation, and accordingly no further order was made in respect of that breach either. The Judge’s decision on the default order 16. Counsel for the prosecution referred the Judge to the case of R v. German Castillo [2012] 2 Cr App R (S) 36 and reminded him that the maximum term was one a period of 7 years. Although the Judge dealt fully with the substance of the confiscation order, when it came to the default term he gave abbreviated reasons for his decision: In all the circumstances, taking into account the fact that this falls right at the bottom of the relevant scale, given the elapse of time, given the sentence that the defendant originally received, 18 months in default of payment. The submissions 17. Mr Sutton QC submitted that the Judge’s decision to fix a default period of imprisonment of only 18 months in default of payment of a confiscation order of £657,197.33 amounted to an error which this Court should correct. He referred to the passages in German Castillo (referred to above) which dealt with the statutory default regime. 12. The administration of this regime has been considered in a number of decisions of this court: Szrajber (1994) 15 Cr.App.R (S) 821; French (1995) 16 Cr.App.R (S) 841; Smith [2009] EWCA Crim. 344 ; Piggott [2009] EWCA Crim. 2292 ; Price [2009] EWCA Crim. 2198 ; Whiteway-Wilkinson [2010] EWCA Crim. 35 ; Pettitt [2010] EWCA Crim. 1884 and Young [2011] EWCA Crim. 1176 . These following principles emerge for the guidance of courts fixing a period of imprisonment to be served in default of payment of a confiscation order: 1. All the circumstances of the case have to be considered. 2. It is of the first importance to have in mind that the purpose of the default term is to secure payment of the confiscation order. 3. It is not the court's function to find an arithmetical match between the amount of the order and the length of the term, such that for any given band or bracket prescribed in the statute an order at the bottom of the band should attract a default term likewise at the bottom of the band, an order in the middle of the band should attract a term in the middle or an order at the top should attract a term at the top. 4. The court is not to be influenced by the overall totality of the sentence passed for the crime plus the default term. 5. But for any given band the court should have regard to the maxima: the maximum amount of a confiscation order within the band and the maximum default term within the band. 6. Given principle 5, and especially in a case such as this falling within the top band where there is no maximum confiscation order but only a maximum default term, regard must be had to the requirement of proportionality. Thus, in Whiteway-Wilkinson the court accepted (paragraph 19 of the judgment) counsel's submission that for a confiscation order of £2 million to £3 million a default term of seven to eight years would have been appropriate. 13. Those are the principles which with respect emerged from the cases. We would add this. Although the court has insisted that the requirement of proportionality has to be respected, that does not imply what in sentencing parlance may be called a "tariff". The purpose of the default term is not punishment for the achievement of retributive justice. It is rather to secure satisfaction of the confiscation order and so deprive the criminal of the fruits of his crime. In that endeavour, the demands of proportionality are much weaker than where the court is punishing the offender. Although retributive justice is by no means the only aim of sentencing, it remains a first condition of criminal punishment that the offender should get no more than his just deserts. Proportionality is thus at the centre of the process. By contrast, the ancillary regime of asset recovery is established on an altogether different footing. Its first condition is effectiveness. 14. However, in this context too proportionality, as we have shown, commands some attention especially in the top bracket where there is no maximum amount for the confiscation order … 18. Mr Sutton submitted that in terms of the table set out at s.35(2A) of POCA 2002, the confiscation order fell within the bracket of £500,000 to £1 million, with a maximum default term of 7 years. The bracket below this was £100,000 to £500,000, with a maximum default term of 5 years. It followed that the Judge should have made a default order of between 5 and 7 years; and a default term of 18 months was plainly wrong. 19. Mr Tehrani QC submitted in answer that the Court of Appeal did not have jurisdiction to determine a prosecution appeal against the setting of a default term. Furthermore, if it had jurisdiction, the setting of a default term involved the exercise of discretion with which this Court should not interfere unless it was plainly outside the range of appropriate default terms. He referred to R v. Ikram [2018] EWCA Crim 440 at [51]. Finally, he argued that if the Court were inclined to substitute a different default term, since the respondent was on the point of release from the 18 months’ default term, it should confirm the order rather than increase the default term. The jurisdiction issue 20. The first issue is whether this court has jurisdiction to hear a prosecution application in relation to a default term set in the Crown Court in confiscation proceedings. 21. The general right of the prosecution to appeal against the making of a confiscation order arises under s.31 of POCA 2002: Appeal by prosecutor, etc - (1) If the Crown Court makes a confiscation order the prosecutor may appeal to the Court of Appeal in respect of the order. (2) If the Crown Court decides not to make a confiscation order the prosecutor may appeal to the Court of Appeal against the decision. 22. Section 32(1) provides that on an appeal under s.31(1) the Court of Appeal may confirm, quash or vary the confiscation order. 23. Mr Sutton submitted that a default sentence for non-payment of a confiscation order is part of the confiscation order and is therefore amenable to an appeal by the Prosecution. Even if it were not part of the confiscation order itself, s.31(1) is worded so as to include matters ‘in respect’ of the order. Since the setting of a default term of imprisonment is a matter in respect of that order, it is amenable to appeal by the prosecution. He recognised, however, that this second way of putting the argument would raise difficulties when it came to any order that this Court made under s.32(1). 24. For the respondent, Mr Tehrani submitted that the prosecution had no right of appeal against a default term. Section 31 of the POCA 2002 does not expressly include a right of appeal against an order made under s.35 of POCA 2002, which sets out the power to impose a default term to confiscation orders. The only provision for varying the default term is contained within s.39 of POCA 2002: the power in the Crown Court to reconsider variation of the prison term, as occurred in the present case. He submitted that a default sentence was separate and distinct from a confiscation order, see R v. Gary Ellis [1992] 2 Cr App R (S) 403, and observed that serving the default term does not remove the liability to pay the confiscation order. The statutory scheme 25. A ‘confiscation order’ is defined in s. 6(5)(b) POCA 2002 as ‘… an order requiring (the defendant) to pay the (recoverable) amount’. 26. Section 11 (1) provides that the amount ordered to be paid under a confiscation order must be paid on the making of the order; and s.11(2) provides: If the court making the confiscation order is satisfied that the defendant is unable to pay the full amount on that day, it may make an order requiring whatever cannot be paid on that day to be paid – (a) in a specified period … 27. POCA 2002 creates no specific sanction for non-payment of a confiscation order, but introduces the sanction regime created by section 139 of the Powers of Criminal Courts (Sentencing) Act 2000 (‘the Sentencing Act’). 28. Section 35 of POCA is in these terms: (1) This section applies if a court - (a) makes a confiscation order … (2) Sections 139(2), (3) and (9) and 140(1) to 4 of the Sentencing Act 2000 apply as if the amount ordered to be paid were a fine imposed on the defendant by the court making the confiscation order. (2A) Where a court is fixing a term of imprisonment or detention under section 139(2) of the Sentencing Act (as applied by subsection (2) above) in respect of an amount ordered to be paid under a confiscation order, the maximum terms are those specified in the second column of the Table for amounts described in the corresponding entry in the first column. TABLE Amount Maximum Term £10,000 or less 6 months More than £10,000 but no more than £500,000 5 years More than £500,000 but no more than £1 million 7 years More than £1 million 14 years 29. Section 139(1) of the Sentencing Act provides that if the Crown Court imposes a fine on any person, ‘the court may make an order … allowing time for payment.’ Section 139(2) provides, so far as material: … if the Crown Court imposes a fine on any person … the court shall make an order fixing a term of imprisonment … which he is to undergo if any sum which he is liable to pay is not duly paid or recovered. 30. If follows that the statutory scheme adopts a somewhat roundabout route by which a judge must fix a term of imprisonment to be served in default of payment within the permitted maximum, so as to ensure that the offender has nothing to gain by failing to comply with the confiscation order, see the cases summarised in R v. Pigott [2010] 2 Cr. App R 16 (S) [40]-[42], referred to in German Castillo , above. 31. If the matter were free from authority, one might assume that since the Court is determining a default term designed to ensure compliance with the confiscation order it could properly be characterised as part of the order in respect of which a prosecutor can appeal under s.31(1). 32. However, the matter is not free of authority. 33. In Gary Ellis (see above) the Crown Court made a confiscation order but failed to observe the mandatory requirement to order a term of imprisonment in default of payment. Ellis’s counsel submitted that this omission rendered the confiscation order defective and that consequently it should be quashed. Unsurprisingly the Court was not attracted by the submission. Having referred to the case of R v. Popple and others (1993) 14 Cr. App R (S) 841, the Court said this: Although the point presently under consideration was not considered by the court in Popple , what does emerge very clearly from the passages in the judgment to which we have referred is that if the provisions of the 1986 Act and the 1973 Act are to be fully complied with the sentencing court makes two orders and not one. There is the confiscation order itself and there is the order in default which in effect is an enforcement order which is penal in character. Must the failure to make the second taint the legality or validity of the first? In our judgment unless any decided case compels us to reach a different conclusion the answer to that question must be 'No'. 34. The Court then went on to consider the case of R v. Onwuku (1991) 12 Cr App R (S) 486 and added: We find nothing in the judgment which inhibits our conclusion that where the sole failure is a failure to make the second and consequential order (namely, the order in default of payment) that cannot itself taint the legality or the validity of the confiscation order. 35. Mr Sutton submitted that in Popple , the Court identified two separate orders in the confiscation process but did not rule that the mandatory default order was additional to the confiscation order. He argued that the effect of the judgment was that, having made a ‘decision’ to make a confiscation order, and before doing so, the Court is required to determine the default sentence and order that it be included as part of the confiscation order. The Court in Gary Ellis read more into the judgment in Popple than was necessary for its decision which was that the omission of a provision for what was to happen in default of payment did not invalidate ‘the rest of the confiscation order’. Neither Popple nor Gary Ellis precluded this court from determining that a default order forms part of a confiscation order . 36. Although the question that was decided in Gary Ellis was whether the failure to make a default order invalidated the confiscation order itself, in our view it was an essential part of the reasoning that where there is a confiscation order and a default provision there are two orders. The default order is distinct from the confiscation order. 37. We accept that there may be good reasons for treating the default term as part of a confiscation order since it does not stand alone and is closely linked to the confiscation order. However, the analysis of this Court in Gary Ellis is clear, the confiscation order and the default term are distinct orders. It must be assumed therefore (and in relation to a jurisdiction issue, this Court must proceed on the basis that) s.31 of POCA was drafted in the light of the law as decided in Gary Ellis . It follows that the prosecutor may not appeal against a default order. 38. We do not regard this as satisfactory. Although, the setting of default terms does not appear to give rise to serious difficulty, in the present case something appears to have gone wrong, and in such cases it may be thought desirable that the prosecution should be able to challenge the default term. The Judge’s decision 39. In our judgment the Judge was in error in his assessment of the default term. First, and contrary to the principle 4 in German Castillo , he was plainly influenced by the overall totality of the sentence passed for the crime plus the default term, since he said, ‘given the sentence that the defendant originally received’. Second, Principle 5 in German Castillo indicates that for any given band the court should ‘have regard to the maxima: the maximum amount of a confiscation order within the band and the maximum default term within the band,’ while having regard to issues of proportionality. The Judge also erred in saying that, ‘this falls right at the bottom of the relevant scale.’ Even if he were referring to the bracket of £500,000 to £1million, and it is not clear that he was, he appears to have overlooked the fact that the maximum term for the bracket between £10,000 to £500,000 was 5 years. Conclusion 40. Nevertheless, for the reasons set out above, we grant leave to apply to the Court of Appeal, but dismiss the Prosecution appeal since we have concluded that the Court does not have jurisdiction to hear an appeal in respect of a default order.	```yaml citation: '[2018] EWCA Crim 944' date: '2018-05-01' judges: - LORD JUSTICE SIMON - 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: [2021] EWCA Crim 390 Case Nos: 202002927 A1, 202002958 A1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WINCHESTER The Hon Mr Justice Jacobs T20207042 Royal Courts of Justice Strand, London, WC2A 2LL Date: 19/3/2021 Before: THE RT HON THE LORD BURNETT OF MALDON LORD CHIEF JUSTICE OF ENGLAND AND WALES THE RT HON LORD JUSTICE HOLROYDE and THE HON MRS JUSTICE LAMBERT DBE - - - - - - - - - - - - - - - - - - - - - Between: TIMOTHY KEITH BREHMER Applicant/ Respondent - and - REGINA Applicant/ Respondent ATTORNEY GENERAL’S REFERENCE UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Jo Martin QC and Jane Rowley (instructed by Slater and Gordon Lawyers ) for the Appellant Timothy Cray QC (instructed by The Crown Prosecution Service ) for the Respondent Hearing date: 10 March 2021 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties’ representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 10:30am on 18 March 2021 . LORD BURNETT OF MALDON CJ: 1. On 28 October 2020 Timothy Brehmer was sentenced by Mr Justice Jacobs at Salisbury Crown Court to 10½ years’ imprisonment for the manslaughter of Claire Parry. The offender had been charged with murder. He had pleaded guilty to manslaughter at the Plea and Trial Preparation Hearing (“PTPH”) and later, in his defence statement, advanced the case that whilst guilty of an assault he lacked the intent for murder (unlawful act manslaughter). He was tried for murder. The judge left the partial defence of “loss of control” to the jury. The jury acquitted of murder. It fell to the judge to decide on what basis of manslaughter to sentence the offender: R v King [2017] EWCA Crim 128 , [2017] 4 WLR 95 . The judge was satisfied so that he was sure that the offender had the necessary intent for murder but lost control for the purposes of the partial defence. He sentenced the offender having regard to the definitive guideline of the Sentencing Council for manslaughter following loss of control. He concluded that that the appropriate sentence was one of 12½ years' imprisonment before a discount for the guilty plea to the different type of manslaughter. He applied a discount of a little over 15% which resulted in the sentence of 10½ years’ imprisonment. 2. The Attorney General seeks leave to refer the sentence to the Court of Appeal as unduly lenient. For reasons which we will develop we are satisfied that the sentence was unduly lenient and must be raised to 13½ years’ imprisonment. An application for leave to appeal against sentence has also been referred to the court. 3. The 41 year old offender was a police officer who had been having an “on and off” extra marital affair for about ten years with Claire Parry, who was a 41 year old nurse with two small children. Her husband knew of the affair and was contemplating leaving her. In early May 2020 Claire Parry decided to tell the offender’s wife about the affair. Internet searches had led her to conclude that the offender was a serial womaniser. She told the offender of her intention, but he did not take the opportunity to tell his wife himself. On the evening of 8 May the offender was on a night shift and spoke at length to Claire Parry. He left work at 06.45 on Saturday 9 May and spoke to her again. She was angry and the offender believed that she was on the point of telling his wife about their affair. Claire Parry was due to start a shift at 16.00 that afternoon. She sent the offender a message telling him to meet her at the Horns Inn pub car park at 15.00. 4. The offender found a pretext to leave home and arrived at the car park at 14.30. Mrs Parry arrived at 14.44 and got into the offender’s car. At 15.02 a text message was sent from the offender’s phone to his wife which read “I’m cheating on you”. That was sent by Claire Parry. Calls and texts from Mrs Brehmer in response were ignored. At 15.05 the offender reset his phone thereby removing all personal details. There was a fight in the car but precisely when it started is unknown. The car was parked out of sight of CCTV cameras. 5. At 15.26 the offender was recorded by CCTV walking across the car park to the entrance. He had three knife wounds on his inner left forearm with bloodstains on his shorts and shirt. He spoke to a passing couple and told them he had been stabbed. One phoned the emergency services. He said nothing of Claire Parry. The other looked around the car park and found her body lying half in and out of the driver’s door. Her face was blue with blood coming from her mouth. Both witnesses thought that she was dead. Although her heart had stopped it was restarted and she died in hospital the following day. At the scene, the offender said that it was Mrs Parry who had stabbed him. The penknife used was in fact his and kept in the glove compartment of the car. He was arrested at the scene at 16.44 and conveyed to hospital for treatment for his injuries. There he said he “might” have stabbed himself to get Claire Parry’s attention. In interview the following day he accepted that he had stabbed himself. 6. One consequence of his initial lie was that the members of the public were warned by the 999 operator to keep away from the person in the car. 7. The offender’s account of what occurred after the text message was sent at 15.02 was that he and Claire Parry continued to talk. She was in the passenger seat and he asked her to get out of the car. When she refused, he said that he tried to hoist her out of the vehicle. It was during this struggle that he had applied pressure to her neck, not realising what he was doing. That resulted in her death. The prosecution’s case was that the offender had become angry when the deceased had sent the text message to his wife, at which point he must have strangled her. 8. The evidence of the pathologist confirmed severe injury to the neck with a fractured hyoid bone and damage to the cartilage to the right and left of the larynx. There was deep internal bleeding and bruising in the neck tissues and bruising near the jaw line. There was multiple evidence of asphyxiation. There were two mechanisms that might have caused the injuries: either using the crook of an elbow as a fulcrum or by putting the forearm across the throat. The extent of the injuries was such that the minimum period of compression was between 10 and 30 seconds. It was this that led to asphyxiation and starved the brain of oxygen which killed Claire Parry. There were 31 separate sites of blunt force trauma on her upper body. These were made up of 9 areas of bruising to the trunk, 11 areas of bruising on the upper right arm, 10 areas of bruising and abrasion to the left arm and an area of bruising and laceration in the mouth. The prominent areas of bruising on the arms were consistent with grabbing actions and the injury to the mouth with a blow. It was clear that Claire Parry had fought back hard to resist the violent attack of the offender. The offender gave an account of events which did not explain the neck injuries. 9. The judge referred to the moving victim personal statements in this sad case which gave details of the impact of Claire Parry’s death on her children, immediate family and more widely. He concluded that the qualifying trigger for the defence of loss of control was only just met with the consequence that, for the purposes of the guideline, the starting point was 14 years’ imprisonment, with a range of 10 to 20 years. He identified two aggravating factors. First, Claire Parry endured significant mental and physical suffering and would have appreciated that the offender was killing her. Secondly, the offender’s conduct in the immediate aftermath of his violent attack. He sought to blame Claire Parry and accused her of attacking him with a knife, a lie in which he persisted until the following day. As a policeman, that was especially reprehensible. In mitigation, the judge accepted that the offender was a man of positive good character in serving the public, that he was remorseful, that the offence was not pre-meditated and that as an ex-policeman he could expect a difficult time in prison. He also took account of the current restrictions in prison resulting from the Covid 19 pandemic. 10. Mr Cray QC, on behalf of the Attorney General, advances three grounds in support of the reference. 11. First, the overall seriousness of the case required an initial upward adjustment from the 14 year starting point to ensure that the sentence for manslaughter through loss of control was not disproportionate to the sentence that would have been imposed had there been a conviction for murder. Despite the guideline identifying a starting point of 14 years it would have been right to start at or near the top of the range. 12. In the alternative, and secondly, the judge erred in his balancing of aggravating and mitigating factors. In consequence he arrived at a sentence before discount for plea which was too low by a significant margin. 13. Thirdly, the judge should not have afforded the defendant a 15% discount for his plea. Mr Cray acknowledges that at the sentencing hearing below prosecution counsel conceded that the discount could be 15% or less, but that, he submits was an error. There was a full trial because the offender failed to accept that he had the necessary intent for murder. There should have been no reduction or a much-attenuated discount. 14. Ms Martin QC for the offender submits that it was not open to the judge on the evidence to conclude that the offender had the necessary intent for murder. He was bound to sentence based on the offender’s case of unlawful act manslaughter. In the alternative she submits that the judge was correct in his application of the guideline, was entitled to balance the aggravating and mitigating factors as he did and apply the discount for guilty plea. Discussion 15. The judge approached the question of how to sentence the offender meticulously by reference to King. The verdict of the jury left open the possibility of two types of manslaughter, unlawful act or loss of control. If he was sure of one of those types, he was bound to sentence on that basis. If unable to be sure of either, he was bound to sentence on the more favourable basis to the offender. The judge was sure that the offender was guilty of manslaughter by reason of loss of control and was therefore right to sentence him on that basis. There is no doubt that the evidence admitted of that conclusion. It was left to the jury. We are unable to accept Ms Martin’s core submission that the judge was bound, on the evidence, either to accept that the offender lacked the intent for murder or be unsure on the issue. 16. The guideline for sentencing in cases of manslaughter by reason of loss of control is one of a suite of four definitive guidelines published by the Sentencing Council, which came into effect on 1 November 2018. They collectively cover the four principal forms of manslaughter. 17. In R v Long, Bowers and Cole [2020] EWCA Crim 1729 , [2021] 4 WLR 5 , at [68] and [69], the court summarised the role of the Sentencing Council and the transparent process, including widespread public consultation, by which it develops a new guideline. At [70] the court quoted the provisions of section 125 of the Coroners and Justice Act 2009 , now contained in section 59 of the Sentencing Code introduced by the Sentencing Act 2020 : “ 125 Sentencing guidelines: duty of court (1) 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 exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so” 18. When the Sentencing Council develops an offence-specific guideline, it identifies the principal factors by which the seriousness of that type of offence must be assessed and categorised. In relation to manslaughter offences, the principal factors relevant to the assessment of seriousness in a case of manslaughter by reason of loss of control are different from those relevant in cases of manslaughter by reason of diminished responsibility, or manslaughter by gross negligence or unlawful act manslaughter. Hence the publication of four separate guidelines, and the need for a sentencing judge to follow the guideline which is relevant to a particular case. 19. Every offence-specific guideline sets a range of sentences which appropriately reflect the varying seriousness which individual examples of that type of offence can be expected to cover. The effect of section 59 of the Sentencing Code is that a judge must impose a sentence within the guideline offence range unless satisfied, in the circumstances of an individual case, that it would be contrary to the interests of justice to do so. In the present case, Mr Cray QC does not suggest on behalf of the Attorney General that the judge should have sentenced outside the guideline, but rather at the top of the range. Nonetheless, he suggests that the starting point should be moved upwards beyond 14 years. 20. As this case illustrates, one of the factors which may place a case into the highest level of culpability under the guideline for offences of manslaughter by reason of loss of control is that there was “loss of self-control in circumstances which only just met the criteria for a qualifying trigger”. The guideline therefore expressly covers cases which come close to murder. The submissions on behalf of the Attorney General suggest a need to avoid undue disparity between sentences for murder and sentences for manslaughter. We agree; but that is what the guidelines for offences of manslaughter do. In developing the four manslaughter guidelines the Sentencing Council considered the provisions of schedule 21 to the Criminal Justice Act 2003 (now contained in schedule 21 to the Sentencing Code), and the consequences of that schedule for the length of the minimum term which an offender would be required to serve if he were convicted of murder, rather than manslaughter, and sentenced to life imprisonment. But the Council also had to consider, in setting the appropriate sentence levels, the important distinctions between murder and manslaughter. For example, in the guideline for offences of manslaughter by reason of loss of control, it had to take into account that the ingredients of the partial defence require not only that an offender meets the criteria relating to the qualifying trigger, but also that a person of his age and sex, with a normal degree of tolerance and self-restraint and in his circumstances, might have reacted in the same or a similar way. It is therefore to be expected that the sentence for an offence of manslaughter by reason of loss of control will be substantially less than the sentence for a murder in comparable circumstances. 21. The structured approach imposed by the guideline requires a judge, at Step 1, to determine the appropriate offence category. In doing so, the judge is directed to balance the listed characteristics in order to reach “a fair assessment of the offender’s overall culpability in the context of the circumstances of the offence”. The judge is then required, at Step 2, to use the corresponding starting point to reach a sentence within the relevant category range. If a case does not fall squarely within a category, the guideline permits an adjustment from the starting point before adjustment for aggravating or mitigating features. The guideline then lists factors which may increase or reduce seriousness or reflect personal mitigation. These lists are expressly stated to be non-exhaustive. The sentencer is required to – “[i]dentify whether a combination of these or other relevant factors should result in any upward or downward adjustment from the sentence arrived at so far.” 22. In a case of murder, schedule 21 sets different starting points for the determination of the minimum term, according to the circumstances of the case. It is possible that a circumstance which would lead to a higher starting point under schedule 21 in a case of murder may arise in a case of manslaughter, though we do not think that will very frequently happen in a case of manslaughter by reason of loss of control. To the extent that such a circumstance does arise, a judge may properly treat it as an aggravating factor when determining, in accordance with the manslaughter guideline, where the appropriate sentence lies in the guideline range. Exceptionally, it might contribute to a conclusion that the interests of justice required a departure from the guideline in that particular case. Long, Bowers and Cole was a case in which the trial judge reflected the fact that the victim was a police officer killed in the course of duty in the sentences. Had the offenders been convicted of murder that would have resulted in enhanced minimum terms attached to sentences of life imprisonment. 23. However, we reject the suggestion (implicit in the submissions on behalf of the Attorney General) that if an offence of manslaughter may be regarded as coming close to murder, the sentencing judge should focus on schedule 21 rather than on the guideline. Such an approach would be contrary to the duty imposed on the judge by Parliament through section 59 of the Sentencing Code. 24. We therefore consider the appropriate sentence in the present case by reference to the guideline applicable to offences of manslaughter by reason of loss of control. The judge correctly placed the offence into the highest category of culpability, on the basis that the criteria for a qualifying trigger were only just met. The case fell squarely within that category, and there was no basis for making any adjustment to the starting point before considering the aggravating and mitigating features. The appropriate starting point was therefore 14 years’ custody, with a range from 10 to 20 years. 25. The judge then had to consider the aggravating and mitigating factors, to balance those factors against each other and to reach a conclusion whether there should be an adjustment either upwards or downwards from the starting point before giving credit for the guilty plea. 26. That was what the judge did. He identified as aggravating features the mental and physical suffering of Claire Parry before she lost consciousness and the reprehensible conduct in the aftermath of his attack. He identified as mitigating factors good character, remorse, lack of pre-meditation and the impact of prison both by reference to the offender being an ex-police officer and Covid. He concluded that a balancing of those factors resulted in a significant downward adjustment from the starting point of 14 years to 12½ years before giving credit for the guilty plea. 27. We would make a general observation about Covid related adverse impacts of imprisonment. Over the last year it has been a potent factor in cases involving relatively short sentences, those where there is a question whether a custodial sentence may be avoided and those where the sentence might be suspended. There continue to be restrictions on those in custody which result in long periods in the cell and which limit visits; for how long or with what intensity they will continue is unclear. Nonetheless, the longer the sentence required by the offending the less impact this feature can have. 28. Sentencing for manslaughter, even with the benefit of guidelines, is far from easy. We have considered carefully the circumstances in which Claire Parry lost her life at the hands of this offender. With respect to the judge, we are satisfied that he gave too little weight to the aggravating factors he had identified. The extent of her injuries shows that she was under attack for some time and clearly a period which exceeded the 10 to 30 seconds or more that her neck was compressed. She struggled in a fruitless attempt to protect herself and must have been aware of what was going to happen. The judge said that he “was sure that you did deliberately take Claire Parry by the neck applying significant force with your forearm or the crook of your elbow for a period of time whilst she struggled against you.” The offender’s conduct and lies after the attack were reprehensible and calculated to deflect attention from what he had done. These aggravating factors have the effect of moving above the starting point significantly before considering the mitigating factors. In respect of the mitigating factors identified by the judge, we observe that lack of pre-meditation is a necessary part of the loss of control defence. 29. Our conclusion is that having weighed all those matters the appropriate sentence before discount for the guilty plea to manslaughter should have been 15 years’ imprisonment. 30. The offender entered a plea of guilty to unlawful act manslaughter on 8 July 2020 at the PTPH, which the judge accepted was “effectively, the first opportunity”. The judge reduced the sentence by two years, a little over 15%. He considered the position to be similar to that following a Newton hearing (where there is a trial before the judge to establish the basis of plea) and gave the appellant broadly half of the credit to which he would have been entitled had his basis of plea been accepted. 31. As we have indicated, Mr Cray accepted that the position may not be “all or nothing” but that if some credit were justified then it should be very limited indeed. He submits that none of the benefits which justify a reduction in sentence were present in this case: there was no reduction in the impact of the crime upon the family of the deceased; the witnesses still had to give evidence and no time or money had been saved. In short, the public interest had not been served by the guilty plea entered to the offence of unlawful act manslaughter. Although acknowledging that the jury had acquitted the offender of murder, he fell to be sentenced on the basis that he had possessed the requisite intention for murder, even though his culpability was reduced by a short period of loss of control. Mr Cray disputed that the trial was analogous to a Newton hearing as all the key facts remained in issue including the offender’s state of mind at the time of the killing and whether the fatal occlusion of Claire Parry’s airway was a deliberate act or, as the offender contended, an inadvertent part of the general assault. 32. Ms Martin submits that the analogy with a defendant who fails to establish his basis of plea in a Newton hearing is apt: the offender had accepted criminal responsibility for the death by his earlier plea and had not sought to raise alternative defences such as self-defence, accident or diminished responsibility. The fact that there was a trial was not of the offender’s making because the prosecution was determined to proceed with a trial for murder. On this basis, his plea justified credit and the level of credit given by the judge accorded with the Sentencing Guideline for Reduction in Sentence for Guilty Plea at F2 “Newton Hearings and special reasons hearings”. Where an offender’s version of events is rejected at a Newton hearing the reduction which would have been available at the stage of proceedings the plea was indicated should normally be halved. 33. Section 73 of the Sentencing Code (formerly section 144 Criminal Justice Act 2003 ) requires the court to take into account in determining what sentence to pass on an offender who has pleaded guilty to an offence both the stage in the proceedings at which the offender pleaded guilty and the circumstances in which the indication was given. The definitive guideline for reduction in sentence for a guilty plea, effective from June 2017, does not directly cover the unusual situation which arose in this case in which the offender pleaded guilty to manslaughter on one legal basis but was to be sentenced on a different basis. The principles in the guideline can nonetheless be applied. 34. The guideline sets out at [B] “Key Principles” the benefits of an early plea of guilty which: “a) normally reduces the impact of the crime upon victims; b) saves victims and witnesses from having to testify; and c) is in the public interest in that it saves time and money on investigations and trials.” We accept Mr Cray’s submission that in this case the offender’s plea at the PTPH to unlawful act manslaughter produced none of those benefits. There was a trial which lasted for several days and many witnesses were called, both lay and expert. We doubt that the effect of the offender’s plea in July 2020 afforded the family of Claire Parry much solace or comfort. Although Ms Martin submitted that, had the trial been limited to the issue of loss of control, little evidence beyond the offender himself would have been called, we do not accept this. Although we cannot exclude the possibility that a small number of witnesses might not have been required to give oral evidence, the same questions of the precise circumstances in which Claire Parry was killed and the offender’s state of mind at the time of the killing would be central to a trial of murder and to a trial of manslaughter on the basis of loss of control. 35. We also accept that technically the trial was not a Newton hearing in which the factual basis for the prosecution case is challenged to the extent that it is relevant to sentencing. However, in our view the judge was correct to consider that the hearing was analogous, or akin, to such a hearing. The offender had accepted criminal responsibility for the killing, albeit on a much more limited basis than that found by the judge at the conclusion of the trial. That said, as the guideline makes clear, an arithmetic pro rata reduction is not called for in every case. 36. Having had the benefit of argument which was not available to the judge we conclude that the offender’s plea to unlawful act manslaughter did not justify a credit in the order of 15% for two reasons. First, as the guideline expressly says at F2: “where witnesses are called during such a hearing it may be appropriate further to decrease the reduction.” This supports a conclusion that a reduction of 15% was excessive. However, we also bear in mind that, unlike a Newton hearing where the factual basis for the plea of guilty is in issue, in this case the appellant pleaded guilty in July 2020 on a radically different factual and legal basis from that upon which he was to be sentenced. We accept that some credit is justified because of his acceptance of criminal responsibility but conclude that it should be no more than 10%. In the result the sentence in this case should be one of 13½ years’ imprisonment. Conclusion 37. We grant leave to the Attorney General to make a reference to the Court of Appeal. We quash the sentence of 10½ years’ imprisonment and substitute a sentence of 13½ years’ imprisonment. The application for leave to appeal against sentence is dismissed.	```yaml citation: '[2021] EWCA Crim 390' date: '2021-03-10' judges: - The Hon Mr Justice Jacobs - LORD CHIEF JUSTICE OF ENGLAND AND WALES - THE RT HON LORD JUSTICE HOLROYDE - THE HON MRS JUSTICE LAMBERT DBE - SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 ```